New head of French Competition Authority sets E-Commerce and digital economy as priorities

Published on 7th Nov 2016

Isabelle de Silva has been appointed as chairwoman of the French Competition Authority (FCA).  Mrs de Silva is a former member of the State Council (French supreme administrative court) and member of the Competition Authority College.  She replaces Mr Bruno Lasserre, who has chaired the FCA since 2004 and will now return to the State Council.

During the appointment process, Parliamentary hearings allowed Mrs de Silva to present her priorities and provide some insights of the FCA’s future actions and concerns.

Digital economy players, especially platforms, will be “subject to vigilance”.

Mrs de Silva noted that the FCA is “very present” and intends to remain “very active” in the e-commerce and digital economy sectors.  Indeed, digital economy players, especially digital platforms, are “subject to vigilance“.

Addressing the treatment of online platforms by competition law, Mrs de Silva recognised that operators of online platforms “structure the economy” and may acquire “strong positions“. Such operators will therefore catch the FCA’s “special attention“. In this respect, she explained that the FCA will not let online platforms “lock entirely the access to market or to an essential facility” and their behaviour will be controlled as a result. “You can count on the Authority“, she said, before reassuring lawmakers that the prohibition on anticompetitive conduct would not be an obstacle to the creation of “National champions“.

Mrs de Silva also considered the FCA’s recent experience in this sector.  She praised the Italian, French and Swedish competition authorities’ cooperation in obtaining commitments obtained from Online Travel Agencies in respect of price parity clauses (read more here); claiming that this “good success” has led to significant changes in practices all over the EEA. Mrs de Silva flagged however that the FCA would remain “very vigilant” on enforcement of these commitments.

In the telecoms sector, she highlighted that certain telecom operators have been recently sanctioned with heavy fines (including the highest individual fine ever imposed by the FCA) and that an important decision was about to be released.

Finally, she explained that a recent merger case allowed the FCA to take online sales into account in the definition of relevant market.

European Competition Network praised, further coordinated work is expected

Mrs de Silva recognised the role played by the European Competition Network (ECN) and the International Competition Network (ICN), initiated by her predecessor. She explained that certain digital economy giants may be sometimes “considered as more powerful than National States“.

In such a context, the ECN should be regarded as a “strength“. The ECN “works in a very satisfactory way“, she said, before recalling that ECN is the expression of the “enforcement of a real subsidiarity“. She highlighted that the European Commission “relies on National Authorities” and consequently may delegate cases and tasks to them.

What’s next?

Mrs de Silva specified that she “intends to meet [EU officials] very soon to find priority cases” concerning digital economy and e-commerce.

In anticipation of the release of the Commission’s final report on the e-commerce sector inquiry (read more here), it should be expected that the FCA will itself conduct probes in this sector in the near future.

Businesses operating in Europe are therefore encouraged to conduct an in-depth review of their e-commerce arrangements and agreements – contact our experts to find out more.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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