On 20th February 2014, the French Competition Authority (“FCA”) fined the Amaury Group a total of €3.5 million for pursuing a strategy intended to hinder a competitor’s entrance on the French daily sports newspaper market.
In September of 2008, a French company “Journal du Sport” (“JDS”) announced the launch of a new 24-page daily sports newspaper “10Sport.com” to be sold for €0.50 a copy with its first publication scheduled for 3rd November 2008.
A few days after this announcement, the Amaury Group, which owns well-known newspapers in France such as “l’Equipe” (daily sport newspaper) and “Le Parisien”, made a similar announcement that it was also about to launch another daily sports newspaper entitled “Aujourd’hui Sport”.
“Aujourd’hui Sport” had the exact same positioning on the market as “10Sport” in terms of format, clientele, price and editorial line.
In December of 2008, JDS complained to the FCA that the Amaury Group had abused its dominant position on the French daily sports newspaper market in order to try to drive it out of that market.
JDS also claimed the Amaury Group implemented unfair commercial practices, created a denigrating strategy vis-à-vis JDS and put pressure on advertisers so that they would buy advertising inserts only within “Aujourd’hui Sport”.
In 2009, the FCA used its powers of entry, search and seizure to conduct an investigation on the premises of the Amaury Group.
Following such investigation, the FCA found that the Amaury Group had elaborated several scenarios and a plan to “Kill 10Sport”. The documents, written notes and tables seized by the FCA explicitly showed that Amaury Group started with six potential scenarios narrowed down to three which were: (i) not to react, (ii) create a new daily sport newspaper or (iii) modify its current daily sport newspaper “l’Equipe”. The Amaury Group established a profit and loss statement for each scenario.
The FCA noted that the Amaury Group indeed occupied a dominant position in the French daily sports newspaper market notably as “l’Equipe” had almost enjoyed a continuous monopoly situation over the last fifty years.
When examining whether the Amaury Group abused its dominant position in the relevant market, the FCA noted that the choice by the Amaury Group to launch an additional daily sport newspaper was irrational from an economic point of view. In fact, the FCA found that this choice implied a financial sacrifice for the Amaury Group (cannibalization of the sales of “l’Equipe”) and was not the most profitable choice. Rather, this choice seemed to be motivated by trying to damage 10Sport.com.
The FCA also found that “Aujourd’hui Sport” had an ephemeral life-span (no long-term forecasts, no further publication after 10Sport.com changed into a weekly newspaper in March 2009) which tended to support the idea that it was created with the sole objective of driving 10Sport.com out of the market so that “l’Equipe” could keep its monopoly status.
The FCA therefore ruled that the artificial launch by the Amaury Group of “Aujourd’hui Sport” was undertaken for the sole purpose of “killing 10Sport.com”. Accordingly, the FCA fined the Amaury Group €3.5 million, taking into account the seriousness of the offending practice, the damage to the economy but also the finances of the Amaury Group which mitigated the amount of the fine.
The FCA rejected the other arguments of JDS, finding that the unfair commercial practices, the denigrating strategy and the existence of pressures on the advertisers were not established.