FCA sanctions a non-reportable merger under the rules applicable to anticompetitive agreements for the first time

On 22 October 2026, the French Competition Authority (FCA) issued Decision No. 26-D-10 confirming that below-merger-control-threshold transactions may be reviewed through the lens of Article 101 TFEU prohibiting anticompetitive agreements and its national equivalents. Building on the 2023 ruling of the European Court of Justice in Towercast (case C-449/21), which affirmed that deals not reportable under merger control rules can, under certain circumstances, be analysed as abuses of dominance, the FCA has gone a step further in considering that such transactions may also fall foul of antitrust rules when implemented by non-dominant companies.

Background

It is the third time in three years that the FCA has relied on the Towercast doctrine to examine a transaction falling below the national merger control thresholds on the basis of traditional antitrust tools.

In 2024, it first reviewed a below-threshold transaction in the sector of meat by-products under Article 101 TFEU but closed the case for lack of evidence (Decision No. 24-D-05). Then, in a widely commented decision issued in November 2025, French leader of tele-medicine Doctolib was issued a symbolic fine under Article 102 TFEU for the predatory acquisition of its main competitor, medical appointment booking service MonDocteur (Decision No. 25-D-06, currently under appeal).

Decision No. 26-D-10 is now the first successful example of the FCA using the national equivalent of Article 101 TFEU to fine merging parties for implementing a transaction that negatively impacted competition in the sector of medical waste management in the overseas territories.

The practices at stake

In 2019, Drapkoc, active in the market for the treatment of medical waste in La Réunion, acquired sole control over its only competitor, Point Net. The two companies were the only two players on the island, with Point Net holding 80% of the market and Drapkoc the remaining 20%. Following the acquisition, the two companies merged into a new entity named Ecostrill, de facto holding a monopoly in the market for the treatment of medical waste in La Réunion and an 80% share in the related market for the collection and transport of medical waste. The transaction fell below both EU and French merger control notification thresholds and was never subject to ex-ante review.

Legal test

While the decision is not public yet, its main findings have been shared by the FCA.

First, the FCA found that, as a binding agreement between the merging parties, the purchase contract could be analysed as an agreement between competitors falling within the scope of Article 101 TFEU.

Second, the FCA examined whether the transaction resulted in a “significant impediment to effective competition”, whether actual or potential. This assessment was carried out in light of a counterfactual analysis, by which the FCA compared the situation in the market before and after the transaction. To do so, the FCA relied on traditional merger control analysis, rather than applying the analytic grid generally used for agreements under Article 101 TFEU.

However, while merger control analysis is by nature prospective, as the regulator must assess the future impact of a concentration that has not happened yet, the FCA was in this case able to look at the actual effects of the deal on competition with almost seven years of hindsight.

On that basis, it found that the transaction negatively impacted competition both (i) in the market for medical waste treatment and (ii) in the market for the collection and transport of medical waste in La Réunion.

Regarding the treatment of medical waste, the FCA found that the transaction led to the creation of a monopoly, with no countervailing buying power on the side of the customers (hospitals and medical transportation services) to prevent or limit price increases.

Regarding the market for the collection and transport of medical waste, the FCA noted that, following the transaction, the new entity held an 80% market share, against respectively 11%, 5% and less than 1% for the remaining competitors. Since the new entity acted both as the leading player upstream and as a monopolist downstream, the FCA found a risk of vertical restraints, with competitors in the upstream market being forced to rely on their main competitor at the downstream level for a service that accounts for a majority of their costs.

In view of the above, the FCA concluded that the transaction led to a significant distortion of competition, of which the Parties were necessarily aware at the time of the transaction. Yet, they took no steps to mitigate the consequences and were therefore found liable for breaching the provisions of the French equivalent of Article 101 TFEU.

The FCA nevertheless took into account the novelty of the situation to impose a purely symbolic fine (1 euro), acknowledging that the rules related to anticompetitive agreements had never been applied to a below-threshold merger before.

Key practical takeaways for companies

In practice, companies contemplating non-reportable acquisitions in France should keep in mind the following:

• Risk of ex-post review without a definite time limit. Using Articles 101 and 102 TFEU, or their national equivalents, to review transactions frees the FCA from the strict timeline of merger control review. In both Doctolib and Drapkoc, the transactions at stake were reviewed and sanctioned 7 years after completion (2018-2025 for Doctolib, 2019-2026 for Drapkoc). Under French procedural rules, the FCA has 5 years from the end of the infringement to start investigating antitrust violations, and 10 years to issue a decision. Deals closed for several years can therefore continue to face scrutiny.
• Non-dominant companies are also at risk. While the Towercast judgement discussed the possibility for non-reportable deals to be analysed as abuses of dominance, the use of Article 101 TFEU or its national equivalent means that even transactions between non-dominant companies could in theory be found in breach of competition law. That said, the Drapkoc case still seems to indicate that FCA interventions should remain linked to a significant degree of market power, at least post-transaction.
• Stricter sanctions may be expected in the future. While the fines imposed on Doctolib in 2025 for abuse of dominance and Drapkoc/Point Net in 2026 for anticompetitive agreement were purely symbolic, as it was the first time that the FCA applied respectively Articles 102 and 101 TFEU (or their national equivalent) to a non-reportable merger, the next sanctions are likely to be much higher. The maximum sanction for a breach of antitrust rules in France is 10% of the worldwide turnover of the group(s) of companies involved, and the FCA is known for imposing very significant fines. In addition, Article L. 430-9 of the French Commercial Code allows the FCA to impose structural remedies on companies that have abused their dominant position; divestitures could therefore be ordered in cases where the transaction is found in breach of Article 102 TFEU or its French equivalent.