Out of merger control, not out of reach: the French Competition Authority fines a below-threshold merger as an anticompetitive agreement for the first time

On 22 October 2026, the French Competition Authority (FCA) fined the parties to a below-threshold merger as an anticompetitive agreement for the first time, applying the European Court of Justice’s (ECJ) Towercast ruling (link to the press release). The fine is symbolic, €1 each for the acquirer and the seller, but the message is clear: being below the thresholds gives no immunity.

Practices under investigation

On 8 November 2019, Drapkoc (the acquirer) signed an agreement with the Nicollin group (the seller) to take sole control of Point Net (the target). The transaction was not reviewed under merger control, as neither the EU nor the French notification thresholds were met.

Prior to the transaction, Point Net (around 80% of market shares) and Drapkoc's subsidiary Ecolys (around 20%) were the only two companies provide medical waste (DASRI) management in La Réunion. 

Following completion in 2020 and their merger in 2021, the combined entity, Ecostrill:

• is the only company able to manage DASRI on the island, and regulatory barriers and the island's isolation are likely to entrench this monopoly; and
• holds more than 80% of the upstream market for DASRI collection and transport, and its smaller rivals have no choice but to work with Ecostrill for downstream waste management. 

The FCA launched an ex officio investigation to determine whether the acquisition agreement constituted an anticompetitive agreement under Article L. 420-1 of the French Commercial Code.

Legal background

As a quick reminder, the ECJ confirmed in the Towercast ruling (C-449/21, 2023) that national competition authorities can review a dominant company's acquisition after completion, under antitrust rules, even where this acquisition fell below the EU and national merger control thresholds.

The FCA had already shown interest in below-threshold mergers twice:

• Meat-cutting sector (2024): the FCA examined a series of cross-sales of businesses as a possible anticompetitive agreement but ultimately dismissed the case. 
• Online medical appointment booking (2025): the FCA fined Doctolib for abusing its pre-existing dominant position, notably through its 2018 acquisition of its main competitor, MonDocteur. The FCA imposed a reduced fine of €50,000 for this practice, given the legal uncertainty prevailing before the Towercast judgment.

Beside these cases, the FCA has also repeatedly called for a power to review deals below the thresholds. Most recently, on 30 September 2026, after Live Nation withdrew its notification of the Plénitude Arena acquisition because the deal no longer met the new thresholds applicable to deals notified as of 1 September 2026, the FCA said in a press release it would "remain vigilant" and renewed this call.

Assesment of the FCA

According the FCA’s press release (full decision not yet available), the FCA found that: 

• the 2019 share purchase agreement was direct and sufficient evidence of an agreement between the parties; and
• the transaction significantly impeded effective competition. To reach this view, the FCA used a counterfactual analysis and relied on the framework it applies in merger reviews. The transaction led to horizontal effects on the market for DASRI waste management in la Réunion as it created a monopoly. Further, it had at least potential vertical effects on the upstream market for DASRI collection and transport. This means that the FCA treated the agreement as anticompetitive by effect rather than by object. 

The FCA considered the infringement particularly serious given its significant impact on the market and noted that the parties could not have been unaware of the transaction’s anticompetitive effects yet took no steps to mitigate them. However, as this was the first merger sanctioned under Article L. 420-1 of the French Commercial Code, the FCA imposed a symbolic fine of €1 on each of the acquirer and the seller.

Key takeaways for businesses

In the words of Benoît Coeuré, President of the FCA, “this decision sends a clear message to companies that a merger not subject to notification but which has anticompetitive effects falls under competition rules”.

While waiting for the full decision, here are some immediate takeaways for businesses:

1. Being below the thresholds gives no immunity. Parties should self-assess any deal that could significantly reduce competition. Now that the French merger thresholds have been raised, more deals will fall into this category. 
2. The scope and limits of the FCA’s intervention remain to be tested. The FCA will use the framework of analysis applicable to merger reviews, and according to its President, such cases should remain "exceptional", but the criteria are unknown. The FCA opened this case on its own initiative (saisine d'office), so the absence of a formal complaint does not remove the risk. We cannot also exclude that the FCA received requests or lobbying to investigate the transaction. A targeted call-in power with clear criteria could offer more legal certainty.
3. For future deals, consider mitigating measures. The FCA expects parties to mitigate competitive harm, but how they should do so remains unclear.
4. Sellers are exposed too. As both parties were fined, sellers should address competition risk in their due diligence and transaction documents.
5. Past deals remain at risk. The FCA fined the parties in 2026 for a deal signed in 2019 and completed in 2020. The €1 fines reflect the novelty of the case, so future fines may be higher. The full decision should also show whether other measures, such as injunctions or structural remedies, were considered.