FRANCE Trends and Developments Contributed by: Malik Idri and Mathieu Relange, FTPA Avocats
Control below the jurisdictional thresholds Illumina / Grail and Towercast The FCA was involved in the two landmark rulings of the Court of Justice of the European Union that have reshaped the landscape for below-threshold merger control, Illumina / Grail (CJEU, 3 September 2024, Joined Cases C-611/22 P, Illumina v Commission , and C-625/22 P, Grail v Commission ), and Towercast (CJEU, 16 March 2023, Case C-449/21, Towercast SASU v Autorité de la concurrence et Ministre chargé de l ’ économie ). In Illumina / Grail , the FCA was the first national com - petition authority to answer the European Commis - sion’s call to refer the transaction to it pursuant to Article 22 of the EU Merger Regulation (ie, ask it to review the merger as if the EU jurisdictional thresh - olds were met), although the transaction did not meet the French merger control thresholds. The European Commission accepted that referral, which Illumina and Grail appealed in court (together with a second referral acceptance decision after the Greek, Belgian, Nor - wegian, Icelandic and Dutch competition authorities also referred the case). The General Court dismissed the appeals. However, in its 3 September 2024 rul - ing, the Court of Justice set aside the General Court judgment, annulled the European Commission’s deci - sion, after clarifying that Article 22 of the EU Merger Regulation cannot serve as a basis for national com - petition authorities to refer to the European Commis - sion concentrations that neither meet EU jurisdictional thresholds nor fall within the referring authority’s own national jurisdiction. The Towercast case was a preliminary ruling request - ed by the Paris Court of Appeal regarding a decision of the FCA. Towercast had filed a complaint with the FCA regarding an acquisition completed by a rival, TDF. The transaction was not subject to merger con - trol because the turnover thresholds were not met. Towercast therefore claimed that this acquisition was an abuse of TDF’s dominant position. The FCA’s investigative services followed that approach, but the FCA dismissed the complaint. In its ruling, the Court of Justice reaffirmed the Continental Can case-law (CJEU, 11 February 1975, Case 6/72 DEPE, Europem- ballage and Continental Can v Commission ), allowing national authorities and courts to treat a completed
acquisition by a dominant undertaking as an abuse where it substantially impedes effective competition. The FCA’s decisional practice after Towercast Drawing on these rulings, the FCA signalled its deter - mination to deploy all available enforcement tools (whether grounded in Articles 101 and 102 TFEU or their domestic equivalents) so as to guarantee that no transaction, even one exempt from prior notification, escapes scrutiny where it threatens competition on French territory. In its Decision No 24-D-05 of 2 May 2024, the FCA applied the Towercast doctrine for the first time and examined under Article 101 TFEU and Article L. 420-1 FCC several acquisitions that were not filed for merger control review because they were below the thresh - olds. It considered in that case that the evidence in the case file did not allow it to find a restriction by object, nor to analyse the effects of the transactions. It therefore issued a no-action finding, but confirmed that the Towercast doctrine was available, even under Article 101 TFEU. In its Decision No 25 D 06 of 6 November 2025, the FCA applied the Towercast doctrine, this time in an abuse of dominance case. It held that Doctolib’s 2018 acquisition of MonDocteur.com, a transaction that fell below the national notification thresholds, constituted an abuse of a dominant position under Article 102 TFEU and Article L. 420-2 FCC. The FCA treated this deal as a predatory acquisition aimed at eliminating a key rival and locking in Doctolib’s dominance on the French markets for online medical appointment book - ing services and teleconsultation solutions. An appeal is currently pending before the Paris Court of Appeal. Potentially upcoming call-in power In January 2025, the FCA also launched a public consultation on how to bring below-threshold merg - ers within its reach and put forward three possible mechanisms. The first proposed option was a genuine “call-in” power based on combined turnover in France and qualitative criteria, allowing the FCA to order notifica - tion where a deal is likely to significantly affect com - petition.
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