Tuesday 9 January 2018

French State Ordered to Pay €26,100 to Bouygues Telecom

In a recent decision (4 December 2017), the French Conseil d'Etat (the Supreme Court in respect of administrative and public law cases) ordered the State to pay French Internet Access Provider Bouygues Telecom the sum of €26,100.

The context is that of the so-called graduated response system overseen by HADOPI.  It will be recalled that an Act of 2009 implemented the system under which a series of warnings are issued by HADOPI (an administrative body) to infringers using peer-to-peer networks to unlawfully share protected content.  Upon the "third strike", sanctions may be taken.

In order for the system to work properly, the law mandated that the IAPs collect certain identifying data on their subscribers and turn over same to the public authority (which then issued the warnings).  The Act further provided for the adoption of a decree setting out the regulatory framework under which the IAPs could then seek reimbursement for the specific costs incurred in carrying out such tasks.  

In the absence of the adoption of such a decree, Bouygues Telecom brought proceedings against the State which culminated in a ruling in December 2015 whereby the court ordered the Prime Minister to take the necessary reulatory measures within six months.  The ruling went on to state that the order was subject to an "astreinte" (civil penalty) of 100 euros per day after the deadline.  The relevant decree was signed on 9 March 2017, i.e., 261 days after the expiry of the court-imposed deadline.  Accordingly, Bouygues Telecom sought - and obtained - liquidation of the "astreinte" for this time period in the amount of €26,100  (261 x €100).

Link to ruling here

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