On January 9, 2020, the French Competition Authority (“FCA”) announced its main priorities for 2020.1[1] The regulator stressed that the digital and retail sectors would remain at the top of its agenda given the recent developments in these fields and the challenging competition issues they raise. Trade associations and unions may also face more significant fines while climate concerns may raise discussions between regulators to enhance environmental protection. On the legislative front, the FCA will follow the implementation of the ECN+ Directive in France and the upcoming revision of French merger control guidelines.

Merger control guidelines reform

The planned overhaul of the merger control guidelines will certainly be the hallmark of the year.

The FCA confirmed that the new guidelines would be released early this year. The FCA indicated it will take into account the new challenges raised by the digital economy, in particular to assess the competitive pressure exerted by online retailers and so-called killer acquisitions (i.e., acquisitions by dominant companies of smaller rivals to halt the development of their products at an early stage).

The digital sector

The FCA will dedicate significant financial resources to assess and investigate digital markets. In this respect, the FCA will create a specialized “Digital Economy Unit”, which will be supervised by the Rapporteur Général of the FCA and provide dedicated support for cases related to the digital sector. The FCA will use various tools to better understand the economics underlying the regulation of platforms and detect potential violations more efficiently, including when they are implemented through algorithms.[2] For instance, the FCA may use new investigation methods based on the use of algorithms, mass data, and artificial intelligence as well as implement a new conceptual framework aimed at promoting the service’s cooperation with sector-specific regulators and exchanges with research institutions and academics specialized in digital issues.

In addition, large companies in the technology sector will remain subject to the FCA’s scrutiny, in particular as to the use of personal data and artificial intelligence, as well as their role in online advertising.[3] The FCA will also publish a study on the impact of electronic financial services, fintech, and blockchain technology on the financial sector. The FCA’s stance seems to align with that of the European Commission, which has also strived to reshape its competition policy in the digital era.[4]

The retail sector

The FCA will also publish a study concerning innovative retail practices that may raise competition concerns, including multi-channel strategies (i.e., diversifying and multiplying the channels used to reach customers, in particular through the growing convergence of digital and physical channels) and retail models which combine physical and digital retail.[5] The FCA will also aim to close several investigations related to joint purchasing agreements. While the regulator did not single out any particular players, its enforcement activity at least involved the agreements between Carrefour and Casino.[6] The outcome of these proceedings should help clarify the risks associated with purchasing organizations that the FCA had identified in a prior opinion released in 2015.[7]

The entry into force of the ECN+ directive

The FCA welcomed the future implementation of the ECN+ directive which reinforces the powers of national competition authorities in the European Union.[8] In particular, the FCA will be able to decline certain referrals depending on its enforcement priorities. Another key measure will be the possibility to impose interim measures ex officio (i.e., even without a prior request from the parties). This may open the door to many more interim measure cases.

Trade unions and associations

The FCA recalled that trade union and associations have faced regulatory backlash in recent years over infringements of competition law. The FCA sanctioned a wide variety of professional bodies for cartel practices, such as notaries,[9] architects,[10] and courier services.[11] The FCA warned that heftier fines were to be expected since the implementation of the directive ECN+, which allows for the imposition of fines of up to 10% of the global turnover of each of the companies that belongs to the union or association.[12]

Climate matters

Sustainable development also fueled discussions among various regulators, including the FCA. The FCA will take a keen interest in practices at the intersection of environmental protection and competition law. These may take the form of anticompetitive agreements between companies, whereby they jeopardize the promotion of environmental performance. In this respect, the FCA already sanctioned several floor coverings manufacturers that agreed not to compete based on the environmental performance of their products, thus restricting competition on this parameter of consumer choice.[13]

[1]              FCA press release of January 9, 2020, available at: https://www.autoritedelaconcurrence.fr/fr/communiques-de-presse/lautorite-de-la-concurrence-annonce-ses- priorites-pour-lannee-2020.

[2] FCA press release of January 9, 2020, available at: https://www.autoritedelaconcurrence.fr/fr/communiques-de-presse/lautorite-cree-un-service-de-leconomie- numerique.

[3]              Ibid.

[4]              The Commission ordered a report on competition policy for the digital era, available at: https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf.

[5]              Decision of the FCA of April 20, 2018, n° 18-DCC-50 and decision of the FCA of April 20, 2018, n°18-DCC- 53

[6]              FCA press release of July 16, 2018.

[7]              FCA, Opinion 15-A-06 of March 31, 2015 regarding joint purchasing agreements in the food retail sector.

[8]              Directive (EU) 2019/1 of the European Parliament and of the Council of December 11, 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, OJ 2018 L11/3.

[9]              Decision of the FCA of June 24, 2019, n°19-D-12.

[10]             Decision of the FCA of September 30, 2019, n°19-D-19.

[11]             Decision of the FCA of December 15, 2015, n° 15-D-19.

[12]             FCA press release of January 9, 2020.

[13]             Decision of the FCA of October 18, 2017, n°17-D-20.