Sorgem Evaluation assisted the claimants, SA DIGICEL Antilles Françaises Guyane, in a dispute against Orange SA and Orange Caraïbe SA.
The Court of Cassation’s judgement of 1 March makes Orange’s order to pay €181.5 million in damages to BTC/Digicel final. This ruling is one of the most significant private enforcement decisions in France.
The practices found to be unlawful consisted of an abuse of a dominant position by Orange and France Télécom. This practice hampered the development of BTC/Digicel and led to additional costs, notably through exclusivity clauses benefiting the sole authorised repairer and through a subscriber loyalty programme resulting in unfair price differentiation between on-net calls (to its own network) and off-net (to a rival network). This resulted in stagnation in BTC/Digicel’s market share, ‘contrary to the normal growth that a second entrant into a mobile telephony market would have been expected to achieve’. Sorgem had, moreover, demonstrated that, as soon as these practices ceased, market shares had increased and that this growth should normally have occurred earlier.
These practices were the subject of interim measures andinjunctions by the Competition Council, followed by a claim for compensation for the damage caused by the identified practices, which led the Paris Court of Appeal to order SA Orange Caraïbe and SA Orange jointly and severally to pay €181.5M to the claimants.
The Court of Cassation’s decision sheds light on several methodological issues and is of interest for a number of reasons: regarding causation, compensatory damages and the principle of adversarial proceedings in private expert reports.
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