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Bouygues Telecom-SFR network-sharing deal upheld as French court rejects Orange appeal

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By Mari Eccles and Matthew Newman. First published on MLex 7 October 2016.

An appeal by Orange to shut down a mobile network-sharing agreement between Bouygues Telecom and SFR operators has been refused by France’s supreme court.

The Cour de Cassation backed the national antitrust authority, which rejected Orange’s request in 2014.

The telecom giant complained that competition would suffer if the agreement between Bouygues Telecom and SFR were to go ahead.

Under the plan, the two network providers can jointly operate 11,500 mobile towers covering 57 percent of the French population.

The agreement also allows for a temporary 4G roaming service, provided by Bouygues Telecom for SFR, to avoid deploying temporary equipment that would later have to be replaced.

But the authority said that “none of the elements” put forward by Orange justified an urgent decision and the provisional measures that Orange had requested are only implemented by the regulator in the “event of a serious and immediate threat to the sector.”

The Paris Court of Appeal upheld the operators’ agreement in February 2015. In a judgment handed down on Tuesday but published today, France’s top court agreed.

Cour de Cassation judges found that high-density areas that “correspond to the principal markets in which competition develops” would not be affected by the deal. Effects would only be felt in “certain parts” of shared areas that cover — at most — 20 percent of the population, the judgment said.

The court also found that a “loss of competitive edge” does not constitute “serious and immediate damage,” which must be proven to warrant measures by the authority.

The case number is Z 15-14.158

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