Competition Council Proceedings
Decisions of the Court and the Council
The technology allowing users to access the Internet via their mobile telephones, 'wireless application protocol' (WAP), has been marketed in France since May 2000. However, the conduct of the two WAP operators, France Telecom and SFR, in introducing this technology to the public has given rise to legal proceedings.
In May 2000 the company Wappup.com, a web portal provider, commenced proceedings in the Commercial Court of Paris against France Telecom and its various mobile telephone manufacturers and distributors, alleging that France Telecom had abused its dominant market position (Wappup.com v France Telecom, Commercial Court of Paris 2000041142).
Wappup.com argued that France Telecom had pre-programmed the home page of Itineris (France Telecom's mobile telephone arm) as the default home page on all its WAP phones. This meant that users saw the Itineris home page every time they connected to the Internet. Wappup.com sought interlocutory injunctions preventing the defendants from manufacturing, distributing or selling these pre-programmed phones, and sought monetary penalties against each of them.
Competition Council Proceedings
At the same time, Wappup.com commenced proceedings before the French Competition Council against France Telecom Mobiles and SFR, alleging anti-competitive conduct and abuse of a dominant market position. Wappup.com sought interim injunctions preventing the defendants from selling their pre-programmed WAP phones.
Decisions of the Court and the Council
In a decision handed down in summary proceedings on May 30 2000 the Commercial Court of Paris prohibited France Telecom Mobiles on an interim basis from selling mobile phones that did not allow the user to modify the pre-programmed internet service provider accessed by the phone, and that did not clearly show how this could be done. On July 13 2000 the Court of Appeal of Paris extended this interim injunction until the Competition Council hands down a final decision on the merits.
While the council has not yet decided on the merits of the claim, it recently handed down a decision rejecting Wappup.com's request for interim injunctions (Decision 00-MC-17 of November 7 2000), on the basis that there was no immediate or serious danger justifying such a remedy. Evidence given to the council by the major mobile telephone manufacturers suggests that new phones are or will shortly be available that allow the user to set their own default home page easily. Therefore the proceedings on the merits of this case will probably be overtaken by events.
For further information on this topic please contact Eric Morgan de Rivery, Pierre de Girard or Kate Thackeray at Lovells by telephone (+33 1 53 67 47 47) or by fax (+33 1 53 67 47 48) or by email ([email protected], [email protected] or [email protected]).