French competition law: What happened in 2021 and significant events in 2022

Year to Come 2022 and Year in Review 2021 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

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major legal developments in 2021 and 2022

French competition law highlights in 2022

2022 shall see important antitrust enforcement in the digital economy and strong merger control with high-profile cases

The digital economy, more important than ever in the French Competition Authority’s (“FCA”) 2022 policy agenda

Even though the President of the FCA, Isabelle de Silva, left in November 2021, and the appointment of her successor, Benoît Cœuré, has just been approved by the French Parliament, we can expect continuity in top priorities. No doubt that the digital sector will continue to be at the centre of enforcement actions.

As announced by Isabelle de Silva in her departure speech, “the major challenge remains that of the digital transformation of the economy”. The publication of the G7 compendium on digital markets (analysing the decision-making and advisory practice in the digital economy – Nov. 2021) also shows a will of the FCA to continue coordinating with other national competition authorities towards a more efficient and global antitrust enforcement in the digital economy.

Three Big Tech investigations are on the FCA’s 2022 agenda:

  • Google on related rights for press publishers and agencies (decision on the merits).
  • Apple on amendments to its targeted ads features of its operating system combining competition and data privacy issues (self-preferencing).
  • Facebook on alleged self-preferencing practices on its platform at the expense of competitors (Facebook has offered commitments).

Besides, the Digital Markets Act is expected to be adopted. No doubt the FCA will want to continue to have a role in this debate which aims at regulating “gatekeeping” platforms, allowing fines of up to 10% of the gatekeeper’s global turnover (and maybe 20% according to the European Parliament’s latest amendment) and and requiring them to inform the European Commission (“Commission”) of any intended concentration (even if below the thresholds) involving another provider of core platform services or digital services.

Increased risk of dawn raids and constant monitoring of the agri-food, retail, pharma, utility and innovation-driven sectors

In the wake of the Commission’s announcement of a restart of dawn raids after a decline in 2020/2021 due to the Covid-19 pandemic (“[it’s] just the start of a series of raids that we’re planning for the months to come”), one can also expect an increase in the number of dawn raids that will be carried-out by the FCA if it wants to maintain its heavy antitrust enforcement pace. Given the remote working environment, dawn raids will not only target the companies’ premises but also their cloud and private homes of their employees, which should be prepared – as it did during its last dawn raid (see Year in Review).

Competition in the agri-food and the retail sector has always been a top priority and we can again expect this to be true in 2022. Indeed, the FCA announced an unprecedented investigation in the manufacture and retail of foodstuffs in contact with materials containing bisphenol A (involving 101 companies and 14 trade associations). Besides, the FCA will continue investigating the food retail sector and the pharma sector (see Year in Review).

In the utility sector, the FCA is still investigating Plüm’s complaint against EDF alleged predatory pricing. It will also continue its ex officio investigation (following its 2019 opinion requested by the Ministry for the Economy) into alleged practices in the fuel supply, storage and distribution sector in Corsica. More generally, one can also expect the FCA to continue to analyse in more details innovation-driven markets – such as it did in 2021 during merger control proceedings in the hydrogen energy and charging stations for electric vehicles sectors.

Merger control: beyond notifiable transactions

2022 will also be the year of the TF1/M6 merger control decision, which has been described by the former FCA President as “an a priori difficult operation [which will be examined] with an open mind” and is likely to be subject, at least, to commitments.

In the field of merger control, more Article 22 referrals can be expected from the FCA which is closely monitoring innovation-driven sectors such as digital markets or the pharmaceutical sector. Companies should thus remain watchful of the risk of their transaction being called-in, even if it does not exceed the thresholds, and assess the need for a briefing paper and/or amending the condition precedent and long-stop date.

A shift towards a greener competition

In her departure speech, Isabelle de Silva also mentioned as a priority the prosecution of both cartel and abuses of dominance that affect competition, but also those undermining the objectives of sustainable development.  She also advocated for a better consideration of sustainability and ecological progress as a justification for certain agreements.

Companies should also be vigilant about a stronger enforcement on concerted practices affecting labour markets (i.e., no poach agreements, wage fixing), which has also been mentioned by Isabelle de Silva and is already actively prosecuted in other jurisdictions, such as the USA.

French competition law highlights in 2021

2021 was (again) an active year for the French Competition Authority, with numerous decisions and a strengthening of its enforcement tools

Heavier antitrust enforcement in 2021

The FCA issued more antitrust decisions in 2021 than during any of the three preceding years and maintained its trend regarding the imposition of significant fines in cartel and abuse of dominance cases (total amount of fines is just above €850 million, among the highest in the recent years). 

Regarding cartels and vertical restraints, the FCA imposed major fines to:

  • Eyewear manufacturers and brand owners for imposing retail price maintenance (“RPM”) on opticians and prohibiting online sales (€126 million, July).
  • Industrial sandwiches producers for bid rigging (sharing of customers and volumes) and agreeing on price increases to retailers (€24.6 million, March).

Among the smaller-scale cartels and vertical restraints, the FCA sanctioned:

  • RPM and prohibition of online sale by video surveillance equipment manufacturers and distributors (€1.1 million, October) and RPM for football leisure equipment by a franchisor (€25,000, November).
  • Boycott of digital intermediation platforms by road freight transporters (€500,000, September) and bid rigging in the building management systems sector by Vinci (€435,000, March).

Regarding abuse of dominance cases, the FCA imposed a fine on Google for self-preferencing practices in the ad tech sector (its ad server and its ad sales platform favoured each other to the detriment of third-party providers and publishers) (€220 million, June). In addition to the fine, Google committed to make relevant changes to foster interoperability and access (this is the first competition case in the ad tech sector at global level to look into complex algorithmic auctions processes). The FCA also fined a molasses producer in La Réunion for abusing its dominant position by imposing unfair contractual clauses towards rum distilleries (€750,000, November).

The FCA issued its second merger control prohibition and first Article 22 referral

The FCA merger control activity increased significantly in 2021 with more than 270 transactions reviewed (compared to 195 in 2020). 

The FCA conditionally approved ten transactions in phase 1 – subject to structural (including fix-it-first) remedies. The only phase 2 decision led to a prohibition (which is the FCA’s second ever prohibition; the first case was in 2020 in the retail sector). The FCA prevented Ardian from acquiring sole control over the Méditerranée-Rhône pipeline (SMPR) arguing that it would have allowed Ardian to raise prices for the use of what the FCA considered to be an essential facility. 

Finally, the FCA has referred a case (Illumina/GRAIL) to the Commission, using the referral mechanism set out in Article 22 of the Merger Regulation, as newly interpreted by the Commission (i.e., even when national thresholds are not met). Such mechanism intends to prevent potential “killer acquisitions” in innovative markets (e.g., tech, biotech, health).

The FCA fully used its procedural and advisory powers

The FCA continued in 2021 to strictly monitor compliance and implementation of its decisions by companies. In that regard, the highest fine of the year was imposed on Google for failing to comply with various FCA injunctions (imposed in April 2020) in relation to the remuneration of related rights for press publishers and agencies (€500 million, July), and imposed periodic penalty payments of up to €900,000 per day in case of future non-compliance. 

The FCA also continued to prosecute procedural breaches and imposed three fines on companies that obstructed antitrust investigations: Fleury Michon (€100,000, May – an internal restructuring of a subsidiary targeted by an investigation has not been indicated to the FCA); Nixon (€5,000, July – refusal to reply to an RFI) and Nel Group (€100,000, December – refusal to reply to an RFI). 

Besides, the FCA resumed carrying out dawn raids with inspections at the premises of undertakings and professional organisations active in the pharmacy data collection and processing sector (July) as well as in the food retail sector, including at the private home of some of the retailers’ employees (November).

Finally, the FCA had an active advisory role in 2021 with the publication of ten opinions (v. 12 in 2020) targeting inter alia the cultural sector (three opinions), the sector of new technologies applied to payment activities as well as the oil pipeline sector. 

Modernisation and improvement of the FCAs enforcement and compliance tools

2021 was the year of adoption of the ECN+ Directive Transposition Order that achieved the modernisation process of French competition law. It gave the FCA sharpened enforcement powers (e.g., structural or behavioural injections, greater access to companies’ virtual data during dawn raids, ability to open ex officio interim measure procedures) and strengthened repressive tools (e.g., increase of the maximum fine to be imposed on trade associations, immunity from criminal sanctions in case of leniency application). The FCA also updated its Procedural notice on the method for determining fines, aligning its method with the Commission’s (e.g., entry-fee, illicit gains, durations). All these changes will have an inflationary effect on the level of fines imposed.

Finally, in terms of compliance, the FCA published a study on the application of competition rules to professional bodies and updated and submitted for public consultation its draft framework on compliance programs which advocates for better compliance practices.

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