On March 3,2023, the French Competition Authority (“FCA”) published its roadmap for 2023-2024, outlining its enforcement priorities for the year ahead.
The FCA emphasized the need to take action in three main areas: (i) the digital transition, (ii) sustainability and the green transition, and (iii) the cost-of-living crisis. The FCA also indicated that it will monitor practices that could harm public procurement procedures and the freedom of establishment of regulated legal professions as well as competitive conditions in the French overseas territories.
The competition concerns raised by the digital economy
The FCA noted that the digital economy has been an ongoing area of focus and underscored the upcoming entry into force of the Digital Markets Act (“DMA”)[1] as of May 2, 2023, indicating that “the DMA and competition law are two complementary tools, which mutually reinforce each other”.[2] Without clarifying the exact role of the FCA in the post-DMA era, the FCA noted that it will continue to allocate significant resources to ongoing cases and the review of practices at “several levels of the advertising technology chain, in a range of ecosystems”.[3] The FCA also announced that it will closely monitor the implementation of and compliance with commitments made by large online platforms.[4]
Moreover, the FCA noted that it will publish the findings of its investigation into the cloud sector in the first semester of 2023, with the aim of delimiting relevant markets and identifying potential practices.[5] The FCA also announced that it will participate in the discussions on the regulation of the sector at EU level, including as part of the Data Act, and at national level.
The FCA’s increased enforcement on sustainability-related practices
The FCA reiterated its commitment to support the green transition within the scope of its mandate. The FCA stressed that it will sanction harmful practices in the sector, while supporting the companies willing to enter into cooperations which are “necessary” for a successful transition. Against this background, the FCA invited all stakeholders to engage in an informal dialogue to anticipate the entry into force of the new chapter on sustainability in the European Commission’s horizontal guidelines.[6] However, the FCA did not set out the principles for the assessment under Article 101(1) TFUE of cooperation agreements among competitors, i.e., the cases in which those agreements will be viewed as compatible with Article 101.
The FCA stated that it has a duty to explore sustainability issues and will make use of its power to provide opinions ex officio.[7] The FCA has already done so recently, announcing that it will issue an opinion on the competitive functioning of the market of charging stations for electric vehicles in 2024.[8] Similarly, the FCA will launch a sectorial investigation in the first quarter of 2023 to gather evidence in order to publish an opinion on the competitive functioning of the land passenger transport sector. The FCA intends to update past published opinions to reflect the impact of the emergence of intermodality[9] and the importance of this sector in the green transition.
The cost-of-living crisis
The FCA indicated that, in the current inflationary environment, it will focus its efforts in particular on those sectors that have the most direct impact on household budgets. The FCA noted that it is currently investigating undertakings active in various sectors of the energy market.[10] The FCA also indicated that it “stands ready” to contribute to the proposal issued by the Commission on March 14, 2023 for an Electricity Market Design reform.[11]
As regards the consumer goods sector, the FCA emphasized that ensuring “the competitive balance”of retail distribution throughout the value chain[12] will remain a key objective. The FCA will specifically monitor vertical relationships between suppliers and distributors, as well as possible mergers or practices that could affect the price or quality of products.
Take-away The FCA roadmap confirms the FCA’s well-known key enforcement priority. It remains to be seen (i) how the FCA will focus its efforts in the digital space in a post-DMA era and (ii) how the FCA will take into account sustainability concerns in its competitive assessment, in particular in merger reviews and horizontal agreements. The current complex landscape will also prompt the FCA to collaborate more closely with the European Commission, national competition agencies but also French sectorial regulators such as the National Commission for information technology and liberties (“CNIL”) for data-related competition concerns, and the Commission for energy regulation (“CRE”).
[1] For more information on the Digital Markets Act, see the EU Competition Law Newsletter – April 2022, available at: https://www.clearygottlieb.com/-/media/files/eu-competition-newsletters/eu-competition-law-newsletter—april-2022.pdf.
[2] FCA ”Roadmap 2023-2024”, March 3, 2023, p. 2, available at: https://www.autoritedelaconcurrence.fr/sites/default/files/2023-03/feuille-de-route-2023-2024-EN.pdf.
[3] FCA ”Roadmap 2023-2024”, March 3, 2023, p. 3, available at: https://www.autoritedelaconcurrence.fr/sites/default/files/2023-03/feuille-de-route-2023-2024-EN.pdf.
[4] FCA Decision No. 22-D-13 of June 21, 2022 regarding practices implemented in the press sector. FCA Decision No. 21–D-11 of June 7, 2021 regarding practices implemented in the online advertising sector. FCA Decision No. 22-D-12 of June 16, 2022 regarding practices implemented in the online advertising sector.
[5] FCA Press Release “The Autorité de la concurrence opens a public consultation until 19 September 2022 as part of its cloud sector inquiry”, 13 July 2022, available at: https://www.autoritedelaconcurrence.fr/en/communiques-de-presse/autorite-de-la-concurrence-opens-public-consultation-until-19-september-2022.
[6] The European Commission published on March 1, 2022 the draft of the revised Horizontal Block Exemption Regulation and the accompanying Horizontal Guidelines, which allow for sustainability agreements to fall outside the scope of application of competition rules when they don’t affect price, quantity, quality choice or innovation, more information available at: https://www.clearyantitrustwatch.com/2022/03/new-eu-guidelines-for-horizontal-agreements-a-changing-climate-for-sustainability-cooperation/.
[7] Article L.462-4 of the French Commercial Code.
[8] FCA Press Release, “E-mobility: The Autorité starts proceedings ex officio to analyse competition in the sector of charging infrastructure for electric vehicles”, 17 February 2023, available at: https://www.autoritedelaconcurrence.fr/en/press-release/e-mobility-autorite-starts-proceedings-ex-officio-analyse-competition-sector-charging.
[9] The European Commission has also launched an initiative on Multimodal digital mobility services, which should be adopted in the first quarter of 2023. Press Release available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6776.
[10] FCA Press Release “The general rapporteur of the Autorité de la concurrence indicates objections were recently stated in the nuclear clean-up and decommissioning sector”, 11 July 2022, available at: https://www.autoritedelaconcurrence.fr/en/communiques-de-presse/general-rapporteur-autorite-de-la-concurrence-indicates-objections-were.
FCA Press Release “The Autorité de la concurrence has opened an investigation into alleged practices in the fuel supply, storage and distribution sector in Corsica”, 21 December 2021, available at: https://www.autoritedelaconcurrence.fr/en/communiques-de-presse/autorite-de-la-concurrence-has-opened-investigation-alleged-practices-fuel.
[11] European Commission, COM 2023/148, 14 March 2023.
[12] Roadmap 2023-2024, p. 5.