The M6 group will not suffer two setbacks in a row. We remember that on September 16, the Competition Authority announced in a press release that the Bouygues group had withdrawn its proposed acquisition of the Métropole Télévision group for fear of being imposed a prohibition decision (Aut. conc., TF1/M6: the French Competition Authority takes note of Bouygues’ decision to withdraw its proposed acquisition, Press release, Sept. 16, 2022). Obviously, the investigation report of more than 400 pages will have been too heavy for the parties to the concentration project. It appears that the latter powerfully contributed to condemning the birth of a French audiovisual giant, the answers provided by the two groups during the hearing sessions not having convinced the college of the Authority meeting exceptionally in training plenary. If the consolation of this failure remains rather thin, it is however far from negligible. The M6 group must certainly be delighted with the judgment handed down by the commercial chamber of the Court of Cassation on 28 September. Indeed, in their decision, the judges of the Quai de l’Horloge confirmed in all respects a judgment of the Paris Court of Appeal which had rejected both the application of Article L. 442-5 of the Commercial Code (now L. 442-6 c. com.), prohibiting minimum resale prices, that the application of article L. 442-6, I, 2 of the same code (now L. 442-1, I, 2, c. com.), sanctioning the significant imbalance. As we will see, the facts are not trivial. They bear witness to a transformation in the consumption of audiovisual programs by consumers and show that in the 21steÂÂ century, the television is no longer a monopoly. It faces competition from computers, tablets and smartphones, all three of which allow viewing of television channels via Internet. What was precisely the factual context of this mini-saga of online audiovisual?
In this case, the Molotov platform, which distributes television services on the Internet, part of which is accessible free of charge and another subject to the payment of a subscription, had concluded a distribution contract with the parent company of M6. This distribution contract, known as an “OTT” contract (meaning open Internet), was concluded for the first time in 2015. It provided for the free-to-air broadcasting of several M6 group channels as well as catch-up services. In other words, the user of the Molotov platform might watch M6 channels both live and delayed. This first contract had not posed any problem of execution. It was only when it expired that the difficulties arose, the M6 group wishing to insert new conditions into the distribution contract. In this regard, the M6 group had exercised caution and proceeded in two stages. First, he had agreed to extend the current agreement until March 31, 2018. It was only on this date that the new contract was to take over. Then, the M6 group entered into negotiations with the Molotov company for the purpose of agreeing, on the one hand, on remuneration for access to its channels and, on the other hand, on the fact that its channels and its associated feature services are exclusively available within a paid package. In other words, the M6 group had wanted to impose on the Molotov company to make access to its channels and services chargeable. To this end, the M6 group referred to its general conditions of distribution. These contained a clause 3.1, designated by the practice “clause of paywall », which obliges all distributors to offer consumers the channels of the M6 group and its services as part of a paid offer. Point of viewing channels without purse! This was the message sent to the platform. Given the demands of the M6 group, no agreement was finally reached during the period of negotiation of the new contract. The Molotov platform notably criticized the M6 group for ordering it to change its economic model insofar as the new contractual conditions proposed by the M6 group were incompatible with its “freemium” model. To defend oneself, appealing to the law of restrictive practices of competition was tempting. The platform had also yielded to its attractions. Firstly, it considered that the clause of paywall led to the imposition of a minimum price on the platform, which is prohibited per se by article L. 442-5 of the commercial code. It then considered that this behavior also constituted an attempt to submit a commercial partner to obligations creating a significant imbalance in the rights and obligations of the parties sanctioned by Article L. 442-6, I, 2 of the Code. of business. The platform considered that the ownership of a related right by the M6 group did not authorize it to impose such obligations.
The Court of Appeal having curtly rejected the platform’s claims, the Court of Cassation in turn had to take a position. It was a question of knowing if the behavior reproached to the M6 group was justiciable of the aforementioned articles. The Court answered both pleas in the negative and dismissed in fine the appeal brought by the platform. In the context of this comment, we will not issue any observations on the third plea, which concerned the application of the law of September 30, 1986 relating to freedom of communication. We will focus exclusively on the lessons to be learned regarding the application of the law on restrictive practices.
Firstly, it should be noted that the Court of Cassation remains vigilant with regard to the ban on imposing minimum resale prices. For a sanction to be pronounced once morest a party, the distributor must still demonstrate that its freedom to set its prices has been…
