The French Competition Authority’s recent decision to fine Doctolib – a French technology company that offers software for, among other things, online booking of appointments with doctors – marks a shift in European competition enforcement. For the first time, the French regulator applied abuse of dominance rules to sanction a below-threshold merger ex post. This novel approach, enabled by the European Court of Justice’s Towercast judgement, reignites the debate over whether regulators need formal call-in powers or whether ex post scrutiny under abuse of dominance provisions can effectively close perceived enforcement gaps.
French Competition Authority sanctions Doctolib
Last week, the French Competition Authority imposed a fine of EUR 4.67 million on Doctolib for abusing its dominant position in the market for online medical appointment booking and teleconsultation services. The regulator found that Doctolib had engaged in anti-competitive practices, including exclusivity clauses that required healthcare professionals to use only Doctolib’s services and tying arrangements that linked access to teleconsultation services to a subscription for Doctolib’s patient booking platform. These practices were deemed to restrict competition and limit choice for healthcare providers.
In addition to these practices, the regulator fined Doctolib EUR 50,000 for its acquisition of MonDocteur in 2018 – and although this concerns the significantly smaller portion of the fine, it is the by far more remarkable part. This transaction fell below the notification thresholds in France but was now sanctioned as an abuse of dominance. This marks the first time the French regulator has applied Art. 102 TFEU to penalize a below-threshold merger.
The Towercast judgment
The French decision cannot be analyzed without revisiting the European Court of Justice’s (ECJ) Towercast judgment of March 2023. In this landmark ruling, the ECJ found that Art. 102 TFEU (abuse of dominance) allows national competition regulators to review mergers that fall below notification thresholds and are therefore not subject to an ex ante review if they risk strengthening a dominant position and significantly harming competition.
This judgment signaled a shift towards a more flexible merger control regime. It empowers regulators to scrutinize in particular so-called “killer acquisitions” that might otherwise escape review, ensuring that dominant firms cannot consolidate power through small but strategically significant deals.
The debate on call-in powers
Since the Towercast judgement, the question of whether regulators need additional “call-in powers” has become even more debated. These powers would allow regulators to review transactions that do not meet standard thresholds but (allegedly) raise competitive concerns and would insofar help address enforcement gaps. On the other hand, adoption across different jurisdictions could lead to legal uncertainty for businesses and regulatory fragmentation at the same time.
Therefore, others argue that potential enforcement gaps can be closed with transaction-value thresholds which still provide clear and predictable criteria for reviewing deals that might otherwise escape scrutiny. While Mr. Mundt, President of the German Federal Cartel Office, had initially been rather skeptical of asking for additional call-in powers, he lately expressed concerns whether the transaction value concept actually proves as a robust and sufficient tool to catch problematic cases (in particular after the ruling of the Higher Regional Court of Düsseldorf concerning two acquisitions by Adobe earlier this year (see our blog post on this ruling)) and questioned whether call-in powers might not be a better way forward.
The challenge: Striking the right balance
The Doctolib case illustrates the practical impact of the Towercast judgment. By enabling ex post review of below-threshold mergers under Art. 102 TFEU, regulators can intervene against transactions that risk entrenching dominance in dynamic markets such as digital healthcare. However, retroactive enforcement also introduces uncertainty for start-ups and investors, potentially chilling innovation.
While it might be understandable that regulators see the need to close loopholes that allow anti-competitive acquisitions, they should be cautious of creating an unpredictable environment that hampers legitimate business activity.
Conclusion
The fine against Doctolib underscores a new era in EU competition enforcement, where even small transactions can attract scrutiny if they reinforce market power. The Towercast judgment has expanded the toolkit for regulators, but it also raises questions about legal certainty and proportionality. For policymakers and businesses alike, finding the right balance between sufficient enforcement while maintaining predictability and fostering international coherence will be critical in shaping merger reviews in the years ahead.
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