Brussels, 26 July 2018.  In a judgment delivered yesterday, the Court of Justice of the European Union (CJEU) rejects on all counts Orange's appeal to overturn the General Court's confirmation of abuses committed by it Polish subsidiary, or to reduce the fine imposed. ecta, having intervened at both stages of the proceedings, welcomes this judgment, notably for rejecting Orange`s attempt to have its investments recognised as mitigating circumstances in fine-setting.
Case reference: C-123/16 P Orange Polska v Commission, judgment of 25.7.2018, ECLI:EU:C:2018:590.

With an appeal brought in September 2011, Orange Polska had challenged a Commission decision of June that year finding its predecessor, the Polish historical telecommunications incumbent, Telekomunikacja Polska, to have abused its dominance in the market for wholesale broadband Internet access. In view of a strategy of systematically impeding access to its network in order to limit competition, the Commission imposed a fine of EUR 127.6 million on Telekomunikacja Polska.

The General Court having dismissed that appeal, Orange Polska brought a second appeal in February 2016 challenging that court's reasoning for the dismissal.

With its judgment, the CJEU rejects all of the grounds relied upon by Orange Polska in support of its second appeal. Next to claims that the Commission would have had to demonstrate a legitimate interest in adopting a fining decision and that the General Court had distorted the facts when reviewing the Commission's appraisal of the infringement, Orange also argued that consideration of investments it had made should have led to a reduction of the fine imposed on it.

"More than seven years after the initial Commission decision, the Court has finally closed this unfortunate chapter in the liberalisation of Polish telecommunications", says ecta Director General Luc Hindryckx, continuing, "And it equally closes the door to the idea that normal investment activity would merit abusive behaviour being fined any less heavily. Such an outcome would have been a profound disincentive for competition and competitive investment: Why take the risk to invest if the big guy can not only abuse its power, but then go on to claim that the abuse mattered less because everybody benefitted from its investment?"

Gordon Moir, lead partner at Shepherd and Wedderburn, that advised and represented ecta in the proceedings, further explains: "ecta’s intervention, which centred on the analysis of competitive conditions and the market impact of abusive behaviours in Poland’s wholesale broadband markets, helped the Court see the broader commercial context. This case was of significant importance to telecommunications competitors and to development of European competition law enforcement more generally."

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ecta members are united in their belief that competition is the best driver of efficient investments and the greatest enabler of innovation, choice and benefits for citizens and businesses, as well as for the European economy overall. This is the key message that ecta and its members promote and also have promoted in the discussions about a European Electronic Communications Code.

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