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The Court of Appeal validates Arcep s decision

Free had been involved for several years in co-financing the FTTH networks deployed by Orange and was challenging several terms of its contract with the incumbent operator. The Regulatory Authority had settled this dispute in Free's favour, but Orange had been challenging the legality of the dispute since then. The Paris Court of Appeal upheld Arcep's decision in an order dated 26th September 2019.


The planned renewal of the term and conditions of access to Orange's infrastructure was contested by Free. Arcep confirmed that they did not meet Free's needs for visibility and transparency and therefore imposed on Orange to grant a right of access for a defined period of time and at least 40 years. In its decision, the Court of Appeal confirmed that these conditions are "not sufficiently precise in view of Free's need for visibility over the effective duration of this right".

In addition, Arcep considered that it was justified and reasonable for Free to obtain information on the formation of access tariffs for Orange FTTH networks in less dense private initiative areas. This was also supported by the Court of Appeal, which stated that these tariffs were "directly linked to the financial terms of the bid, which it seeks to ensure is fair".

Finally, the Regulatory Authority considered that the incumbent operator should allow Free to connect mobile base stations in less dense areas of private initiative via the extra optical fibres of the FTTH network deployed by Orange and co-financed by Free. A point that has not been contested by Orange in its appeal.


In addition, the Paris Court of Appeal held that the decision did not affect business confidentiality and confirmed Arcep's analysis. And noting that the information that Orange must provide to Free pursuant to the decision "is characterized by a very high degree of aggregation, both geographically and by expense items".




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Source : Le Monde Informatique





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