I INTRODUCTION

French competition law is codified in Book IV of the French Commercial Code (FCC). It is largely similar in substance to EU competition law, which directly applies in cases that may affect trade between EU Member States. The most important French antitrust provisions are Articles L420-1 and L420-2 of the FCC, which are the domestic equivalents of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) respectively. There is no domestic legal or statutory provision dealing specifically with the interplay between intellectual property (IP) law and competition law. As a result, the rules applicable in this domain are largely based on European and French case law.

II YEAR IN REVIEW

Over recent years, the main developments affecting the interplay between IP and antitrust laws have occurred at the European level, with the General Court's first rulings on 'pay-for-delay' agreements.2 After the expiry of its patent for a medical molecule used in antidepressant medicines, Lundbeck concluded agreements with different companies active in the sale of generic medicinal products. Under these agreements, the generic companies would stay out of the market, in exchange for different kinds of monetary and commercial consideration. The Commission considered these agreements as restrictive by their object and sanctioned both Lundbeck and the generic companies.3 Lundbeck and the generic companies lodged a total of six appeals against the Commission decision. The General Court endorsed the Commission's view that Lundbeck and the generic companies were potential competitors when the agreements were concluded. It therefore ruled that the Commission was entitled to find that the agreements were restrictive by their object. Appeals are still pending before the Court of Justice of the European Union (CJEU). More recently, in a similar case, the General Court confirmed the Commission's decision4 to impose fines on the French pharmaceutical company Servier and a number of producers of generic medicines for concluding a series of deals aimed at protecting Servier's best-selling blood pressure medicine from competition by generics in the European Union. The General Court approved the Commission's view that the generic companies were potential competitors of Servier at the time of the agreements and that the patent settlement agreements concluded between Servier and those companies constituted market exclusion agreements restrictive of competition by object.5

Past years have also seen a significant uptake in litigation involving standard-essential patents (SEPs). These cases have been brought in the wake of the Huawei v. ZTE decision of the CJEU, which laid down a road map for SEP owners and implementers of standards.6 On 29 November 2017, the Commission also published a Communication entitled 'Setting out the EU approach to Standard Essential Patents', aimed at offering guidance and recommendations in relation to the licensing, valuation and enforcement of SEPs.

After a period without significant litigation in this space, multiple lawsuits have been brought by SEP owners, including in France. Many of the cases ask the French courts to take positions on matters of principle turning around the substantive definition of the way to determine fair, reasonable and non-discriminatory (FRAND) terms and conditions; for the time being, these cases have settled, or courts have found that the conditions for the setting of FRAND terms were not met.

III LICENSING AND ANTITRUST

i Anticompetitive restraints

Under French law, anticompetitive restraints imposed in the context of licensing agreements fall under either Article L420-1 or Article L420-2 of the FCC or under the corresponding EU provisions, respectively Article 101 and Article 102 of the TFEU. This includes, inter alia, non-compete obligations, resale price maintenance, market and customer allocation. In addition, Regulations No. 330/2010 (block exemption regulation applicable to vertical restraints), No. 316/2014 (technology transfer block exemption), No. 1218/2010 (specialisation agreements) and No. 1217/2010 (research and development agreements) are directly enforceable where EU competition law applies, and the positions taken in the set of guidelines7 published by the European Commission may be relied on by the French Competition Authority (FCA) and the courts in their assessment.

Anticompetitive restraints in the context of licensing agreements may take several forms, such as abusive tying. In the audiovisual broadcasting rights sector, the FCA has found that Canal Plus, a provider of pay-TV services, abused its dominant position by subjecting its pre-purchase of exclusive broadcasting rights for French films to the producers' commitment not to transfer the broadcasting rights for pay-per-view during Canal Plus's exclusivity period.8 The French Supreme Court upheld this decision.9

Furthermore, resale price maintenance is prohibited by Article L420-1 of the FCC and its EU equivalent, Article 101 of the TFEU. This rule applies to distribution agreements involving products or services protected by IP rights.

ii Refusals to license

Although French law does not make any specific provision on the refusal to license, it may be considered an abuse of dominant position under Article L420-2 of the FCC and its EU equivalent, Article 102 of the TFEU.

In an opinion10 relying on Magill,11 the FCA considered that an IP right could be considered an essential facility. The FCA went on to find that a software could be an essential facility. This would not be the case, however, where (1) the undertaking requesting to be granted access operates without the software, or (2) if equivalent software could be developed under reasonable economic conditions. The FCA12 and the Paris Court of Appeal13 consider that the price at which access is granted to the essential facility must be oriented towards costs, regardless of whether the essential facility is protected by IP rights.

In the sector of supply of teaching materials to driving schools, the FCA found that an undertaking owning IP rights on certain materials, for which it was the exclusive provider to the government, abused its dominant position by using these IP rights on a commercial basis while refusing to license them to its competitors.14

More recently, the FCA accepted commitments from Nespresso to remove certain barriers to entry to the market for coffee capsules. The FCA found that Nespresso engaged in technical curtailing of the interoperability between its coffee machines and its competitors' coffee capsules, and that it gave customers legal and commercial incentives to use Nespresso coffee capsules exclusively.15 This decision was handed down against the background of ongoing patent litigation between Nespresso and manufacturers of compatible capsules, and the behaviour at stake involved both technical aspects (redesigns of the coffee machines that had the effect of making the entry of competing capsules more difficult) and patent strategies.

iii Unfair and discriminatory licensing

Unfair or discriminatory licensing may fall under either Article L420-1 or L420-2 of the FCC and their EU equivalents, Articles 101 and 102 of the TFEU. The FCA recently held that ongoing IP litigation with regard to certain rights cannot justify abusive discrimination on the part of a dominant undertaking. As a result, the FCA considered that a dominant undertaking abused its position by refusing to license its leading database to laboratories using the software manufactured by a specific company, while it simultaneously agreed to license the database to laboratories using the software manufactured by competitors.16 This decision was upheld by the Paris Court of Appeal as well as by the French Supreme Court.17 It is noteworthy, however, that the Supreme Court found that the abuse was established because the refusals to license were part of a broader policy and did not only concern the company with which an IP dispute was ongoing; it left open the possibility that the existence of such an IP dispute could justify a refusal to license in a specific case, as it may constitute, depending on the circumstances, 'a legitimate defence [of the IP right owner's] rights'.

In addition, it is established FCA practice to consider that premium TV broadcasting rights for certain sports are likely to generate many subscriptions. Commercialisation of these rights must comply with FRAND terms, and be of a limited duration. The FCA recently held that broadcasting rights for the Top 14 rugby competition qualified as premium. It then ordered the French National Rugby League and Canal Plus to suspend an agreement granting Canal Plus exclusive broadcasting rights for the Top 14 games for a period of five years. The FCA also ordered the National Rugby League to reattribute TV rights on FRAND terms.18 This decision was essentially upheld by the Paris Court of Appeal.19 However, the FCA does not easily concede the unfair nature of the attribution of TV rights. It recently rejected a complaint by Ma Chaîne Sport, which argued that the attribution of certain allegedly semi-premium TV rights by the National Rugby League to certain entities was the result of an anticompetitive agreement, and that the attribution process was discriminatory. The FCA considered that the evidence brought forward by the applicant was insufficient to establish that the defendant's conduct was anticompetitive.20

Finally, in an opinion,21 the FCA took the view that an undertaking could not use an IP right to justify engaging in a margin squeeze that would result in private operators not being able to market, at an economically reasonable price, specific products for which a demand exists.

iv Patent pooling

Patent pooling may have as its object or effect the restriction of competition, and may therefore fall under Article L420-1 of the FCC or Article 101 of the TFEU, or both. In a thematic study published in 2004, the FCA recognised that cross-licensing between competitors gives the undertakings concerned an opportunity to collude by partitioning the market between them or by engaging in price-fixing. However, the FCA has also considered that such agreements may be pro-competitive under certain conditions, which include, for instance, situations where the cross-licensed technologies are complementary.22 Although this position is not binding and should not be construed as a statement of the law applicable to patent pooling, it nonetheless provides guidance on how the FCA could approach the issue in a dispute.

v Software licensing

As highlighted in Section III.ii, concerning refusal to license, software may be considered an essential facility by the FCA or by French courts. This question was addressed extensively in a series of judgments and decisions involving the Nouvelles Messageries de Presse Parisienne (NMPP). The FCA ordered NMPP to set up a connection between its software and Messageries Lyonnaises de Presse's (MLP) on two grounds: (1) there were doubts as to whether the software could be reproduced, and (2) the lack of access to the software could jeopardise MLP's activities.23 The Paris Court of Appeal dismissed the appeal,24 but its judgment was overturned by the French Supreme Court. The Supreme Court held that the Court of Appeal failed to establish whether alternative and economically reasonable solutions, even less advantageous than those of NMPP, could be used by MLP.25 The case was remanded back to the Paris Court of Appeal, which rejected the request for interim measures. The Court of Appeal found that, in the absence of the connection between the software, the data contained in NMPP's software could be manually entered into MLP's software. In addition, NMPP's software could be reproduced at a not-unreasonable cost, and MLP could set up its own distribution network.26 The French Supreme Court dismissed the appeal filed against that judgment.27 The case nonetheless continued on its merits, and the FCA eventually accepted commitments from NMPP, which granted MLP the requested access in exchange for its contribution to the development, exploitation and access costs.28

More recently, the FCA found that conduct by Oracle could amount to an abuse of dominance. This conduct consisted of refusing to develop new versions of its relational database management system on certain Intel processors and, as a result, on certain Hewlett-Packard servers.29

vi Trademark licensing

With regard to import control, Article L713-4 of the French Code of Intellectual Property provides that '[t]he right conferred by a mark shall not entitle an owner to prohibit its use in relation to goods which have been put on the [single] market . . . under that mark by the proprietor or with his consent. However, the owner shall continue to have the faculty of opposing any further act of marketing if he can show legitimate reasons, especially where the condition of the goods has been subsequently changed or impaired'. In this context, the French Supreme Court held that the grey-market commercialisation of products, usually distributed through a selective distribution network, does not constitute a legitimate reason to oppose acts of marketing.30

IV STANDARD-ESSENTIAL PATENTS

i Dominance

To the best of our knowledge there is no domestic case law explicitly addressing the issue of whether SEPs confer a dominant position on their owner. It is, however, to be noted that, in first instance PI proceedings, the president of the Paris First Instance Court accepted that the owner of a number of SEPs must be bound by the FRAND undertaking given to the standard-setting organisation.31 The reasoning of the Court does not appear to be based on contract law, but instead on public policy considerations; arguably, thus, despite the issue not being explicitly decided, the court appears to have assumed the existence of a dominant position.

Recently, the Paris Court of Appeal held that the counterclaims for antitrust violations, raised by the defendant against whom alleged SEPs were asserted, fail in the absence of a dominant position because none of the asserted patents were, in fact, essential; therefore, there is no dominance.32 It does not seem to have been argued, however, that the mere assertion of a patent as an SEP would, until such time when it is found not to be essential, in itself confer a dominant position; whether a court would entertain such a theory remains open.

Of note, in the catalogue publishing sector, for stamp-collection valuation, the FCA considered that a company that had been active on the market for more than a century was so well known that its numbering system amounted to a de facto standard for the valuation and trade of stamps. In particular, the 'standard-like' character of the company's numbering system was considered 'a significant element of Yvert's supremacy on the market'. As a result, its refusal to license its numbering system to competitors could amount to an abuse of dominant position. Indeed, the refusal prevented the development of certain new products for which a demand potentially existed, as well as the competitive development of new valuation catalogues.33

ii Injunctions

Before the CJEU Huawei v. ZTE decision, there had been a string of decisions by French courts issuing injunctions against implementers of SEPs.

There are two precedents where the court, ruling on the merits, issued such injunctions.34 In both cases, the court explicitly noted that licences – which seem to have been on standard terms – were made available by the patentee. In TX Western Europe and Africa, the Court stated that 'it is undisputable that Philips offers SEP licences to any manufacturer or distributor of the products' at stake. In the Sisvel v. Z case, the Court stated that the defendant, 'which imports products which have been manufactured by a company who did not seek a licence from Sisvel, committed acts of infringement'.

In another case, an injunction was sought and was refused merely because the patent had expired during the course of the litigation.35 However, the Paris First Instance Court stated that: 'in accordance with the ISO patent policy, Philips, which was at the time the owner of the patent application on which the MPEG Audio patents are based, filed a patent statement and declaration form with the ISO, it being noted that such a statement is required when it appears that the solution embodied in the envisaged standard is covered by patent rights'.

While there are also precedents for the Court dismissing the request for an injunction, those refusals were not related to the FRAND obligation. Instead, the decisions resulted from findings of non-infringement36 or of invalidity.37 In one case, an injunction was sought, but it was not granted although the Court confirmed the infringement by the former SEP licensee whose licence had been terminated for non-compliance with its obligations. In this case, the claim for injunction was dismissed because the infringer was being wound up in the framework of insolvency proceedings, such that it could not trade any more, which made, in the opinion of the Court, the claims for injunction moot.38

With respect to the MPEG Audio patents licensed by Sisvel, there were a number of preliminary injunctions issued against a wide range of importers and resellers of products;39 some of those preliminary injunctions were confirmed on appeal, and one of them was even upheld by the French Supreme Court.40

This long string of cases therefore confirms that injunctions can be available in France on the basis of SEPs. It is, however, important to note that (1) these decisions predate the CJEU Huawei v. ZTE ruling, and even the opening of investigations by the EU Commission against Samsung and Motorola, and (2) they were almost all rendered in the context of a licensing programme that had been very successful, with more than 1,000 companies having accepted publicly available licensing terms, such that their FRAND nature had, arguably, been extensively confirmed by the market. In contrast, in Samsung v. Apple,41 the president of the Paris First Instance Court found that, in the circumstances of the matter, the seeking of a preliminary injunction was 'disproportionate'; she further considered that the determination of FRAND terms was too complex for preliminary injunction proceedings, thus suggesting that any case implying such a determination42 would need to be brought in main proceedings.

There is, to our knowledge, no post-Huawei v. ZTE case in France applying the road map defined by the CJEU. Multiple cases are pending, however, and additional case law should develop over the coming months.

iii Licensing under FRAND terms

There has been very little French case law addressing the substance of what FRAND terms are. However, in Samsung v. Apple,43 the judge referred to the fact that the determination of a FRAND rate would imply (1) some degree of patent counting to assess the importance of the patentee's portfolio against the standard overall, and (2) taking into account the overall stack of royalties payable for all standards implemented by the particular product.

In the same decision, the judge also appeared to consider that FRAND licences must be truly irrevocable, and – in a provisional assessment given that the case was brought in preliminary injunction proceedings – that defensive termination clauses may not be permissible.

In a very recent case, the Paris Court of Appeal was asked by both the patentee – Conversant, formerly Core Wireless – and the standard implementer – LG Electronics – to set FRAND terms for the patentee's portfolio.44 At first instance,45 the Court had found that none of the five asserted patents was, in fact, essential, and dismissed both parties' claims for a FRAND determination, ruling that claim moot in the absence of an actual essential patent. On appeal, the Court essentially confirmed that finding, despite both parties' explicit request for a FRAND determination even if none of the actually asserted patents is essential. A further appeal to the Supreme Court remains possible. In addition, the Court's decision might have been different if the implementer had accepted that it needs to pay something, which the implementer refused to do in this case.46

In the same Conversant v. LG dispute, the defendant made repeated pretrial requests for the production of previous licences that the patentee had entered into. That request was initially dismissed by the Court of Appeal, which found that these documents may or may not become relevant 'depending on the methodology for calculating the [FRAND] rate, which is disputed by the parties and will have to be determined by the Court'.47 However, a later order, rendered after French law was changed to allow for confidentiality measures, decided that prior agreements entered into by the patentee need to be provided if the lawsuit is about the setting of FRAND terms; on the other hand, the Court also decided that prior licence agreements of the implementer, concerning other patent portfolios pertaining to the same standard, are not relevant for the FRAND determination and need not be provided.48

iv Anticompetitive or exclusionary royalties

In one case,49 the Paris First Instance Court, ruling in summary proceedings, accepted that a change of licensing terms, which made them more onerous to the licensee, could possibly amount to an abuse of a dominant position. The possibility that such an abuse might exist led the Court to refuse to issue an injunction. The Court noted that:

The refusal to supply the [music] catalogue unless the terms of Universal Music France were accepted, terms which are different from the terms included in the previous agreements and so in breach of the commitments taken during the agreement of January 2011, constitutes on its own an abuse of a dominant position since the refusal covers a product which is objectively necessary to exercise an efficient competition on the market; that the refusal is susceptible to lead to the elimination of an efficient competition on the market; and finally the refusal is susceptible to harm the consumer. . . .
As a consequence, Blogmusik has sufficiently established in summary proceedings the possibility that Universal Music France might have committed an abuse of a dominant position which results in preventing it from claiming injunction measures based on an alleged copyright since no obvious unlawful harm can be alleged any more.

V INTELLECTUAL PROPERTY AND MERGERS

i Transfer of IP rights constituting a merger

Under French merger control law, acquisition of control over IP rights may constitute a merger provided that the rights 'constitute an activity that results in a presence on a market, to which a turnover can unambiguously be attached'.50 Such was the case, for instance, when the FCA reviewed the acquisition by Sara Lee of certain brands and industrial equipment from Benckiser.51

ii Remedies involving divestitures of intellectual property

The FCA has already accepted remedies involving divestiture of IP. In 2012, in the context of the acquisition of certain television channels, Groupe Canal Plus had to commit to divest its free-to-air broadcasting rights for important sporting events.52 This decision was later set aside for unrelated reasons, and the transaction had to be notified again. However, this commitment remained unchanged.53 More recently, the FCA authorised the acquisition of Alsa by Dr Oetker (Ancel) by approving a commitment that addressed competition issues in advance ('fix-it-first' commitment), by granting a credible market player a licence for the Ancel brand.54

VI OTHER ABUSES

i Sham or vexatious IP litigation

As a rule, sham of vexatious IP litigation is sanctioned through an award of legal costs and, possibly, by civil damages for abusive litigation.55 It is, however, worth mentioning a decision of the Paris First Instance Court of 26 January 2005,56 in which the alleged infringer counterclaimed for nullity of the asserted patent, for abuse of proceedings, but also for abuse of a dominant position. Each of these counterclaims was dealt with separately by the Court, which declared the asserted patents invalid and ordered the patent holder to pay the defendant €750,000 as damages for abuse of proceedings. The Court held that 'launching actions on the basis of “illusions of claims” against a competitor is to be seen as an abuse of the right to sue. In the present case, the abuse is compounded by the fact that Luk Lamellen relies, against Valéo, on claims that have been modified to reflect Valéo's new technology and to paralyse the development of such technology'. The Court did not stop there and, after reviewing the counterclaim for abuse of a dominant position, which was based on the allegation that the plaintiff had implemented an abusive strategy of patent filing, of systematic disparagement of competitors and of abusive litigation, referred the matter to the FCA for it to investigate the issues. The FCA rendered an opinion57 finding the patentee to be in a dominant position, but it seems that the litigation stopped there.

ii Misuse of the patent process

In the Luk Lamellen v. Valéo case referred to above,58 one of the concerns of the Court with the patentee's behaviour resulted from the change in the wording of the claims of the asserted patents so as to make them match the products of the defendant. However, while that was found to be a possible element of an abuse in the particular circumstances of the case, those circumstances – lack of merit of the patent assertions, invalidity of the patents – played a very significant role in the finding of the Court. In many other cases, similar behaviour was not found problematic.

It is also noteworthy that the Nespresso case partly involved a sophisticated patent acquisition strategy,59 which formed part of the behaviour scrutinised by the FCA.

iii Anticompetitive settlements of IP disputes

IP dispute-settlement agreements may be found anticompetitive under Article L420-1 or Article L420-2 of the FCC or under EU law, or both, if they have an anticompetitive object or are liable to have anticompetitive effects. In an opinion published in 2013, the FCA discussed the enforcement actions carried out in this domain at the European level and in the United States. The FCA noted that the 'rule of reason' approach adopted in this context by the US Supreme Court is based, among other things, on a regulatory context very different from what exists in Europe and in France. Although this should not be construed as an official statement of the law applicable to pay-for-delay agreements, it could suggest that the FCA would adopt the same position as the European Commission and the General Court, which both considered that these agreements have a restrictive object.60

VII OUTLOOK AND CONCLUSIONS

Many questions that have been addressed at the European level or in other Member States have yet to be tackled under domestic law. It would not be unreasonable to expect the FCA and the French jurisdictions to draw inspiration from the recent findings made by the European Commission and the European courts; in particular, in the pharmaceutical sector. Certain high-profile cases are still pending in French jurisdictions. In addition, a number of cases involving SEPs are currently pending, and some of these will require French courts to opine on the principles underpinning the determination of FRAND terms.


Footnotes

1 David Por and Florence Ninane are partners at Allen & Overy LLP.

2 General Court, 8 September 2016, inter alia, T-460/13, Sun Pharmaceuticals Industries Ltd and Ranbaxy Ltd v. Commission and T-472/13, H Lundbeck A/S and H Lundbeck Ltd v. Commission.

3 Commission Decision C(2013) 3803 final of 19 June 2013 relating to a proceeding under Article 101 of the TFEU and Article 53 of the EEA Agreement (Case AT.39226, Lundbeck).

4 Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 of the TFEU (Case AT 39612, Perindopril Servier).

5 General Court, 12 December 2018, T-679/14, Biogaran v. European Commission; T-679/14, Teva UK and others v. European Commission; T-680/14, Lupin v. European Commission; T-682/14, Mylan Laboratories and Mylan v. European Commission; T-701/14, Niche Generics v. European Commission; T-705/14, Unichem Laboratories v. European Commission; and T-691/14, Servier and others v. European Commission. However, the General Court annulled the fine imposed by the Commission on Servier on the grounds of Article 102 of the TFEU as it considered that the Commission made a series of errors in defining the relevant market. In T-684/14, Krka v. European Commission, the General Court considered that the existence of an inducement by Servier in exchange for Krka's withdrawal from the market was not established and therefore annulled the fine imposed on Servier and Krka in respect of that agreement.

6 CJEU, 15 July 2015, C-170/13, Huawei v. ZTE.

7 These guidelines include, for example, the Guidelines on Vertical Restraints (OJ C130/01 of 19 May 2010) and the Guidelines on the application of Article 101(3) TFEU (OJ C101 of 27 April 2004).

8 FCA, Decision 98-D-70 of 23 November 1998 concerning a complaint filed by Multivision and Télévision Par Satellite in the audiovisual broadcasting rights sector.

9 French Supreme Court, judgment of 30 May 2000, No. 00-17.038.

10 FCA, Opinion 02-A-08 of 22 May 2002, concerning the request lodged by the Association for the Promotion of Press Distribution.

11 CJEU, judgment of 6 April 1995, C-241/91 P and C-242/91 P, Magill.

12 FCA, Decision 04-D-34 of 22 July 2004, concerning the execution of Article 1(1) of decision 03-MC-04 of 22 December 2003.

13 Paris Court of Appeal, judgment of 29 June 1999, No. 1999/01269.

14 FCA, Decision 04-D-09 of 31 March 2004 concerning certain practices by Codes Rousseau in the sector of teaching material for driving schools.

15 FCA, Decision 14-D-09 of 4 September 2014 concerning practices engaged in by Nestlé, Nestec, Nestlé Nespresso, Nespresso France and Nestlé Entreprise in the espresso coffee machines sector.

16 FCA, Decision 14-D-06 of 8 July 2014 regarding certain practices by Cegedim in the medical information databases sector.

17 Paris Court of Appeal, judgment of 24 September 2015, No. 2014/17586. Court of Cassation, Commercial Chamber, 21 June 2017, No. 15-25.941.

18 FCA, Decision 14-MC-01 of 30 July 2014, concerning beIN Sports France's request for interim measures in the pay-TV sector.

19 Paris Court of Appeal, judgment of 9 October 2014, Nos. 2014/16759 and 2014/17031.

20 FCA, Decision 16-D-04 of 23 March 2016 concerning certain practices in the context of the commercialisation of audiovisual rights for the Pro D2 French rugby championship.

21 FCA, Opinion 01-A-18 of 28 December 2001 concerning certain practices by INSEE in relation to the conditions of commercialisation of information from the SIRENE database.

22 FCA, 2004 Annual Report, Thematic Study, pp. 124 and 125.

23 FCA, Decision 03-MC-04 of 22 December 2003 concerning MLP's request for interim measures.

24 Paris Court of Appeal, judgment of 12 February 2004, No. CT0175.

25 French Supreme Court, judgment of 12 July 2005, No. 04-12.388.

26 Paris Court of Appeal, judgment of 31 January 2006, No. 2005/14782.

27 French Supreme Court, judgment of 20 February 2007, No. 06-12.424.

28 FCA, Decision 08-D-04 of 25 February 2008 concerning certain practices by NMPP.

29 FCA, Decision 12-D-01 of 10 January 2012 concerning a request for interim measures in relation to certain practices by Oracle Corporation and Oracle France.

30 French Supreme Court, judgment of 23 March 2010, No. 09-66522.

31 Paris First Instance Court (PI proceedings), judgment of 8 December 2011, Samsung v. Apple, No. 11/58301.

32 Paris Court of Appeal, 16 April 2019, Conversant v. LG.

33 FCA, Decision 05-D-25 of 31 May 2005 concerning certain practices by Yvert et Tellier on the market for stamp-valuation catalogues.

34 Paris First Instance Court, Sisvel, France Telecom, TDF, Audio MPEG, Institut für Rundfunktechnik GmbH and Philips Electronics NV v. M Amar Zafrane, 9 September 2008; Paris First Instance Court, Koninklijke Philips Electronics NV v. TX Western Europe and Africa and CDVD SL, 23 July 2011.

35 Paris First Instance Court, Sisvel, France Telecom, TDF, Audio MPEG, Institut für Rundfunktechnik GmbH and Philips Electronics NV v. Leroy Merlin, 20 October 2011.

36 Paris Court of Appeal, LUPA Finances v. Motorola, Nokia and Ericsson, 14 April 1999 and 23 October 2002.

37 Paris First Instance Court, Melco & MMCE v. CP8, 9 March 2007.

38 Paris First Instance Court, Koninklijke Philips Electronics NV v. Maître Anny H ès qualités de liquidateur de la Société Manufacturing Advanced Media Europe, 14 September 2007.

39 President of the Paris First Instance Court, Sisvel, France Telecom, TDF, Audio MPEG, Institut für Rundfunktechnik GmbH and Philips Electronics NV v. Carrefour, 1 February 2011; Paris Court of Appeal, Sisvel, France Telecom, TDF, Audio MPEG, Institut für Rundfunktechnik GmbH and Philips Electronics NV v. Carrefour, 27 April 2011; President of the Paris First Instance Court, Sisvel, France Telecom, TDF, Audio MPEG, Institut für Rundfunktechnik GmbH and Philips Electronics NV v. Electro Depot, 28 June 2011; Paris First Instance Court, Sisvel, France Telecom, TDF, Koninklijke Philips Electronics, Institut für Rundfunktechnik, Audio MPEG Inc v. Lema SAS, 8 April 2010; Paris First Instance Court, Sisvel, France Telecom, TDF, Koninklijke Philips Electronics, Institut für Rundfunktechnik, Audio MPEG Inc v. Demsa SAS, 8 April 2010; Paris First Instance Court, Sisvel, France Telecom, TDF, Koninklijke Philips Electronics, Institut für Rundfunktechnik, Audio MPEG Inc v. DIECI SA and DAT SARL, 28 May 2010; and Paris First Instance Court, Sisvel, France Telecom, TDF, Koninklijke Philips Electronics, Institut für Rundfunktechnik, Audio MPEG Inc v. DAG Import and ID Com, 4 June 2010.

40 Court of Cassation, Commercial Chamber, 21 October 2014, No. 13-15.435.

41 Paris First Instance Court (PI proceedings), judgment of 8 December 2011, Samsung v. Apple, No. 11/58301.

42 For example, because the terms offered have not gained wide market acceptance.

43 See footnote 41.

44 Paris Court of Appeal, 16 April 2019, Conversant v. LG.

45 Paris First Instance Court, 17 April 2015, Core Wireless v. LG.

46 LG was seeking the determination of a rate per patent family that is actually essential, valid and not exhausted, without accepting that there is any such family. The Court, having found that there was no proof of such a family existing, could arguably conclude therefrom that the claim was moot.

47 Paris Court of Appeal, 17 January 2017, Core Wireless v. LG.

48 Paris Court of Appeal, pretrial order of 9 October 2018, Conversant v. LG.

49 President of the Paris First Instance Court, Universal v. Blogmusik, 5 September 2011.

50 FCA's Merger Control Guidelines, Paragraph 19.

51 FCA, Opinion 00-A-07 of 28 March 2000 concerning the acquisition by the Sara Lee group of certain assets belonging to the Benckiser group.

52 FCA, Decision 12-DCC-101 of 23 July 2012 concerning the acquisition by Vivendi and Groupe Canal Plus of sole control over Direct 8, Direct Star, Direct Productions, Direct Digital and Bolloré Intermédia.

53 FCA, Decision 14-DCC-50 of 2 April 2014 concerning the acquisition by Vivendi and Groupe Canal Plus of sole control over Direct 8, Direct Star, Direct Productions, Direct Digital and Bolloré Intermédia. See also the letter from the Minister for Economic Affairs, Finance and Industry of 30 August 2006, to Vivendi Universal's counsel concerning a merger in the pay-TV sector (Case C2006-02).

54 FCA, Decision 19-DCC-15 of 29 January 2019 concerning the acquisition by Dr Oetker of sole control over Alsa France SAS.

55 Abusive litigation constitutes a civil tort in general.

56 Paris First Instance Court, Luk Lamellen v. Valéo, 26 January 2005, Docket No. 00/16758.

57 FCA, Opinion 05-A-20 of 9 November 2005 concerning a request by the Paris First Instance Court concerning a dispute between Luk Lamellen and Valéo.

58 See footnote 56.

59 See footnote 15.

60 Inter alia, General Court, 8 September 2016, T-472/13, H Lundbeck A/S and Lundbeck Ltd v. European Commission; General Court, 12 December 2018, T-679/14, Biogaran v. European Commission; T-679/14, Teva UK and others v. European Commission; T-680/14, Lupin v. European Commission; T-682/14, Mylan Laboratories and Mylan v. European Commission; T-684/14, Krka v. European Commission; T-701/14, Niche Generics v. European Commission; T-705/14, Unichem Laboratories v. European Commission; and T-691/14, Servier and others v. European Commission.