On February 19, 2020, the FCA expressed its views on the possible lines of approach to enhance antitrust enforcement in the digital sector, both at the EU and national levels. This publication covers questions relating to anticompetitive practices and merger control, and shows the FCA’s willingness to be part of the on-going thinking process launched by the European Commission and many competition authorities and regulators around the world in order to deal swiftly with questions raised by the growth of digital platforms. The FCA will endeavor to update its contribution in light of legislative proposals that could be formulated in the coming months and the reactions that the publication might trigger.
Anticompetitive practices in the context of the digital economy
While acknowledging that competition law is already able to address a number of issues such as interoperability, access to data or exclusionary practices, the FCA’s publication identifies several areas of reform to specifically address issues raised by anticompetitive practices that may be implemented by digital platforms. The FCA’s proposals relate to (i) the notions of dominant position and essential facilities, (ii) the improvement of procedural tools (in particular, the use of interim measures) and (iii) the introduction of specific rules applicable to “structuring digital platforms”.
First, the FCA suggests extending the notion of dominant position to “structuring digital platforms” (“plateformes numériques structurantes”). “Structuring digital platforms” would be defined as companies which (i) provide online intermediation services and (ii) have structuring market power (by virtue of their size, financial capacity, user community and/or the data they hold), enabling them to control access to the market (“gatekeeper role”) or significantly affect the functioning of the market (“regulator role”). Moreover, “structuring platforms” would be characterized by the fact that their competitors, users and/or third parties depend on access to the platforms in order to carry out their economic activity. This proposal stems from the FCA’s belief that traditional concepts of competition law may be ill-suited to deal with market participants operating in “new” multisided markets, on which several platforms of more or less equivalent size may be active.
Second, the FCA suggests redefining or adapting the notion of essential facilities, while ensuring that incentives to innovate are preserved. Essential facilities should include certain data bases, communities of users, and ecosystems. The standard should include unavoidable assets to address issues such as access restrictions and interoperability hampering.
Third, the FCA notes that the ECN+ Directive generalizes the possibility for European competition authorities to impose interim measures including on their own initiative, allowing them to act swiftly without having to wait for complaints from market participants.[1] The FCA also proposes two alternative options to facilitate the use of interim measures i.e., either modifying the standard applicable to the imposition of interim measures at the EU level based on the criteria applicable under French law,[2] or allowing parties to submit to the FCA a request for interim measures without having to simultaneously file a request on the merits, which could be submitted afterwards.
Finally, the FCA proposes to introduce new rules applicable only to “structuring digital platforms”, ideally at the EU level, suggesting the establishment of a non-exhaustive list of practices that may raise competition concerns when implemented by “structuring platforms”. This list would include practices such as discrimination against competitors, restriction of access to non-dominated markets, use of data to raise barriers to entry, restriction of product interoperability, restriction of data portability or limitation of multi-homing possibilities. Competition authorities would be able to impose commitments or prohibit such practices if implemented by a “structuring platform”, unless that platform can demonstrate that the practices generate efficiencies and are therefore objectively justified. This mechanism would allow competition authorities to act more rapidly so as to remedy distortions of competition as soon as they emerge, while ensuring that the action is scalable and proportionate, following a case by case analysis.
Merger control in the context of the digital economy
Concerning merger control, the FCA considers that it has already taken into account some of the specificities of the digital economy in its analytical framework, for instance by taking into consideration the role that digital platforms play as potential competitors of more “traditional” market participants and the impact that mergers in the digital economy can have on competition parameters beyond prices.
Yet, the FCA identifies an enforcement gap in respect of transactions that do not meet the notification thresholds and enable the acquirer to “kill” the target (so-called “killer acquisitions”), or reinforce its dominant position (e.g., the Facebook/ Whatsapp and Facebook/Instagram mergers).[3]
To close this enforcement gap, the FCA proposes three possible ways forward: (i) using Article 22 of Regulation 139/2004[4] to refer problematic mergers to the European Commission even though national notification thresholds are not met, (ii) imposing mandatory information requirement for mergers involving “structuring platforms”, compelling them to inform the Commission (or relevant national competition authorities) of any acquisition they carry out,[5] and (iii) introducing the possibility for competition authorities to review mergers ex-post when the transaction does not meet the EU merger control thresholds but significant competition concerns have been identified in the “concerned territory” (the period during which the transaction could be reviewed ex post would be limited to 12 months after closing).
Beyond the notification of mergers involving digital platforms, the FCA also suggests updating the substantive merger control assessment, in particular to reflect the importance of data and users communities. In addition, the FCA considers that competition authorities could make better use of behavioral commitments in order to restore effective competition.
Overall, the FCA’s propositions – as they stand – would be particularly intrusive for digital platforms, with respect to both antitrust and merger control aspects. These measures come at a time when the FCA has clearly expressed its desire to strictly enforce competition rules against digital platforms, in particular against the GAFAs.
[1] Directive 2019/1 of the European Parliament and of the Council 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, OJ 2019 L 11/3, art. 11 (“Member States shall ensure that national competition authorities are empowered to act on their own initiative to order by decision the imposition of interim measures on undertakings and associations of undertakings, at least in cases where there is urgency due to the risk of serious and irreparable harm to competition, on the basis of a prima facie finding of an infringement of Article 101 or Article 102 TFEU. Such a decision shall be proportionate and shall apply either for a specified time period, which may be renewed in so far that is necessary and appropriate, or until the final decision is taken. The national competition authorities shall inform the European Competition Network of the imposition of those interim measures. Member States shall ensure that the legality, including the proportionality, of the interim measures referred to in paragraph 1 can be reviewed in expedited appeal procedures.”).
[2] Under French law, the FCA can grant interim measures if the alleged practices (i) are likely to breach competition rules, and (ii) cause “serious and immediate damage” to the general economy, the economy of the sector concerned, the interest of consumers, or the company which had brought the complaint. The measures must be limited to what is “strictly necessary to handle the emergency”.
[3] Facebook/WhatsApp (Case COMP/M.7217), Commission decision of October 3, 2014; Decision of the Office of Fair Trading of August 14, 2012, ME/5525/12.
[4] Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings.
[5] If the competition authority determines that such merger raises competitive concerns, it could request a full notification pursuant to Article 3 of Regulation 139/2004.