France Competition Review – A Return to ‘Normal’?

During our research into the French Competition law market during the course of 2023, a recurring theme when speaking to the lawyers was that activity was returning to pre-Covid level.  Dawn raids have been on the rise following some quiet years during and immediately after the pandemic.  This covers not only the possibility to have more on-site dawn raids conducted in person, but also a continuation of the use of online or cloud raids that were introduced during the pandemic.  The increase in dawn raids has naturally fed into an increase in cartel proceedings and damages actions.  The most significant cartel case currently is around the Bisphenol A cartel, while (as in many European jurisdictions) the trucks cartel damages action is a high-profile litigation.

On the other hand, lawyers were reporting that there has been a slight decrease in merger clearance work – though it was unclear if this was as a result of the market’s greater caution in reaction to the blocking of the TF1/M6 merger or was simply a return to ‘normal’ levels following some bumper years immediately after the pandemic.  As with many other jurisdictions in Europe, however, any decrease in merger clearance work is likely to be compensated by more work around the foreign direct investment and foreign subsidies regulations.  Despite the slight downturn, there have still been several key merger clearance matters, with the combinations between Smartbox/Wonderbox, Euralis/Maisadour, and SSP/Aeroports de Paris all going to Phase II investigations.

As with many other European competition authorities, the FCA is looking closely at the technology sector with investigations into Google, Apple, Meta and Amazon.  One of the biggest cases of the year though was the large reduction of a fine given to Apple by the FCA as part of a long-running case concerning allegations of resale price maintenance and abuse of economic dependency.  Since another key decision this year saw Roche and Novartis also reducing fines that had previously been imposed by the FCA, it has been a productive year for clients looking to challenge authority decisions.

In two other areas, the French authority seems to be following the broader European trends, with a greater focus on non-compete agreements, and on the interplay between competition law and sustainability or greenwashing, though certainly in the latter case there have not yet been any significant cases.