For established companies, innovation can be a challenge to their position, especially when this innovation is driven by new players. This challenge to the established order may arise from the arrival of new products or services on the market, but also from the emergence of a new business model, which redefines the contours of the market. It then becomes a veritable threat to the established order and the existing operators are forced to reposition themselves. Faced with these changes, some actors may be tempted to safeguard their position by applying illegal practices aimed at preventing or slowing down the transition to new technologies.

The decision issued by the Autorité in September 2021 in the road freight sector illustrates this kind of behaviour. In this case, several players in the sector (freight exchanges, hauliers’ associations, trade unions) were fined for hindering the arrival and development of new digital players offering services that put shipper customers in touch with hauliers through an online interface, using immediate geolocation methods. The Autorité considered that these practices were all the more serious as they concerned a sector that was undergoing a profound evolution, marked by the emergence of new IT and digital technologies that made it possible to optimise transport management (Decision 21-D-21 of 9 September 2021).

Similarly, two years earlier, the Autorité had handed out fines worth €415 million to the four companies that had traditionally issued meal vouchers, for cartel practices. In particular, they had made a series of arrangements aimed at locking the market, by controlling the entry of new players and agreeing that they would all refrain from issuing digital meal vouchers (in the form of cards or mobile applications).

The Autorité found that these practices had not only harmed competition but also obstructed technological innovation, by preventing the development of digital meal vouchers (Decision 19-D-25 of 17 December 2019). This case continued in 2021 with the filing of an action for damages before the Commercial Court by more than 1,000 restaurant owners on the basis of the Autorité’s decision, against the companies issuing meal vouchers.

In order to prevent companies from creating excessively strong market positions, mergers are subject to the authorisation of the Autorité de la concurrence when the total worldwide sales of all the companies involved exceed €150 million and the total sales in France of at least two of the companies involved exceed €50 million. Above a certain size, the European Commission has jurisdiction.

In recent years, and in particular with the development of digital technology, competition authorities have gradually come to realise that this framework has certain limitations. In particular, it appeared that certain transactions involving highly innovative emerging players could escape their control, given the low level of revenues of the target company. This “blind spot” in regulation, which opens the possibility for a dominant company to buy up its various smaller competitors without a prior examination, can be problematic from the perspective of the competitive dynamics of markets and maintaining incentives to innovate.

The Autorité has proposed remedying this shortcoming on various occasions, without affecting current legislation, by using the referral mechanism provided for in Article 22 of Regulation No. 139/2004. It therefore welcomed the European Commission’s announcement in 2020 that it would now be possible for national competition authorities to refer sensitive mergers to it for review, even when they do not meet the criteria for examination at the national level.

Shortly after this announcement, this new approach was put into practice for the first time, with the Commission’s decision to open proceedings to examine the takeover of Grail by Illumina, following a referral request by the Autorité de la concurrence, which was joined by several Member States of the European Union and the European Economic Area (Belgium, Greece, Iceland, the Netherlands and Norway). The operation consisted in the takeover by a powerful U.S. healthcare company of an innovative company working on the development of a cancer screening blood test based on genomic sequencing technology (Press Release, 20 April 2021, for more details on this transaction, see p. 80).

Executive Vice-President Margrethe Vestager, in charge of competition policy, stated that the European Commission, had “opened an in-depth investigation precisely to assess whether the proposed transaction, which will combine the activities of Illumina and GRAIL, would threaten the ability of developers of cancer detection tests to effectively compete in this area and bring innovative products to the market” (EC Press Release, 22 July 2021).* This renewed approach to Article 22 makes it possible to mobilise this tool more effectively at the European level. This will make it possible to scrutinise takeovers of high-value companies more effectively, particularly in the areas of digital innovation, health or biotech, by taking into account the possible impact of these takeovers on innovation and the launch of innovative products.

*The Commission’s decision to examine this case is the subject of an appeal pending before the General Court of the European Union.