Below-Threshold Merger Found Abusive and Sanctioned for the First Time by the French Competition Authority Under Article 102 TFEU

On November 6, 2025, the French Competition Authority (“FCA”) fined French healthtech company Doctolib EUR 4,665,000 for having abused its dominant position on the markets for online medical appointment booking services and remote medical consultation technology solutions (the “Decision”).[1]

The FCA found that Doctolib had imposed exclusivity and tying clauses, on the one hand, and abusively acquired its main competitor MonDocteur back in 2018, on the other hand, sanctioning a non-notifiable ‘killer acquisition’ for the first time on the basis of the European Court of Justice’s (“ECJ”) Towercast ruling.[2]

In a press release, Doctolib already announced that it would appeal the Decision.[3]

Background

Since the adoption of European merger regulation in 1989, competition law enforcement has rested on a clear distinction between ex post antitrust control (Articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”) and ex ante merger review, traditionally viewed as alternative ­– not cumulative – ­frameworks.

The emergence of a perceived “enforcement gap” [4] for killer acquisitions – where dominant firms acquire smaller rivals to neutralize potential competition –particularly in the digital and pharmaceutical sectors has however led to changes in the merger enforcement landscape.

In the Towercast judgment, the ECJ affirmed that certain mergers may be subject to ex post scrutiny under antitrust rules (specifically Article 102 TFEU and equivalent national provisions) when they were not initially reviewed under EU or national merger control due to falling below notification thresholds.[5]

The ECJ therefore opened an ex post alternative to the traditional ex ante enforcement through the merger regulation, although one that is limited to acquirers that hold a dominant market position.

The Decision marks the first sanction imposed by the FCA based on the application of abuse of dominance rules to a transaction, as envisaged in the Towercast ruling. Although the FCA had already carried out an ex post review of a merger in the meat-cutting sector based on antitrust regulation, it had relied on Article 101 rather than Article 102 of the TFEU, and had ultimately dismissed the case due to a lack of evidence.[6] 

The ECJ’s Illumina/Grail decision[7] further elevated the importance of ex post antitrust control of mergers as a new instrument in competition authorities’ toolbox. The ruling put a stop to the European Commission’s new interpretation of Article 22 of the European Union Merger Regulation and clarified that the European Commission lacks jurisdiction to review mergers falling below EU and national merger thresholds.

Separately, the FCA is also reflecting on its ex ante merger control thresholds. Following a public consultation, the FCA announced its intention to submit a proposal to introduce call-in powers before the end of 2025 in its 2025–2026 Roadmap.[8] However, given the current political landscape in France, the legislative introduction of call-in powers seems unlikely in the short-term.

Against this background, the Decision clearly illustrates the FCA’s commitment to leverage antitrust rules, both abuse of dominance and anti-collusion rules, in order to allow the review of non-reportable transactions.

The Decision

The FCA’s investigation began following a complaint by a competitor, Cegedim Santé, leading to unannounced inspections in 2021.

Doctolib was found to have a dominant position in two distinct markets, namely the markets for online medical appointment booking services and remote medical consultation technology solutions.

The FCA held that Doctolib abused its dominant positions on these markets by (i) including exclusivity clauses in its subscription contracts and forcing healthcare professionals to use its own remote medical consultation technology in order to access its online medical appointment booking services; and (ii) acquiring its main rival MonDocteur in 2018, which was then its only emerging competitor in the market for medical appointment booking services.

As the 2018 MonDocteur acquisition did not meet any merger notification thresholds, it had not been reviewed by either the FCA or the European Commission.

Most of the fine was imposed for the foreclosure practices (EUR 4,615,000). As regards the predatory acquisition, the FCA decided to impose a lump-sum, more modest sanction (EUR 50,000), acknowledging the legal uncertainty that existed at the time as the acquisition predated the Towercast judgment.

Key take-aways

The Decision provides a clear example of the new era of heightened complexity and uncertainty of M&A regulatory review that the Towercast judgment ushered in. Some of the key take-aways include:

• The FCA’s commitment to capture problematic below-threshold transactions.

After the Illumina/Grail decision, the FCA stated that it “remains committed to tackle mergers that may harm competition in innovative sectors”, [9] and the Decision clearly implements this commitment and illustrates the FCA’s determination to use all available tools to ensure that even non-notifiable mergers can be apprehended.

Similarly, in the FCA’s recent opinion concerning the veterinary sector in France, the antitrust watchdog flagged that it may consider reviewing closed veterinary clinic acquisitions that raise competition concerns.[10]

Notably, the Decision sanctions a transaction that was completed more than seven years ago. Although it did not attempt to “unscramble the eggs” but instead, prioritized deterrence through a fine, the low level of the penalty reflects the specific circumstances of the case, taking into account the legal uncertainty at the time before the Towercast ruling. Even if the EUR 50,000 fine is a low-cost warning for Doctolib, it is often the case with “firsts” and it would not be surprising if more significant sanctions were imposed in the future, in particular regarding post-Towercast acquisitions (subject to the outcome of Doctolib’s announced appeal).

• As ever, the importance of internal documents.

In a post-Towercast world, companies must now consider the risk of ex post antitrust scrutiny even for transactions falling below notification thresholds, adding significant unpredictability to deal assessments.

In the Decision, the FCA highlighted that it obtained a number of internal documents showing Doctolib’s intent to “kill the [competing] product.”[11] The company described the MonDocteur acquisition as valuable precisely because “without MD [MonDocteur], no more competition, we [Doctolib] are #1 everywhere”.[12]

The Decision underscores the need for companies (in particular dominant firms) to carefully prepare and review internal strategic documents relating to acquisitions, even when notification is not required. This is especially important in France, where communications from in-house counsel are not covered by legal privilege, as underscored in the FCA’s Decision, citing advice from Doctolib’s in-house lawyers which questioned the legality of the exclusivity provisions.[13]

• The Towercast legal standard under Article 102 TFEU.

In Towercast, the ECJ established that when national competition authorities assess transactions under Article 102 TFEU “the mere finding that an undertaking’s position had been strengthened is not sufficient for a finding of abuse, since it must be established that the degree of dominance thus reached would substantially impede competition, that is to say, that only undertakings whose behavior depends on the dominant undertaking would remain in the market”[14].

The Decision provides the FCA’s first interpretation of this legal test. To conclude that “this acquisition placed the other competitors, whose positions were already very limited, in a situation where they are not able to behave independently from Doctolib”[15] the FCA relied on three key elements.

Exclusionary strategy. First, it concluded that the transaction pursued an exclusionary and market-foreclosing objective, as shown in internal documents. The Decision cites, among other documents, an external study commissioned by Doctolib which highlighted the transaction rationale: “1. Integrating number #1 competitor” and “2. Killing competition (…)”.[16]

Effects on competition. The FCA found that the transaction resulted in market consolidation where Doctolib’s volume-based market share (by reference to number of clients) rose from 54% in 2017 to 66% in 2018 and stabilised around 80% from 2019 (with equivalent value-based market shares rising from 74% in 2017 to 99% in 2019).[17] The FCA also found that the reduction in competitive pressure allowed Doctolib to implement several price increases without adversely impacting sales.[18]

Structure of the market. The FCA underlined that pre-transaction, the market was rapidly expanding and characterised by strong indirect network effects, which significantly increased entry and expansion barriers, such that the development of another significant competitor post-transaction was highly unlikely.[19]

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[1] FCA Decision No. 25-D-06 of November 6, 2025, regarding practices implemented in the online medical appointment booking and remote medical consultation solutions sector, available here.

[2] Towercast v Autorité de la concurrence (Case C‑449/21), ECLI:EU:C:2023:207. Other national competition authorities have also started exploring the application of the Towercast jurisprudence. For instance, the Belgian competition authority examined the Proximus and Dossche Mills cases under Articles 102 and 101 TFEU respectively, but both cases were closed. On November 12, 2025, it opened an investigation on the below-threshold acquisition of music festival Pukkelpop by Live Nation, see https://www.rtbf.be/article/concurrence-ouverture-d-une-instruction-sur-la-reprise-du-pukkelpop-par-live-nation-11630970.

[3] Doctolib’s Press Release, “Doctolib va faire appel de la décision de l’Autorité de la concurrence”,  November 6, 2025, available at : https://about.doctolib.fr/news/decision-de-lautorite-de-la-concurrence/.

[4] Austria Asphalt v Bundeskartellanwalt, (Case C‑248/16), opinion of Advocate General Kokott, EU:C:2017:322.

[5] See Towercast: EU Court of Justice Endorses Post-Closing Review of Concentrations, Cleary Gottlieb Alert Memorandum, April 11, 2023.

[6] FCA Decision No. 24-D-05 of May 2, 2024 regarding practices implemented in the meat-cutting sector. See First Move by the French Competition Authority to Analyze Non-Reportable Mergers under Article 101, Cleary Gottlieb Alert Memorandum, May 21, 2024.

[7] Illumina and GRAIL v Commission (joined Cases C-622/11 and C-625/22), EU:C:2023:227. See Illumina/GRAIL: ECJ Rules European Commission Lacks Jurisdiction to Review Merger Falling Below EU and National Merger Thresholds, Cleary Gottlieb Alert Memorandum, September 5, 2024.

[8] FCA, Roadmap 2025-2026, page 8, available at: https://www.autoritedelaconcurrence.fr/sites/default/files/2025-07/feuille%20de%20route%202025%3A26-EN.pdf; Jérôme Vidal, head of the FCA’s Merger Unit, confirmed on December 4, 2025, that it remains the FCA’s intention to submit a legislative proposal for call-in powers by the end of 2025. See https://www.decideurs-cf.com/fusions-acquisitions/62974-jerome-vidal-autorite-de-la-concurrence-le-developpement-du-pouvoir-d-evocation-devrait-permettre-de-mieux-controler-ces-operations-en-dessous-des-seuils.html.

[9] FCA Press release, “The Autorité de la concurrence takes note of the Illumina / Grail judgment by the Court of Justice of the European Union”, September, 3, 2024, available at  :https://www.autoritedelaconcurrence.fr/en/press-release/autorite-de-la-concurrence-takes-note-illumina-grail-judgment-court-justice-european

[10] FCA Press Release, “The Autorité de la concurrence publishes its opinion on pricing conditions for veterinary medicines and changes in the cost of veterinary care”, October 24, 2025, available at: https://www.autoritedelaconcurrence.fr/en/press-release/autorite-de-la-concurrence-publishes-its-opinion-pricing-conditions-veterinary.

[11] Decision, para. 696.

[12] Decision, para. 696.

[13] Decision, paras. 147 to 159.

[14] Towercast v Autorité de la concurrence, para. 52 (emphasis added).

[15] Decision, para. 737.

[16] Decision, para. 692.

[17] Decision, para. 724.

[18] Decision, para. 727.

[19] Decision, para. 737.