# C_2007170EN.01000902.xml

| 21.7.2007 | EN | Official Journal of the European Union | C 170/9 |
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21.7.2007

EN

Official Journal of the European Union

C 170/9

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Appeal brought on 16 April 2007 by France Télécom SA against the judgment of the Court of First Instance (Fifth Chamber, Extended Composition) of 30 January 2007 in Case T-340/03 France Télécom SA v Commission of the European Communities

(Case C-202/07 P)

(2007/C 170/16)

Language of the case: French

Parties

Appellant: France Télécom SA, formerly Wanadoo Interactive SA (represented by: O.W. Brouwer, H. Calvet, J. Philippe and T. Janssens, avocats)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Forms of order sought

| — | set aside the judgment of the Court of First Instance of the European Communities in Case T-340/03 France Télécom SA v Commission of the European Communities, which dismissed the appeal against the Commission of the European Communities decision of 16 July 2003 relating to a proceeding under Article 82 [EC] (Case COMP/38.233 — Wanadoo Interactive); |
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set aside the judgment of the Court of First Instance of the European Communities in Case T-340/03 France Télécom SA v Commission of the European Communities, which dismissed the appeal against the Commission of the European Communities decision of 16 July 2003 relating to a proceeding under Article 82 [EC] (Case COMP/38.233 — Wanadoo Interactive);

France Télécom SA

Commission of the European Communities

| — | accordingly:






  — | either refer the case back to the Court of First Instance for a fresh decision; |
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accordingly:

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either refer the case back to the Court of First Instance for a fresh decision;

| — | or give final judgment and annul the decision of the Commission of the European Communities of 16 July 2003 relating to a proceeding under Article 82 [EC] (Case COMP/38.233 — Wanadoo Interactive), by granting the forms of order sought in the application filed by the appellant at first instance; |
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or give final judgment and annul the decision of the Commission of the European Communities of 16 July 2003 relating to a proceeding under Article 82 [EC] (Case COMP/38.233 — Wanadoo Interactive), by granting the forms of order sought in the application filed by the appellant at first instance;

| — | order the Commission of the European Communities to pay the costs. |
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order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The appellant puts forward seven grounds in support of its appeal.

By its first ground of appeal the appellant claims that the Court of First Instance failed to comply with its duty to provide reasons both as regards the possibility for recoupment of losses, which must be proven, and as regards the right to align prices with those of competitors, which the Court ruled out without explanation.

By its second ground of appeal the appellant claims that the Court infringed Article 82 EC by refusing Wanadoo the right to align its prices, in good faith, with those of its competitors. That right is enshrined in the decision-making practice of the Commission and the case-law of the Court, as well as in the French Competition doctrine and authorities, and furthermore is the only means for the appellant to remain competitive in the market.

By its third ground of appeal the appellant claims that the Court also infringed Article 82 in failing to find fault with the Commission's method for calculating cost recovery, which involved a distortion of the test of predation required by the Court. The method which the Commission used made it impossible to know whether the Wanadoo subscribers generated a profit or loss for that business during their subscription period.

By its fourth ground of appeal the appellant claims that, by deciding that the costs and revenues subsequent to the period of the alleged infringement should not be taken into account, the Court misconstrued both Article 82 EC and its duty to provide reasons. The Commission wrongly concluded there had been an infringement on the basis of that temporal limitation on costs and revenues to be taken into account.

By its fifth ground of appeal the appellant also alleges the Court infringed Article 82 EC, and its duty to give reasons, by holding that a price may be predatory even when it is accompanied by a considerable reduction in the market share of the relevant undertaking. Such a price cannot be regarded as likely to lead to the exclusion of competitors.

By its sixth ground of appeal the appellant claims that, as regards the alleged plan of predation, the Court distorted the facts and the evidence submitted for its consideration, and at the same time infringed Article 82 EC. That article requires an objectively identifiable plan to remove competitors and cannot, in any circumstances, be satisfied by a subjective test of the concept of an abuse of a dominant position.

Finally by its seventh ground of appeal the appellant alleges that the Court infringed Article 82 EC not only in holding that proving the possibility for recoupment of losses was not a pre-requisite for finding predatory pricing, but also in confusing the Commission's evidence on the possibility of recoupment of those losses with the relevant undertaking's evidence on the impossibility of recoupment of those losses.

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