The ECJ France Télécom/Wanadoo judgment: To recoup or not to recoup? This "was" the question for a predatory pricing finding under Article 82 EC

The European Court of Justice seized the opportunity of the first predatory pricing case brought to its attention since Tetra Pak II to have a say in the debate over the need to prove the possibility of recoupment of losses, thus clarifying certain ambiguities of its case-law concerning the test of predation.On 2 April, 2009, the ECJ dismissed an appeal brought by France Télécom against the judgment of the Court of First Instance in the Wanadoo predatory pricing case. The CFI judgment upheld the European Commission's finding that Wanadoo Interactive SA, a subsidiary of France Télécom, had abused its dominant position on the French market for high-speed internet access between March 2001 and October 2002. Notwithstanding the Advocate General Mazák's call, in his Opinion of 25 September 2008, for introducing a requirement of recoupment of losses under Article 82 EC in order to inaugurate a more economic approach to predatory pricing, the ECJ decided not to incorporate this additional requirement to the actual predatory price test. This outcome is reflected in the Commission's Guidance on Article 82 EC enforcement priorities published in February 2009 and confirms the European idea according to which to protect consumer welfare requires the protection the structure of the market and its competitors. After the France Télécom judgment, it may be pacifically stated that "To recoup or not to recoup? That "was" the question".