This predominance mainly increases the number of simplified procedures (i.e., unproblematic, expedited investigations) before the FCA, where retail accounts for 78 percent of all decisions over the past ten years. But it is also reflected in significant investigations, as the FCA pays heightened attention to mergers that can result in a price increase for essential goods and staple foods to the detriment of consumers. Cases involving retail and agriculture/agribusiness thus represented often more than 50 percent of significant investigations each year for the past decade.
However, recent years have seen an increased focus on the health sector, which accounted for six significant investigations since 2015, and three in 2020 alone. Press, media and telecommunications have also been a focus for the FCA. In these cases, the FCA’s review in the context of merger control rules mirrors its priorities in terms of antitrust enforcement.
Enforcement in the digital sector has been limited, with only one Phase II case in 2018 (relating to the merger of the two online platforms SeLoger.com and Logic-Immo.com, both specialized in property advertising). This may be due to the large number of digital deals that fall below the (relatively high) French merger control thresholds. As a consequence, the FCA has expressed its extreme willingness to refer mergers to the European Commission under its new interpretation of Article 22 of Regulation No. 139/2004, which would enable national competition authorities to take “into account the acquisition practices of certain players and operations that currently fall ‘below the thresholds’ despite affecting competitive market dynamics are subject to tighter control” (see FCA, press releases dated 23 December 2020 and 9 January 2021). This new tool could have an impact on merger control in France going forward.
1) Please note that date of the formalization of the transaction, as retained in the FCA decision (e.g. signing, firm offer letter), was used as a proxy for the announcement date.