On July 10, 2013, the French Competition Authority (Autorité de la Concurrence) published an updated version of its Control of Concentrations Guidelines, first issued in 2009.
The main changes are as follows:-:
- the Authority stressed the importance of the informal pre-notification procedure, which enables the parties to anticipate possible antitrust issues; Although the Guidelines stress the importance of the pre-notification procedure while stating that such procedure remains optional and can be initiated at any stage of the concentration project, they do not precisely regulate this phase (cf. paragraphs 136 to 142 of the guidelines). Many practitioners deplore this fact and suggest implementation of concrete processes and procedures within the pre-notification phase to rationalize it (notably to save time).
- the Authority has specified the conditions to benefit from its simplified accelerated examination procedure (15 days where no competition issues are likely to arise); A significant number of practitioners welcome the clarifications of the conditions to benefit from the simplified examination procedure (which entered into force in January 2011) but some regret that such procedure is not applicable to concentrations where the parties act on the same market or where the parties have vertical links but where their cumulated market shares are low (cf. paragraphs 636 et seq. of the Guidelines).
- the Authority has issued standard forms of asset transfer agreements which may be used by parties contemplating structural remedies. The Guidelines distinguish between structural and behavioral remedies to be used (when an operation is likely to significantly harm competition and where its beneficial effects in terms of economic efficiency are not sufficient to compensate such harm). They notably indicate that when there is a horizontal overlap of the activities of the parties, structural remedies in the form of asset transfer agreements are the most efficient remedies; whereas when there is a risk of foreclosure in upstream or downstream markets then, subject to certain conditions, behavioural remedies may be sufficient (cf. paragraph 576 of the Guidelines).