On 18 December 2017, the Paris Tribunal of Commerce condemned Orange (formerly known as 'France Telecom') to pay € 346 million to Digicel (formerly 'Bouygues Telecom Caraïbe'), in order to repair the injury caused by its anti-competitive behaviour.
Orange was previously found to have infringed French and EU competition rules in a decision of the French Competition Authority ("FCA") dated 9 December 2009. This decision concerned anticompetitive practices Orange implemented in the French West Indies and French Guyana when the mobile phone market was opened to competition in the year 2000. Orange then enjoyed a monopoly situation and put in place several practices to retain its customers. This decision was appealed to the Paris Court of Appeal and to the French Supreme Court twice, but was ultimately confirmed – with a reduction of the fine – on 6 January 2015.
Digicel initiated its claim for damages in 2012, but that was put on hold until the FCA decision was finally confirmed. Digicel argued that it was entitled under French law (i.e. then Article 1382 of the French Civil Code) to claim damages since it could prove (i) a fault, (ii) an injury, and (iii) a causal link between the fault and the injury. Digiciel alleged that the injury it suffered amounted to € 594 million.
The Paris Tribunal of Commerce stated that breaches of competition rules are to be considered as "fault" for the purpose of Article 1382 of the French Civil Code. It awarded Digicel € 179.94 million on the ground that it demonstrated an injury caused by Orange's abusive fidelity practices. The Tribunal simply stated that the methodology and evaluation used by the claimant for defining this particular injury were "rational" and "coherent". The amount of the reparable injury was finally raised to € 346 million after the Tribunal brought the sum due up to date by applying an annual interest rate of 10.4% calculated since 10 March 2009.
Orange immediately announced its intention to appeal this judgement of the Paris Tribunal of Commerce. It is interesting to compare this judgement with another judgement from the Paris Tribunal of Commerce dated 16 March 2015, in which 'Outre Mer Telecom' – a competitor of Orange in the French West Indies and French Guyana – applied for damages on the same grounds as Digicel. While the complainant was awarded € 8 million at the first instance level, this sum was reduced by the Paris Court of Appeal in its judgement dated 10 May 2017, to € 2.6 million plus interest.
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