On July 6, the French Competition Authority (“FCA”) published its annual report for the year 2021.[1] In particular, the report highlights (i) the key figures of the FCA activity in 2021, (ii) the reinforced investigative powers of the FCA and (iii) the roadmap for 2022-2023.

Key figures of the FCA’s activity in 2021

The FCA imposed a total of 873.7 million euros of fines for 2021, slightly below 2020 which was a record year with fines totaling 1.785 billion euros. In 2021, most of the total amount (845.8 million euros) resulted from three decisions: Google’s practices in relation to neighboring rights[2] as well as in online advertising,[3] and a cartel in the sunglasses and glasses frames sector[4]. In total, the FCA issued a record number of 321 decisions and opinions in 2021: 272 merger control decisions, 30 decisions for anticompetitive practices and 19 opinions. In respect of merger control proceedings, the great majority of notified transactions were unconditionally cleared, with only 10 being cleared subject to commitments, and one prohibited. The FCA evaluates the total gain for the economy to be 18.5 billion euros between 2011 and 2021 (made up of fines imposed and avoided overcharge) thanks its regulatory activities.

Broadened investigative powers and FCA mission

The report highlights the most recent legislative changes that reinforced the investigative power of the FCA, such as the so-called “DDADUE”[5] law and the national order transposing the ECN+ directive.[6] The FCA notably benefits from an extended access to companies’ data and the principle of prosecutorial discretion i.e., the discretion to investigate or not depending on the FCA’s priorities. The report also points out that the FCA published revised fining guidelines in July 2021[7], which include inter alia new criteria to assess the gravity of an infringement with regards to innovation and the environment. The report also insists that the impact on sustainable development and the environment is now part of the FCA’s assessment in anticompetitive practices proceedings (it refers to last year’s decisions in the floor coverings and road freight transport sectors[8]), and in merger proceedings (of the FCA has defined new “green” markets and has acknowledged the potential offsetting gains of an environmental nature).

Roadmap for 2022–2023

The FCA published, along with its annual report, its roadmap for the year to come with seven main objectives: (i) encouraging the proper competitive functioning of digital markets (an ongoing top priority), (ii) participating in efforts to fight climate change (moving from fifth to second priority compared to the 2021 roadmap), (iii) preserving consumers’ purchasing power in times of crisis, (iv) tackling anticompetitive practices affecting public resources, (v) promoting a culture of competition, (vi) guaranteeing the FCA’s efficiency and responsiveness, and (vii) ensuring the consistency and coherence of the FCA’s action with other public policy objectives. The FCA also anticipates Article 22 referrals which enable the FCA to refer to the European Commission transactions which do not meet the jurisdictional thresholds but raise anticompetitive concerns.

[1]      French Competition Authority, Annual Report 2021, available at https://www.autoritedelaconcurrence.fr/sites/default/files/2022-07/ADLC_RA_2021_SD-2.pdf.

[2]      FCA Decision No. 21-D-13 of June 21, 2022 in relation to practices implemented by Google in the press sector.

[3]      FCA Decision No. 21-D-11 of June 7, 2021 in relation to practices implemented in the online advertising sector.

[4]      FCA Decision No. 21-D-20 of July 22, 2021 in relation to practices implemented in the glasses and glasses frames sector.

[5]      Law n°2020-1508 of December 3, 2020 on various adaptations to European Union law, which implemented 18 European directives and harmonised national law with 14 European regulations.

[6]      Order n°2021-649 of May 26, 2021 in relation to the transposition of the directive (EU) 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.

[7]      See the July/August 2021 edition of our French Competition Law Newsletter available at: https://www.clearygottlieb.com/-/media/files/french-competition- reports/french-competition-law-newsletter–julyaugust-2021-pdf.pdf.

[8]      FCA Decision No. 17-D-20 of October 18, 2017 in relation to practices implemented in the floor coverings sector (price-fixing and other practices between the three leading manufacturers of PVC and linoleum floor covering); FCA Decision No. 21-D-21 of September 9, 2021 in relation to practices implemented in the road freight transport sector (boycott of digital intermediation platforms).