The French Competition Authority is Contemplating Introducing Call-In Powers to Review Below-Threshold Mergers

By Frédéric de Bure, Stéphanie Patureau & Louis Amory on April 25, 2025

In January 2025, the French Competition Authority (the “FCA”) launched a public consultation on the introduction of a merger control framework for transactions that fall below the current turnover-based notification thresholds.[1] Whereas three options were presented in the consultation, on April 10, 2025 the FCA announced that the first option, namely the introduction of a call-in power based on quantitative and qualitative criteria, had received the most positive feedback and was being prioritized.[2]

Background

The FCA’s initiative follows the European Court of Justice’s (“ECJ”) landmark Illumina/Grail judgment of September 3, 2024,[3] which clarified that the European Commission (the “Commission”) may not accept a request for referral under article 22 of the EU Merger Regulation (“EUMR”) for transactions which fall both below EU and national jurisdictional thresholds.

The FCA had already launched a public consultation in October 2017, examining whether it would be appropriate to amend the merger control regulations to capture below-threshold mergers likely to raise competition issues.[4] It had then considered that the pre-Illumina/Grail Article 22 EUMR framework was an appropriate tool for reviewing such mergers.[5] The FCA had also decided not to re-introduce a market share threshold – which was abandoned in 2001– and ruled out the introduction of a transaction value-based threshold, viewed as inefficient in capturing problematic transactions and overly burdensome for M&A activities.[6]

The call-in power

After reviewing the submissions of the 26 stakeholders who responded to its latest public consultation, the FCA decided to work on the introduction of a call-in power based on quantitative and qualitative criteria for transactions that “threaten to significantly affect competition on the French territory”.

Ten Member States currently have such call-in powers.[7] Although this option was “more favourably” received by stakeholders than the other options subject to the consultation, respondents highlighted concerns around predictability and legal certainty. In particular, the tool would allow the FCA to review transactions within a certain timeframe after closing,[8] thereby introducing legal uncertainty. Furthermore, a need for clarification of what may constitute a transaction that “threatens to significantly affect competition” has been underlined. To address those concerns, the FCA is looking to set “clear” application criteria, including criteria to establish (i) a nexus to France, (ii) what would constitute a potential threat to competition, and (iii) a “clearly defined and short enough” time limit for implementing the call-in power. The FCA is also intending to publish guidelines detailing inter alia the circumstances that would justify the use of the FCA’s call-in power.

Two other options were on the table

The FCA’s public consultation sought stakeholders’ views on two other options:

Notification based on prior decisions or DMA gatekeeper designation. Another option under consideration was the introduction of a mandatory notification requirement for transactions involving companies previously subject to an FCA or Commission decision sanctioning or imposing commitments due to antitrust violations, as well as prohibition decisions or conditional clearances in the context of merger control. Transactions involving companies designated as “gatekeepers” by the Commission under the Digital Markets Act[9] would also have needed to be notified. This mechanism is inspired by the Swiss system, which requires notification when a prior decision establishes that a party to the concentration holds a dominant position in Switzerland.[10] The FCA did not retain this option, for which respondents expressed strong criticism because of the legal issues it raises, notably regarding its interaction with the DMA. In addition, it would have required notifications of unproblematic transactions while certain transactions that may have deserved scrutiny would, conversely, have falled outside its scope.
Leverage current legal framework. The third option subject to the FCA’s consultation was the leveraging of the existing legal framework related to anticompetitive practices. This option is in line with the Towercast judgment,[11] in which the ECJ ruled that concentrations that escape ex ante EU and national merger control review may still be subject to an ex post review under Article 102 TFEU prohibiting abuse of dominance, including after the closing of the transaction. The FCA has also recently reaffirmed its ability to carry out ex post reviews of non-reportable mergers based on Article 101 of the TFEU.[12] This approach generates legal uncertainty in M&A deals as any acquisition might potentially be scrutinized a decade after closing.[13] Despite the criticism and the fact that most respondents indicated that this option should remain the exception, the FCA did not rule out this option and simply stated that, in any event, it does not require any legislative change.

Next steps and takeaways

The FCA intends to present a proposal before the end of the year, which would then need to be enacted through legislation. The adoption of a call-in power would likely result in heightened complexity and more legal uncertainty for M&A transactions as well as, more options for prospective plaintiffs to cause FCA intervention.

[1] FCA, “Public consultation on the introduction of a merger control framework for addressing below-threshold mergers likely to harm competition”, January 14, 2025, available here.

[2] FCA, “Mergers below the control thresholds : Following the public consultation, the Autorité is continuing its work to propose a reform ensuring effective control”, April 10, 2025, available here.

[3] Judgment of September 3, 2024, Illumina and GRAIL and Commission, Cases C-622/11 and C-625/22.

[4] FCA, “The French Competition Authority is launching a review to modernize and simplify merger control regulations”, October 20, 2017, available here.

[5] The FCA also supported the Commission’s approach to Article 22 EUMR (FCA, “The Autorité welcomes the announcement by the European Commission, which will henceforth allow national competition authorities to refer sensitive merger transactions to it for examination, including when they are not subject to national merger control”, September 15, 2020, available here). The French Republic also intervened in the Illumina/Grail case in support of the Commission.

[6] FCA, “Modernization and simplification of merger control”, June 7, 2018, available here.

[7] Denmark, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Norway, Slovenia and Sweden.

[8] According to the Communication from the Commission on the guidance on the application of the referral mechanism set out in Article 22 of the Merger Regulation to certain categories of cases of March 31, 2021, the Commission indicated it would not consider referrals after six months from the implementation of the concentration, see para 21.

[9] Regulation (EU) 2022/1925 of September 14, 2022.

[10] Article 9(4) of the Swiss Federal Act on Cartels and other Restraints of Competition. Available here.

[11] Judgment of the ECJ, March 16, 2023, Towercast, Case C-449/21.

[12] FCA, Decision 24-D-05 of May 2, 2024, regarding practices implemented in the meat-cutting sector, available here, and Cleary’s Alert Memorandum of May 21, 2024 entitled “First Move by the French Competition Authority to Analyze Non-Reportable Mergers under Article 101”, available here.

[13] See article L-462-7 of the French Commercial Code, and article 25 of the Council Regulation (CE) n°1/2003 of December,16 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.