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The Conseil d’Etat finds that decisions of the French Competition Authority to reject commitments cannot be appealed


On July 1, 2022, the Conseil d’Etat (the French administrative supreme court) ruled[1] that it had no jurisdiction to annul a decision of the French Competition Authority (the “FCA”) rejecting commitments offered by the group Sony (“Sony”) to end competition proceedings and referring the case back for further investigation.[2]

Background

In October 2016, the FCA launched an investigation into Sony’s practices following a complaint from an accessory manufacturer alleging that Sony had abused its dominant position in the market for next-gen gaming consoles.

As part of its preliminary assessment, the FCA’s investigation services found that Sony had implemented two anti-competitive practices. First, Sony had updated the PlayStation 4 operating system which allegedly resulted in the alteration of the functioning of certain third-party controllers.[3] Second, Sony had implemented an allegedly ambiguous and opaque licensing policy for companies seeking to market controllers compatible with the PlayStation 4.

In response to these competition concerns and in order to put an end to the proceedings, Sony offered a number of commitments. On October 23, 2020, the FCA rejected Sony’s latest set of commitments and sent the case back for further investigation. Sony brought the case before the Conseil d’Etat requesting the annulment of the FCA decision rejecting its commitments offer on the grounds of excess of power.

Decision of the Conseil d’Etat

On July 1, 2022, the Conseil d’Etat ruled that Sony’s appeal of the FCA decision rejecting its commitments could not be heard since the Conseil d’Etat had no jurisdiction to rule over such case. The Conseil d’Etat held that a decision of the FCA to reject commitments was not capable in itself of producing legal effects. Consequently, such decision could not be considered as unrelated and severable from the underlying FCA proceedings and could be appealed.

It should be noted that Sony had also filed an appeal before the Paris Court of Appeals on the same grounds. The Court had found that the appeal was inadmissible on the grounds that a decision to reject commitments could not be appealed separately from the final FCA decision on the merits.[4]


[1]      Conseil d’Etat, ruling July, 1, 2022, No. 448061.

[2]      FCA decision No-20-S-01 of October 23, 2020.

[3]      Three types of controllers are compatible with the PlayStation 4: (i) Sony controllers, (ii) third-party controllers manufactured under Sony licence and (iii) other third-party controllers which do not benefit from a Sony licence.

[4]      Cour d’appel de Paris, ruling April 21, 2022, No. 20/16953.



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