The Public Competition Enforcement Review: France
The French Competition Authority (FCA) is the administrative body in charge of enforcing European and domestic competition rules in France. In 2020, it issued 22 contentious decisions, of which 12 imposed fines amounting to an aggregate €1.8 billion. This total shows a significant increase compared to previous years (€630 million in 2019, €240 million in 2018); therefore 2020 can be qualified as a record year in terms of sanctions. Of the 12 decisions imposing fines in the past year:
- six sanctioned cartels and anticompetitive agreements, under Article L 420-1 of the French Code of Commerce or Article 101 of the Treaty on the Functioning of the European Union (TFEU);
- two sanctioned an abuse of a dominant position, under Article L 420-2 of the French Code of Commerce and Article 102 TFEU;
- one sanctioned both anticompetitive agreements under Article L 420-1 of the French Code of Commerce and Article 101 TFEU, and an abuse of a situation of economic dependency under Article L 420-2 of the French Code of Commerce;
- one sanctioned unjustified exclusive import rights to the French overseas territories, under Article L 420-2-1 of the French Code of Commerce; and
- two sanctioned non-compliance with commitments, under Article L 464-3 of the French Code of Commerce.
As to its merger control attributions, the FCA issued 196 decisions in 2020, which included 182 decisions authorising the notified transaction, 10 decisions authorising the notified transaction subject to compliance with commitments, one decision reviewing commitments and injunctions in a previously cleared transaction, two decisions of non-controllability of the notified transaction and one decision blocking the notified transaction (a decision issued in the retail distribution of food-dominated products sector).2
The year 2019 marked the 10-year anniversary of the FCA, created in March 2009 to replace the former French Competition Council (FCC). The 2008 Law on Modernisation of the Economy, which had set up the new institution, entrusted it with the power to review mergers, a prerogative that had previously lain with the French Ministry for the Economy and Finance. It also vastly increased its investigative powers compared to those of the former FCC, and allowed it to take up any competition issue for an opinion on its own initiative. On the occasion of this anniversary, the FCA carried out an assessment of its impact on the French economy and evaluated that its action over 10 years had resulted in a total gain of nearly €14 billion, including €9.5 billion in avoided costs and €4.5 billion in fines collected. In 2020, although France was largely impacted by the covid-19 health crisis, the FCA maintained a high level of activity, pronouncing nearly €1.8 billion in fines, for an operating budget of €23 million.
In 2020 new appointments were made at the FCA. Among others, Yann Guthmann was appointed head of the new Digital Economy Unit, and Pascale Déchamps and Laure Gauthier were appointed Deputy General Rapporteurs of the FCA, respectively in charge of Antitrust Unit 2 (digital cases, in particular those relating to online advertising and the telecoms sector) and Antitrust Unit 1 (cases relating to the transport and energy sectors).
In addition, the Board of the FCA (the Board) welcomed several new members this year. The Board is the FCA's body in charge of deliberating and adopting decisions, which are made collectively except where the President or a Vice President can 'rule' alone. The Board is made up of 17 members, five of whom (the President and four Vice Presidents) perform their functions on a full-time basis, whereas the other 12 are non-permanent. In 2020, Béatrice Bourgeois-Machureau – senior judge at the French Administrative Supreme Court – was appointed a board member, and Jean-Louis Gallet and Frédéric Marty were appointed board members of the FCA as qualified professionals working on specific missions relating to the freedom of establishment for lawyers at the French Administrative Supreme Court and Supreme Court.
As in 2019, in 2020, the FCA maintained particular attention towards the digital sector, the retail sector and competition in overseas territories. This year, the FCA was also interested in new emerging subjects, such as the impact of the digital revolution on the financial sector, taking into account the requirements of sustainable development, and promoting compliance more broadly. These and other relevant developments of 2020 are discussed below.
The enforcement of Articles L 420-1 of the French Code of Commerce and 101 TFEU, which prohibit anticompetitive practices and cartels, is one of the prime missions of the FCA. In 2020, the FCA issued two decisions that could classify as 'cartels' (even though the enforcer now rarely uses that terminology), fining a total of 15 undertakings for an aggregate amount of €93.4 million. This figure shows a significant decrease compared to previous years (€479 million in 2019, €205 million in 2018). Tackling 'cartels' remains one of the FCA's priority when allocating resources, but as announced in its priorities for 2020, the retail sector – more prominently marked by vertical restraints – figured more prominently in the core activity of the FCA in 2020, which explains the low number of 'cartel' decisions.
i Significant cases
On the one hand, in July, the FCA handed out fines worth €93 million to a 'cartel' in the ham and cold meats sector.3 The FCA found that two sets of practices had been implemented: (1) cold meat manufacturers were coordinating with each other with a view to showing a united front at their negotiations with slaughterhouses in order to counter any requests to increase the price of the raw material or obtain price reductions; and (2) the manufacturers were also coordinating with each other with a view to developing a common position on price increases for cold meat products that they intended to charge mass-market retailers for their private labels. These practices were brought to light thanks to the leniency procedure, which allows companies that have been involved in a concerted practice to disclose its existence to the FCA and benefit, under certain conditions, from full or partial exemption from a fine. When determining the level of the fines, the FCA took into account the strong negotiating power of the mass-market retailers, the difficult economic situation in the cold meat sector and the individual financial difficulties experienced by some companies. It also took account of the leniency applications when determining the level of the fines for the companies that chose to cooperate with the FCA. In this context, the FCA imposed fines amounting to €93 million in total.
On the other hand, in September, the FCA sanctioned two trade associations, the Alsace Winegrowers Association (AVA) and the Producers and Merchants Group for the Alsace Wine-Growing Region (GPNVA), as well as an interprofessional organisation, the Interprofessional Council for Alsace Wines (CIVA), for fixing the price of grapes.4 Through these practices, the organisations involved aimed to raise the price of the raw material, thereby driving up the retail price of Alsace wine. CIVA was also sanctioned for having drawn up and disseminated tariff recommendations on bulk wine. Insofar as organisations do not have turnover, unlike companies, financial penalties have been determined according to procedures specific to the case. The FCA noted in this regard that the organisations involved have their own resources, consisting in particular of contributions collected annually from their members. Thus, for example, the amount of contributions collected by CIVA amounted, for recent years, to several million euros. In this context, the FCA imposed fines amounting to €376,000 in total.
ii Trends, developments and strategies
Creation of a Digital Economy Unit
This specialised unit, which reports directly to the General Rapporteur, is tasked with developing in-depth expertise in all digital areas and cooperating in the investigation of anticompetitive practices in the digital economy. The unit includes a wide range of profiles, such as engineers, lawyers, economists and data science specialists. The accelerated digitisation of the economy is creating new challenges for the FCA. As regards 'cartels' in particular, how can we detect new types of breaches committed through algorithms, which are more easily concealed than conventional cartels?5
Covid-19 health crisis
During the covid-19 health crisis, the FCA set up a dedicated team to guide companies through this delicate period and ensure the absence of anticompetitive practices that could have harmed the economy and consumers. It was thus able to intervene, for example, to provide clarification to a professional association that wondered about the possibilities of discussing the terms of commercial rent payments during the crisis.6
The adoption by Parliament on 18 November 2020 of the DDADUE bill – a bill containing various provisions adapting to EU law in the economic and financial field – represents a further step towards more effective action by the FCA by enabling the transposition of the ECN+ Directive. This Directive strengthens the means available to the national competition authorities and provides for the creation of a common set of powers enabling them to enforce competition rules more effectively within the European Union. The new law will improve the procedures for detecting anticompetitive practices, firstly by modernising the legal regime applicable to dawn raids, and secondly by giving the FCA additional means to reduce the time taken to process cases involving litigation. Finally, certain provisions are designed to make it easier for the FCA to exercise its overseas powers.
Several litigation investigations, initiated in particular following the 2018 opinion on online advertising, should be concluded in 2021. This applies to two cases, one concerning intermediation services in the online advertising sector and the other regarding massive data collection practices.
Antitrust: restrictive agreements and dominance
The FCA's antitrust enforcement activity, other than cartels, covers restrictive agreements under Articles L 420-1 of the French Code of Commerce or 101 TFEU and abuse of dominance under Articles L 420-2 of the French Code of Commerce or 102 TFEU. In addition, the FCA is also in charge of sanctioning unjustified exclusive imports in the French overseas territories.
i Significant cases
In March, after receiving a complaint in 2012 from eBizcuss, a distributor of specialised high-end Apple products (APR), the FCA fined Apple €1.1 billion, as well as its two wholesalers Tech Data and Ingram Micro €76.1 million and €62.9 million respectively.7 In France, Apple is accused of having implemented three anticompetitive practices within its distribution network of electronic products:
- dividing products and customers between its two wholesalers;
- imposing selling prices on APRs; and
- abusing a situation of economic dependency on APRs, which manifested itself through supply difficulties, discriminatory treatment and unstable remuneration conditions for their businesses.
Given the strong impact of these practices on competition in the distribution of Apple products via APRs, the FCA imposed the highest penalty ever served in a case – €1.24 billion. It is also the heaviest sanction imposed on an economic operator, in this case Apple (€1.1 billion), whose large dimension was taken into account.
In September, the FCA imposed fines worth a total of €444 million on three pharmaceutical companies, Novartis, Roche and Genentech, for abusive practices designed to sustain the sales of Lucentis for age-related macular degeneration (AMD) treatment to the detriment of Avastin (a competitive medicinal product that is 30 times cheaper).8 In this case, Genentech, Novartis and Roche laboratories implemented an abuse of collective dominant position aimed at preserving the position and the price of Lucentis. Indeed, the FCA considered that the three laboratories had to be examined as forming a 'single collective entity' within the meaning of competition law, as regards to cross-holdings and contractual ties between them. The FCA found that two sets of practices had been implemented by these three operators:
- Novartis led a global, well-organised communication campaign to discredit the use of Avastin to treat eye disease, and
- Novartis and Roche, aided by Genentech, initiated a series of blocking tactics, and their discourse with regard to the French public authorities was alarmist and misleading.
The practices sanctioned were particularly serious, as they had been undertaken in the healthcare sector, in which competition is limited. In total, the FCA issued a sanction of €444 million.
In November, the FCA fined the National Council of the College of Dental Surgeons (CNOCD), the departmental councils of the College of Dental Surgeons (CDOCD) in five French territorial collectivites and the Federation of Private Dental Surgeons' Trade Unions (FSDL) for their involvement in a single, complex and continuous breach intended to hamper the activity of dental care networks between 7 February 2013 and 18 December 2018.9 It also fined the National Confederation of Dental Trade Unions (CNSD) for hampering the activity of these networks through separate practices between November 2014 and 18 December 2018. The FCA handed out fines for boycott actions against care networks designed to hamper their operation. These practices were particularly serious, in that the purpose of the affected networks was to facilitate access to care for patients. The FCA took account of the specific and decisive role played by the FSDL, the CNOCD and the Isère CDOCD in the breach, the repeated nature of the practices as regards the CNOCD and the Bas-Rhin CDOCD and, lastly, the more limited involvement of the other CDOCDs. In total, the amount of the fines was a little over €4 million.
Within the same month, the FCA declined its competence to rule on practices implemented in French Polynesia.10 Indeed, the FCA considered that the facts submitted to it for examination did not come within its subject matter competence. In this overseas territory, control of anticompetitive practices lies by virtue of the provisions of a 'law of the country' adopted through the procedures provided for by Article 74 of the French Constitution and the organic law establishing the status of French Polynesia, under the exclusive jurisdiction of the Polynesian Competition Authority.
As for the courts, 2020 saw a new ruling of the French Supreme Court in the Exchanges Check-Image Fee case. Originally, the FCA issued a decision in 2010, by which it fined 11 French banks €384.9 million for having charged unjustified interbank fees during the transition towards a new digital system for processing checks.11 In a first ruling, the Paris Court of Appeal took the position that the qualification of restriction by object was not justified.12 It ruled a second time, after the referral ordered by the French Supreme Court in 2015,13 but in the opposite direction in a ruling dated 21 December 2017. According to the Parisian judges, the fee was indeed an anticompetitive agreement by object (i.e., condemnable in itself without being necessary to assess its concrete effects on the market).14 Consequently, the question before the Supreme Court was whether the introduction of this fee met the criteria for identifying as a restriction by object. In 2020, the Supreme Court overturned this ruling of the Paris Court of Appeal, for considering that an anticompetitive effect could be presumed when there was no experience with this type of fee. The Supreme Court then strongly recalled the principle of restrictive interpretation of the concept of restriction of competition by object.15
ii Trends, developments and strategies
Sanctioning abuses of a situation of economic dependency
In 2020, the FCA sanctioned an economic player for abusive exploitation of the situation of economic dependency in which customer companies were placed with regard to such economic player.16 This situation, rarely observed in the decision-making practice of the former FCC and the FCA, resulted in fact from a complex web of multiple contractual clauses and practices. This ruling is therefore noteworthy insofar as it proves that Article L 420-2 Section 2 of the French Code of Commerce, which prohibits abuse of a situation of economic dependency, is effectively applied by the FCA, which regards this practice as a 'particularly serious' one, as stated by Isabelle de Silva, President of the FCA.
Scrutiny over purchasing offices
This year, and for the first time, the FCA implemented the powers conferred to it by the EGALIM law, which resulted in commitments to address the risks to competition caused by two major joint purchasing agreements in the area of private label products. On the one hand, Casino, Auchan, Metro and Schiever offered commitments that led to the reduction of the scope of the existing agreement on the supply of private label products and were accepted by the FCA.17 On the other, the FCA made binding the commitments offered by Carrefour and Tesco, which limit their cooperation and guarantee small and medium-sized enterprises (SMEs) the possibility of bidding for tenders launched by both retailers for their private label products.18
Antitrust and 'structuring' digital platforms
In its contribution to the debate on competition policy and the challenges raised by the digital economy, published on 24 February 2020, the FCA observed that some behaviours implemented by large digital operators (such as discrimination against competing products or services, foreclosure of related markets, use of data on a dominated market to impede access, hampering the interoperability between products or services or multihoming) could not be caught under the current standard of abuse of dominance. It is thus exploring the adoption of a new regime to prevent and sanction anticompetitive behaviours by these operators, which would entail creating a legal definition of 'structuring firms' and submitting them to a specific set of enforceable obligations in terms of interoperability, non-discrimination and access to data.19
Sectoral competition: market investigations and regulated industries
i Significant cases
In April, following a complaint lodged in November 2019 by several unions representing press publishers and Agence France-Presse (AFP) of practices implemented by Google on the occasion of the entry into force of the law of 24 July 2019 on related rights, the FCA ordered interim measures in the context of the urgent interim measures procedure.20 It found that Google's practices were likely to constitute an abuse of a dominant position, and caused serious and immediate harm to the press sector. It thus required Google, within three months, to conduct negotiations in good faith with publishers and news agencies on the remuneration for the re-use of their protected contents.
Competition in Corsica Island
In November, following an investigation lasting several months, the FCA issued its opinion on the competitive situation in Corsica Island. The FCA carried out an in-depth analysis of the level of economic concentration in four sectors: maritime services to Corsica, fuel distribution, food distribution in supermarkets and hypermarkets and waste management. The FCA issued five sets of recommendations designed to stimulate competition and tackle the high cost of living, considering that the competition concerns identified in Corsica could be addressed more effectively through new legal instruments. These tools would be used in mainland territories suffering from a structural lack of competition due to geographical and economic specificities (linked, for example, to insularity or the presence of mountain ranges or the prevalence of tourist activities in the local economy).
As announced in its 2020 priorities, sustainable development was at the core of the FCA action this year. Thus, the FCA published two opinions as regards waste management: the first dealt with a draft decree relating to the waste management of perforating medical devices used by patients in self-treatment,21 and the second with a draft decree on the pricing of waste admitted by non-hazardous waste storage facilities.22 As regards climate change, in May, the FCA published – along with eight independent administrative or public authorities – a joint document setting out the need to take into account the urgency of climate change in defining and carrying out their missions and describe their levers for action.23
Arcep requested the opinion of the FCA on five draft decisions adopted by Arcep as part of the sixth cycle for analysis of the fixed broadband and superfast broadband wholesale markets for the 2020/2023 period. In its opinion issued in September,24 the FCA insisted in particular on the distinction, which may be justified in the future, between fixed broadband and superfast broadband. The FCA also raised the importance of Orange's work to close its copper network and switch to a fibre-to-the-home (FttH) network. The FCA stressed that special attention will have to be paid to the timetable and the technical, operational, commercial and financial conditions of this changeover, which raises considerable competitive challenges. Moreover, in January, the FCA announced the launch of an exploratory investigation into the business telecoms market.
ii Trends, developments and strategies
Modernisation of the FCA
Continuing the work begun to take better account of sustainable development objectives, in 2020 the FCA created a dedicated thematic team within its investigation departments and is actively participating in the work carried out within the framework of the European competition network. In 2020, the FCA also inaugurated its new service dedicated to the digital economy, which is now fully operational and will strengthen its expertise in platforms, algorithms and data science.
Fintech sector inquiry
Once again, this year the FCA will devote its full attention to the digital sector. The FCA will first deliver its opinion on the competitive transformation of the financial sector. This opinion, which follows a self-referral, will allow it to review the evolution of the competitive dynamics in the financial sector, with the emergence of fintech, but also the consequences linked to the significant arrival of Alphabet (Google), Amazon, Facebook and Apple in the payment services sphere.
The FCA will continue to actively participate in discussions led at the European level on digital regulation, in particular those regarding the Digital Market Act and Digital Services Act, which will define a new regulatory framework applicable to digital platforms. The FCA will also participate, within the framework of the European competition network, in the revision of the European Commission's communication on the relevant markets.
On 21 January 2021, the FCA published a study dedicated to professional bodies, examining how they can promote better application of competition law among their members, and illustrating the competitive risks associated with the functioning of these bodies, by giving them the keys to prevent them. The FCA chose to carry out this study in a context where the transposition of the ECN+ Directive exposes these bodies, and their member companies or professionals, to potentially much higher financial penalties than in the past. In January 2020, the FCA adopted the same preventive approach as regards SMEs25 and in June 2020, the FCA published a study on competition and e-commerce, aimed at providing clarity to companies on their online practices and merger preparations.26
State aid rules are enforced at the European level by the European Commission and the Court of Justice of the European Union. In 2020, the Commission made 51 decisions on measures implemented by France, and none was a negative decision ordering recovery.
During this particular year impacted by the covid-19 health crisis, the European Commission adopted a Temporary Framework to enable Member States to use the full flexibility foreseen under state aid rules to support the economy in the context of the crisis. Together with many other support measures that can be used by Member States under the existing state aid rules, the Temporary Framework has enabled Member States to ensure that sufficient liquidity has remained available to businesses of all types and to preserve the continuity of economic activity during and after the crisis. Originally, it was planned that the Temporary Framework would be in place until the end of December 2020 – except for recapitalisation measures that could be granted until 30 June 2021 – but in October, the European Commission decided to prolong and extend the scope of the Temporary Framework. Thus, all sections of the Framework were prolonged for six months until 30 June 2021, and the section to enable recapitalisation support was prolonged for three months until 30 September 2021.
In 2020, the FCA issued 196 merger review decisions under Articles L 430-1 to L 430-10 of the French Code of Commerce, which shows a significant decrease of transactional activity compared to previous years, probably caused by the covid-19 health crisis (269 decisions in 2019, 235 decisions in 2018, 236 in 2017). One hundred and ninety-two were Phase 1 clearance decisions, of which 10 were granted subject to commitments and none subject to injunctions.
i Significant cases
In 2020, for the first time ever, the FCA blocked a merger.27 In its decision issued in August, the FCA blocked the acquisition of joint control of a Géant Casino hypermarket located in a French municipality by Soditroy and Association des Centres Distributeurs E Leclerc. The merger would have created a duopoly between the hypermarket retailers Carrefour and E Leclerc in the conurbation of Troyes city, which would have facilitated tacit coordination in this area. The merger would also have led to an increase in prices due to the disappearance of any competition between the hypermarket subject to the takeover and the E Leclerc hypermarket already present in this area. In the absence of suitable remedies, the FCA decided to block the notified merger.
In May, Fnac-Darty notified the FCA of its plan to deploy sales spaces dedicated to retail distribution of household appliance products, operated under the Darty brand ('shop-in-shop' model), in 30 Carrefour stores. Following its analysis, in July, the FCA sent a decision on non-controllability to Fnac-Darty, indicating that this transaction did not constitute a merger as defined by Article L 430-1 of the French Code of Commerce. As a result, the planned transaction was not subject to the notification obligation provided for by the French Code of Commerce.
In November, the FCA cleared the acquisition of Leader Price by Aldi, two hard discount food retail chains, subject to conditions.28 Given the Community scope of this transaction, it should in principle have been examined by the European Commission. However, as allowed under European Regulation No. 139/2004, the parties to the transaction requested the transaction examination be referred to the FCA considering that the latter was better placed to examine it. Given the impact of the transaction in France, and in light of the FCA's experience in reviewing mergers in this sector, the Commission referred the case to it by decision of 4 June 2020. On 5 October 2020, Aldi notified the FCA its plans to acquire assets owned by the Casino Group. These assets included 554 Leader Price stores and two Casino stores. As a result of its analysis, the FCA raised a risk to competition in nine French municipalities. In these areas, the transaction could lead to price increases or reduce the diversity of products available to the consumer, given the parties' combined market share (more than 40 per cent), or to the establishment of a duopoly in these areas. To remedy these competition concerns, Aldi committed to sell nine Aldi or Leader Price stores in these areas to one or more of its competitors. The potential buyers will have to be approved by the FCA, which will make sure that they are in a position to provide a credible alternative offer to the consumer.
In December, the FCA cleared the acquisition of 511 Camaïeu stores by Financière Immobilière Bordelaise.29 In this case, the Financière Immobilière Bordelaise (FIB) group notified the FCA of its intended acquisition of 511 Camaïeu stores. The transaction came within the framework of an insolvency procedure initiated by the Lille Commercial Court on 26 May 2020 with regard to the Camaïeu group. By means of its decision of 22 July 2020, the FCA had, on an exceptional basis, granted a derogation allowing FIB to proceed with the transaction without waiting for the final decision, because of constraints related to insolvency procedure rules.
ii Trends, developments and strategies
Catching killer acquisitions
The FCA has been campaigning for several years to have what it considered a loophole in national and European merger control be remedied. It was indeed possible for acquisitions potentially having a strong impact on competitive dynamics to escape all control, when the target's turnover did not reach the mandatory notification thresholds, and this included when the target was redeemed for a considerable amount, as in the Facebook/WhatsApp transaction. The European Commission responded favourably to this call, announcing in 2020 that it would henceforth accept, going back to its past doctrine, referrals by national competition authorities of mergers 'below the thresholds', within the framework set by Article 22 of the 2004 European regulation.
New merger control guidelines
In July, the FCA published its new merger control guidelines, which replaced the previous guidelines dated 4 July 2013. The new guidelines are a clearer guide, enabling companies to anticipate the aspects taken into account by the FCA when examining a transaction. They aim to further alleviate the burden on companies, most notably by extending the scope of the simplified procedure. The main substantial inputs are a new section dedicated to gun jumping, as well as developments on the control of remedy implementation.
As regards next year's prospects, 25 operations were under review at the time of writing, five of which pertain to the food retail sector, two to automobile retail sector and three to the agriculture sector. Two in-depth (also known as Phase II) investigations are currently ongoing.
Contemporary music sector
In the first months of 2021, the FCA will issue the opinion requested by the National Assembly's Commission for Cultural Affairs on the subject of concentration in the contemporary music sector. It conducted a vast consultation in 2020 and heard several stakeholders in the sector in January 2021. This will be the first time that the FCA will look, in an overall opinion, at this sector to examine the competitive developments that are occurring in it, notably the effect of the development of digital media and consumption patterns.
Mergers during covid-19 health crisis
In 2021, when examining mergers, the FCA will pay attention to the context of the economic crisis. In 2020, the FCA examined a large number of transactions involving retail brands in economic difficulty. In 2021, we should see this trend continue. The FCA will make sure that certain transactions do not artificially escape its control due to the low turnover achieved in 2020 by the companies in question, but it will also endeavour to take into account the context in which these transactions will take place.
On 23 December 2020, the FCA unveiled its priorities for 2021. The digital sector will remain one of the FCA's core points of interest, with a particular focus on the impact of the digital revolution on the financial sector. In addition, the FCA created a Digital Economy Unit in January 2020, which will be tasked with developing in-depth expertise on all digital matters, with the aim of contributing to the FCA's studies and sector-specific inquiries, providing support to investigation units, and working with other domestic agencies as well as foreign competition authorities.
Sustainable development is also expected to remain a key point of focus for the FCA, which will focus on targeting the most harmful anticompetitive practices in this area. Several cases that may fall into this category should be concluded in 2021. The FCA will also continue to support companies wishing to benefit from guidance on this topic, for instance when they plan to carry out concerted actions with an environmental objective. The FCA will also participate in the work carried out at the European level on this subject within the framework of the Green Deal launched by the European Commission.
Finally, in 2021, the FCA announced that it wishes to resolutely promote companies' compliance initiatives and to continue the modernisation and reinforcement of intervention tools (see, in particular, the transposition of the ECN+ Directive and the possibility to refer acquisitions made 'below the mandatory notification thresholds' to the Commission for examination, in the case of, for example, predatory or consolidating acquisitions).
1 Olivier Billard and Igor Simic are partners at Bredin Prat. This chapter was written in collaboration with Quentin Colombier, PhD candidate in the competition and EU law team of Bredin Prat.
2 For the first time ever, the FCA blocked a merger in its Decision No. 20-DCC-116 of 28 August 2020 regarding the joint control acquisition of a food-dominated retail business by Soditroy and the Association des Centres Distributeurs E Leclerc.
3 FCA, Decision No. 20-D-09 of 16 July 2020 regarding practices implemented in the buying and selling of pork cuts and cold meat products. This decision was appealed (pending case).
4 FCA, Decision No. 20-D-12 of 17 September 2020 regarding practices implemented in the sector of Alsace wines. This decision was appealed (pending case).
5 See, on this topic, the paper from the International Competition Network on 'Big Data and Cartels' published in June, analysing the impact of digitalisation in 'cartel' enforcement.
6 See FCA, Press release, 22 April 2020, The Autorité clarifies the options of a professional association for dealing with its members' rent during the covid-19 pandemic.
7 FCA, Decision No. 20-D-04 of 16 March 2020 regarding practices implemented in the Apple products distribution sector (the Apple case). This decision was appealed (pending case).
8 FCA, Decision No. 20-D-11 of 9 September 2020 regarding practices implemented in the treatment of AMD sector. This decision was appealed (pending case).
9 FCA, Decision No. 20-D-17 of 12 November 2020 regarding practices implemented in the sector of dental care surgery. This decision was appealed (pending case).
10 FCA, Decision No. 20-D-18 of 18 November 2020 regarding practices implemented in the territory of French Polynesia. This decision was appealed (pending case).
11 FCA, Decision No. 10-D-28 of 20 September 2010 on prices and associated conditions applied by banks and financial institutions for processing checks submitted for encashment purposes.
12 Paris Court of Appeal, 23 February 2012, RG 2010/20555.
13 French Supreme Court, 14 April 2015, No. 12-15.971.
14 Paris Court of Appeal, 21 December 2017, RG 2015/17638.
15 French Supreme Court, 29 January 2020, Nos. 18-10.967 and 18-11.001.
16 See above, the Apple case.
17 FCA, Decision No. 20-D-13 of 22 October 2020 regarding practices implemented in the major food retailer sector by the Auchan, Casino, Metro and Schiever groups.
18 FCA, Decision No. 20-D-22 of 17 December 2020 regarding practices implemented in the mass retail food distribution sector by Carrefour and Tesco.
19 See, on this topic, National Assembly, Information report on digital platforms, June 2020.
20 FCA, Decision No. 20-MC-01 of 9 April 2020 on requests for interim measures by the Syndicat des éditeurs de la presse magazine, the Alliance de la presse d'information générale and others and Agence France-Presse.
21 FCA, Opinion 20-A-10 of 13 November 2020 regarding a draft decree relating to the waste management of perforating medical devices used by patients in self-treatment.
22 FCA, Opinion 20-A-09 of 28 October 2020 regarding a draft decree on the pricing of waste admitted by non-hazardous waste storage facilities.
23 See FCA, AMF, Arcep, ART, CNIL, CRE, CSA and HADOPI, Accord de Paris et urgence climatique : enjeux de régulation, March 2020.
24 FCA, Opinion 20-A-07 of 15 September 2020 regarding a request for an opinion from Arcep on the sixth cycle of analysis of the fixed broadband and superfast broadband wholesale markets and on the draft decision specifying the terms of access to superfast broadband optical fiber electronic communications lines.
25 FCA, Better understanding competition rules – Guide for SMEs, 28 January 2020.
26 FCA, Study on competition and e-commerce, 5 June 2020.
27 FCA, Decision No. 20-DCC-116 of 28 August 2020 regarding the joint control acquisition of a food-dominated retail business by Soditroy and the Association des Centres Distributeurs E Leclerc. For a similar operation currently under review by the FCA, see the FCA Press release 'Take-over of a Géant Casino hypermarket in Martinique: the Autorité opens an in-depth examination', 18 December 2020.
28 FCA, Decision No. 20-DCC-164 of 17 November 2020 regarding the acquisition of assets from Franprix Leader Price Holding company by Aldi.
29 FCA, Decision No. 20-DCC-172 of 8 December 2020 regarding acquisition of exclusive control of 511 shops of Camaïeu International and Financière Bram by Financière Immobilière Bordelaise.