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Authors: Matthieu Blayney, Daniel Green, Tanguy Laurioz & Nicolas Chavonnand-Valades
On 22 October 2026, the French Competition Authority (FCA) issued a decision fining a company for completing a below-threshold acquisition after finding - 6 years after closing - that it eliminated competition in breach of the prohibition against anticompetitive agreements.
The FCA found that Drapkoc's unnotified 2019 acquisition of its only rival Point Net - which left the merged entity, Ecostrill, as sole operator of medical waste treatment on Réunion island - infringed the French equivalent of Article 101 TFEU, with the sale agreement itself being "direct and sufficient evidence of a meeting of minds between the parties."
However, the FCA imposed only a symbolic fine of one euro and, more significantly, it did not require a demerger.
To assess the impact on competition, the FCA expressly borrowed the analytical framework used in merger control, applying the Significant Impediment to Effective Competition (SIEC) test to determine whether the transaction raised issues. This seems to mirror the Belgian Competition Authority's Dossche Mills/Ceres decision of 25 July 2025, which likewise applied "the existing analytical framework applicable to the assessment of horizontal concentrations" to a below-threshold flour merger assessed under Article 101 TFEU.
The FCA's findings tracked a conventional horizontal merger assessment: the transaction created a monopoly in medical waste treatment, entrenched by regulatory barriers to entry and Réunion's island status, with at least potential effects in the adjacent collection and transport market, where the merged entity's share exceeded 80%.
A pattern of revisiting closed transactions. While the FCA indicated in its press release of 22 October 2026 that such cases are “likely to remain exceptional”, the French authority has in practice shown now, over three decisions in as many years, that it is prepared to revisit closed transactions that fell below notification thresholds, and that its toolkit spans both the abuse-of-dominance (102 TFEU) route opened by CJEU with Towercast and the prohibition on anticompetitive agreements (101 TFEU), as this decision confirms:
This track record sits uneasily with Advocate General Kokott's opinion in Towercast, which indicated that this mechanism should "remain the absolute exception".
When reviewing a below-threshold acquisition by a dominant firm, the FCA applies the test set out in Towercast, namely that it must “show the degree of dominance reached through the merger is such that only competitors dependent on the dominant undertaking’s conduct can subsist”. Whatever this means in practice, it is generally regarded as imposing a relatively high evidential burden on the authority, arguably higher than the SIEC test. Against this decisional practice, strangely enough, dominant companies may therefore face a smoother path than non-dominant companies pursuing similarly problematic below-threshold acquisitions. That appears difficult to reconcile with the “special responsibility” that dominant firms are supposed to bear under Article 102 TFEU and may, in practice, make Article 101 a more attractive enforcement route for the FCA, even where the acquirer is itself dominant.
Since 2017, the FCA has been advocating for call-in powers. A short-lived solution was found in the Commission's revamped interpretation of Article 22, which the CJEU brought to an end in 2024. Since then, the FCA has, once again, called for call-in powers.
The FCA's position has been to advocate for a pre-closing call-in power as providing more legal certainty than a post-closing unbundling and/or fine. By showing that it is willing and able to investigate below-threshold deals years after closing, the FCA is making its case, one belated intervention at a time.
Either way, the current state of affairs serves no one well: parties are left negotiating transactions without a clear sense of if or when a below-threshold deal might later be unwound, while the FCA expends scarce investigative resources intervening six or seven years post-closing.
29 October 2026
