On November 7, 2019, the Conseil d’Etat upheld the FCA decision imposing a €20 million fine on Fnac Darty for failing to comply with the commitment to divest three stores, pre-condition for clearance in the acquisition of Darty by Fnac in 2016.
In July 2016, following a Phase 2 investigation, the FCA cleared the acquisition of Darty by Fnac, subject to the divestment of six stores. At the time, the FCA had showed flexibility in accepting this remedy, as some of these stores did not seem attractive enough for potential buyers. At the end of the divestiture period, Fnac Darty was not able to find a suitable buyer for three of these stores. In July 2018, the FCA fined Fnac Darty €20 million for failing to implement the commitments, considering that Fnac Darty had failed to take all appropriate measures to comply with the commitments. The FCA also ordered Fnac Darty to divest two other stores in lieu of those that it had not been able to sell. Fnac Darty appealed.
The FCA’s leeway in setting fines for commitment breaches
The Conseil d’Etat rejected all of Fnac Darty’s arguments and upheld the FCA’s methodology for setting the fine for the reasons below:
Unlike for anti-competitive practices, there are no rules or guidelines requiring the FCA to explain how it calculates fines in cases of a breach of commitment.
Contrary to Fnac Darty’s claim, the Conseil d’Etat considered that, for the fine to be proportionate, the FCA merely had to assess the existence and nature of the breach of commitments – but not the anti-competitive effects of the breach on the relevant markets. In the case at hand, the Conseil d’Etat held that the fine set by the FCA was proportionate to the commitment breaches noting that the commitments which Fnac Darty failed to implement concerned half of the stores that it had undertaken to sell and two thirds of the catchment areas where anti-competitive risks had been identified at the time.
The FCA had correctly taken into account the fact that Fnac Darty requested an extension of the divestiture period only during the last month before the deadline, although it could have anticipated that the FCA would refuse to approve the proposed buyer, notably because Fnac Darty was advised by external legal and economic counsel specialized in competition law.
The Conseil d’Etat also confirmed that Fnac Darty had been negligent in not anticipating that the condition precedent that was included in one of the divestiture contracts – the agreement of a third party (But) to have the store operated by the potential buyer (groupe Dray) under its brand (But City) – would result in a significant implementation risk. The Conseil d’Etat agreed with the FCA that Fnac Darty should have anticipated that But would refuse to grant the brand license to the potential buyer, in particular because it had not shown any interest in acquiring the store previously.
The Conseil d’Etat’s decision shows that (i) notifying parties should make sure they are able to implement any structural commitments they offer: while the FCA may be more flexible than the European Commission when negotiating commitments, it will not hesitate to impose significant fines if the party fails to implement its commitments; and (ii) in the event of execution difficulties, notifying parties should reach out to the FCA sufficiently ahead of the end of the divestiture period to find an alternative solution acceptable to the FCA.
 Conseil d’Etat decision of November 7, 2019, No.424702.
 FCA Decision 18-D-16 of July 27, 2018 regarding compliance with commitments annexed to FCA Decision 16-DCC-111 of July 27, 2016 regarding Fnac’s acquisition of sole control of Darty. This was the first time the FCA had fined a company for non-compliance with structural commitments consisting of divesting assets before a given deadline. The FCA had otherwise only ever sanctioned conduct that gutted the commitments made (See FCA decisions Nos.16-D-07 and 17-D-04 in the Numericable/SFR merger case, where the FCA imposed fines of respectively 15 and 40 million euros on the merging entity).