Key Developments And Trends In French Antitrust Enforcement In 2023

• Published date: 11 March 2024
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Law Firm: Mayer Brown
• Author: Mr Jean-Maxime Blutel, Nathalie Jalabert-Doury, Guillaume De Meersman and Veronica Botnari

Introduction and key takeaways

Although the average and total fines imposed by the French Competition Authority (FCA) in 2023 have decreased in comparison to previous years,¹ it has nevertheless been very active on the antitrust front. This is reflected in the significant number of enforcement decisions that have been handed down, including 10 where fines were imposed, and more than double the number of opinions adopted in 2023 compared with the year before.² In this context, several emerging trends as well as themes carried over from previous years but with new impetus, can be observed. This article explores the key developments in this context.

First and foremost, the FCA demonstrated its continued commitment to closely monitor competition in the digital sector. The FCA also shifted sustainability in the competition sphere further up its priority list. Finally, 2023 stood out for the high number of fines issued in the context of vertical infringements. The first two areas are expected to remain a focus for 2024 and there are indications that FCA may add other fast-developing areas to its enforcement activity such as anticompetitive practices in labor markets. The FCA is also expected to continue to closely monitor the behavior at all levels of the agrifood sector³ and in French overseas territories, in line with its declared objective to protect consumers' purchasing power in the current inflationary context.⁴

More generally, the FCA's enforcement activity levels are expected to remain high. The FCA carried out many inspections in 2023 and will certainly seek to leverage this in 2024.⁵ The FCA's recently updated leniency program, and its new whistleblower framework are also expected to keep the pipeline of work busy. It may also seek to use its tool currently under development based on algorithmic analysis of bidding data, to detect cartels in public procurement contexts.

Digital sector as top priority and FCA leads way on several work streams

In line with previous years, the digital sector was again flagged as a top priority in the FCA's 2023-2024 roadmap.⁶ This renewed commitment is justified by the "long-term" approach necessary in a sector of "increasing complexity", involving a large "diversity of activities" and characterised by constant and fast-paced developments, which require parallel adjustments of competition policies and tools. This long-term focus was borne out in several ways in 2023, including through FCA's advisory activities which show that it is paying "particular attention" to the prominent role of data. To this end, it issued two opinions in 2023 dealing with competition in the cloud sector, which it considers as one of the major technological developments at the heart of the digitisation of the economy. This work of the FCA stands out in part because the cloud market has not so far been, the main focus of the European Commission's digital efforts, as illustrated by no "core platform service" designations of cloud services under the DMA.⁷

Across its opinions in relation to cloud services, the FCA flagged several competition concerns, mainly pertaining to imbalances between "hyperscalers" and their clients. The FCA emphasised the importance of ensuring that this sector remains as contestable as possible (which...