France: Overview

In summary

The French Competition Authority (FCA) has shown that it tends to sanction companies with higher fines and to apply a more deterrent policy when tackling abuses of dominance or anticompetitive agreements. Going beyond the role of punisher, the FCA has demonstrated through its recent announcements that it aims to spearhead novel implementations of competition law to achieve more politically oriented goals. Through its competition policy, the FCA’s greater purpose appears to be shaping legal operators’ minds into adopting more sustainable habits, be they more ecologically or socially friendly, in accordance with its 2020 key priorities, and the climate goals from the Paris Agreement.

Discussion points

  • Harsher sanctions in the FCA’s quest for effective deterrence
  • The digital sector in the eye of the storm
  • Broader range of enforcing tools via the ECN+ Directive
  • Paving the way for incoming ‘green’ challenges further to the covid-19 crisis

Referenced in this article

  • FCA press release dated 9 January 2020, ‘The Autorité de la concurrence announces its priorities for 2020’
  • FCA press release dated 16 March 2020, ‘Fines handed down to Apple, Tech Data and Ingram Micro’
  • Decision of the FCA No. 19-D-26 dated 19 December 2019
  • Decision of the FCA No. 20-MC-01 dated 9 April 2020
  • Directive (EU) 2019/1 dated 11 December 2018
  • Draft National Law No. 2488 relating to audiovisual communication and cultural sovereignty in the digital era

Harsher sanctions in the FCA’s quest for an effective deterrent effect

In 2019 and the early days of 2020, the French Competition Authority (FCA) has significantly increased the amounts of fines to sanction companies for breaches of articles L.420-1 and L.420-2 of the French Commercial Code (or their European equivalent, articles 101 and 102 of the Treaty on the Functioning of the European Union). The charts below show clearly this increase for both anticompetitive agreements and concerted practices, and abuses of dominance.

There seem to be two main reasons to justify this trend.

First, the increasing amounts of the fines seem to reflect the FCA’s willingness to retain its sanctions policy deterrent. Indeed, the deterrence objective of the fines that has been affirmed several times during the past decade has also been frequently recalled in its recent decisional practice (eg, the Meal Vouchers decisions).

Second, the highest fines seem to target mainly digital players, and in particular ‘GAFA’ players (Google, Amazon, Facebook, and Apple). Indeed, in recent years, the FCA has not hidden its strategy to investigate the digital sector and tackle digital players’ anticompetitive behaviour, which was announced as one of the FCA’s priorities for 2020.1 It also recently affirmed that competition law is a particularly effective way to maintain the competitive dynamic of the digital economy.2

Today the GAFA players clearly appear in the line of sight of the FCA. A similar trend is observed in other states, such as in the United Kingdom (UK), where the Competition and Markets Authority (CMA) affirmed in December 2019 that internet giants were creating competition problems and called on the British government to regulate the sector,3 or at the European level, where the European Commission has sanctioned Google three times (in 2017, 2018 and 2019) for abuse of dominance.4

Among the different economic players, GAFA are thus those facing the FCA’s heaviest fines. Apple was given the heaviest penalty ever imposed by the FCA on an economic player (Decision No. 20-D-04 dated 16 March 2020). Similarly, a few months earlier, Google was fined €150 million, which is the third highest fine to date pronounced by the FCA in a dominance abuse case (after the €350 million fine against Orange in 20155 and the €183 million fine against Orange and SFR in 20126). However, the amounts of these fines may be viewed by companies and practitioners as unreasonable, disproportionate and unpredictable and are most of the time being challenged before the Court of Appeal.

One can wonder how the FCA justifies such huge amounts of fines in its decisions and whether they comply with the FCA guidance for antitrust fines.

First, in answering this question, it is important to recall the methodology used by the FCA to determine the amount of pecuniary sanctions. In this respect, the FCA is required to comply with the terms of article L.464-2 of the French Commercial Code, according to which ‘pecuniary sanctions are proportionate to the severity of the alleged acts, the extent of the damage caused to the economy, the situation of the sanctioned organisation or enterprise or the group to which the enterprise belongs and the possible reiteration of practices prohibited by this title’.

To increase transparency and to enable companies to know in advance the concrete way in which the FCA exercises its sanctioning power, the FCA adopted its Guidance on Antitrust Fines on 17 May 2011. This Guidance recalls the terms of article L.464-2 of the French Commercial Code, and notably specifies that the FCA may take into account mitigating or aggravating circumstances when considering decreasing or increasing the basic amount of the fine.

In particular, it provides that the FCA may adjust the fine upwards to take into account the economic power of the company, or of the group to which the company concerned belongs, ‘to ensure the dissuasive and proportionate nature of the financial penalty’. Since the Janssen-Cilag case of 2017,7 in which the FCA applied a 70 per cent add-on factor to the sanction to reflect the economic power of the group, this provision has been proved to be a great tool for the FCA to significantly increase fines imposed on companies.

In a Decision No. 17-D-25 dated 17 December 2019, the FCA sanctioned four issuers of meal vouchers and a trade association for engaging in an anticompetitive exchange of information and in an agreement aiming to foreclose the market. In this decision, the FCA pronounced a total fine of €415 million. The high level of this fine is mainly due to the fact that the FCA applied to the basic level of the fines (corresponding to a certain proportion of the level of sales concerned during the last year of the practices) increases of 70 per cent to Sodexo and of 50 per cent to Natixis just to take into account the economic power of their group.

According to article L.464-2 of the French Commercial Code and the Guidance on Antitrust Fines, the amount of the fine pronounced by the FCA has to be proportionate not only to the economic power of the company, but also to the severity of the facts and to the damage caused to the economy. However, an increase may appear particularly disproportionate especially when it is applied to an objection for which the severity and the damage caused to the economy are both considered low by the FCA. This policy shows the willingness of the FCA to be ruthless with companies involved in anticompetitive practices whose economic power is significant. However, when the fine is nearly twice the amount that would be suggested by the Guidance, one can legitimately wonder whether the Guidance is still useful.

Second, significant fines may also result from the FCA’s choice to distance itself even more from its Guidance on Antitrust Fines. Indeed, the Guidance provides that the guidance is ‘opposable to it, except to the extent that it explains, in the statement of reasons for its decision, the particular circumstances or the reasons of public interest leading to it deviate in a given case’.8

For instance, in Decision No. 19-D-26 dated 19 December 2019, the FCA decided not to apply its Guidance on Antitrust Fines when sanctioning Google for abuse of dominance in the search advertising market. The FCA considered that the operating rules of the Google Ads advertising platform (formerly known as AdWords) were opaque and difficult to understand and, in practice, were applied in an unfair and discriminatory manner.

In this decision, the FCA decided to depart from its Guidance on Antitrust Fines, stating that the standard application of the Guidance would have resulted in insufficient deterrence and in a fine that would not reflect the severity of the infringement and the effects on the economy,9 and adopted a flat-rate amount. Thus, the FCA does not give any indication on how it has calculated the fine of €150 million against Google. It affirms that it has ‘significantly increased’ the fine to take into account the power and the contributory capacity of the Google group. We estimate that the percentage of decisions of the FCA sanctioning anticompetitive agreements and applying a flat-rate amount is 30 per cent in 2018 and 17 per cent in 2019.

Such deviation from the Guidance on Antitrust Fines is not new and generates a real problem with predictability of fines. Without having to determine accurately the amount of fines that will be imposed by the FCA, companies should, at least, be able roughly to anticipate the range of fines that is likely to be pronounced, and to allocate a sufficient amount in their account for the litigation provision, because this is key in terms of incentivisation. One may also argue that deviations from standard fines is an attempt to adopt the adversarial principle, as it prevents companies from understanding the way the fine has been calculated and therefore deprive them of the possibility to adequately challenge the FCA’s reasoning.

Last, in Decision No. 20-D-04 dated 16 March 2020, the FCA sanctioned Apple and its two wholesalers, Tech Data and Ingram Micro, with a record fine of €1.3 billion for two vertical agreements: (1) an allocation of products and customers between its two wholesalers and (2) the imposition by Apple of price-fixing agreements on its Apple Premium Resellers (APRs, ie, distributors of specialised high-end Apple products). Apple was also sanctioned for abusing its situation of economic dependency on APRs.

Although this decision is not available yet, there are good reasons to believe that the amount is likely to incorporate, again, a high or very high fine increase just to take account of the economic power of the group.

Needless to say, this fine increase policy tends to remove all the gain in predictability that was supposed to be brought by the issuance of the FCA’s Guidance on Antitrust Fines in 2011 and to increase the number of decisions that will be appealed before the Appeal Court of Paris. We can expect that some of the record fines recently imposed will be decreased by the Appeal Court.

Regarding cartel cases brought before the Paris Court of Appeal between November 2004 and March 2020, we estimate that nearly two-thirds of the cases (roughly 64 per cent) have seen a decrease in the sanction on appeal, either because one or several objections were dropped (about 39 per cent of the total), or because the fine was reduced although the objections remained (about 25 per cent). Among the cases for which the sanction decreased, we estimate that the average decrease was 24 per cent.

These rather high figures are mostly fed by appeal decisions before 2015. Indeed, figures for more recent years appear less favourable. For 2016 and 2018, we estimate that only 40 per cent of the cartel cases that were appealed have seen a decrease by the Court of Appeal (in 2017, none of the FCA cartel decisions were appealed). Moreover, the average decreases have been quite low in the past few years: roughly 7 per cent in 2016 and 14 per cent in 2018.

The tendency has been more favourable for companies in the past few years for abuse of dominance practices. As regards abuse of dominance cases brought before the Court of Appeal between 2017 and 2019, two-thirds have seen a decrease in the sanction (without taking into account the appeal of the Google decision dated 19 December 2019, which is still pending).

Digital sector in the eye of the storm

Digital technology has been announced again as one of the FCA’s top priorities for 2020. The FCA decided to dedicate substantial resources to analyse the behaviour adopted by players in the digital sector. The FCA has created a Digital Economy Unit, a new specialist department, which will be providing support in cases with a significant digital dimension and will work closely with other competition authorities, in Europe and internationally, other regulators and relevant government departments.

As part of the FCA’s 2020 priorities, this new Digital Economy Unit will notably be entrusted with studying the effects of the digital revolution in the financial sector through the implementation of novel technologies and entities that are of particular interest to the FCA, such as dematerialised financial services, fintech, blockchain and algorithms technologies. In line with this initiative, the FCA has already published a joint study on algorithms with the German Federal Cartel Office,10 and a contribution to the debate on competition policy and the challenges raised by the digital economy.11 It has also reached out to the market for a sector investigation on fintechs.

The FCA has also announced its willingness to use all its tools to prosecute and impose fines for anticompetitive behaviour by players in the digital sector as quickly as possible and its intention to focus on the online advertising sector, the competition issues relating to the collection and processing of personal data and the use of algorithms.

Following in the footsteps of the European Commission12 and other national competition authorities,13 the FCA’s recent decisions against major digital players are clear proof of this new trend.

Fewer than five months after the FCA decision imposing a fine of €150 million on Google for an abuse of dominance in the search advertising market, the FCA imposed interim measures against Google on 9 April 2020, in answer to the complaint and the request for interim measures jointly lodged by press publishers and the news agency Agence France Presse. According to the FCA, Google’s behaviour following the implementation of Law No. 2019-775 of 24 July 2019 on the Creation of Neighbouring Rights for the Benefit of Press Agencies and Publishers (the Neighbouring Rights Law) were highly likely to characterise an abuse of dominance and caused serious and immediate harm to the press sector.

These findings led the FCA to issue interim injunctions against Google, forcing the operator to conduct ‘within three months’ negotiations ‘in good faith’ with press publishers and news agencies regarding the remuneration of their neighbouring rights for reusing their protected content.

Indeed, as a way of complying with the Neighbouring Rights Law, Google decided that it would exercise its right (as provided by the law) to no longer display article extracts, photographs, infographics and videos within its various services (such as Google Search) so as not to make use of neighbouring rights, unless the publishers grant it the authorisation to use them free of charge. As a result, most of the press content owners had no choice but to enter into non-negotiated and non-remunerated licence agreements with Google for using and displaying their content, if they wanted to retain access to Google’s essential display outlets.

While the FCA seems to have some competition grounds for calling into question the way Google handled its conformity process with the Neighbouring Rights Law, the injunction it proposed to remedy their detrimental effects appears quite controversial.

The first part of the FCA’s injunction (article 1 of the decision) consists of an obligation to ‘good faith’ negotiations, though without any formal obligation to get a result or any list of concrete indications on what Google should do. The FCA has already acknowledged that Google may end up offering a ‘remuneration equal to zero’,14 although it may be presumed that the obligation to cover the whole period from 24 October 2019 (the date of the entry into force of the Neighbouring Rights Law) to date during the negotiations, might make it compulsory for Google to at least agree on some form of payment. In the absence of criteria to determine how the negotiation may be conducted in good faith, it may be difficult for Google to ascertain whether it has adopted the right approach and makes one wonder whether the FCA might have purposefully kept its demands as broad as possible to ensure it would have a discretionary power when reviewing Google’s conformity process through monthly reports.

The third part of the FCA’s injunction (article 3 of the decision) is even more debatable and obviously politically oriented, as it imposes on Google an obligation not to deny press owners who would want to display their content according to their own arrangements, which essentially translates into a violation of the constitutional freedom of trade and industry. The FCA may as well have publicly stated it was not afraid to support economically weak sectors by tackling major digital players and forcing them to contract with unwanted parties. This third part is very limited in time (for the duration of the negotiation only, which is three months), probably in an attempt not to make it too obviously contrary to the freedom of trade and industry.

On 16 March 2020, Apple was sanctioned for product and customer allocation between its two wholesalers as Apple had specified to the two wholesalers the quantities of the different products to be delivered to each reseller during shortages, making both wholesalers and resellers totally dependent, according to the FCA, on the stocks decided by Apple. Furthermore, Apple was penalised, again according to the FCA, for having encouraged APRs to charge the same prices as those charged in Apple stores.

In this case, the FCA has sanctioned, for the first time since 2009, an abuse of economic dependency (which is a French specific infringement). According to the FCA, the elements of the case enable the characterisation of an abuse of economic dependency of APRs on Apple.

First, the FCA considered that Apple prevented APRs from distributing competing brands via the terms of their distribution contracts. According to the FCA, the lack of alternative solutions characterising the dependency state resulted, at least in part, from the fact that the APRs’ customers were so strongly attached to the Apple brand that stopping the distribution of Apple products would result in the total loss of value of their business. Second, the FCA considered it had identified a set of rules and conduct amounting to discriminatory treatment.

This case may show that the FCA is willing to make a broader use of the abuse of economic dependency to bring more types of behaviour under its antitrust control. It will be interesting to have access to the full text of the decision – which will soon be published on the FCA website – to see how the arguments of this very rare decision are grounded.

Broader range of enforcing tools once ECN+ Directive is transposed into law

The ECN+ Directive,15 which aims at harmonising operating rules between national competition authorities in the European Union and must be implemented by member states before 4 February 2021, should in the coming year further strengthen the FCA’s enforcement powers.

First, the FCA shall be entitled to reject formal complaints when they do not constitute enforcement priorities. This new discretionary prosecution principle breaks with the current French model, in which the FCA may only reject formal complaints on legally limited grounds (under article L.462-8 of the French Commercial Code), mainly for lack of sufficient items of evidence.

Whereas it currently needs a prior formal complaint to implement interim measures proceedings, the FCA would be granted the right to act on its own initiative to impose interim measures. According to the president of the FCA, this new ability may be key in the FCA’s stated strategy to pre-emptively address anticompetitive behaviour by major digital players. It will be noted that, by exception and anticipation, this possibility was recently introduced into French law for the specific case of procurement agencies of large-scale retailers, with three investigations already under way on this basis.

The ECN+ Directive should also give the FCA broader sanction powers regarding both injunctions and fines, extending beyond its current sanction guidelines of 2011.

The FCA has already announced as part of its 2020 priorities that it would rely on the harmonisation of the maximum amount of the fines at 10 per cent of the total global turnover with the ECN+ Directive to sanction trade associations and unions more effectively. These associations are currently not acknowledged as formal enterprises under article L.464-2 of the French Commercial Code and can not be fined more than a maximum of €3 million.

Following the transposition of the Directive, these fines should be capped at 10 per cent of the sum of the turnover of their members, which constitutes a huge change. The chairwoman of the FCA has noted in this respect that there has recently been a series of cases of infringements within the framework of professional associations: the flooring cartel16 and the washing machine and household appliances cartel,17 for example, have led the FCA to have a particular focus on trade associations’ compliance with competition law.18 A thematic study will be published by the FCA to inform and warn trade associations about anticompetitive practices, which may result in trade associations coming under FCA scrutiny if they do not strictly comply with competition law.

In addition to strengthening the FCA’s powers, the transposition of the ECN+ Directive into French law may shorten the proceedings before the FCA, in a way that may play against the adversarial principle and the rights of defence.

Included in the significant changes that are being discussed by the French parliament is a more general use of the simplified procedure of the FCA, with the aim of speeding up proceedings before the FCA. As in proceedings before the European Commission, the idea is to have one sole round of discussion between the investigation services and the defendant before the hearing (ie, reply to the statement of objections issued by the FCA) instead of the current double round discussion (ie, reply to the report by the FCA’s investigation services following the reply to the statement of objections). The General Case Handler of the FCA should decide, when issuing the statement of objections to the parties, whether the case will be assessed by the FCA without the establishment of a report and, as an exception, having received the observations of the parties to the statement of objections, the General Case Handler could decide to hold a second round of discussion and send a report to the parties.

Disregarding the fact that the General Case Handler’s decision may appear all the more discretionary, as this decision cannot be appealed and will be taken in the absence of known criteria, such a change in procedure, which is presented as a way to speed up the proceedings, is likely to harm both the adversarial principle and the defence rights of defendants, and to have various adverse effects.

The report stage of the proceedings has often been found to be of particular value, notably in complex cases, as this second step allows both the investigation services and the parties to go deeper in the exchange of arguments and into the detail of the analysis. This step also makes it possible to focus on the substantive elements that need to be discussed at the hearing, setting aside the points with less impact, even sometimes making it possible, before the hearing takes place, to withdraw some objections that appear not to be sufficiently grounded. For the time being, it suffices to note how the ‘reports’ often significantly differ from the statements of objections, to understand how this change will very significantly affect the due process and the decisions themselves.

Removing such an important stage of the proceedings (the report stage) is likely to jeopardise the parties’ rights of defence and to affect the length of the overall proceedings, and one might wonder whether the time that may be gained from simplified proceedings may be lost in appeals.

Paving the way for incoming ‘green’ challenges further to pandemic crisis

In the context of the covid-19 pandemic, the FCA has temporarily softened its antitrust enforcement doctrine to alleviate economic and health concerns.19 In accordance with the communication from the European Competition Network, the FCA stated that it would not seek actively to investigate temporary cooperation initiatives between companies, with the aim of ensuring the supply and fair distribution of essential products to all consumers, and that it would be ready to assess and assist these initiatives with informal guidance.

In this context, despite its objective of sanctioning professional associations more harshly, on 22 April 2020, the FCA provided some comfort with a concerted initiative supported by a professional organisation representing opticians. The initiative consisted of the organisation sending a letter to lessors renting commercial premises to its optician members to request an adjustment of their rents on their behalf. Seemingly driven by the goal to prevent business failure resulting from closures of various sales outlets, the FCA confirmed that this behaviour did not appear to infringe competition law and remained within the scope of the professional organisation’s missions.20

Beside developing an advisory role in times of duress, the FCA has adapted its enforcement action to keep it efficient and focused on goals.

Regarding procedural timelines, an ordinance was published on 25 March 2020, enabling the FCA to pause all its proceedings for the duration of the health emergency. Despite this ordinance and the confinement measures, the FCA has shown its capacity for adaptation by so far issuing five decisions since the period confinement started. It has also been able to keep up with its own procedural deadlines and has continued its investigations.

Besides these temporary procedural adjustments to the general context, the FCA has most importantly demonstrated it was seemingly ready to introduce sweeping and lasting changes into its antitrust enforcement doctrine and consider new criteria as part of its analysis beyond that of the immediate risks to competition.

In the coming years, the FCA will target more closely competition law concerns that also call into question environmental protection. Indeed, the FCA announced at the beginning of 2020 that it has made sustainable development one of its priorities for action during the year.

As a first step in developing this new priority, on 5 May 2020, the FCA, with seven other French independent administrative authorities, published a working paper presenting their roles and tools in addressing climate change issues.

Although the mandate given to the FCA by the legislator is to protect competition and not, per se, to protect the environment, in this working paper, the FCA states that it can (1) sanction anticompetitive behaviour, even if it is presented as having the purpose of ensuring better protection of the environment, and (2) act in favour of environmental protection by sanctioning anticompetitive agreements that have led companies to neutralise a differentiation factor based on better environmental protection or by taking into account, under merger control, the preservation of consumer welfare, which is also characterised by its environmental dimension. Another point to note is the FCA’s resolve to take on an enforcement role that not only involves punishing anticompetitive behaviour, but also guiding economic operators towards more sustainable ways of doing business.

This new specific role is in line with the constitutional provisions of the EU treaties that also require consideration of sustainability and environmental protection when implementing EU policies and is not totally new.

Pursuant to the decision-making practice, the FCA has already applied environmental considerations in its antitrust competition assessments in some decisions. For instance, in Decision No. 17-D-20 of 18 October 2017, relating to concerted practices in the floor coverings sector, the FCA took environmental requirements into account when assessing the anticompetitive object of the practices. Despite the involved undertakings professing they had wanted to prevent ‘dangerous greenwashing’ by following a uniformly agreed communication policy, the FCA sanctioned them up to €302 million for having deliberately refrained from promoting environmental performance that went beyond a certain industry ‘average standard’. The FCA noted that by reducing competition in this area, undertakings had harmed the interests of consumers, as the latter regarded environmental performance as a key selection criterion.21

Apart from its harsher sanctioning when sustainable development is at stake, the FCA has also demonstrated in Decision No. 17-D-16 of 21 March 201 (Engie)22 and Decision. No. 14-D-09 of 4 September 2014 (Nespresso)23 that it would accept environmentally minded commitments and soften its approach to abusive behaviour accordingly.

The FCA has also announced that it will spearhead international and European discussions on the matter of promoting sustainable development, particularly when it comes to the future revision of the EU Exemption Regulations on vertical restraints and on certain categories of research and development agreements. Therefore, whereas the FCA’s competition assessment is becoming more politically minded, we can expect to see the development of new theories of harm and of similar policies across the world.

Notes

1 French Competition Authority [FCA] press release, ‘The Autorité de la concurrence announces its priorities for 2020’ (9 January 2020), at https://www.autoritedelaconcurrence.fr/en/press-release/autorite-de-la-concurrence-announces-its-priorities-2020.

2 FCA press release, ‘The Autorité publishes its contribution to the debate on competition policy in response to the challenges posed by the digital economy’ (21 February 2020), at https://www.autoritedelaconcurrence.fr/fr/communiques-de-presse/lautorite-publie-sa-contribution-au-debat-sur-la-politique-de-concurrence.

3 See https://www.theguardian.com/business/2019/dec/18/google-facebook-dominance-curbed-cma-report-uk-digital-market.

4 Case AT.39740 dated 27 June 2017, Case AT.40099 dated 18 July 2018 and European Commission press release dated 20 March 2019 (https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1770).

5 Decision No. 15-D-20 dated 17 December 2015 relating to practices implemented in the electronic communications sector. 

6 Decision No. 12-D-24 of 13 December 2012 relating to practices implemented in the mobile telephony sector for residential customers. 

7 Decision No. 17-D-25 of 20 December 2017 relating to practices implemented in the sector of transdermal patches of fentanyl.

8 FCA Guidance on Antitrust Fines dated 17 May 2011, point 8.

9 Decision No. 19-D-26 of 19 December 2019 relating to practices implemented in the sector of online search advertising sector, point 529 et seq.

10 FCA press release, ‘Algorithms and competition: the Autorité and the Bundeskartellamt publish their joint study’ (6 November 2019), at https://www.autoritedelaconcurrence.fr/en/press-release/algorithms-and-competition-autorite-and-bundeskartellamt-publish-their-joint-study.

11 FCA press release, ‘The Autorité publishes its contribution to the debate on competition policy and the challenges raised by the digital economy’ (24 February 2020), at https://www.autoritedelaconcurrence.fr/en/press-release/autorite-publishes-its-contribution-debate-competition-policy-and-challenges-raised.

12 European Commission: Case AT.39740 of 27 June 2017, Case AT.40099 of 18 July 2018 and press release of 20 March 2019 (https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1770).

13 German Federal Cartel Office, Decision B6-22/16 of 15 February 2019 (Facebook).

14 FCA Decision No. 20-MC-01 of 9 April 2020 relating to requests for provisional measures presented by the Syndicat des éditeurs de la presse magazine, the Alliance de la presse d’information générale e.a. and the Agence France-Presse, point 304.

15 Directive (EU) 2019/1 of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.

16 FCA Decision No. 17-D-20 of 18 October 2017 (flooring cartel).

17 FCA Decision No. 18-D-24 of 5 December 2018 (washing machine and household appliances cartel).

18 See https://www.lja.fr/lja-mag/les-debats/directive-ecn-plus-de-pouvoirs-pour-une-meilleure-cooperation-527352.php.

19 See the FCA’s dedicated covid-19 web page at https://www.autoritedelaconcurrence.fr/fr/page-riche/covid-19.

20 See https://www.autoritedelaconcurrence.fr/fr/communiques-de-presse/lautorite-eclaire-une-association-professionnelle-sur-ses-possibilites.

21 FCA Decision No. 17-D-20 of 18 October 2017 relating to the practices implemented in the floor coverings sector, points 438 to 440.

22 FCA Decision No. 17-D-16 of 7 September 2017 relating to practices implemented by Engie in the energy sector, points 139 to 142. The FCA accepted a commitment from the incumbent gas operator, consisting particularly in cutting out the obligation of using gas as the sole energy for heating from its gas supply contracts with condominiums. As a consequence of this environmentally friendly commitment, the FCA ruled out the imposition of a new pecuniary fine.

23 FCA Decision No. 14-D-09 of 4 September 2014 relating to practices implemented by Nestlé, Nestec, Nestlé Nespresso, Nespresso France and Nestlé Enterprises in the espresso coffee machine sector, points 173 to 207. The FCA also had environmentally oriented goals in mind when it accepted technical commitments from Nespresso about ensuring the interoperability of third-party capsules with Nespresso’s coffee machines, so as to encourage innovative and more sustainable solutions. The FCA considered that the commitments were sufficient to suppress the anticompetitive practices, including the one hindering sustainable development by preventing the design of cheaper and more ecological capsules.

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