Commercially and economically it is common sense

With Orange Foot, Orange offers its only subscribers the opportunity to see football matches which he has acquired the exclusive rights of retransmission. Commercially and economically, it is common sense. Legally also. Yet, a judgment of the tribunal de commerce of Paris was, on 23 February 2009, condemned the French firm, throwing doubt on the lawfulness of all offers in bouquet of operators "multiplay" passage On the basis of this strange conviction was a small text, article l. 122 - 1 of the consumer Code, prohibiting without nuances due to "make the provision of a service to another service or the purchase of a product. Competitors of Orange had invoked this provision so made defence to the operator to condition access to its ADSL Orange Sports chain the prior purchase of a subscription Internet Orange.

This commercial practice in their view, characterizing the offence of "tied selling" covered by the text, the competitive advantage resulting for Orange was constitutive of unfair competition, which they were entitled to claim for future termination, and compensation for the past. The commercial court had followed. For Orange, which, at the end of the call for tenders organised by the football league, had acquired for EUR 203 million per year broadcasting rights exclusive of games on the 2008-2012 period, it was an economic disaster; for the world of professional sport, it was the whole of the model on which is built the enhancement of the rights which collapsed.

On the merits, that judgment was struggling to convince. In addition to the unrealistic character, its logic was suffering from the same defects that wrong text forming the support. Article l. 122 - 1 of the Code of consumption is, indeed, very poorly written. His letter is much too large, the absolute prohibition of sales batch that can lead to absurd solutions, the ban of selling matches in a box rather than one by one... Parisian consular judges not be were however not moved this legislative defect and its obvious use by competitors of Orange.

Holding in record time, the Court of appeal of Paris has fortunately been good order. By a judgment of May 14, she comforted the lawfulness of the offer of Orange and adopted a new and economically more sound of article l. 122 - 1 reading. To achieve this, the Court has had that follow a decision of the ECJ of 23 April 2009 which had rightly considered that directive 2005/29/EC, standardizing at Community level the fight against unfair trade practices, "to oppose national rules ..." "which ... prohibited any joint offer made by a vendor to a consumer". It concluded that a practice of tying could be considered unfair on a case by case basis, if (and only if) it met conditions specifically laid down in General: characterize a breach of due diligence or commercial honesty and alter the behavior free and lucid an informed consumer.

In the case of Orange Sports, obviously, the first condition was missing: Orange does not violate the good faith using its costly investment in football to drain new customers to its global offering! The second condition is not met, the Court of Paris had all drawn solution.

However, no doubt, litigation bounce in the field of competition law. The practice of tied selling may constitute, under specific conditions, a case of abuse of dominant position. They are however not met, being added that competitive advantage exclusive to Orange for its investment in football encourages other operators to do better otherwise it to seduce, too, new customers!

Exclusive to this genus is virtuous: it causes the improvement of the quality of the services offered to consumers and, more broadly, to stimulate the market. In addition, the removal of this exclusivity would eviscerate any substance property law acquired at the end of a tender procedure competitively sound is. In the interest of all, better is that each improves its offer innovative rather than to get lost in bad trial.