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Authors: Thomas Elkins, Daniel Green, Maëlys Duval
For the first time in Europe, a competition authority has fined a company for a below-threshold merger – not through merger control, but through antitrust enforcement.
Relying on the Court of Justice of the European Union’s (CJEU) 2023 Towercast ruling, the French Competition Authority (FCA) held on 6 November 2025 that Doctolib abused its dominant position by acquiring its main rival MonDocteur, active in online medical appointment booking services and remote medical consultation technology solutions. This decision, which was recently published, has attracted significant attention in France and beyond.
In this blog post, we delve into the FCA’s reasoning, before considering the wider implications of the decision on doing business in France, internal communications and French merger control policy. It does not cover in detail the more traditional exclusivity and tying abusive practices also sanctioned by the FCA, which were found to have locked in healthcare professionals and contributed to the foreclosure of Doctolib’s rivals.
The European Commission (EC), national competition authorities (NCAs) and EU Member States have been exploring how best to address below-threshold mergers that escape ex-ante merger control at both EU and national levels, despite potentially harming competition. Two main avenues have emerged:
Call-in powers: In 2021, the EC introduced its expansive Article 22 EU Merger Regulation referral policy which was put to a halt by the CJEU in the 2024 Illumina / Grail case. In response, several Member States have introduced, or are considering introducing national call-in powers enabling their NCAs to review transactions below national thresholds, either directly or by referring them to the EC (at its request, as in Nvidia/Run:ai, cleared by the EC but with jurisdiction challenged by the parties before the EU General Court).
Countries that have introduced such powers include Denmark, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Norway, Slovenia and Sweden. Belgium, Czech Republic, Finland, France, Greece, and the Netherlands are currently considering similar mechanisms.
Ex-post application of antitrust rules: In 2023, the CJEU’s Towercast ruling confirmed that NCAs have the power to review unreported acquisitions by dominant firms under abuse of dominance rules. The FCA subsequently extended in 2024 the application of Towercast to anticompetitive agreements in its Meat-cutting case. However, ex-post antitrust review requires a specific set of circumstances and should remain the absolute exception, as highlighted by Advocate General Kokott. Several investigations in Belgium, France and Sweden have already ended without the finding of an infringement (e.g., Meat-cutting case in France and Retriever/Infomedia case in Sweden), or were closed after the parties abandoned the deal or divested the target business (for example, Proximus/EDPnet and Wheat flour case in Belgium). At least two further cases remain ongoing in Belgium and France.
The penalty is not specific to class actions and might be applicable in all judicial proceedings. Nonetheless, the proceeds of all civil penalties paid will be allocated to a specific fund designed to finance class actions.
Following a complaint by a competitor in 2019 and a dawn raid in 2021, the FCA decided to investigate the 2018 acquisition of MonDocteur by Doctolib under abuse of dominance rules. The acquisition was not subject to ex-ante merger control, as it fell below the EU and French merger thresholds.
On 6 November 2025, the FCA found that Doctolib abused its dominant position notably by acquiring MonDocteur, which its internal documents described as its closest competitor in France, if not the only one. According to the FCA, the overarching aim was to “eliminate its main competitor and consolidate its market power in the French market for medical appointment booking services”.
Debate around the applicable legal standard. The FCA laid out its reading of the applicable EU and French case law and emphasised that, to establish an abuse in such cases, it must show that, post-acquisition, (i) the remaining competition on the market was dependent on Doctolib and could not – and in practice did not – challenge Doctolib and (ii) the “real market evolution” in the years following the acquisition. Doctolib pushed back strongly, emphasizing that according to the case law, the standard of proof should be “particularly high” to find an abuse and that neither Doctolib’s competitors (exclusionary abuse) or healthcare professionals (exploitative abuse) became dependent on Doctolib following the acquisition. The FCA sets aside these arguments: the factual circumstances of the Towercast case should not be generalized and in this case, Doctolib’s intention in acquiring MonDocteur was clearly anticompetitive which is confirmed by the market evolution post-acquisition, with no competitor able to challenge its position.
Application of a three-pronged legal test. The FCA sets out a three-pronged legal test:
Effects of the practice: The FCA established the anticompetitive effects by relying on (i) the evolution of Doctolib’s position and the remaining competitors post-transaction, (ii) changes in the economic model of healthcare professionals who increasingly turned to Doctolib, (iii) Doctolib’s ability to attract a significant number of new healthcare professionals, increase its prices several times without losing customers and continue to grow its market share, and (iv) the broader impact on innovation and the development of new technologies in the sector.
While the FCA did not challenge “the quality of Doctolib’s products, or the investments made to convert a large number of clients”, it considered nonetheless that the acquisition has significantly stifled competition by eliminating the only competitor able to compete with Doctolib, contrary to the remaining competitors who were never able to do so post-transaction.
The FCA fined Doctolib a total of EUR 4.7 million divided in two parts.
Use of in-house lawyer communications: In the Doctolib case, the FCA expressly referred to internal emails from the Doctolib legal team advising that “[the exclusivity clause] is illegal under competition law” and ultimately that “it’s not illegal, but we’re not very comfortable with it. Legal wanted to remove it, but the Executive Committee decided otherwise”. This contributed to the findings of the FCA on the exclusivity practices.
Similarly, in Teva’s abuse of dominance case, the EC also relied on documents from Teva's internal legal team to support its conclusion that Teva had abusively “gamed” the patent system.
Doctolib has announced that it will appeal the FCA’s decision. Pending the outcome, several practical lessons emerge:
The FCA’s reliance on Towercast in Doctolib sits against the backdrop of expected reforms to the French merger control regime in the coming months, including a potential increase in French merger thresholds – although currently suspended – and the introduction of a call-in power. The FCA recently confirmed it will submit its proposal for a call-in to the French government by the end of 2025.
Any new call-in power would likely reduce the need to rely on ex-post antitrust tools in below-threshold cases, but Doctolib shows that, where conditions are met, the FCA is both willing and able to use Towercast to police acquisitions that escape classic ex-ante merger control.