France: FCA’s Strong Activity in Covid Times, including in Digital Markets

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In summary

The Authority maintained strong activity despite the covid-19 pandemic. It decided several landmark cases in digital markets and issued major antitrust decisions. It was also involved on the mergers front with the review of a significant number of transactions and the publication of new merger guidelines. Finally, it was also active in its advocacy efforts, including regarding the digital economy. These efforts were accompanied by the creation of the Digital Economy Unit within the Authority.

Discussion points

  • Creation of the Digital Economy Unit
  • New merger guidelines
  • Policy paper on competition policy and digital challenges
  • Studies on competition and online commerce, and on professional bodies
  • Guide on competition for small and medium-sized enterprises

Referenced in this article

  • Decision 20-D-04: Apple products distribution sector
  • Decision 20-MC-01: publishing and news agency sector (Google)
  • Decision 20-D-09: cartel in the ham sector
  • Decision 20-DCC-116: first prohibition of a merger (retail sector)
  • Decision 20-D-11: practices implemented in the treatment of AMD (health sector)
  • Decision 20-D-13: joint purchasing agreements (retail sector)
  • Opinion 20-A-11: level of market concentration in Corsica
  • Decision 21-D-07: advertising sector on mobile apps on iOS (Apple)

In 2020 and the first quarter of 2021, the French Competition Authority (the Authority) maintained strong activity, despite the covid-19 pandemic, with a continued focus on digital matters and a new emphasis on developing a transversal approach. It set up three internal task forces devoted to current priorities: the covid-19 pandemic, sustainable development and the digital economy. It also created the Digital Economy Unit, whose missions are to design new digital investigation tools based on algorithmic technology, big data and artificial intelligence; build-up expertise; and assist the investigation services in the treatment of digital cases.

The focus on the digital economy was also reflected in the Authority's antitrust activity. Several important decisions were issued in the digital sector, including the interim measures decision ordering Google to negotiate with publishers and news agencies the remuneration for related rights. In the electronics distribution sector, the Authority sanctioned Apple and its two wholesalers €1.2 billion for practices restricting competition and the pricing freedom of distributors, and for abusing their economic dependence. In the advertising sector on mobile applications, the Authority decided not to grant interim measures to stop the deployment of a privacy tool developed by Apple; however, it decided to pursue the investigation of the case on the merits to ensure that this mechanism did not constitute an anticompetitive practice.

Regarding other antitrust matters, 2020 was the first year in which the Authority implemented the changes introduced by the EGalim law, which strengthens its powers under the mandatory notification of joint purchasing agreements in the retail sector. In two cases, it opened an ex officio interim measure investigation concerning two major purchasing alliances, and it later approved commitments to remedy the competition risks presented by those agreements. The Authority also dismantled a major cartel in the ham sector and imposed a fine of more than €93 million against 12 companies.

In the field of mass distribution, the Authority fined two manufacturers of industrial sandwiches for entering into anticompetitive price-fixing and volume and customer allocation agreements, and granted immunity to a third manufacturer involved on the basis of the leniency procedure.

Very active in the health sector, the Authority sanctioned three pharmaceutical companies €444 million for abusive practices committed in the treatment of age-related macular degeneration. It also sanctioned boycott practices by dental practitioners against a healthcare network in the dental sector.

Following a complaint, the Authority additionally contributed to the adoption of commitments by a company in the construction toys sector to amend its price discount policy so that it is applied to all distributors, in-store and online. Finally, the Authority intervened to prevent potential illegal exclusive imports of respiratory equipment in French Guyana and the French Antilles in the context of the covid-19 pandemic.

Merger control was also an area of continued engagement in 2020. Two notifications were referred by the European Commission to the Authority in the furniture and supermarket chain sectors. Among the clearance decisions, 10 were made subject to the implementation of commitments proposed by the parties, including one decision following an in-depth investigation in the healthcare sector. For the first time, the Authority issued a decision prohibiting a merger concerning the food retail sector. The commitments presented by the parties were not considered appropriate to address the competitive risks at stake because they would have resulted in a reduction in the supply available to consumers without addressing the identified theory of harm.

The Authority published its new merger guidelines, after an in-depth review, including a consultation of the stakeholders. The new guidelines take into account the latest decision-making practice of the Authority (the time in which the prospective analysis takes place, principles applicable to procedural infringements and remedies) as well as the public consultations. The new guidelines are much more user-friendly and incorporate many examples taken from relevant case law.

The Authority also vigorously pursued its advocacy activities. It issued several opinions in areas as varied as telecoms, bus transport and waste management. At the request of the Minister of the Economy, the Authority conducted a wide-ranging sector inquiry analysing the competitive situation in Corsica and issued a set of recommendations designed to stimulate competition and combat high living costs in this region.

In a continuing effort to encourage compliance, the Authority produced new compliance tools: a guide on competition for small and medium-sized enterprises and a study on professional bodies and competition. The Authority also published a study on competition and online commerce, a position paper on digital platforms to contribute to the European debate, and a scoping paper on the impact of digitalisation in cartel enforcement for the International Competition Network (ICN).

Finally, the Authority contributed to statements issued by the European Competition Network and the ICN on the application of competition law during the covid-19 pandemic, and it contributed to a common declaration with seven other French regulators on the importance of integrating climate and environmental issues into their work priorities.

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