On December 17, 2019, the FCA issued fines of nearly 415 million euros to the four historical issuers of meal vouchers in France – namely Edenred France, Natixis Intertitres, Sodexo Pass France, and Up – as well as the Centrale de Règlement des Titres (“CRT”) for exchanging confidential commercial information and implementing market locking practices.
The FCA opened an investigation in October 2015 after Octoplus, a service provider offering meal vouchers via a mobile application, and several professional trade unions filed complaints for a number of anticompetitive practices.
The meal voucher market is highly concentrated, with four historical issuers holding combined market shares of almost 100%. These four operators are the only members of the CRT, an association that ensures, on their behalf, the processing and reimbursement of materialized (paper-based) meal vouchers with affiliated merchants.
The meal voucher market is a two-sided market. Meal voucher issuers are active on both sides. On the “issuance” side, they sell meal vouchers to companies who then distribute the vouchers to their employees. On the “acceptance” side, via the CRT, they process the meal vouchers used with their affiliated merchants and reimburse them. The affiliated merchants pay a commission to the issuers in exchange for these services.
Competition only takes place on the issuance side, where issuers compete to win companies. Conversely, no competition really takes place on the acceptance side, because merchants tend to accept as many meal vouchers as possible regardless of the identity of the issuer.
Although the FCA ultimately dismissed Octoplus and the professional trade unions’ complaints for lack of evidence, it found during its investigation that the four historical issuers and the CRT had implemented several other anticompetitive practices under Article 101(1) TFEU and Article L. 420-1 of the French Commercial Code.
The FCA’s decision
In its decision, the FCA fines the four issuers and the CRT for (i) exchanging confidential commercial information and (ii) implementing market locking practices.
First, the FCA found that the four issuers had, via the CRT, exchanged confidential commercial information relating to their strategic position on the acceptance side (e.g., market shares and volumes of meal vouchers processed) on a monthly basis. No information was exchanged regarding the issuance side, where competition really takes place (in particular, with regard to prices charged to clients). The FCA nevertheless found that the information exchanges affected competition. This is because both sides of the market were perfectly symmetrical, such that any variation of the issuers’ market shares on the acceptance side fairly reflected a similar variation of the issuers’ strategic position on the issuance side. Similarly, the volume of meal vouchers processed on the acceptance side reflected the volume of meal vouchers issued on the issuance side. Therefore, the FCA found that the information exchanges allowed the issuers to detect any change in the pricing strategy of the competing issuers on the issuance side, and dissuaded them from adopting any aggressive pricing behavior.
Second, the FCA found that the four issuers had entered into two agreements with the aim to lock the meal voucher market.
The FCA found that the four historical issuers and the CRT had implemented non-objective and non-transparent CRT membership conditions. Membership to the CRT allows important economies of scale, simplifies management for merchants, and provides members with a single point of access to all merchants. Therefore, the FCA found that the non-objective and non-transparent CRT membership conditions restrained competitors’ access to the meal vouchers market.
In addition, the FCA found that the four historical issuers agreed not to unilaterally launch dematerialized meal vouchers (either in the form of a card or mobile application). This agreement was found anticompetitive because it reduced the issuers’ commercial autonomy and impeded innovation in the market at the expense of businesses and employees.
Interestingly, the FCA concluded that the CRT had partially participated in the practices because (i) the head of the CRT was necessarily aware of the content of the membership conditions and (ii) the CRT had clearly expressed its willingness to control the entry of new competitors in the market in various presentations.
The FCA fined the four issuers and the CRT a total fine of 415 million euros. In setting the fines, the FCA took into account the repeated occurrence of the practices as an aggravating circumstance. The FCA, indeed, had fined Sodexo Pass France, Up, Edenred France, and the CRT for anticompetitive horizontal agreements concerning the same market in 2001. As a consequence, the FCA increased these three issuers’ fine by 20% for the exchange of information and by 30% for the market locking practices.
The decision applies the FCA’s well-established case law on information exchanges in the context of multi-sided platforms. The decision shows that exchanges of information carried out on one side of a market can have anticompetitive effects on another side of the market if both sides are deemed sufficiently interdependent. Separately, on February 26, 2020, the FCA announced that it had carried out dawn-raids on the premises of various meal voucher issuers suspected of anticompetitive practices. These could be related to elements uncovered during the investigations resulting in suspicions of other potentially anticompetitive practices, or similar practices that occurred during a different time period. Further legal developments in this sector are therefore expected in the future, and the FCA may impose new fines on the historical meal voucher issuers. In the context of a market undergoing digital transition, the developing FCA case law in this sector will potentially have a long-term impact on the current competitive landscape by substantially reducing barriers to entry.
 See decision No 01-D-41 of July 17, 2001.