The FCA publishes its roadmap for 2021

Continuity and novelty are the two words that can summarise the FCA’s 2021 priorities:

• Continuity: given that some of these priorities had already been included in its 2020 roadmap, in particular with regard to competition law concerns in the digital sector or relating to sustainable development.
  
  
• Novelty: special attention will be paid to COVID-19 related issues in the context of merger control, while the FCA’s powers will finally be strengthened following the (long awaited) transposition of the ECN+ Directive which will complement the FCA’s willingness to modernise its tools.

As in previous years, competition law issues in the digital sector will remain a top priority for the FCA. It will notably publish an opinion on the transformation of competition in the financial sector (assessing the emergence of Fintechs and the entry of Bigtechs such as Amazon or Facebook in payment services). The FCA also announced that several pending investigations in the digital sector should be concluded this year and mentioned two expected decisions on the assessment of (i) Google’s compliance with regard to related rights interim measures and of (ii) the request for interim measures from several trade associations regarding changes announced by Apple concerning ads tracking in its last iPhone operating system (iOS 14).

Sustainable development concerns will continue to be a focus point for the FCA in its decision making practice with the willingness to target anticompetitive practices that are particularly harmful to the environment. The FCA also intends to continue supporting companies in need of guidance in this area. All these measures are taken to promote and facilitate green transition as provided for by the European Green Deal.

COVID-19 obliges and based on its 2020 experience, one of the FCA’s priorities is related to the COVID-19 impact on the economy. The FCA has announced that it will factor in this impact in merger reviews. The FCA has also warned that it will pay particular attention to 2021 mergers, to make sure that some transactions do not fall under the radar due to a lower turnover achieved in 2020 as a result of the crisis.

Finally, the FCA has listed the transposition of the ECN+ Directive as part of its main priorities. Though the transposition is not actionable by the FCA itself and will be done by means of an ordinance to be adopted before June 2021, the important point for the FCA is the strengthening to come of its powers, in particular the possibility for the FCA to:

• optimise its resources by allocating them to cases “recognised as a priority”,
• start proceedings ex-officio to impose interim measures, as well as
• issue structural injunctions in the context of anticompetitive practices.

Another important development to mention in this context is the revision of the fine ceiling applicable to associations of undertakings (previously 3 million euros). After transposition, fines for trade associations or unions may reach an amount corresponding to the cumulative total of 10% of the global turnover of each company that is a member of the union or association.

For a full overview of the FCA’s priorities for 2021, you can consult the FCA’s press release (in English) here.

For more information contact Florence Leroux and Eliott Costet.