On June 3, 2021, the French Competition Authority (the “FCA”) launched a public consultation to assess the adequacy of the commitments (the “Commitments”) offered by Facebook Inc., Facebook Ireland Ltd, and Facebook France (together, “Facebook”) as part of the FCA’s investigation into allegedly abusive online advertising practices by Facebook.
Facebook provides advertising services (i) by directly marketing advertising inventories on its Facebook and Instagram social networks and its Messenger messaging service, and (ii) by selling inventories of third-party publishers who use its intermediation service (Facebook Audience Network). Facebook’s Marketing Partners program (the “FMP”) also enables over 100 advertising technology providers to offer advertisers additional services to improve their online ad campaigns. FMP status is only granted to companies that meet certain requirements in terms of volumes and categories of advertising investment, and may be withdrawn should the member not comply with certain performance criteria.
On September 10, 2019, French online advertising services provider (and former FMP member) Criteo filed a complaint with the FCA, accusing Facebook of (i) denigrating it from 2017 onwards, (ii) unduly retracting its FMP status in July 2018, and (iii) unduly withdrawing its access to certain Application Programming Interfaces (“APIs”), which are used for bidding, product recommendations, and ad campaign performance measurement. The FCA subsequently acceded to Facebook’s request for the case to follow a commitment procedure.
The FCA’s concerns
On June 3, 2021, the FCA published a preliminary assessment of Facebook’s alleged practices. It found that they were liable to restrict access to advertising inventories and ad campaign data due to “conditions that are not transparent or objective,” and which could also be deemed denigrating and discriminatory. In particular, the FCA found that the definition and the application of the investment commitments FMP members undertake lacked “transparency, stability, objectivity,” and were discriminatory. For instance, the FCA expressed concerns about the opacity of the FMP status withdrawal procedure. In addition, the FCA noted that Facebook’s conditions for withdrawing certain APIs could limit the ability of FMP members to offer value-added services through their own advertising technologies. Besides, the FCA feared that external providers involved in the selection process of FMP members may also be active in the online advertising sector and, as such, FMP members’ competitors. The FCA therefore deemed that Facebook’s practices could fall afoul of Articles 102 TFEU and L. 420-2 of the French Commercial Code.
In order to address the FCA’s concerns, Facebook offered the Commitments, which relate to (i) the FMP program, (ii) Facebook’s commercial communication, and (iii) the development of a “recommendation functionality” to FMP members that have the FMP badge.
FMP program commitments. Facebook undertook three-year commitments “to ensure the objectivity, clarity, and non-discriminatory application of the FMP performance criteria.” Under the proposal, any modification of these criteria would be preceded by a two-month notice and be notified to the FCA and FMP members. Facebook also offered to conduct FMP compliance and due diligence assessments, which aim to assess the integrity of FMP applicants or members, “in an objective, clear, and non-discriminatory manner.” In addition, Facebook proposed a clear framework for withdrawing the FMP status or FMP badge in the event of non-compliance with the FMP performance criteria. Lastly, Facebook committed to obtaining in-writing and binding confirmation from external providers that they would comply with the FMP program commitments and implement appropriate compliance procedures to avoid conflicts of interest.
Commercial communication commitment. Facebook suggested that its relevant sales teams be provided with competition compliance trainings for the next three years.
The “recommendation functionality” commitment. Facebook offered to develop and implement for two years a “recommendation functionality” for FMP members who have a FMP badge. The “recommendation functionality” would be an API allowing for certain eligible FMP members to interact with Facebook’s systems for the duration of the commitment, provided that they apply thereto, keep their FMP badge throughout and fulfil Facebook’s criteria for accessing the functionality (such as using the recommendation functionality for a certain period of time and adding value when using it).
Alongside the publication of its preliminary assessment of Facebook’s practices, the FCA launched its public consultation on Facebook’s commitments. While interested parties were able to submit comments until July 5, 2021, the FCA has begun market-testing the Commitments in order to determine whether they adequately address its competition concerns. Should the FCA deem them suitable, it will make them binding and close its investigation.
 FCA, Market Test, June 3, 2021, p. 1.
 Application Programming Interfaces allow for programs or software to connect and interact with one another with a view to exchange data.
 FCA, Market Test, June 3, 2021, p. 1.
 Article L. 464-2 of the French Commercial Code governs the FCA’s acceptance of commitments offered by companies to address its competition concerns in relation to prohibited practices referred to under Articles L. 420-1, L. 420-2, and L. 420-5 of the same code.
 FCA, Market Test, June 3, 2021, p. 2.
 Facebook also involves these external providers to determine whether FMP members comply with the FMP performance criteria and to conduct FMP compliance and due diligence assessments.
 The FMP badge is an accreditation granted to FMP members that meet FMP performance criteria. It enables badge holders to use a particular logo in their marketing materials and to be listed on Facebook’s partner directory.
 Commitments, paras. 10–18. The FMP program will include an indicative list of objective reasons that Facebook will consider when conducting FMP compliance and due diligence assessments. In particular, Facebook will inform any FMP member that has failed such an assessment of the reasons of its failure. Facebook also agreed not to discriminate against any FMP applicant or member when deciding whether or not to grant the FMP status or badge on the basis of the outcome of an FMP compliance and due diligence assessment. Finally, Facebook offered to allow unsuccessful FMP applicants to request a review of the compliance and due diligence assessment.
 Commitments, paras. 19–24.
 Commitments, paras. 25–33.
 Commitments, para. 34.
 Commitments, paras. 35–36.
 Commitments, paras. 37–49.