To quote this paper: A. Papadopoulos, “Rejection of complaint by the French Competition Authority for lack of evidence: Principle and Limits of the res judicata rule”, Competition Forum, 2025, n° 0068 https://competition-forum.com. 

The facts are well-known, but they involved a two-phase procedure before the French Supreme Court, which is useful to recall.

In 2018, the French Professional Football League (hereinafter “the LFP”) issued a call for tenders for the acquisition of television rights, related to the broadcasting of football games in the French football championship, known as the “League 1”.  These rights were related to the 2020-2021 and the 2023-2024 football seasons. They were also divided into seven lots.
Firstly, five lots – lots 1, 2, 4, 5 and 7 – were awarded to Mediapro. Secondly, the lot 3 was given to beIN Sports France (hereinafter “beIN Sports”) for a purchase price of €332 million per season. But these rights were granted to the Canal + Group (hereinafter “Canal +”). Thirdly, the lot 6 was awarded to a French telecom operator, named Free.

The reader can easily remember the starting point of this dispute. Indeed, in 2020, Mediapro’s failure to pay the (huge) price of its rights to the LFP, led to the termination of its contract. Therefore, on 19 January 2021, the LFP launched a new invitation to tender for lots 1, 2, 4, 5 and 7, which had been returned by Mediapro to the LFP.
But this new offer was not involving the other broadcasters, as Canal +. As a result, on 29 January 2021, Canal + complained to the French Competition Authority (hereinafter “the Authority”) that the LFP was abusing its dominant position in the sale of television broadcasting rights for sporting events. Indeed, it claimed that the LFP had failed to include lot 3 in the new invitation to tender, and that the LFP should also have terminated the Canal +’s contract for its lot to restart all the negotiations. It allegedly appeared that Canal + has been victim of a discriminating treatment, to the extent that it should have benefited from the same price conditions than Amazon, the future buyer of Mediapro’s lots.

In a first procedure, according to a decision of 11 June 2021[1], the Authority rejected the referral on the grounds that the abuse of dominant position was not supported by sufficient evidence. An appeal against this Authority’s decision was dismissed by the Paris Court of Appeal, in a ruling dated 30 June 2022. Thus, Canal + challenged the latter before the French Supreme Court[2]. This final decision will be compared with the present and different decision that concerns us here[3].
In the meantime, on 1 February 2021, the LFP announced that the new invitation to tender was unsuccessful. It consequently opened a private negotiation phase, before announcing, on 11 June 2021, that it had selected the bid submitted by Amazon Digital UK (hereinafter “Amazon”), rather than the bid jointly submitted by Canal + and beIN Sports. As a result, the LFP awarded all the lots returned by Mediapro to Amazon.

This situation has led to a second procedure. On 2 November and 24 December 2021, beIN Sports and Canal + referred to the Authority these new practices of the LFP on the market for the acquisition of League 1 television broadcasting rights. Both argued that the LFP’s decision to award 80% of all the “League 1” rights to Amazon, for a total amount of €250 million per season – while constraining them to exploit the remaining rights under the initial price conditions of competition, resulting from the 2018 call for applications – should be seen as a price discrimination. However, in a decision of 30 November 2022[4], the French authority rejected this complaint, on the same grounds than those of the first procedure: the proof of an infringement was not supported by sufficient evidence.
In parallel with these proceedings before the authority, the complainants brought another action before a commercial court. On 26 January 2021, and in the presence of beIN Sports, Canal + submitted three different claims against the LFP, seeking: firstly, the annulment of the first invitation to tender of 19 January 2021 and of any private agreement relating to the 2021-2022 to 2023-2024 seasons; secondly, an order that the LFP organise a new invitation to tender including lot 3; thirdly, an order that the LFP pay compensation for non-material damages. However, the Paris Commercial Court dismissed Canal +’s claims, in a judgment of 11 March 2021[5]. The Paris Court of Appeal followed this judgment in its ruling handed down on 3 February 2023[6].

Canal + challenged this appeal judgement before the French Supreme Court[7], criticising the Paris Court of Appeal for declaring inadmissible the companies’ claims arising from the LFP’s refusal to include their lot into tender.
Especially, the appeal court referred to its first ruling in this case, the judgment of 30 June 2022[8],  according to which the res judicata effect involved to dismiss Canal +’s claims. The Paris Court of Appeal also concluded the existence of an irrebuttable presumption of absence of infringement, on the basis of the decision of 30 November 2022 handed down by the French Authority. But the French Supreme Court reversed this decision in its entirety[9].

Therefore, a potential abuse of dominant position – according to article L.420-2 of the French Commercial Code and of article 102 TFUE – seems to take a back seat here, given the high procedural stakes involved. The Commercial, Financial and Economic Division of the Court of Cassation had to referee two matches with a single whistle. It asked the question to know how the French Supreme Court interprets the silence of the French Competition Authority – resulting from the absence of an infringement since a decision rejected a complaint for lack of evidence – to guarantee future possibilities of combating anti-competitive practices?

In its ruling of 24 September 2024, the French Supreme Court (hereinafter “Court of Cassation”) overturned the ruling of the Paris Court of Appeal, by refusing to recognise the application of res judicata when it arises from a decision on another cause (I). Therefore, the Court of Cassation held that the Paris Court of Appeal should have verified the existence of a price discrimination on the downstream market for the distribution of pay-TV services, without adopting itself a definitive position on the characterisation of an abuse of dominant position (II). Pending the judgment of the court of appeal to which the case is referred, this question remains open.

I. Clarification of the scope of a decision rejecting a complaint for lack of evidence: principle and limits of the res judicata rule

The Court of Cassation has handed down a ruling that processualists will not soon forget, denying the existence of a res judicata effect of a decision rejecting a complaint for lack of evidence given by the French Authority (A). Moreover, the Supreme Court also ruled that no presumption of absence of infringement must be drawn of such a decision, whereas this argument was strongly defended by the Paris Court of Appeal (B).

A. Principle of the res judicata rule

In its judgment of 3 February 2023[10], the Paris Court of Appeal based its rejection – of the Canal + and beIN Sports’ demand of invalidity – on the judgment of the Paris Court of Appeal of 30 June 2022[11]. The latter confirmed the Authority’s rejection of the parties’ complaint for lack of sufficient evidence. It stated that it had examined “the facts and arguments relating to the abuse of a dominant position alleged by Canal+ and beIN sports against the LFP and Amazon on the basis of the res judicata effect of the Paris Court of Appeal’s judgment of 30 June 2022”[12].

However, the Court of Cassation has reiterated that the Paris Court of Appeal can only rely on the res judicata effect in respect of matters that are the subject of a judgment and that have been decided in its operative part[13]. In this case, the Court of Cassation found that the fact that both cases are related is not sufficient to classify the claims as being based on the same cause of action. Thus, the Paris Court of Appeal disregarded article 1355 of the French Civil Code.
It also found that the judgment of 30 June 2022 did not rule – at less, in its operative part – on any claim that the LFP had abused its dominant position, by refusing to include lot 3 in the new invitation to tender. Therefore, this judgment, which could not rule on such a claim, lacked the effect of res judicata.

The res judicata rule is a fundamental principle of French law, which prohibits a court decision from being challenged. In order for a judgement to have the force of res judicata and to be set up against a new claim, it is necessary to demonstrate the existence of a threefold identity between the old claim and the new claim. This threefold identity is set out in article 1355 of the Civil Code, which states that the claim must be the same (1); the claim must be based on the same cause of action (2); the claim must be between the same parties in the same capacity (3).

The concept of cause (2) can be a source of uncertainty. Colin Reydellet pointed out a lack of clarity, both in article 1355 of the French Civil Code and in article 56, 2° of the French Code of Civil Procedure[14]. However, these provisions must be interpreted as excluding from the cause, the pleas in fact and in law, presented by the parties to the judge. The famous “Césareo” judgment[15] – which stated the principle of concentration of pleas – seems to assimilate the cause of the action to the facts on the origin of the dispute. Thus, the res judicata effect could perfectly be attached to the subject matter of the judgment[16], clarifying the position adopted by the Court of Cassation in the present case. However, in any case, the Court of Appeal should not have included the pleas of the parties and their grounds in the spectrum of the res judicata effect.

Moreover, a special provision of the French Commercial Code was useful to define the boundaries of the res judicata effect in the case of a decision of rejection for lack of evidence. Indeed, the Court of Cassation censured the decision of the Paris Court of Appeal on the basis of Article L. 462-8 paragraph 2 of the French Commercial Code, which states that the Authority can reject a complaint when the facts are not supported by sufficient evidence. This provision is completed by Article L. 464-8 of the same Code, which provides that appeals against decisions of the Authority are limited to their subject matter. The Court of Cassation has therefore reminded the Paris Court of Appeal that, when considering an appeal against a decision by the Authority, the Paris Court of Appeal must only verify whether the facts relied on, as submitted to the Authority, are supported by sufficient evidence: the Supreme Court stated that the Paris Court of Appeal “must only examine if the alleged facts, as they were submitted to the Authority, were supported by sufficiently convincing elements”[17].

This cassation seems justified, as the Paris Court of Appeal could not refer to a previous decision in another case. Article 455 of the French Code of Procedure, which states that reasons must be given for a judgment – here, the absence of sufficiently convincing elements –, justifies the Court of Cassation’s reasoning.
The position of the Paris Court of Appeal seems surprising, even though it had already accepted the solution set out in the present ruling of 25 September 2024, admitting that the rejection of a complaint for lack of evidence does not have the force of res judicata, and consequently, that a new, more substantiated complaint, may be accepted[18]. The decision handed down by the Court of Cassation appears to be sufficiently reasoned not to leave any legal uncertainty for future litigation in this area.

However, the procedural contributions of the present ruling are not limited to the question of the res judicata effect of a decision of rejection for lack of evidence. Indeed, another question was to know a presumption of non-infringement could be drawn from the same type of decision.

B. Limits of the res judicata rule of a decision rejecting a complaint for lack of evidence: the absence of presumption of non-infringement

The Paris Court of Appeal relied on “the irrebuttable presumptions established by the Authority’s second decision 22-D-22 of 30 November 2022”[19] to reject the demand of nullity.
This position was also censured by the Court of Cassation resulting from an erroneous interpretation of Article L. 481-2 of the French Commercial Code. Indeed, this article provides that an anti-competitive practice – in the sense of Article L.481-1 – is irrevocably presumed to have been established once its existence and its imputation to a legal or natural person. The latter must have been established by a decision – of the Authority or an appeal court – which may no longer be subject of an ordinary appeal procedure for the part relating to that establishment. Indeed, the Court of Cassation noted that the fact that the Authority rejected a complaint for lack of evidence does not involve “any presumption, even a rebuttable presumption, that the award by mutual agreement to Amazon of the lots returned by Mediapro did not constitute an abuse of a dominant position on the downstream market for television broadcasting rights”[20].

The reference to the “rebuttable” notion is important: indeed, it also means that such a decision does not involve a rebuttable presumption of non-infringement. Thus, the solution of the French Supreme Court does not only exclude the “irrebuttable presumption” provided by Article L. 481-2 of the French Commercial Code. In other words, the Paris Court of Appeal had to verify the existence of a prohibited practice – with sufficiently convincing elements – if it wanted to establish a presumption of non-infringement. Here, it only deduced a negative presumption from a decision of rejection for lack of evidence. The Court of Cassation’s decision points out that “it is necessary to distinguish between, on the one hand, the Authority’s rejection of the referral and, on the other hand, the characterisation on the merits of a possible abuse of a dominant position”[21].
The scope of the decision of a rejection should not have been over-extended by the Paris Court of Appeal, especially as the rejection of the complaint “in no way prevents the referral association or companies in the sector from subsequently referring the matter to the Council, should they bring forward new elements arising from subsequent market observation”[22]. To raise a presumption, even a simple presumption, of absence of an anti-competitive practice, would have supposed that the Authority had enough elements for characterizing an infringement, which is not the case. The idea is simple: for the Court of Cassation, the fact that the occurrence of a new fact could prompt a new request is a guarantee of security, enabling the Authority to deal with the case at the most appropriate time.

The present judgment, which is full of procedural lessons, has enabled us to make a clear distinction between parallel commercial proceedings, particularly with regard to the relationship between claims before the Authority and claims before the Commercial Court. In sum, a decision rejecting a complaint for lack of evidence does not give rise to any res judicata, or to any presumption of non-anti-competitive practice. While the Court of Appeal was criticised for going too far in its analysis from a procedural point of view, it did not show the same diligence with regard to the issues of economic law.

II. The question of an abuse of dominant position through a price discrimination, referred to the Paris Court of Appeal

According to the French Supreme Court, the Court of Appeal did not go as far as it should have in its analysis of the circumstances of the case (A), which seems to justify a possible characterisation of an infringement (B). However, the Paris Court of Appeal, to which the case has been referred, will have the final word on this question.

A. The analysis of the cost price of broadcasting games, dismissed by the Court of Cassation

Despite the major procedural significance of the ruling, the Court of Cassation did not refrain from responding to the Paris Court of Appeal from a competition law perspective. It overturned the ruling that the proof of an excessive price value and the proof of a disadvantage in price competition – on the downstream or on related markets – could not be established without being able to calculate the cost price[23] for the broadcasting of games in package 3, for Canal +. The Court of Cassation ruled that there was no legal basis for analysing only the cost price, “without assessing all the circumstances of the case”[24], to the extent that a comparison of the cost price paid, on the one hand, by Canal +, and on the other, by Amazon, “could depend on the efficiency of the different actors”[25] of this market.

Firstly, Canal + criticised the judges of the Court of Appeal for failing to identify the abuse of a dominant position, basing its complaint on Article 102 of the Treaty on the Functioning of the European Union (TFEU) and Article L. 420-2 of the French Commercial Code. According to the first of these articles, such abusive practices may consist particularly in applying dissimilar conditions to equivalent services, thereby placing trading partners at a competitive disadvantage. The second prohibits discriminatory conditions of sale.

In this case, Canal + is targeting the LFP’s award to the company Amazon. This new contract was made on different terms to those of BeIN and Canal +, which won the contract to acquire lot 3. However, the attribution of the football rights, related to the League 1 in particular, is of paramount importance for competition on the downstream pay-TV markets, according to the broadcasters, who claim that it is unacceptable for the operator of lot 3 “to retain or acquire subscribers by offering 20% of League 1 matches, at an annual cost of 332 million euros, when Amazon could offer 80% of League 1 matches, including the best matches, at a cost of 250 million euros”[26].

It is the reason why the French Supreme Court’s judges pointed out the need to analyse the circumstances of each case on a merit basis in terms of abuse of a dominant position, in the same way that the Chicago economists sought a market more efficient than structured, by opposing to “per se” prohibitions. Indeed, the appeal judgment did not find that any of the arithmetical or differential differences – between the price at which lot 3 was awarded to beIN Sports and Canal + and the price of the lots awarded to Amazon – could constitute a disadvantage in price competition on the downstream or related markets. However, the situation of the economic operators deserved to be observed, whether regarding the economics of the investments amortised by the historical distribution of these programmes by Canal +, or regarding the values on the intermediate markets for the publishing and marketing of pay-TV channels by beIN Sports and Canal +.
Although in this case the Court of Cassation merely contradicted the position taken by the Court of Appeal, without finding any abuse of discrimination, common sense should undoubtedly let the civil judges examine the facts of the case, where the repercussions on competition of obtaining, for Amazon, the broadcasting rights to 80% of Ligue 1 games, including the best games, with only an annual cost of 250 million euros – against 20% of League 1 games, with an annual cost of 332 million euros, for Canal + – cannot be ignored.

The Court of Cassation used the criterion of the efficiency of the various players and seemed to announce a favourable outcome for Canal + and beIN Sports, in this case. But this criterion will have to be applied by the Paris Court of Appeal. Does this judgment really reopen the door of an abuse of dominant position, or is it merely a reminder of the correct procedural rules?

B. An indication of a future infringement, or a simple procedural reminder?

This ruling comes in the context of a case characterized by the successive failures of Canal + and beIN Sports to defend their claims. Indeed, on the same day, the Cour de Cassation handed down another ruling that upheld the decision handed down by the Paris Court of Appeal in 2022 rejecting a possible abuse in the parallel proceedings brought by Canal + and beIN Sports in this case and which started before the French Competition Authority.
However, in the present case, since the ruling handed down on 3 February 2023 has been quashed in its entirety, the case has been referred back to the Paris Court of Appeal with a different composition. Thus, it seems useful to conclude this analysis with an observation on the position of the judges of the Court of Cassation, in order to look ahead to the forthcoming ruling. The judges of the Cour de Cassation have already given a reminder of the procedural rules applying for a decision of rejection for lack of evidence. In competition law, does this decision herald a future sanction against the LFP for abuse of a dominant position, or is it merely a reminder to the Court of Appeal?

Indeed, the Court of Cassation ruled Canal +’s request, asking that the LFP returned 68.1% of the sums paid by Canal + for lot 3, since the League 1 rights were awarded to Amazon, was not inadmissible. It based its decision on articles 564 and 566 of the French Code of Civil Procedure. These articles provide, respectively, that the parties may not submit new claims to the Court of Appeal, unless they wish to set them off against each other; have the opposing claims set aside; or have questions arising from the intervention of a third party or from the occurrence or revelation of a fact ruled upon. They also provide that the parties may only add to the claims submitted to the court of first instance other claims that are incidental, consequential or necessary.

The French Supreme Court also held that, by declaring this claim inadmissible without investigating, “as it was required to do, whether the claim did not intend to statute on the issues arising from the transfer, on 11 June 2021, subsequent to the judgment under appeal, of the rights returned to Amazon by Mediapro, or whether [the claim] did not  constitute an accessory, a consequence or a supplement to the claims made at first instance, the Court of Appeal had failed to provide a legal basis for its decision”[27]. The error committed by the Court of Appeal here seems flagrant and is, in addition, to the previous ones that we have dealt with in this article. When Canal + appealed against the refusal of the Authority to seize it for lack of evidence, its claims could only relate to the existence of such evidence, and not to the characterisation of an anti-competitive practice, which was sought before the Commercial Court[28]. It seems grossly misleading to assert that res judicata applies to this claim.

As a result, the Court of Cassation’s judgement indicates that it is not potentially condemning the LFP in this ruling but merely inviting the judges to give better reasons for a position that it seems to implicitly share: the absence of an infringement.
In the reverse situation, the decision could have “disastrous effects for professional football”[29], according to the French Senate, because the Canal + group estimates its losses at around €670 million. But these political issues have no relevant interest and should not disturb the judges. Indeed, the LFP recently claimed that this decision was part of a “strategy of judicial harassment”[30]  pursued by Canal + and beIN Sports.

The reasoning of the forthcoming ruling by the Paris Court of Appeal will be closely watched, and the resulting decision will certainly serve to anchor the procedural lessons distilled by the present ruling. In the practice of the sector in question, namely the sale of broadcasting rights for football games by the LFP, it is possible that this ruling will have consequences on the future call of tenders, in order to take account of “the consumer’s interest, by facilitating the allocation of rights to a single broadcaster and by taking account of the widespread use of new broadcasting methods”[31].

The referral ruling will tell us a more about the price discrimination suffered by Canal +.
Even if it seems highly doubtful that the LFP will be found guilty, it will be interesting to know if an evolution of the test of the price discrimination is relevant.

Therefore, what are we supposed to think about the competitive disadvantage suffered by Canal +, whereas competition law is increasingly focused on the competitiveness of companies, to enable them to provide, ever, higher quality of their products and services?

Alexis PAPADOPOULOS

[1] Aut. conc., 11 Jun. 2021, no. 21-D-12 concernant les pratiques mises en œuvre par la Ligue de Football Professionnel dans le secteur de la vente des droits de retransmission télévisée des compétitions sportives

[2] C. cass., com., 25 Sept. 2024, no. 22-19.527

[3] C. cass., com., 25 Sept. 2024, no. 23-13.067

[4] Aut. conc., 30 Nov. 2022, no. 22-D-22 relative à des pratiques mises en œuvre par la Ligue de Football Professionnel dans le secteur de la vente des droits de diffusion télévisuelle de compétitions sportives

[5] Tribunal de commerce de Paris, 11 Mar. 2021, no. 2021006645

[6] Cour d’appel de Paris, 3 Febr. 2023, RG no. 21/06512

[7] C. cass., com., 25 Sept. 2024, no. 23-13.067

[8] Cour d’appel de Paris, 30 Jun. 2022, RG no. 21/13216

[9] C. cass., com., 25 Sept. 2024, no. 23-13.067, §28

[10] Which preceded appeal no. 23-13.067

[11] Which preceded appeal no. 22-19.527

[12] Cour d’appel de Paris, 3 Febr. 2023, RG no. 21/06512, §25

[13] C. cass., com., 25 Sept. 2024, no. 23-13.067, §14

[14] C. Reydellet, « Les recours contre les décisions de l’Autorité de la concurrence à l’épreuve de l’autorité de la chose jugée », Dalloz actualité, Oct. 2024, no. 11.

[15] C. cass., ass. plén., 7 Jul. 2006, Césareo, no. 04-10.672

[16] C. Reydellet, « Les recours contre les décisions de l’Autorité de la concurrence à l’épreuve de l’autorité de la chose jugée », Dalloz actualité, Oct. 2024, no. 11.

[17] C. cass., com., 25 Sept. 2024, no. 23-13.067, §16

[18] Cour d’appel de Paris, 17 Sept. 2008, no. 2007/20354

[19] Cour d’appel de Paris, 3 Febr. 2023, RG no. 21/06512, §25

[20] C. cass., com., 25 Sept. 2024, no. 23-13.067, §28

[21] A. Bonnet, « Droits de diffusion télévisuelle des matchs de football de Ligue 1 : la Cour de cassation clarifie les règles du jeu », Lexbase affaires, 2024, no. 816

[22] Cons. conc., 7 May 2008, no. 8-D-10, §146

[23] The cost price is the total costs for Canal + for broadcasting games, which include costs of acquiring TV rights, technical costs, marketing costs and all overheads associated with commercializing a product or a service (here, the service of games broadcasting).

[24] C. cass., com., 25 Sept. 2024, no. 23-13.067, §34

[25] C. cass., com., 25 Sept. 2024, no. 23-13.067, §34

[26] C. cass., com., 25 Sept. 2024, no. 23-13.067, §29

[27] Cass., com., 25 Sept. 2024, no. 23-13.067, §39

[28] C. Reydellet, « Les recours contre les décisions de l’Autorité de la concurrence à l’épreuve de l’autorité de la chose jugée », Dalloz actualité, Oct. 2024, no. 11

[29] Sénat, « Football-Business : stop ou encore ? », Information Report, no. 87, 29 Oct. 2024, 1^st part, I, C

[30] Sénat, « Football-Business : stop ou encore ? », Information Report, no. 87, 29 Oct. 2024, 1^st part, I, C

[31] Sénat, « Football-Business : stop ou encore ? », Information Report, no. 87, 29 Oct. 2024, Recommandation no. 27