French supreme court rejects appeal against Orange-Free roaming deal

French telecom authority Arcep welcomed a ruling from the country’s Council of State (Conseil d’Etat) rejecting the appeal lodged by Bouygues Telecom and SFR against a regulatory decision issued in October 2020, which authorised an extension to the national roaming deal between rivals Free Mobile and Orange. The latter had sought Arcep’s approval to prolong their agreement over 2G/3G roaming to the end of 2022, prompting an in-depth examination into the terms of the extension. Orange Free roaming

Since its arrival on the telecoms market in France in 2012, Free Mobile has used a national roaming service on the Orange network, in 2G and 3G with maximum speeds gradually reduced since 2016. The contract concluded between the two operators, for the provision of the roaming service until December 31, 2020, has been extended for two years by an amendment, without changing the maximum uplink and downlink speed limit achievable by roaming customers at 384 kbits.

The Council of State rejects the appeal of the companies Bouygues Telecom and SFR against the decision of Arcep not to modify the amendment to the roaming contract between Free Mobile and Orange.

In a press release dated April 3, 2020 , the Autorité informed market players of the existence of the amendment and called on them to send it any comments. These observations were then made public, and Arcep decided not to request the modification of the roaming contract concluded between Free Mobile and Orange in its updated version by the amendment of February 24, 2020. This decision, announced by a press release dated 23 October 2020 , was the subject of an appeal before the Council of State by the companies Bouygues Telecom and SFR. This appeal was rejected by the Council of State by a decision of December 15, 2021, thus validating Arcep’s decision not to request the modification of the roaming contract.Orange Free roaming

Arcep welcomes this decision, which strengthens the approach and analysis it has been carrying out in terms of mobile network sharing since 2015.

The Council of State recalls that roaming agreements do not by nature undermine the regulatory objectives provided for in Article L. 32-1 of the Postal and Electronic Communications Code, in particular the objective of effective and fair competition. between suppliers or the promotion of competition based on infrastructures, against which they must be analyzed on a case-by-case basis.

It notes in particular that the extension of the roaming contract until December 31, 2022 “is  accompanied by the capping of the capacity of the interconnection links between the Free Mobile network and that of Orange for the flow of traffic in roaming, and the introduction in 2022 of a financial mechanism to encourage a reduction in the number of customers using this roaming  “, that” the company Free Mobile continued to deploy its own 3G network at a sustained pace, beyond the last milestone set by its authorization to use 3G frequencies, to reach at the end of 2020 a coverage rate of 98% of population. The share of Free Mobile’s traffic routed by roaming is constantly decreasing and represents only 1% of the total traffic of its customers, reduced to the same unit of consumption of radio resources  “and finally, that”  this contract does not allow Free Mobile to present a better quality of voice service than its competitors  ”.

The High Court concludes that “  under these conditions, it does not appear from the elements in the files that, at the date of this decision, the extension until December 31, 2022 of the disputed agreement would have anti-competitive effects on the market of mobile telephony which would make Arcep’s intervention necessary for the achievement of the various objectives mentioned in Article L. 32-1 of this code, in particular to allow effective and fair competition between suppliers or promotion, when this is appropriate, competition based on infrastructures ”and that by refraining from intervening on the basis of Article L. 34-8-1-1 of the Postal and Electronic Communications Code, Arcep n ‘committed an error of law or an error of assessment. Orange Free roaming


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