Background
In 2017, Towercast complained to the French Competition Authority that the TDF group had abused its dominant position in the wholesale market for digital terrestrial television broadcasting by acquiring sole control of Itas Tim in October 2016. The Authority’s investigating service alleged that the transaction violated Article L. 420-2 of the French Commercial Code and Article 102 of the Treaty on the Functioning of the European Union.
In January 2020, the Authority found that the alleged abuse had not been established and closed the proceeding. Towercast appealed. The Paris Court of Appeal annulled the Authority’s decision in June 2024 but concluded that the record was insufficient to decide the notified allegation. It sent the matter to the Authority for additional investigation into matters including market development, actual and potential competition, infrastructure, market shares, and the parties’ performance.
In a December 2024 interpretive judgment, the Court of Appeal clarified that it had retained jurisdiction over the merits and had referred the case to the Authority only to conduct the additional investigation. The president of the Competition Authority sought cassation, arguing that the court could not retain the case while directing the Authority’s investigating services to undertake an open-ended investigation.
The Court’s Holding
The Court of Cassation held that the appeal was admissible because the Paris Court of Appeal had exceeded its powers. Under Article L. 464-8 of the Commercial Code, once the Court of Appeal annuls an Authority decision, it must in principle decide the notified allegations on both the facts and the law. If evidence is lacking, it may order legally permissible evidentiary measures, including directing a party such as the Authority to provide information already in its possession.
But when the Court of Appeal considers itself unable to conduct the necessary additional investigation, it cannot retain jurisdiction while requiring the Authority to perform an investigation using powers and resources reserved to that independent agency under Articles L. 450-1 and following of the Commercial Code. It must relinquish the matter and return it to the Authority.
The Court therefore partially quashed the June 2024 judgment, while leaving intact its annulment of the Authority’s 2020 decision, and consequentially quashed the December 2024 interpretive judgment. Deciding the matter without remand, it ordered the Paris Court of Appeal to relinquish the case to the Competition Authority because the necessary new economic and legal analysis could be conducted only by that Authority.
Key Takeaways
- After annulling a Competition Authority decision, the Paris Court of Appeal ordinarily must decide the notified competition-law allegations on the facts and the law.
- The court may seek evidence or information through ordinary procedural measures, including information held by the Authority, but it cannot retain the merits while directing the Authority to conduct a new investigation requiring the agency’s statutory powers.
- If additional investigation can be performed only by the Competition Authority, the Court of Appeal must relinquish the case and return it to the Authority.
Why It Matters
The ruling draws a clear institutional boundary between judicial review and administrative competition enforcement. It preserves the Paris Court of Appeal’s power to decide a case following annulment while preventing it from supervising a new agency investigation without relinquishing jurisdiction.
The judgment does not decide whether TDF’s acquisition of Itas constituted an abuse of dominance. It instead returns that unresolved substantive issue to the Competition Authority for the further economic and legal investigation that the Court of Appeal found necessary.