France: The FCA Publishes Its Annual Report And Gives An Outlook Of Its Enforcing Action

The French Competition Authority ("FCA") has recently published its annual report for 2020. The study provides a summary of the 2020's major cases and gives an overview of the FCA's focus for the coming years. During this year marked by the Covid-19 crisis, the report highlights the FCA's sustained activity with a record amount of fines imposed and presents its priorities: merger control, sustainable development and the digital sector.

2020, a record year for fines issued for anti-competitive practices

From 2011 to 2020, the average annual amount of fines imposed by the FCA was €674 million but 2020 was marked by a record level of fines imposed with a total of €1.785 billion. However, 94% of this total of fines resulted from two decisions. In March 2020, the FCA fined Apple €1,1 billion for engaging in anti-competitive agreements within its distribution network and abuse of economic dependency with regard to its "premium" independent distributors. In September 2020, the FCA imposed fines amounting to a total of €444 million on Swiss big pharma companies for an abuse of a collective dominant position and denigration of a competitive medicinal product.

This record of fines did not however reflect a high activity for the FCA in 2020. Indeed, the FCA issued 234 decisions and opinions (including 195 merger decisions, 23 litigation decisions and 16 opinions), i.e. 82 less than in 2019. The FCA attributes this decline to the Covid-19 crisis but its president Isabelle de Silva expects a significant increase in the number of notified mergers for 2021, particularly in the retail sector.

Modernisation of merger control

In July 2020, the FCA published its new guidelines on merger control which took into account the more recent decisional practice and brought innovations both in terms of procedure and competition analysis. The FCA has also been very active in promoting the referral to the Commission of non-EU-wide mergers that affect trade between member states and significantly threaten competition at national level, pursuant to Article 22 of the EU merger control regulation. In September 2020 and at the request of the FCA, the Commission took the view that a transaction which does not meet the national notification thresholds may nevertheless be referred to it. Following this evolution, in March 2021 the FCA referred to the Commission a transaction that was below the French thresholds.

The FCA's focus: the digital sector and sustainable development

In 2019, the digital sector was at the forefront of the FCA's roadmap and the 2020 report makes it clear that its regulation continues to be at the heart of the FCA's work. A good illustration is the creation in January 2020 of a department within the FCA dedicated to the digital economy. The FCA also indicated that it looked forward to the new European regulatory tools with the upcoming Digital Markets and Services Acts. Further evidence of the FCA's interest in digital can also be seen in its decision-making practice in 2020, through several major rulings against GAFAs and also the launch of an investigation on BigTech's entry into the payment sector.

2020 was also the start of a new priority for the FCA with sustainable development. In line with its contributions within the framework of the EU Green Deal, the FCA will target anti-competitive practices that are the most harmful to the environment and indicated that it will provide guidance to companies which may be considering entering into agreement bringing environmental efficiencies, while the EU Commission is currently considering with other regulators how to deal with behaviours that intend to promote sustainable development but may have an anti-competitive aspect. In practice, the FCA could be more stringent in the future when assessing competitive restrictions impacting the environment, or be more lenient towards environmental agreements (partnerships, R&D, etc).

The FCA's full annual report is available here (in French).

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