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The European Court of Justice France Télécom/Wanadoo Judgment: 'To Recoup or Not to Recoup? That 'Was' the Question for a Predatory Price Finding under Article 82 EC'

European Law Reporter, No. 6, June 2009

11 Pages Posted: 16 Jul 2009  

Alberto Alemanno

HEC Paris

Marco Ramondino

affiliation not provided to SSRN

Date Written: July 1, 2009

Abstract

The European Court of Justice seized the opportunity of the first predatory pricing case brought to its attention since Tetra Pak II to have a say in the debate over the need to prove the possibility of recoupment of losses, thus clarifying certain ambiguities of its case-law concerning the test of predation.On 2 April, 2009, the ECJ dismissed an appeal brought by France Télécom against the judgment of the Court of First Instance in the Wanadoo predatory pricing case. The CFI judgment upheld the European Commission's finding that Wanadoo Interactive SA, a subsidiary of France Télécom, had abused its dominant position on the French market for high-speed internet access between March 2001 and October 2002. Notwithstanding the Advocate General Mazák’s call, in his Opinion of 25 September 2008, for introducing a requirement of recoupment of losses under Article 82 EC in order to inaugurate a more economic approach to predatory pricing, the ECJ decided not to incorporate this additional requirement to the actual predatory price test. This outcome is reflected in the Commission's Guidance on Article 82 EC enforcement priorities published in February 2009 and confirms the European idea according to which to protect consumer welfare requires the protection the structure of the market and its competitors. After the France Télécom judgment, it may be pacifically stated that "To recoup or not to recoup? That "was" the question".

Keywords: EU law, Competition law, antitrust law, Abuse of dominant position, Predatory prices, Article 82 EC, recoupment

JEL Classification: K20, K21, K33

Suggested Citation

Alemanno, Alberto and Ramondino, Marco, The European Court of Justice France Télécom/Wanadoo Judgment: 'To Recoup or Not to Recoup? That 'Was' the Question for a Predatory Price Finding under Article 82 EC' (July 1, 2009). European Law Reporter, No. 6, June 2009. Available at SSRN: https://ssrn.com/abstract=1433762

Alberto Alemanno (Contact Author)

HEC Paris ( email )

1 rue de la Libération
Jouy-en-Josas Cedex, 78351
France

Marco Ramondino

affiliation not provided to SSRN ( email )

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