The French Competition Authority fines EDF and several of its subsidiaries €300 million after a settlement procedure for abuse of dominant position
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The French electricity company EDF and several of its subsidiaries have been fined for having abusively used clients’ data acquired through its monopoly position for the sale of electricity at a regulated price to strengthen its position in the electricity sector opened to competition and other energy markets, in particular in relation to gas supply.
The special responsibility of dominant undertakings with a legal monopoly in the context of opening to competition
This case reminds us that a dominant undertaking with a legal monopoly may only enter markets opened to competition if it does not use the competitive advantages given by its monopoly which cannot be reproduced by new entrants at a reasonable cost and within an acceptable timeframe.
As a result, if an operator has a database that constitutes a non-replicable competitive advantage for its competitors due to its former monopoly or because of its public service missions, it must pay particular attention to the ways in which it uses that database.
The penalty imposed on EDF for having used client’s data to promote the marketing of its own gas supply offers and energy services
The French Competition Authority had previously fined EDF in December 2013 for among other practices, having used its clients’ database to promote the marketing of services in the photovoltaic solar power sector.
In the case at hand, the undertaking was fined for similar practices.
In the context of the liberalisation of the electricity sector, between 2004 and 2021 EDF used the client’s data and the commercial infrastructures dedicated to the management of the contracts on the monopoly market for the sale of electricity at regulated price to promote the marketing of its own gas market offers and energy services.
In accordance with its decision-making practice, the French Competition Authority ruled that these practices were abusive.
EDF did not contest this decision and requested the benefit of the settlement procedure. In addition, EDF offered commitments for a period of 3 years, with possible renewals consisting in making available its database for clients at the regulated price to alternative electricity suppliers and separating the subscription process for customers interested in offers at regulated price and customers interested in offers at market price.
The Authority imposed a fine of €300 million in light of the fact that EDF was a repeat offender, having already been fined for similar practices in 2013.
The full decision of the French Competition Authority is available here (in French)
For more information contact Thomas Oster and Claire Burlin.
