The FCA merger control activity increased significantly in 2021 with more than 270 transactions reviewed (compared to 195 in 2020). 

The FCA conditionally approved ten transactions in phase 1 – subject to structural (including fix-it-first) remedies. The only phase 2 decision led to a prohibition (which is the FCA’s second ever prohibition; the first case was in 2020 in the retail sector). The FCA prevented Ardian from acquiring sole control over the Méditerranée-Rhône pipeline (SMPR) arguing that it would have allowed Ardian to raise prices for the use of what the FCA considered to be an essential facility. 

Finally, the FCA has referred a case (Illumina/GRAIL) to the Commission, using the referral mechanism set out in Article 22 of the Merger Regulation, as newly interpreted by the Commission (i.e., even when national thresholds are not met). Such mechanism intends to prevent potential “killer acquisitions” in innovative markets (e.g., tech, biotech, health).

The FCA continued in 2021 to strictly monitor compliance and implementation of its decisions by companies. In that regard, the highest fine of the year was imposed on Google for failing to comply with various FCA injunctions (imposed in April 2020) in relation to the remuneration of related rights for press publishers and agencies (€500 million, July), and imposed periodic penalty payments of up to €900,000 per day in case of future non-compliance. 

The FCA also continued to prosecute procedural breaches and imposed three fines on companies that obstructed antitrust investigations: Fleury Michon (€100,000, May – an internal restructuring of a subsidiary targeted by an investigation has not been indicated to the FCA); Nixon (€5,000, July – refusal to reply to an RFI) and Nel Group (€100,000, December – refusal to reply to an RFI). 

Besides, the FCA resumed carrying out dawn raids with inspections at the premises of undertakings and professional organisations active in the pharmacy data collection and processing sector (July) as well as in the food retail sector, including at the private home of some of the retailers’ employees (November).

Finally, the FCA had an active advisory role in 2021 with the publication of ten opinions (v. 12 in 2020) targeting inter alia the cultural sector (three opinions), the sector of new technologies applied to payment activities as well as the oil pipeline sector. 

2021 was the year of adoption of the ECN+ Directive Transposition Order that achieved the modernisation process of French competition law. It gave the FCA sharpened enforcement powers (e.g., structural or behavioural injections, greater access to companies’ virtual data during dawn raids, ability to open ex officio interim measure procedures) and strengthened repressive tools (e.g., increase of the maximum fine to be imposed on trade associations, immunity from criminal sanctions in case of leniency application). The FCA also updated its Procedural notice on the method for determining fines, aligning its method with the Commission’s (e.g., entry-fee, illicit gains, durations). All these changes will have an inflationary effect on the level of fines imposed.

Finally, in terms of compliance, the FCA published a study on the application of competition rules to professional bodies and updated and submitted for public consultation its draft framework on compliance programs which advocates for better compliance practices.