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The French Competition Authority (FCA) has fined Doctolib a total of EUR4.7 million for abusing its dominant position in the markets for online medical appointment booking services and remote medical consultation technology solutions.
Significantly, the abusive conduct included the acquisition of a main competitor, even though the transaction was not notifiable under merger control rules. The decision highlights the increasing uncertainty faced by merging parties when assessing M&A for possible antitrust risk as well as antitrust authorities' reliance on internal documents to corroborate anticompetitive conduct.
Catching below-threshold mergers
Many antitrust authorities—particularly in the EU—are currently trying to work out the best way to review potentially anticompetitive transactions that fall below merger control filing thresholds. This assessment was given renewed urgency after the European Court of Justice (ECJ)'s 2024 Illumina/GRAIL judgment struck down the European Commission's referral policy in relation to below-threshold deals.
In France, following a public consultation on possible options, the FCA plans to introduce a power to allow it to call in certain below-threshold transactions.
However, in the meantime, the authority has resorted to reviewing deals under antitrust provisions in accordance with the ECJ's landmark 2023 Towercast ruling. In Towercast, the ECJ held that EU member state antitrust authorities can use abuse of dominance rules to assess unnotified deals falling below national merger control thresholds.
FCA extends its abuse of dominance toolkit
The fine on Doctolib marks the first time that the FCA has sanctioned a company under EU and French abuse of dominance laws for a below-threshold merger.
The FCA concluded that Doctolib strategically acquired its "competitor #1", MonDocteur, in 2018 with "the sole aim" of eliminating the competition and foreclosing the French market for online medical appointment booking services.
The FCA considered that the "predatory" nature of the acquisition was corroborated by Doctolib's internal documents, collected during dawn raids. This included a statement that for Doctolib "the creation of value [...] is not the addition of [MonDocteur] but its disappearance as a competitor."
The FCA observed that, through the acquisition, Doctolib "gained" 10,000 healthcare professionals and "significantly and sustainably" increased its market share. It also found that Doctolib was able to increase its prices "higher than initially planned" and without any loss of customers or slowdown in growth.
However, given the novelty of the legal framework and the fact that the acquisition of MonDocteur predated the Towercast ruling, the FCA only imposed a symbolic EUR50,000 fine for this infringement (representing approx. 1% of the total fine imposed).
Some deals also investigated as anticompetitive agreements
The FCA's Doctolib decision is a clear application of the Towercast ruling. However, more controversially, antitrust authorities are also applying Towercast broadly to review below-threshold mergers under provisions prohibiting anticompetitive agreements. The ECJ did not explicitly rule on this point.
In May 2024, the FCA examined whether a series of asset swaps in the meat-cutting sector would amount to illegal market sharing. It ultimately concluded that there was insufficient evidence of anticompetitive purpose and dismissed the case.
The Belgian Competition Authority (BCA) has also used behavioral antitrust rules to review transactions.
Earlier this year, it opened an investigation into the possible anticompetitive effects of Dossche Mills' planned acquisition of rival Ceres' artisan flour business. The parties are the two largest producers and suppliers of flour to artisan bakeries in the country. The authority had previously opened a probe into Proximus' acquisition of edpnet under abuse of dominance rules. In both cases the parties abandoned their transactions before the investigations were completed. More recently, this month, the BCA launched an antitrust investigation (at the request of the Minister for Economic Affairs) into Live Nation's takeover of the Pukkelpop music festival.
Penalizing exclusivity and tied selling practices
The FCA also concluded that Doctolib "deliberately" implemented several anticompetitive practices. The FCA's decision is not yet published, but the authority categorizes two forms of abuse in its press release.
First, the FCA found that, until September 2023, the company included in its subscription contracts with healthcare professionals an exclusivity clause together with an "anti-allocation" clause under which it could suspend or terminate the contract. These, the FCA concluded, prohibited or discouraged healthcare professionals from using competing solutions and hindered the development of competing operators including those backed by incumbent practice management software supplier groups. Significantly, it noted that the clauses were retained despite Doctolib's legal department warning its CEO of their illegality.
Second, Doctolib obliged healthcare professionals to cumulatively pay for both Doctolib's online medical appointment booking services (Doctolib Patient) and its remote medical consultation technology solutions (Doctolib Téléconsultation). Doctolib Téléconsultation was notably only accessible for healthcare professionals one month after downloading Doctolib Patient. The FCA concluded that Doctolib's tied selling practices constrained healthcare professionals' freedom to choose between competing teleconsultation services and created barriers to entry for competitors.
The FCA fined the company EUR4.615m for these practices. Doctolib plans to appeal.
Key takeaways
1. Consider risk of challenge to below-threshold deals
Jurisdictions worldwide, including a number of EU member states, have call-in powers, enabling national antitrust authorities to require notification of potentially anticompetitive transactions. Others are taking steps to introduce them. Transacting parties should stay on top of legislative developments as well as the use of these powers in practice to anticipate and mitigate potential reviews.
The Doctolib case confirms that national antitrust authorities in the EU are also willing to use the Towercast ruling to examine below threshold acquisitions under the antitrust rules. This adds uncertainty and complexity to deal planning. Companies, particularly those with high market shares or of historical antitrust interest, should seek external legal advice when considering acquisitions of rivals.
2. Manage documents throughout the process
Antitrust authorities place increasing reliance on internal documents when assessing substantive antitrust concerns. They can force the disclosure of a broad range of internal documents including those discussing the rationale for transactions and other strategic decision-making. In many jurisdictions advice given by in-house counsel is not legally privileged.
The Doctolib case highlights the importance of following antitrust guidance on drafting internal documents from the outset of deals. Discussion of merger control risk should be confined to external lawyers, and any analysis of market position and future strategies should be credible and carefully thought through.
3. Remember that healthcare markets are an antitrust enforcement priority
With government budgets under increasing pressure, antitrust authorities remain committed to ensuring competitive markets in both the life sciences and healthcare sectors. Potentially abusive conduct under the microscope is varied and often novel, including patent filing practices, disparagement of rival products and excessive pricing. The Doctolib case adds anticompetitive mergers to this list.
Medical device, pharmaceutical and biotechnology companies as well as clinics, insurers and related health service providers should ensure they have robust antitrust compliance programs in place.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
