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GCEU: Europe is ‘too orange’

Although the Court is entitled to examine whether the Commission has sufficiently reliable information before adopting a decision ordering an inspection, such an examination is not the only way to ascertain that the decision was not arbitrary 

Orange (known as France Télécom until 1 July 2013) is a French public limited company which provides Internet access to companies and individuals. In 2011, a competitor known as Cogent lodged a complaint with the French Competition Authority, believing that Orange had abused its dominant position by a number of practices in the sector for reciprocal interconnection services in the area of Internet connectivity. In 2012, the Competition Authority found that the practices alleged against Orange were not substantiated or did not constitute an abuse of a dominant position. 

In parallel, the Commission had opened a procedure against Orange into highly similar practices. After the Competition Authority’s decision, the Commission, by decisions of 25 and 27 June 2013,1 ordered Orange to undergo an inspection (‘the inspection decisions’). The inspection took place between 9 and 13 July 2013 on four of Orange’s premises. Taking the view that the Commission did not have the right to order that inspection on its premises in the circumstances of the case, Orange brought an action before the Court seeking the annulment of those decisions. 

By yesterday’s judgment, the Court dismisses Orange’s action and confirms the Commission’s inspection decisions. 

Orange disputed the proportionality and necessity of the inspection decisions, in so far as the Competition Authority had already investigated into identical allegations of infringement and found that its conduct was in compliance with EU competition law rules. The Court nevertheless points out that the Commission is not, in principle, bound by decisions taken by a national court or authority pursuant to Articles 101 and 102 TFEU and that the Commission may at any time take decisions relating to competition, even if they conflict with a national decision.

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