On 11 June 2015, the French Competition Authority (“FCA”) handed TDF, a formerly state-owned company, now completely privatized, a €5.66 million fine for two anti-competitive practices which took place on the Eiffel Tower site.
TDF was already well known to the FCA, as its predecessor, the Conseil de la concurrence, had fined it in 1999 for an abuse of a dominant position on the market of installation and maintenance of broadcasting equipment.
In 2006 the town hall of Paris launched a tender for the renewal of the occupancy agreement of the Eiffel Tower broadcasting site. This site is of a crucial importance given that its height, well known by tourists worldwide, allows broadcasters to reach the 11 million inhabitants of the Paris region.
TDF is the successor in interest to the entity which previously enjoyed a legal monopoly by virtue of the Eiffel Tower site occupancy agreement. As such, it was the only party in possession of all the technical and financial details needed to make a bid. This asymmetry of information and conflict of interests proved harmful for TDF’s competitors.
Alerted by a formal complaint lodged by unsuccessful bidder TowerCast, the subsidiary of a radio group, the FCA found that TDF had engaged in exclusionary conduct. It was proven that TDF had belatedly and incompletely transmitted the information necessary for competitors to put together competitive bids, in order to preserve its position as the sole occupant of the Eiffel Tower site.
TDF was also found, in the past, not to have provided early enough the complete information necessary for the occupant of the site to offer broadcasting services to FM radio stations. The hosting offers made to alternative operators also constituted a margin squeeze which prevented potential new operators from making offers competitive to that of TDF. The FCA had taken interim measures in 2007 which had the effect of immediately putting an end to that latter practice.
The FCA could not base its sanctions on sales made by TDF so it took into account the gravity of the practices and the harm done to the economy in order to determine the fine. The fine was €4M for the exclusionary practice relating to the tender for the renewal of the occupancy agreement. Since TDF was considered to have reoffended, after its 1999 fine, the fine was increased by 25% to reach €5M. TDF was also fined for the anticompetitive practices implemented in the wholesale market of radio broadcasting and the margin squeeze. This particular fine was significantly lower than customary since the emergency interim measures imposed by the
FCA had mitigated the damage. TDF was thus fined €534K, and suffered again from the 25% increase for reoffending, the second fine reaching €660K, both fines adding up to a total of €5.66M.