Orange carries out its threat. According to information from World, the telecom operator attacked the Regulatory Authority for Electronic Communications, Posts and Press Distribution (Arcep), on February 3, before the Council of State. Objective: to obtain the opening of a priority question of constitutionality (QPC), in order to question an Arcep sanction mechanism. According to the request filed by the operator, the latter “disproportionately infringes freedom of enterprise”. Orange confirms this dispute. Laure de La Raudière, the president of the authority, says to herself “shocked” by this procedure.
This action before the Council of State follows the salvo of criticism launched by Christel Heydemann, the director general of Orange, before the economic affairs committee of the Senate, on November 30, 2022. The leader had expressed her anger against the formal notice issued by Arcep against the operator on March 17, 2022, in which it was accused of not having respected its commitments to deploy fiber optics in moderately populated areas known as “call for demonstration of ‘investment intention’.
A second complaint
“Is it reasonable or even useful to sanction the operator who has made France the country with the most fiber in Europe”stormed Mme Heydemann in front of the senators. A second complaint, still before the Council of State, must be opened concerning the file of the unbundling tariff, the rent paid by other operators to borrow the ADSL network of Orange. The latter accuses Arcep of not having kept its promises to increase the price.
Beyond these quarrels, Orange wants to get the Constitutional Council to consider the broader issue of “cumulation, within the same independent administrative authority and by the same persons, of advisory powers and a quasi-jurisdictional power of sanction”. This argument worries the regulatory authority, which sees it as an attack on its sanctioning power and independence. “This is not the challenge of an isolated decision. It is Orange’s desire to challenge all of the objectives assigned to regulation by political will, by the will of parliament.”dreads Mme de La Raudière, who believes that “without the power to sanction, deployments, quality of service, it will be at their whim, when they see fit”.
This is not the first time that Orange has requested the opening of a QPC against Arcep. In September 2019, Stéphane Richard, the CEO at the time, denounced the “legal harassment” of the regulator. But, a few weeks later, the operator had calmed things down by deciding to withdraw his complaint. The battle is restarted.