The French Competition Authority (FCA) has, for the first time, sanctioned a below-threshold merger under the prohibition of anticompetitive agreements, fining both the purchaser and the seller of a transaction completed six years ago. The decision sends a strong message: falling below merger control thresholds does not guarantee immunity from a scrutiny. The transactions that substantially reduce competition, particularly those creating a monopoly, may be challenged years after closing – and both parties to the deal may be held liable.
The facts
- Ecolys and Point Net (a subsidiary of the Nicollin group) were the only providers of medical waste treatment services in La Réunion, a French overseas island;
- Nicollin sold Point Net to Ecolys in 2020. The deal fell below all notification thresholds;
- The merged entity became the sole player on the local market for medical waste management services.
On 22 October 2026 (decision 26-D-10), the FCA imposed a fine on Ecolys (purchaser) and on Nicollin (seller) for the implementation of the merger agreement, which it found to be an anticompetitive agreement.
The full decision has not yet been published. This summary is based only on the press release.
The FCA’s reasoning
- The acquisition of the no1 of the market by the no2 had anticompetitive horizontal effects, as it created a monopoly entrenched by significant regulatory barriers; and
- At least potential vertical effects existed given the parties’ vertical integration and the dependency of upstream rival suppliers on their downstream monopoly.
Sanction and potential remedies
Given the absence of precedent, the FCA imposed a symbolic fine of EUR 1 on both the acquirer and the seller. In addition, the FCA did not order the parties to unwind the transaction. The FCA stressed that the parties could not have been unaware that the transaction would create a monopoly and could have taken steps to mitigate its effects.
It remains unclear which mitigating measures could have been put in place. Potentially, the FCA could be suggesting that parties to a below-threshold merger could self-impose remedies to avoid a characterization of unlawful anticompetitive agreement.
A message pending the introduction of a call-in mechanism
The FCA is advocating to obtain an ex officio “call-in” power over below-threshold transactions. Given the French presidential election due within six months, its adoption in the near term looks unlikely. In the meantime, the FCA clearly intends to rely fully on its antitrust toolkit to review below-threshold deals.
This decision is one of a continuous line of cases
The FCA tested whether a below-threshold transaction can be reviewed under antitrust rules in various cases:
- In its decision dated 16 January 2020 concerning a practice implemented in the digital terrestrial television broadcasting sector (decision 20-D-01), the FCA ruled out the possibility of applying Articles 102 TFEU and L. 420-2 of the French Commercial Code to a concentration. Towercast appealed that decision before the Paris Court of Appeal, which referred a question to the European Court of Justice (ECJ). In its judgment of 16 March 2023 (decision C-449/21), the ECJ held that a below-threshold merger can be assessed under the prohibition on abuses of dominance of Article 102 TFEU. Subsequently, and after quite some procedural complications, the Paris Court of Appeal referred back the matter to the FCA, for it to assess whether the acquisition amounted to an abuse of dominance based on the ECJ’s preliminary ruling. The case is still pending before the FCA;
- In its 2024 Meat rendering decision (decision 24-D-05), the FCA examined whether a merger could constitute an anticompetitive agreement under Article 101 TFEU. It ultimately found no infringement, for lack of anticompetitive object. The statement of objections did not allege anticompetitive effects. The FCA’s investigation services had confined their analysis to the object of the alleged restriction and had examined effects only on an ancillary basis, through an incomplete assessment limited to a specific period. Therefore, the FCA could not decide on the existence of such effects;
- In 2025, the FCA imposed a symbolic fine to Doctolib (EUR 50,000) for abusing its dominance through the below-threshold killer acquisition of a competitor (decision 25-D-06). It also did not order Doctolib to unwind the transaction.
The FCA appears interested on investigating other cases
In particular, it issued a press release on 30 September 2026 in relation to LiveNation’s acquisition of Plénitude Arena, a transaction in the live entertainment and event organisation sector. Whereas LiveNation had notified formally the deal, the application of new, increased, merger control thresholds in France entailed the transaction no longer fell within the scope of mandatory merger control. After LiveNation pulled its notification, the FCA also made clear that it would continue to “monitor the transaction and its potential impact on the relevant markets” and specified that, “at the date of withdrawal, the investigating team had not ruled out all risks to competition”. The press release also reiterated the FCA’s call for the introduction of a call-in power.
Some first thoughts for practitioners
- Market definition and the resulting market shares will now be key points of the M&A process for below-threshold deals. In the case at hand, establishing anticompetitive effects seem to have been relatively straightforward, as the relevant markets were clearly defined in various precedents. The assessment will be more challenging in sectors where there is no established decisional practice, or in new or fast-moving markets, where market definitions, barriers to entry and external competitive constraints are more complex to assess;
- The FCA sanctioned both the buyer and the seller unlike in Towercast (abuse of dominance cases can relate only to the acquirer). This adds a new layer of exposure for sellers, with a requirement to carry out extensive antitrust due diligence on the effects of the transaction.In concerned transactions, sellers could build mechanisms into the transaction documents to cover this risk and to ensure cooperation between seller and purchaser should such a review arise;
- Antitrust exposure may persist for years after closing: The transaction was completed in 2020, the FCA initiated a statement of objection in May 2024 and ultimately issued its decision on 22 October 2026, more than six years after closing. Other below-threshold cases have also involved lengthy periods between the transaction and the authority’s intervention (in the Doctolib case, the sanction was imposed seven years after closing). This extended exposure window creates significant legal uncertainty for deal parties, particularly where the relevant period goes well beyond the duration of customary representations and warranties; and
- Uncertainty remains as to consequences:
- In this case, the FCA did not address the underlying competition concerns, leaving the market structure unchanged. In Doctolib, the FCA characterized the acquisition as an instantaneous infringement. It was a killer acquisition and Doctolib had discontinued the business of the target. In the context of French law, this could help explain the absence of an unwinding order: there was no ongoing infringement to terminate. By contrast, in previous European cases, the European Commission and the ECJ have decided that conducts involving an instantaneous act, such as an acquisition (Electrabel, C-84/13 P) or the dismantling of infrastructure (Baltic rail, AT.39813), may give rise to a continuous infringement. Whether the FCA also characterized the acquisition as an instantaneous infringement in the present case remains to be seen once the full decision becomes available.
- The decision raises questions as to the validity of the transaction itself: Under Article L. 420-3 of the French Commercial Code, agreements or contractual provisions that are prohibited under Article L. 420-1 are null and void. The same principle applies under Article 101(2) TFEU to agreements prohibited by Article 101(1) TFEU. Accordingly, the agreement bringing about the transaction should be null and void. Transaction documents could therefore expressly address these risks in transactions identified as raising potential antitrust concerns and determine what consequences the parties would attach to such hypothetical nullity.
Type of below-threshold mergers at risk
The FCA President has indicated that this type of decision is “exceptional”. Yet, other elements suggest the decision could have wide-ranging implications:
- This decision relates to the waste management sector and not to the digital or pharmaceutical sectors, two sectors in which small players can have an outsized “significant competitive potential” to use the wording of the Commission’s ex-Guidance on the application of Article 22 of the Merger Regulation;
- The FCA’s press release refers to the analytical framework applicable to merger control proceedings in Phase II. This suggests that care should be taken where a transaction would likely be subject to a Phase II merger control review should it meet the notification threshold: If the substantive assessment suggests that the transaction would not have been cleared under merger control rules, there is a risk of the agreement being characterized ex-post as anti-competitive. This suggests a wide range of deals could be concerned. In particular, any local market with high market shares could theoretically be concerned.
The same trend can be observed elsewhere in Europe
- In Italy, for example, the competition authority has reviewed below-threshold transactions involving port infrastructure in 2023 (C12586, Ignazio Messina / Terminal San Giorgio) or the cement and concrete sectors in 2024 (31297, Alpacem / Buzzi Unicem);
- In Belgium, the competition authority examined the acquisition of EDPnet by Proximus in the telecommunications sector in 2023 under Article 102 TFEU (23-RPR-17). In 2025, it also opened an investigation into the proposed acquisition of Ceres by Dossche Mills (25-RPR-21) in the sector of flour supply for artisanal bakeries, considering the potential application of Article 101 TFEU. However, the transaction was subsequently abandoned and the investigation closed without a decision on the merits. Finally, on 11 September 2026, the Belgian Competition Authority closed its investigation conducted under Article 102 TFEU into Live Nation’s below-threshold acquisition of the Pukkelpop music festival after securing commitments.
Bastien Thomas is a partner at Racine and co-heads the firm’s antitrust practice. He has extensive experience in merger control, antitrust, State aid and FDI proceedings, advising clients across a broad range of industrial sectors.
Guillaume Fabre is a partner at Racine and co-heads the firm’s antitrust practice. He is recognised for his extensive expertise in merger control and antitrust matters, particularly in the digital sector.
Photo (for this post) by Guido Hofmann on Unsplash.
