May 19, 2009

Willkie clients support France Télécom in sports broadcasting rights case.

The Paris Court of Appeal approved last week the exclusive distribution of sports channel Orange Sport (France Télécom) through Orange’s multi-play DSL offer. Orange Sport is an interactive TV service, which, through an open and non-discriminatory public tender procedure organized by the French Football League, acquired broadcasting rights for football "Ligue 1." The Court overruled a judgment of the Paris Commercial Court finding that this distribution system constituted tied sales (as alleged by the two complainants -- Free and SFR) in violation of the French Consumer Code because consumers had to subscribe first to Orange’s DSL offer before subscribing to Orange Sports.

The French Football League and the Association of Professional Sports League, represented by Willkie, intervened in the case to support France Télécom. Their intervention aimed at ensuring effective competition between distributors of services and editors on the upstream market for the purchase of sports broadcasting rights such as the "Ligue 1" soccer matches rights as commercialized by the French Football League.

The Court found that the exclusive distribution of Orange Sports was lawful, particularly in light of a 2005 European Directive on unfair business-to-consumer commercial practices. The Court noted that this distribution was not contrary to the requirements of professional diligence, nor misleading or aggressive. Additionally, the Court referred more specifically to the recent (April 23, 2009) judgment of the ECJ, which concluded that the Directive precludes national legislation imposing a general prohibition of combined offers and found that the French legislation on tied sales is in contradiction with EU law.

The case was handled by partners Jacques-Philippe Gunther and Maurice Lantourne with the assistance of associate Agathe Richard.

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