Below-Threshold Mergers in France: Where Do We Stand After the Doctolib Decision and the Increase of Filing Thresholds?

In 2025, for the first time, the French Competition Authority (FCA) fined a company in respect of a below-threshold acquisition of a competitor on the basis of rules prohibiting abuse of dominance. A few months later, France enacted a law raising the national merger notification thresholds,¹ a move which was encouraged by the FCA. Notwithstanding any initial appearance of pulling in different directions, these two developments are indeed fully consistent with one another: they show that the FCA is willing to concentrate its resources on the cases which really justify intervention, making full use of the latest case law from the European Court of Justice empowering national competition authorities (NCAs) to challenge below-thresholds mergers based on behavioral rules.

This enforcement shift needs to be taken in consideration by parties to transactions that would fall below the existing (or new) thresholds in France. Until there is an efficient call-in mechanism in place, which is likely to take a number of months yet, practical steps are well-advised to mitigate exposure.

The Ramping Up of Below-Threshold Enforcement in France

For years, NCAs across Europe had refrained from using their antitrust powers to review transactions falling below merger-control thresholds. As such, merger-control regimes have developed in Europe on the basis that ex ante control would offer full legal certainty: above clear-cut thresholds, you were in; below, you were out—for good.

However, with perceived killer acquisitions developing in the tech and pharma space on targets not yet meeting thresholds, European competition authorities found ways to challenge these transactions. The  European Court of Justice was soon asked to review this situation, and opened the way in its Towercast judgment² for competition authorities to challenge below-thresholds mergers ex post as restrictive agreements under Article 101 TFEU, or as an abuse of dominance under Article 102 TFEU.

Merger control regimes can also be amended to provide for a so-called "call-in mechanism" to catch transactions which fall below thresholds and this is an approach a number of Member States have already implemented. The FCA has expressed its interest for such a mechanism to be introduced in France. But this requires legislative change which might take a number of months. In the meantime, based on Towercast, the FCA has resorted to its antitrust powers against below-thresholds mergers in two cases already.

First, the FCA opened an investigation into a series of cross-divestitures in the meat-cutting sector under the legal provision prohibiting anticompetitive agreements. At the end of the day, the FCA considered that, in the circumstances, the evidence was insufficient to establish a market sharing arrangement or other restriction by object. Indeed the three companies had engaged in bilateral agreements with one another to dispose of some assets to restructure their networks in order to make them more profitable, and even continued to compete with one another.³

A few months later in the Doctolib case,⁴ the FCA challenged and imposed a fine on a below-threshold acquisition using the prohibition of abuse of dominance. It concluded that the leading online medical booking platform abused its dominant position by acquiring its closest rival with the intention to remove it as one of the few remaining competitive constraints from a market on which competition was already very limited.

Since then, the FCA is willing to discuss potential transactions with parties on a purely informal basis, and has developed good experience assessing rapidly whether a transaction below thresholds is likely to raise risks.

When is a Transaction at risk?

A first important takeaway coming out from these first months of action from the FCA is that no sector is outside the reach of the FCA’s new approach. Even if tech and pharma are particularly on the radar, potentially every sector can be concerned as shown by the meat-cutting industry investigation.  

Second, some risk factors are now well identified and they naturally differ under restrictive agreements and abuses of dominance:

• 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".

Third, the central role played by internal exchanges (including standard messages between staff) in these first cases is striking. For instance, in the Doctolib case the FCA relied heavily on exchanges between employees and reports by consultants seized during dawn raids to evidence the alleged exclusionary intent behind the transaction. This contrasts with the effects-based approach expected under 102 TFEU, although noting that an effects-based approach was not really an option for the FCA in this case given that the decision was adopted seven years after the merger occurred.

Difficulties Managing Transactions in this Environment

So far, ex post antitrust enforcement is the only path available to the FCA to challenge transactions, which it can do without a clear limitation of time. In such a case, the FCA ultimately has the ability to impose fines. In this first decision, the fine imposed was symbolic (€50,000) to reflect the legal uncertainty surrounding ex post enforcement below-thresholds before Towercast. This, however, should not lead to underestimating the fining risk in future cases.

Although the FCA did not do so in Doctolib given the time elapsed since the acquisition, it also has the power to order "unscrambling the eggs", which includes divestment injunctions, as well as injunctions to separate and divest assets, including specific crown jewels.

Looking across borders, some authorities have also imposed interim measures and this would also be possible in France. The Belgian Competition Authority did so in a recent case, opening proceedings upon the announcement of the transaction and ordering interim measures so that the acquired company would be held separately under the supervision of a trustee during its investigation. Ultimately, the acquirer divested the acquired company to a purchaser deemed suitable by the Belgian Competition Authority, which led to the closure of the investigation.

All these risks need to be factored in on the corporate side and even if the FCA is open to discussing potential cases informally and openly before closing, there is no satisfactory mechanism at this point in time to fully rule out transactions raising such risks. Even if the FCA does not object to a transaction, a complaint lodged later by a third party could lead to a case being opened and consequent investigation. Contractual provisions in order to frame early engagement and provide for potential way-outs are also still a challenge to organise given the lack of a clear procedure.

Practical Steps to Mitigate Risk

Until a specific call-in mechanism is introduced, parties should consider the following practical steps to mitigate risks:

• 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.

Mayer Brown's European Antitrust & Competition team comprises lawyers with a thorough knowledge of EU and national merger and antitrust laws. We have extensive experience dealing with enforcers at the EU and national levels. Please reach out to us to discuss any of the issues above in more detail.