On December 23, 2020, the French Competition Authority (“FCA”) presented a summary report of its 2020 activity and set out its priorities for 2021.[1]

2020 Activity

In 2020, the FCA issued around 200 merger control decisions, 23 anticompetitive practice decisions and 12 opinions, despite lockdown and other sanitary restriction measures in place.[2] This is only slightly less than in 2019, during which the FCA issued around 270 merger control decisions, 27 anticompetitive practice decisions and 16 opinions.

The sanctions imposed amounted to nearly €1.8 billion, which is more than the double of 2019 sanctions (i.e. €632 million).

2020 key decisions

The summary report emphasized several important decisions, in particular:

Regarding anticompetitive practices, the FCA issued the Apple and Google decisions. In March, it imposed a record fine (€1.1bn) on Apple for inter alia restricting its wholesalers’ freedom to set their own prices and abusing its resellers’ economic dependency through restricted supply, discriminatory treatment and unstable remuneration practices.[3] In April, further to press publishers’ request for interim measures, the FCA ordered Google to negotiate in good faith with news publishers that request remuneration for the use of their protected content;[4]

Regarding merger control, the FCA has for the first time used its power to initiate ex officio proceedings in view of assessing the need for interim measures, in a case of joint purchasing agreement.[5] Further to its investigation, the FCA accepted the commitments proposed by the four retailers involved: Casino, Auchan, Metro and Schiever. The retailers committed to reduce the scope of their joint purchasing agreement to their own-branded products in order to alleviate the risks for upstream and downstream competition.[6]

The COVID-19 crisis

The FCA set up a team dedicated to guiding companies in their efforts to avoid engaging in anticompetitive behaviour during the COVID-19 crisis. This dedicated team advised a trade association on how to deal with the terms of its members’ commercial rent during the health crisis.[7] It also provided guidance to Fisher & Paykel Healthcare, a designer and manufacturer of products used in respiratory care, on how to remedy exclusivity practices which risked impeding hospitals’ access to respirators in overseas territories. As a consequence, Fisher & Paykel Healthcare revised its distribution rules in order to avoid any risk of supply disruption in these territories.[8]

Focus on the digital sector and sustainable development in 2021

The summary report sets two main enforcement priorities for 2021: the digital sector and sustainable development.

Regarding the digital sector, the FCA created a specialized “Digital Economy Unit” in 2020 to provide dedicated support for cases related to the digital sector.[9] The new unit has been fully operational since January 2020. In 2021, this unit is expected to publish its study on fintechs and the emergence of digital giants in payment services. The unit will also be responsible for developing new digital investigation tools, based in particular on algorithmic technology, big data and artificial intelligence. It will further contribute to the analysis of mergers in the digital sector and antitrust procedures, including infringements committed by digital means (e.g., collusion through the use of algorithms). The FCA will also actively participate in discussions on the EU digital platform regulation within the European Competition Network to develop standardised methods of analysis and intervention.[10]

Regarding sustainable development, the FCA will focus on the most harmful anticompetitive practices in this area and provide support to companies looking for guidance on antitrust issues that may arise from environmentally friendly behaviours, for instance when carrying out concerted environmentally friendly actions. The FCA will also participate in discussions within the framework of the Green Deal at the European level.[11]

The FCA’s 2021 merger policy

The FCA announced that it will keep a close eye on transactions that fail to meet the national merger control thresholds due to exceptionally low turnovers in 2020, in the context of the pandemic, but it is not clear how this will be achieved (e.g., if, and under which circumstances, the FCA may take into account the Parties’ 2019 turnovers for jurisdictional purposes).

Starting from 2021, the FCA, and other national competition authorities (NCAs), will more pro- actively refer transactions that do not meet the national merger control thresholds but threaten to significantly affect competition within their territory to the European Commission. While NCAs could already refer such cases under Article 22(1) of the 2004 European Merger Regulation, the Commission has encouraged NCAs to do so more regularly with the aim of better controlling so-called “killer acquisitions” (i.e., acquisitions whereby a large incumbent company acquires a smaller target before it becomes a significant competitor, preventing competition before it starts).[12] The FCA plans on actively implementing this new approach, and DG Comp is expected to release guidelines in mid-2021.

[1]              FCA press release of December 23, 2020, available at: https://www.autoritedelaconcurrence.fr/fr/communiques-de-presse/apres-une-activite-tres-soutenue- en-2020-lautorite-de-la-concurrence-annonce.

[2]              For more details regarding FCA extensions of time-limits during the state of public health emergency, see the March 2020 edition of our French Competition Law Newsletter, available at: https://www.clearygottlieb.com/-/media/files/french-competition reports/frenchcompetitionnewslettermarch2020pd-pdf.pdf.

[3]              FCA Decision No. 20-D-04 of March 16, 2020, regarding practices implemented in the Apple products distribution sector. Apple and its wholesalers’ appeals of this decision are now pending. For more details, see the March 2020 edition of our French Competition Law Newsletter, available at: https://www.clearygottlieb. com/-/media/files/french-competition reports/frenchcompetitionnewslettermarch2020pd-pdf.pdf.

[4]              FCA Decision No. 20-MC-01 of April 9, 2020, on requests for interim measures by the Syndicat des éditeurs de la presse magazine, the Alliance de la presse d’information générale and others and Agence France-Presse. For more details on this decision, see the April 2020 edition of our French Competition Law Newsletter, available at: https://www.clearygottlieb.com/-/media/files/french-competition-reports/french-competition-newsletter-april-2020.pdf. The FCA decision was upheld on appeal. See Decision of the Paris Court of Appeal of October 8, 2020, No. RG 20/08071.

[5]              For more details on this, see the November 2020 edition of our French Competition Law Newsletter, available at: https://www.clearygottlieb.com/-/media/ files/french-competition-reports/french-competition-newsletter november-2020.pdf.

[6]              FCA Decision No. 20-D-13 of October 22, 2020, regarding practices implemented in the major food retailer sector by the Auchan, Casino, Metro and Schiever groups.

[7]              See FCA press release of April 22, 2020 available at: https://www.autoritedelaconcurrence.fr/en/press-release/autorite-clarifies-options-professional- association-dealing-its-members-rent-during.

[8]              See the press release on the closing of the FCA investigation regarding exclusive imports of respiratory assistance in French Guyana and the French West Indies, available at: https://www.autoritedelaconcurrence.fr/en/press-release/respiratory-assistance-equipment-french-guiana-and-french-west-indies-investigation.

[9]              See, in particular, the press release on the creation of the digital economy unit, available at: https://www.autoritedelaconcurrence.fr/en/press-release/autorite- creates-digital-economy-unit. For more details, see also the January 2020 edition of our French Competition Law Newsletter available at: https://www. clearygottlieb.com/-/media/files/french-competition-reports/french-competition-newsletter-january-2020-pdf.pdf.

[10]             For more details on The Digital Services Act package adopted by the European institutions, see : https://ec.europa.eu/digital-single-market/en/digital-services- act-package. See also the June 2020 edition of our European Competition Law Newsletter available at: https://www.clearygottlieb.com/-/media/files/eu- competition-newsletters/european-competition-newsletter-june-2020.pdf.

[11]             For more details on the European Green Deal, see: https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal_en.

[12]             See the press release regarding “The future of EU merger control” during the International Bar Association’s 24th Annual Competition Conference of September 11, 2020, available at: https://ec.europa.eu/commission/commissioners/2019-2024/vestager/announcements/future-eu-merger-control_en.