The Intellectual Property and Antitrust Review: France

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.

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, Lundbeck concluded agreements with different companies active in the sale of generic medicinal products under which the generic companies would stay out of the market, in exchange for different kinds of monetary and commercial consideration. The General Court endorsed the Commission's view that Lundbeck and the generic companies were potential competitors and therefore ruled that the Commission was entitled to find that the agreements were restrictive by their object. The Court of Justice of the European Union (CJEU) rejected the appeals brought against the General Court decisions.3 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 considering that the generic companies were potential competitors of Servier at the time of the agreements and that the agreements constituted market exclusion agreements restrictive of competition by object.5 Appeals are currently pending before the CJEU. The CJEU issued a preliminary ruling referred to by the UK Court following a decision of the UK Competition and Markets Authority holding that agreements between GlaxoSmithKline and generic manufacturers infringed competition law.6 The CJEU has responded to 10 preliminary questions providing a guidance on the analysis of such agreements, which aim to be fact-specific. Finally, the Commission fined Teva and Cephalon for agreeing to delay the market entry of a generic drug, finding that the agreement eliminated Teva as a competitor and allowed Cephalon to maintain high prices to the detriment of patients and healthcare system.7 An appeal is currently pending before the General Court.

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.8 French courts, similar to others, have at times been hesitant about directly ruling on whether specific offered terms are in fact fair, reasonable, and non-discriminatory (FRAND), or what constitute FRAND terms in a specific setting. Very recently, they have however reopened the door for such determinations.

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 guidelines9 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.10 The French Supreme Court upheld this decision.11

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 opinion12 relying on Magill,13 the FCA considered that an IP right could be considered an essential facility. The FCA went on to find that 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. However, on 25 March 2021, in cases No. 14 and the Paris Court of Appeal15 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.

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.16

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.17 This decision was upheld by the Paris Court of Appeal as well as by the French Supreme Court.18 However, the Supreme Court found that the abuse was established because the refusals to license were part of a broader policy; 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 'a legitimate defence [of the IP right owner's] rights'.

In addition, the FCA recently 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 re-attribute TV rights on FRAND terms.19 This decision was essentially upheld by the Paris Court of Appeal.20

Furthermore, 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.

Finally, in a decision on 9 April 2020, the FCA ordered interim measures against Google, considering that Google's free licensing policy with press publishers and agencies may constitute a circumvention of the law of 24 July 2019, which transposed into French law the Directive 2019/790 on copyright and related rights,22 as well as unfair trading practices and a possible discrimination between press publishers. This decision was upheld by the Paris Court of Appeal, allowing news agencies and press publishers to enter into negotiations with Google to discuss the terms and conditions of the reuse and display of their content, as well as the remuneration that may be associated with it.23

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.24 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. The Commission's guidelines on the application of Article 101 of the TFEU to technology transfer agreements also outline that patent pooling cannot benefit from an automatic exemption under the Regulation No. 316/2014 and set out cumulative conditions for the agreements not to be considered as anticompetitive.25

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).26 The Paris Court of Appeal dismissed the appeal,27 but its judgment was overturned by the French Supreme Court considering 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.28 The case was remanded back to the Paris Court of Appeal, which rejected the request for interim measures finding 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.29 The French Supreme Court dismissed the appeal filed against that judgment.30 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.31

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.32

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.33

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. However, 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.34 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.35 It does not seem to have been argued, however, that the mere assertion of a patent as a SEP would in itself confer a dominant position; whether a court would entertain such a theory remains open.

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.36 In both cases, the Court explicitly noted that licences, which seem to have been on standard terms, were made available by the patentee. In another case, an injunction was sought and was refused merely because the patent had expired during the course of the litigation.37 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-infringement,38 of invalidity,39 or for other reasons such that the infringer could not trade any more, which made the claims for injunction moot.40

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;41 some of those preliminary injunctions were confirmed on appeal, and one of them was even upheld by the French Supreme Court.42

In contrast, in Samsung v. Apple,43 the president of the Paris First Instance Court found that, in the circumstances of the matter, the seeking of a preliminary injunction was 'disproportionate'; and that the determination of FRAND terms was too complex for PI proceedings, thus suggesting that any case implying such a determination44 would need to be brought in main proceedings. Courts have also highlighted that the issuance of a PI would disturb the FRAND negotiations and give one of the parties too much of an advantage.45 This has culminated in the very recent decisions in IPCom v. Lenovo and Xiaomi,46 where the court found that it needs to take into account the irreparable harm that would result from the issuance or refusal of the PI for each of the claimant and defendant; on that basis, the court refused to issue PIs. Although the court's findings remain fact-specific, the criteria that it developed and the way in which these criteria were applied to the cases presented, strongly suggest that PIs would only be available in very specific cases, whose circumstances set them aside from habitual disputes in the field.

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,47 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 a recent case, the Paris Court of Appeal was asked by both the patentee and the standard implementer to set FRAND terms for the patentee's portfolio.48 At first instance,49 the Court had found that none of the five asserted patents was, in fact, essential, and dismissed both parties' claims for a FRAND determination. 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. The Court's decision might have been different if the implementer had accepted that it needs to pay something, which he refused to do in this case.50

More recently, the Paris First Instance Court had to decide whether it had the jurisdiction to hear a FRAND determination brought by TCL against Philips and ETSI.51 In that case, which was brought by TCL well after Philips had initiated proceedings in the UK, TCL was seeking, inter alia, an order that Philips must grant TCL a FRAND licence, and that ETSI must facilitate the conclusion of that licence. The Court allowed the French FRAND declaration action to proceed and therefore opens an avenue to parties who would like to have FRAND terms determined by French courts.

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.52 However, following new confidentiality measure provisions, a later order decided that prior agreements entered into by the patentee need to be provided if the lawsuit is about the setting of FRAND terms and that prior licence agreements concerning other patent portfolios pertaining to the same standard, are not relevant for the FRAND determination and need not be provided.53

The setting of the FRAND rate was also addressed in a case involving Intellectual Ventures and a number of phone carriers as well as their suppliers. It was decided to try the issues of patent validity and infringement before those pertaining to the setting of a FRAND rate. The judge also granted Intellectual Ventures' request for trade secret protection for the disclosure of its comparable licence materials.54

iv Anticompetitive or exclusionary royalties

In one case,55 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.

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'.56 Such was the case, for instance, when the FCA reviewed the acquisition by Sara Lee of certain brands and industrial equipment from Benckiser.57

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.58 This decision was later set aside for unrelated reasons, and the transaction had to be notified again. However, this commitment remained unchanged.59 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.60

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.61 It is, however, worth mentioning a decision of the Paris First Instance Court of 26 January 2005,62 in which the alleged infringer counterclaimed for nullity of the asserted patent, for abuse of proceedings, but also for abuse of a dominant position. The Court 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. The Court did not stop there and, after reviewing the counterclaim for abuse of a dominant position, referred the matter to the FCA for it to investigate the issues. The FCA rendered an opinion63 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,64 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, the particular circumstances of the case – 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,65 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 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.66

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. The recent case law recognising that French courts have jurisdiction to determine FRAND rates is apparently inspiring some litigants to choose France as a forum to resolve their dispute.

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 CJEU, 25 March 2021, C-591/16, H Lundbeck A/S v. Commission; C-586/16, Sun Pharmaceutical Industries Ltd, formerly Ranbaxy Laboratories Ltd, and Ranbaxy (UK) Ltd v. Commission; C-588/16, Generics (UK) Ltd v. Commission; C-601/16, Arrow Group ApS and Arrow Generics Ltd v. Commission; C-614/16, Merck KGaA v. Commission; C-611/16, Xellia Pharmaceuticals ApS and Alpharma LLC v. Commission.

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 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 in respect of that agreement.

6 CJUE, 30 January 2020, C-307/18, Generics (UK) Limited & Others v. Competition and Markets Authority.

7 Summary of the Commission Decision C(2020) 8153 of 26 November 2020 relating to a proceeding under Article 101 of the TFEU (Case AT 39686, Teva Cephalon).

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

9 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).

10 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.

11 French Supreme Court, 30 May 2000, No. 00-17.038.

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

13 CJEU, 6 April 1995, C-241/91 P and C-242/91 P, Magill.

14 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.

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

16 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.

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

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

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

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

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 Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.

23 Paris Court of Appeal, 8 October 2020, No. 20/08071.

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

25 Guidelines on the application of Article 101 of the TFEU to technology transfer agreements, (OJ C 89/03 of 28 March 2014), point 261.

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

27 Paris Court of Appeal, 12 February 2004, No. CT0175.

28 French Supreme Court, 12 July 2005, No. 04-12.388.

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

30 French Supreme Court, 20 February 2007, No. 06-12.424.

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

32 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.

33 French Supreme Court, 23 March 2010, No. 09-66522.

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

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

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

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

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

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

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

41 Inter alia, President of the Paris First Instance Court, 1 February 2011, Sisvel, France Telecom, TDF, Audio MPEG, Institut für Rundfunktechnik GmbH and Philips Electronics NV v. Carrefour; Paris Court of Appeal, 27 April 2011, Sisvel, France Telecom, TDF, Audio MPEG, Institut für Rundfunktechnik GmbH and Philips Electronics NV v. Carrefour; President of the Paris First Instance Court, 28 June 2011, Sisvel, France Telecom, TDF, Audio MPEG, Institut für Rundfunktechnik GmbH and Philips Electronics NV v. Electro Depot.

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

43 Paris First Instance Court, 8 December 2011, Samsung v. Apple, No. 11/58301.

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

45 President of the Paris First Instance Court, 29 November 2013, Ericsson v. TCL.

46 President of the Paris First Instance Court, 20 January 2020, IPCom v. Xiaomi and IPCom v. Lenovo; Paris Court of Appeal, 3 March 2020, IPCom v. Lenovo.

47 See footnote 41.

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

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

50 LG – the standard implementer – 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.

51 Paris First Instance Court, Judge in Charge of the Proceedings, 6 February 2020, TCL v. Philips and ETSI.

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

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

54 Paris First Instance Court, Judge in Charge of the Proceedings, 16 January 2020, IV v. Huawei, Bouygues and Sagemcom.

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

56 FCA's Merger Control Guidelines, Paragraph 19.

57 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.

58 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.

59 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).

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

61 Abusive litigation constitutes a civil tort in general.

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

63 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.

64 See footnote 56.

65 See footnote 15.

66 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-691/14, Servier and others v. European Commission.

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