THE RAMPING UP OF BELOW-THRESHOLD ENFORCEMENT IN FRANCE
WHEN IS A TRANSACTION AT RISK?
- Asset swaps, purchasing consortia to divide assets and joint ventures are particularly likely to raise collusion risks. But every transaction between competitors can potentially raise issues of market allocation, as the seller typically agrees to withdraw from a market to the benefit of the acquirer. This is naturally insufficient to characterize an infringement, but if market-sharing discussions are involved at some point, broad non-compete covenants are agreed or information is exchanged on other markets than those involved in the transaction, then risks would likely materialise as well.
- Acquisitions by dominant firms may even more easily be caught under the concept of abuse. If under Towercast, the mere strengthening of dominance through the acquisition is insufficient, in the Doctolib case, the abuse was characterized relying primarily on the alleged intent to “dry out competition” by “killing” one of the few remaining competitors, as revealed by internal comments and the apparent absence of real efficiencies. In the end, the FCA deemed the transaction abusive because it had “eliminated the only player capable of competing directly with Doctolib and placed other competitors, already in very limited positions, in a situation where they would be unable to act independently of Doctolib“.
DIFFICULTIES MANAGING TRANSACTIONS IN THIS ENVIRONMENT
PRACTICAL STEPS TO MITIGATE RISK
- Carry out due diligence on below-threshold mergers as if notifiable. A preliminary antitrust assessment of the potential deal is a must-have including for transactions below thresholds. Also ensure that the transaction rationale is sound and referred to in important documents and that synergies are looked at in detail and given weight. In short, even if no notification is expected, involve antitrust lawyers from the outset to ensure all these steps are taken, where and when needed.
- Provide document creation guidance to staff. Provide guidance on document creation in relation to mergers and remind all staff members who are likely to comment on the transaction internally or externally about them. Even if this is normally part of general compliance training, experience proves that it is important to incorporate a specific reminder in the context of all transactions. Share these guidelines with bankers and consultancy firms advising on the transaction.
- Organise clean teams and protocols adapted to the level of risk involved. Even for non-notifiable deals, ensure that exchanges of information take place under adapted clean team arrangements and strict protocols to prevent exchanges of commercially sensitive information before closing and inappropriate discussions between actual or potential competitors. The higher the risk of coordination, the stricter these mechanisms and protocols need to be.
- Consider early engagement with authorities. Voluntary informal consultation with competition authorities may be appropriate for transactions presenting heightened risk, particularly where the target is a close competitor. While such engagement cannot eliminate the possibility that an authority may open an investigation at a later stage, it does limit such risk, and in any event allows to integrate in the process any significant concerns of the authority in time to adjust or reconsider a proposed transaction.
- Factor risks involved in your transaction strategy. The risks of post-signing and post-closing challenge do not weigh the same way on the seller and the acquirer and questions such as the timing of publication of the transaction and of closing have a direct impact on the moment the risk, if any, can materialise. Anticipate and factor enforcement risk into transaction timelines.
1 Law No. 2026-403 dated 26 May 2026 on the Simplification of Economic Life. The aggregate worldwide turnover threshold increases from € 150 million to € 250 million and the domestic turnover threshold from € 50 to 80 million.
2 ECJ, 16 March 2023, Case C-449/21, Towercast v Autorité de la concurrence et Ministère de l’Economie.
3 FCA, Decision No 24-D-05 of 2 May 2024, regarding practices implemented in the meat-cutting sector.
4 FCA, Decision No 25-D-06 of 6 November 2025, regarding practices implemented in the medical online booking sector.
[View source.]