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France competition law: What happened in 2019 and significant events in 2020

Year in Review 2019 and Year to Come 2020 summarises some of the major developments in French competition law last year, and a selection of key changes that we anticipate over the coming year.

Key updates to

9

major legal developments in 2019 and 2020

Significant events in 2019

Explore the tabs below to review the key legal developments you need to be aware of in 2019

Higher antitrust enforcement in 2019

The French Competition Authority (“FCA”) imposed major cartel and abuse of dominance fines in the last week of December and finalised small-scale investigations it had in the pipeline throughout the year (total amount of fines for 2019 was €631 million versus €213 million in 2018).

The FCA imposed major fines for cartel behaviour on:

  • Meal voucher issuers for information sharing and erecting barriers to entry and expansion (€415 million, December).
  • Fruit purée makers for price fixing and customer allocation practice (€58 million, December).

The FCA also imposed a fine on Google for abuse of dominant position on the grounds that Google Ads’ operating rules imposed on advertisers were established and applied under non-objective, non-transparent and discriminatory conditions (€150 million, December). The FCA also ordered Google to amend the relevant conditions.

Among the smaller-scale cartel and vertical restraint cases, the FCA pursued:

  • Customer allocation practices by road transport companies (€3.8 million, October) and wholesalers of bakery equipment (€1.7 million, July).
  • Exclusivity clauses in distribution agreements in overseas territories (€225,000, May; €176,000, October); resale price maintenance in the liquid fertilisers sector (€24,000, July); and bans on online sales in the bike sector (€250,000, July).

The FCA also fined regulated professions for illegitimate concerted pricing policies (notary public, €295,000, June; architects, €1.5 million, October) and for restricting access to the market (bailiffs, €120,000, June; taxis, €75,000, March).

Merger control activity remained high in 2019

The FCA remained very active in merger control in 2019 with more than 250 cases (versus 235 in 2018). None of the authorised transactions were subject to a Phase 2 investigation, but parties had to offer remedies in several cases (ten, within which six involved divestments and five involved licence agreements). The FCA nevertheless opened several Phase 2 investigations, the outcome of which should be known in 2020.

The FCA also reviewed the remedies offered by undertakings in two significant past mergers in the media sector, such as in the:

  • SFR/Altice case, in which the FCA did not renew the commitments (cable network access, DOLL and dark fibre, cable offers in post offices) taken by SFR in the context of its 2014 acquisition of Numericable (October).
  • Canal+ International/Mediaserv case, in which certain conditions imposed on Canal+ International as part of its 2014 takeover of Mediaserv have been extended for five additional years (equal treatment of Canal+ Telecom and other internet service providers), while others have been eased (discounted offers combining Internet Canal+ International TV offers became possible and table pricing for Ciné + were dropped) due to changes in the competitive landscape in the overseas markets (February).

The FCA used all its enforcement and advisory tools

A notable antitrust case in 2019 concerned interim measures imposed on Google (different case than the sanction decision of December) by the FCA in which the latter insisted that Google Ads’ commercial terms (referencing payment terms and conditions for suspending accounts) should be more transparent (January).

The FCA also continued to pursue procedural breaches and imposed its first fine for breach of a seal affixed on AKKA Group’s premises (IT sector) during a dawn raid. AKKA was also fined for having diverted incoming e-mails during the dawn raid (€900,000, May).

The FCA made several unannounced inspections at the premises of undertakings active in the transport sector in the French overseas departments.

Finally, the FCA also had a very active advisory role in 2019 with the publication of no less than 18 opinions (versus 16 in 2018) targeting the healthcare, energy and transport sectors, which remain under constant scrutiny in France.

Modernisation and streamlining of the merger control process

In response to companies’ growing demand for a less burdensome merger notification process, the FCA modernised and simplified its procedures. Starting April, the FCA reduced the amount of data to be provided by companies and formal filing requirements.

The FCA also published its draft revised merger control guidelines and is still examining a possible ex post merger control regime or a regime in which the FCA imposes disclosure requirements on some market players in certain key markets even where the current turnover thresholds are not met (e.g. killer acquisitions in the tech, health and media industries). The FCA also allowed certain concentrations to be filed online (demarches-simplifiees.fr).

Political influence in merger reviews

Following the European Commission’s (“Commission”) prohibition of the Siemens/Alstom merger (February), the French and German governments published a joint statement criticising the Commission’s lack of consideration of the European industrial policy objectives when reviewing the merger. This sparked a reflection on how competition law can foster European industrial and digital policy at political level. The FCA is not part of this initiative.

Significant events in 2020

Explore the tabs below to review the key legal developments you need to be aware of in 2020

Classic industries under the FCA’s radar and greener approach

The FCA has published its enforcement priorities for 2020 and announced that it will continue to closely monitor the agri-food, pharmaceutical, healthcare, banking, payment and consumer electronics sectors.

A stronger stance towards antitrust violations is likely, as expressed by the President of the FCA: “if 2019 was ‘the year of the Reports’, let’s hope that 2020 will be the ‘year of Action’!”.

The FCA will also finalise certain key investigations including those opened in the consumer electronics sector, the retail sector following the filing of several purchasing alliances (Auchan/Casino/Metro/Shiever, Carrefour/Système U and Carrefour/Tesco) in application of the so-called loi Macron (August 2015) and the long-standing vertical investigation in the optical sector.

Corsica and overseas territories will remain a key priority of the FCA and anticompetitive practices in public procurement markets, as well as anticompetitive behaviours harmful to the protection of the environment, will also be targeted by the FCA which aims to be active at French, EU and international (trough the ICN) levels on competition law and sustainability topics.

2020: year of digital enforcement

The FCA highlighted it will boost its enforcement in the digital sector in 2020, following the consensus reached in 2019 by the G7 competition authorities and the Commission concerning competition issues raised by the digital economy. The FCA has developed a strong knowledge of these topics through a number of opinions and reports over the last few years (incl. big data, online advertisement, algorithms). The joint report published in November 2019 by the FCA and the Bundeskartellamt about algorithms could trigger further enforcement against price algorithms. The FCA will also set up a dedicated digital unit to tackle ongoing and future tech probes, that will focus in 2020 on the online advertising and press sectors as well as personal data collection and the use of algorithms.

As for studies, “new commercial distribution strategies” (offline and online integrated models or omni-channels) will be scrutinised to take better account of the growth of online market places. A study on “the impact of the digital revolution on the financial sector” is also due in the course of 2020 and will address issues in the electronic-payment services, blockchain and the broader fintech sector.


Merger control developments

In the framework of its continuous efforts to modernise and simplify its merger control regime, the FCA will likely publish its final position on how it intends to capture so-called killer transactions falling below the current turnover thresholds.

The final version of its revised merger control guidelines is also expected to be published in the course of 2020, with an expected increase in the percentage of simplified procedures from 50% to 70%.

Reinforced power following the ENC+ directive

2020 will be the first year during which the FCA will be able to access the data of electronic communication operators for its investigations and will also most likely be the year the European directive ENC+ is transposed into French law. Extended powers foreseen in the directive include:

  • Discretionary prosecution system (possibility to reject complaints for lack of priority so as to focus its resources on key anticompetitive practices).
  • More deterrent fines against professional organisations.
  • Structural injunctions where necessary in litigation proceedings to ensure anticompetitive practices actually cease.
  • Ex-officio opening of interim measure cases.

Compliance promotion

In 2020 the FCA will continue its awareness campaigns as to anticompetitive risks by setting up a working group, including companies, to initiate a reflexion on compliance programs. The FCA will also publish various materials advocating competition law and analysing behavioural commitments within competition law.

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