In a decision which came out today (see, attached press release), the French competition authority (FCA) imposed a fine of more than EUR 4.5 million on a firm called Doctolib which is active in telemedicine.

Doctolib was found to have a dominant position in two distinct markets, namely the service market for online medical appointment bookings and the technology market for remote medical consultation solutions. The FCA held that on these markets Doctolib had (i) foreclosed competitors by tying healthcare professionals to its services; and (ii) killed the competition by acquiring in 2018 what was then its only emerging competitor. The FCA considered these practices to be abusive in breach of Article 102, Treaty on the Functioning of the European Union (TFEU) and Article L-420-2 of the French Commercial Code.

Foreclosure

Doctolib applied an exclusivity clause in its subscriptions with healthcare professionals which prevented these professionals from using other medical appointment booking services or remote consultation solutions. The FCA indicated that it found “numerous internal documents” that evidenced this lock-in strategy. It even discovered advice from inhouse counsel that had warned that the exclusivity clause was “illegal under competition law” and should be deleted.

Healthcare professionals were also always obliged to take out a subscription to the online medical appointment booking service if they expressed an interest in the remote medical consultation solution.

Killer Acquisition

The second abuse consisted of the acquisition in 2018 of a rival in the market for medical appointment booking services, called MonDocteur. That transaction did not meet the financial thresholds for notification under applicable merger control rules and had therefore initially escaped the scrutiny of the FCA or the European Commission. The post factum review of such a transaction under the traditional competition rules (Article 101 or 102, TFEU) is an avenue which competition authorities around Europe have started to pursue to cast a wider enforcement net than would be possible under the merger control rules (see e.g., Van Bael & Bellis Life Sciences News and Insights of 23 March 2023). The new approach allows these authorities to catch “killer acquisitions” of small firms with promising technologies in the digital sector, life sciences, and other areas characterised by rapid innovation.

The FCA was again helped by self-incriminating documents produced by Doctolib to pursue its case. It found evidence of the firm’s desire to “kill the [competing] product”. Doctolib apparently considered that “the creation of value […] is not the addition of [MonDocteur] but its disappearance as a competitor”. Additionally, the FCA noted that the transaction had also helped Doctolib to increase its prices several times to a degree that was larger than if the acquisition had not occurred.