The Current State of Competition Authorities

As markets flourish and the number of cases being brought before regulators grows, lawyers increasingly note the desire of authorities to make their mark. During research into the UK competition market, the deeper investigative approach of the Competition and Markets Authority (CMA) was often highlighted by sources as a new development now that the organisation seeks to distinguish itself following Brexit.

The effects of this are felt not only in the UK but also in France, with French lawyers describing it as a “difficult agent” to cooperate with due to the apparent volume of information it requests, its alleged unpredictability and its supposed ability to find concerns where other regulators find none.  

However, this growing intensity of regulators is not only restricted to the UK but is instead described as a four-dimensional trend by some lawyers, whereby regulators in the USA, France and the European Commission are following suit alongside the CMA in an attempt to exhibit their independence.  

Contrary to the show of strength from regulators, many lawyers highlight staffing as an issue that is apparently impacting the authorities currently, on both a French and European level. The effects of this are already allegedly being felt by law firms that question whether regulators are carrying out dawn raids and investigating M&A transactions in time periods that are deemed acceptable.  

The French Competition Authority (FCA or Autorité de la concurrence) has also undergone a period of change at the highest levels with the appointment of a new president, Benoît Cœuré, in January 2022, replacing Isabelle da Silva who had held the position from 2016 to 2021. During interviews with firms, lawyers were intrigued by this sudden change in direction given that they had expected Ms da Silva to continue in her role.  

The economic rather than legal background of Mr Cœuré was also something that interested legal professionals, with some highlighting his different approach to cases in terms of the time taken to review decisions as well as how he speaks on commitments after hearings. Another topic of interest was how he would tackle key mandates at the moment, and this was a subject brought to the fore during calls with lawyers given that a decision was brought recently on the proposed merger between the French television networks, TF1 and M6.

The risk of the merger infringing on areas like advertising, streaming and pricing was touched upon by Mr Cœuré in his summary of the case, following the decision of Bouygues to pull out from the acquisition.  

Even though many lawyers view him to be continuing with the work laid out by Ms da Silva during her tenure as president, some see Mr Cœuré’s decision on the merger between TF1 and M6 and his economic background as a signal of the independence that could be shown during his time as president of the FCA. 

Lawyers are quick to point out the upsurge in merger control work currently and by analysing the annual reports from the FCA, one can see a distinct increase in this workstream with 272 decisions being taken between 2021-2022 compared to 195 between 2020-2021. Private enforcement and follow-on damages claims are also seen as areas that are providing a greater level of activity at the moment, with lawyers claiming that there is now less of an onus on claimants and that French courts have an appetite for these types of cases.  

Some sources pin these increases down to the floodgates being opened after the pandemic but other lawyers practice caution when viewing this growth in activity, pointing towards the global political and economic landscape as a potential source of slowdown in the coming months and years.  

The European Commission’s changes to Article 22’s referral policy of the EU Merger Regulation (EUMR) are also being highlighted as a source of complexity and risk for legal practitioners and clients. This change will allow competition authorities to “refer certain transactions to the EC [European Commission] for review even where they do not meet the national merger control thresholds of the referring Member States”. As a result, this will heighten the amount of analysis a transaction must go under, exposing it to greater risk. 

Alongside these changes is the introduction of the Vertical Block Exemption Regulation (VBER) and Vertical Guidelines that work within the framework of Article 101 of the Treaty of Functioning of the European Union (TFEU). With these regulations brought into law in June 2022, a lot of companies must now rethink their distribution models so that they are not limiting healthy competitive practices. Consequently, lawyers are facing an uptick in terms of advice required from clients on this subject. 

Therefore, while the market is proving to be dynamic and returning to normality following the heights of the Covid-19 pandemic, this does not mean to say that there will not still be significant challenges and opportunities facing the competition field in France going forward. 

An area that is under particular scrutiny for the time being is the digital sector, with players like Google, Apple and Meta being examined closely for anticompetitive practices in the last few years. Internally, the FCA demonstrates its ability to tackle these subjects through the creation of its Digital Economy unit in 2020 which has recently shown its commitment to this field through its investigation into the cloud computing sector.  

This department should only grow in importance now that the Digital Markets Act from the European Commission looms on the horizon. Although yet to be brought formally into law, it is a piece of legislation that will set its sights on important digital players or “gatekeepers” to “ensure that these platforms behave in a fair way online”. In the build-up to this new act, lawyers observe growing concerns from clients operating in the digital sector on how to avoid competition risk in the future.  

In addition to the digital sector, sustainability is another topic that is receiving increased attention from regulators. While researching the UK competition market, lawyers spoke of it being a thought-provoking question with regards to competition law but one that has yet to generate a separate workstream, and the same applies to the French competition market.  

Nevertheless, lawyers hint at the positive signals being sent by the FCA following its creation of a taskforce for sustainable development matters in 2019 and the recent appointment of Elise Provost as the adviser to the General Rapporteur (Rapporteur général), who will be tasked with leading the investigation services of this network.

Similarly to the UK market, sustainability under the lens of competition law could raise concerns around mergers that masquerade as offering environmental benefits in order to receive leniency in merger clearance rather than offering genuine sustainability agreements. It remains to be seen therefore how the full extent of Ms Provost’s role will come into play so that these issues are properly confronted on the French market.