Legislation and jurisdictionRelevant legislation and regulators
What is the relevant legislation and who enforces it?
French merger control rules are set out in the French Commercial Code (the Code).
An independent administrative authority, the Competition Authority (the Authority), has jurisdiction over merger control cases in France pursuant to the Code. However, the Minister for the Economy holds residual powers in two circumstances: even if the concentration is cleared by the Authority at the end of the first phase, the Minister can ask that the Authority open a second phase in-depth review of the concentration (although the Authority has discretion to act upon this request or not) and, in addition, whatever the final decision of the Authority at the end of the second phase, the Minister can substitute his or her own decision based on public interest grounds (see question 18).
On 10 July 2013, the Authority published revised merger guidelines (the Guidelines). Although non-binding, these should generally be followed by the Authority.
Following a public consultation in 2018, a decree simplifying the merger control procedure entered into force on 20 April 2019. Reflection is still ongoing as to whether to issue new merger control guidelines and the possible introduction of ex-post merger review (see question 35).Scope of legislation
What kinds of mergers are caught?
The French definition of ‘mergers’ is aligned with the definition set out in the EU Merger Regulation (EUMR). The French legislation thus applies to ‘concentrations’, which may occur when:
- two or more formerly independent undertakings merge; or
- one or several persons who already control at least one undertaking, acquire, directly or indirectly, control of all or part of one or several other undertakings.
What types of joint ventures are caught?
Joint ventures are treated under French law as under the EUMR. It follows that the creation of a joint venture performing, on a lasting basis, all the functions of an autonomous economic entity, constitutes a concentration (see the notion of ‘full-function’ joint venture in the European Union chapter). A concentration also occurs when a joint venture that was not initially full-function becomes fully fledged (DCNS/Priou case, 2016).
The French Adrexo case (2008) involved an interesting scenario. There, it was considered that a shift from joint control to sole control over a joint venture could, even in the absence of any change in its shareholding, result solely from the change of control over another joint venture, independent from the first one, but owned by the same parent companies.
Is there a definition of ‘control’ and are minority and other interests less than control caught?
The notion of ‘control’ under French law is similar to that of the EUMR - control arises from rights, contracts or any other means that enable the party to exercise a decisive influence on the activity of an undertaking, be it on an individual or joint basis, and having regard to the factual and legal circumstances, in particular:
- ownership rights and possession of all or part of the assets of an undertaking; and
- rights or contracts that confer a decisive influence on the composition or the resolutions of the decision-making bodies of an undertaking.
De jure or de facto control is relevant to qualify a concentration (see, for instance, the 2019 AG2R La Mondiale/Matmut case concerning a de facto merger).
As under the EUMR, joint control based on strategic veto rights is also caught by the French merger control regime.
Minority and other interests that do not reach the standard of negative sole control or joint control are not subject to merger control.Thresholds, triggers and approvals
What are the jurisdictional thresholds for notification and are there circumstances in which transactions falling below these thresholds may be investigated?
Three alternative sets of turnover-based thresholds currently exist in France. Following a public consultation (see question 1), the Authority concluded in June 2018 that the existing thresholds remain relevant and that the introduction of a transaction value-based threshold would not be relevant at this stage.
Turnover calculations under French law are very similar to those set out in the EUMR and the Code expressly refers to article 5 of the EUMR on this subject. The turnover of an undertaking is thus calculated by taking into account the whole group to which the undertaking belongs, and the seller is not taken into account.
Firstly, French merger control applies where the following cumulative thresholds are met:
- all the undertakings that are party to the concentration achieved, during the previous financial year, a worldwide combined pre-tax turnover of over €150 million;
- at least two of the undertakings concerned each achieved, during the previous financial year, a pre-tax turnover in France exceeding €50 million; and
- the transaction is not caught by the EUMR.
Secondly, lower thresholds apply to concentrations involving undertakings in the retail trade (ie, where two or more parties to a concentration operate retail premises). French merger control is thus applicable where the following cumulative thresholds are met:
- all the undertakings that are party to the concentration achieved, during the previous financial year, a worldwide combined pre-tax turnover of over €75 million;
- at least two of the undertakings concerned each achieved, during the previous financial year, a pre-tax turnover in the retail trade sector in France exceeding €15 million; and
- the transaction is not caught by the EUMR.
Thirdly, lower thresholds apply to concentrations involving undertakings operating in French overseas departments and French overseas communities (ie, where at least one party to a concentration is active in one or more French overseas departments, in the Mayotte department, in the Wallis-et-Futuna islands or in the French overseas communities of Saint-Pierre-et-Miquelon, Saint-Martin and Saint-Barthélemy). French merger control is thus applicable where the following cumulative thresholds are met:
- all the undertakings that are party to the concentration achieved, during the previous financial year, a worldwide combined pre-tax turnover of over €75 million;
- at least two of the undertakings concerned each achieved, during the previous financial year, a pre-tax turnover exceeding €15 million (this threshold is reduced to €5 million in the retail trade sector) in at least one French overseas department or French overseas community concerned. These €15 million or €5 million thresholds do not have to be achieved by all the undertakings concerned within the same overseas department or community; and
- the transaction is not caught by the EUMR.
The scope and interpretation of these tests are clarified by the Guidelines, which contain very specific additional rules and illustrations of how the thresholds should be applied and interpreted.
Retail trade is primarily defined in the Guidelines as the sale of goods to consumers for domestic use, including a number of non-exhaustively listed activities such as the sale of second-hand goods and a number of handicraft activities, but excluding, inter alia, banking, insurance or travel agency services and restaurants, as well as undertakings achieving all their turnover through online sales. Premises qualify as retail premises where more than half of the turnover achieved in these premises (of which at least one must be located in France) is generated through such activities (the Guidelines take the view that if this 50 per cent threshold is met, 100 per cent of the turnover achieved in the premises, retail and non-retail alike, must be taken into account for checking whether the €15 million threshold is achieved - presumably, the same approach should prevail with respect to the €5 million threshold).
Is the filing mandatory or voluntary? If mandatory, do any exceptions exist?
Filing is mandatory, and no exceptions are provided for by the law.
Do foreign-to-foreign mergers have to be notified and is there a local effects or nexus test?
Where the relevant turnover thresholds are met, mergers, including foreign-to-foreign mergers, fall under French merger control rules, and must be notified and obtain clearance prior to completion. There is thus no need to conduct a ‘local effects test’ as such. It is not relevant whether or not the parties are incorporated under French law or have subsidiaries in France (see question 27).
Are there also rules on foreign investment, special sectors or other relevant approvals?
Under French Treasury rules, foreign investments in France are unrestricted. However, certain foreign investments must be declared, for administrative and statistical purposes, to the Ministry for the Economy and the Banque de France.
Where the foreign investment concerns a ‘strategic’ French sector (such as a sector that might affect public order), prior authorisation may be necessary. In a number of ‘strategic’ sectors (eg, defence, security, weapons and ammunition, cryptology, security of information systems, gambling, private security, research against bio-terrorism, materials used for intercepting correspondences and conversations, dual-use technologies) prior authorisation is required. This list was extended in 2014 to include procurement of energy (including gas, electricity, hydrocarbons), procurement of water, transport, electronic communications, vital construction works and protection of public health, where the concerned activity is crucial for the integrity, security and continuity of one of these sectors. The scope of the ‘strategic’ French sectors was further extended by the Decree of 29 November 2018, which added the following new sectors: technical devices for the interception of communications, remote sensing or capture of computer database, security of information systems, research and development for activities relating to weapons, ammunition, powder and explosive substances intended for military purposes or for war materials and related materials, space operations, specific electronic and computer systems necessary for the exercise of public security missions, activities of data hosting and research and development activities in the areas of cybersecurity, artificial intelligence, robotics, additive manufacturing, semiconductors, dual-use goods and technologies. All such investments must be formally approved by the Minister for the Economy prior to implementation. For this purpose, non-European investments fall under stricter requirements than European investments with, for instance, an obligation to obtain prior authorisation when 33.3 per cent of either the shareholding or the voting rights in a French-registered company is exceeded. Following notification, the Ministry for the Economy has a two-month period to review the notified foreign investment. Such review entails a standstill obligation. Where an investment is deemed to threaten national interests, approval may be conditional upon the parties’ implementation of specific remedies, including divestments, set in proportion to the importance of the national interest at stake. Failure to comply with the notification requirement entails very significant risks (in particular, a fine of up to twice the amount of the investment, nullity of the relevant agreements and an injunction to restore the status quo ante). Recently, the law ‘Pacte’ (Action Plan for Business Growth and Transformation), adopted on 11 April 2019, strengthened and expanded the powers of the Ministry for the Economy. In particular, the law strengthens the power of injunction of the Ministry and also empowers the Minister to impose interim measures if the protection of national interests is compromised or likely to be compromised (eg, suspension of the voting rights attached to the shares acquired by the investor without approval). This law also expands the Minister’s powers to fine the investor in the event of an acquisition without prior approval, approval obtained by fraud, non-compliance with remedies or breach of an injunction (the Minister may, in these circumstances, impose a fine capped at the highest of the following amounts: twice the amount of the investment, 10 per cent of the target’s annual turnover, €1 million for natural persons and €5 million for legal persons).
In addition, there are a certain number of sectors in which specific merger rules apply, such as:
- the audiovisual sector, in which, unless otherwise agreed in international conventions to which France is a party, a foreign legal entity may not hold more than 20 per cent of the capital or voting rights of an audiovisual company that exploits an audiovisual communication system in French. There are also specific rules on cross-media ownership. If a concentration in the audiovisual sector is reportable to the Authority, the Authority must seek the opinion of the French Audiovisual Authority;
- the press sector, in which a single individual or legal entity may not control daily publications that represent more than 30 per cent of the total circulation on the national market of similar publications; for publications in French, the 20 per cent rule as described above applies;
- investment services and insurance (where specific authorisation from the relevant French authorities is required); and
- in the banking sector, a non-binding opinion would be requested from the Credit Institutions Committee during the Authority’s second phase investigation.
Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
The obligation to notify is not framed within any particular time limits. Filing may be made at any time once the project is sufficiently well advanced, and in particular is normally possible when the parties have entered into a gentlemen’s agreement or signed a letter of intent, or after the publication of the purchase or exchange offer.
Sanctions for not filing fall on the notifying parties (acquirers) and are as follows:
- the parties may be directed, subject to a periodic penalty, either to file the concentration or to demerge;
- in addition, the Authority may fine the concerned party as follows (maximum fines):
- corporate entities: 5 per cent of pre-tax turnover in France from the previous financial year (plus, where applicable, the turnover in France of the acquired party over the same period); and
- individuals: €1.5 million.
Failures to notify reportable mergers have been fined repeatedly (eg, a €57,700 fine imposed in 2006 on Pan Fish for failure to notify the acquisition of Fjord Seafood, a €250,000 fine imposed in 2008 on SNCF for failure to notify the acquisition of Novatrans, a €392,000 fine imposed in 2012 on Colruyt France for failure to notify the acquisition of UGCA Unifrais, and a €400,000 fine imposed in 2013 on the Reunica group for failure to notify the merger with the Arpège group). A €4 million fine was imposed in 2013 on Groupe Castel for deliberate failure to notify the acquisition of six companies of the group Patriarche so as to accelerate completion of the operation. The highest administrative court ultimately reduced the fine to €3 million in 2016, considering that the Groupe Castel did not intentionally omit to notify and that it was cooperative with the Authority when notifying the relevant operations.
In the Colruyt France case, which was confirmed by the highest administrative court in 2013, the Authority clarified that such infringements are subject to a five-year limitation period from the date when the change of control materialises.
Finally, to comply with French labour law, the labour or employees’ organisation (works council) of a French company involved in a merger has to be informed and consulted before signing of the transaction and a meeting of the works council is compulsory following the publication of the notification release on the Authority’s website.
Which parties are responsible for filing and are filing fees required?
Those subject to an obligation to notify are entities that acquire control of all or part of an undertaking. In the case of the creation of a joint venture, the parent companies are under an obligation of joint notification.
There is no filing fee.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
Filing has a suspensive effect: a concentration that requires notification must not be completed before approval has been obtained from the Authority. In addition, the powers of the Minister for the Economy to intervene within a certain period (see question 18) may extend the suspension period. If the Authority clears the transaction expressly in the first phase, it should a priori be possible to complete the transaction without waiting for the end of the five-day period granted to the Minister to request the opening of a second phase in-depth review. If the time period for the Authority to authorise the transaction in the first phase has expired (tacit authorisation), the transaction remains suspended until the end of the Minister’s five-day period. Should the Authority authorise the transaction in the second phase, whether the Minister intervenes or not, the transaction should not be completed before the end of the Minister’s 25-day period. Should the Minister for the Economy ultimately intervene, transactions must not be completed before the Minister has issued its decision.
Derogations may be granted to make it possible to proceed with the completion of all or part of the concentration without awaiting the decision of the Authority, or of the Minister as the case may be, provided that these derogations are necessary and duly justified. Derogations, which remain exceptional, are generally granted in cases where the target is subject to insolvency proceedings. The law dated 6 August 2015 provides that exemption from the standstill obligation may be granted subject to conditions and that the exemption will cease to be valid if the Authority does not receive complete notification of the transaction within three months of its implementation. In 2017-2018, the Authority granted derogations in several cases. It is noteworthy that, in the GPG/Tati Group case, the Authority granted the derogation and subsequently required structural and behavioural remedies to approve the concentration and that, in the Financière Cofigeo/groupe Agripole case, the Authority granted the derogation and then imposed divestment injunctions after a Phase II investigation.Pre-clearance closing
What are the possible sanctions involved in closing or integrating the activities of the merging businesses before clearance and are they applied in practice?
Closing before clearance (gun jumping) is considered as equivalent to an absence of filing and triggers the same sanctions as set out in question 9.
On 8 November 2016, the Authority jointly fined Altice Luxembourg and SFR Group €80 million for having prematurely implemented two mergers that had each been notified and cleared in 2014 (ie, the acquisition of SFR by Numericable (an Altice subsidiary) and that of OTL Group by Numericable).
This decision, which followed complaints from competitors and dawn raids, is the first decision of the Authority dealing with gun jumping (ie, completion of merger before clearance) practices and was then unprecedented internationally in terms of the scale of the practices concerned and of the amount of the fine imposed (which is, however, the result of a settlement).
This heavy fine in particular reflected: the accumulation of various gun jumping practices, the fact that the practices involved all the targets’ activities and that they started before the notification and occurred throughout the merger control proceedings, the fact that certain practices related to competition law risks identified by the Authority in one clearance decision, the scale of the transactions concerned by the infringements (two large mergers were affected), and the fact the Authority found that the behaviour was deliberate.
The gun jumping practices sanctioned by the Authority in the Altice case notably consisted of:
- the intervention by Altice in SFR and OTL’s operational management before clearance:
- in the SFR transaction, the contract provided for an ‘ordinary course of business’ limitation, but the latter was applied in the sense that ‘over the threshold’ decisions were nevertheless permitted with the acquirer’s prior authorisation; therefore, the actual implementation of the contract amounted to gun jumping; and
- in the OTL transaction, the ‘ordinary course of business’ limitation had very low financial thresholds and the contracts provided that ‘over the threshold’ decisions were only possible with the acquirer’s prior authorisation;
- exchange of confidential information: Altice and SFR exchanged large quantities of strategic information in readiness for their integration. Such information was confidential and concerned individualised data, SFR’s recent commercial performance and forecasts for the coming months. In the OTL merger, Altice set up an economic performance reporting mechanism allowing it to access weekly OTL’s commercially sensitive information (monitoring comparable to that exercised by a controlling shareholder);
- far-reaching closing preparation and premature anticipation of commercial opportunities: Altice asked and SFR agreed to suspend a promotion during the standstill period and also replaced Vivendi (SFR’s owner before the transaction) in the acquisition of a third-party operator (OTL). The Authority accordingly held that SFR ceased to behave as an economic entity independent from Altice. Moreover, the two undertakings have jointly and systematically studied new commercial opportunities or the extension of existing contracts. The decision reports examples of two new projects that started with the announcement of the transaction (for instance, Altice and SFR took advantage of the suspensive period to negotiate and operationally prepare the launch of new offers under the SFR brand and using Numericable’s network); and
- anticipated assignment of managers: OTL’s managing director began to carry out his duties within the SFR-Numericable group before clearance and was involved in SFR’s new commercial projects and also received commercially sensitive information.
The Authority, however, indicated after the decision was released that each of the above practices would not necessarily constitute a standalone gun-jumping infringement and that there had been an accumulation effect. In particular, pre-closing covenants should not be regarded as automatic gun jumping, and an assessment of the threshold is always necessary.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
The fact that the transaction is foreign-to-foreign is irrelevant and sanctions would apply in cases of closing before clearance.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
No specific solutions permitting closing before clearance are provided for under French law in foreign-to-foreign transactions, other than the general possibility available in any transaction to seek from the Authority a derogation from the suspension requirement (see question 11 and, for the sanctions, question 12).Public takeovers
Are there any special merger control rules applicable to public takeover bids?
Public bids may fall within the scope of French merger control if they involve stocks or shares that confer sole or joint control over an undertaking listed on the French Stock Exchange and otherwise meet the applicable jurisdictional thresholds. As a derogation to the suspensive effect of the merger control process, the stocks or shares in question may be purchased and transferred, so long as the acquirer does not exercise the voting rights attached to them before the Authority clears the transaction. Where a transaction is realised in stages, namely, an acquisition of a first block of shares triggers an obligation to launch a public bid to purchase the rest of the share capital, the derogation applies to both stages; therefore, both the shares acquired privately and those acquired through the public bid can be transferred but are subject to the obligation not to exercise the voting rights.
Therefore, under merger control rules, a public bid may be approved by the French Stock Exchange regulatory authority and the stocks or shares transferred before the Authority’s authorisation is granted. Theoretically, therefore, a public bid could be cancelled, or substantially modified, on competition law grounds after having been implemented, possibly obliging the acquirer to divest the stocks or shares purchased.
However, a provision making the offer conditional upon clearance of the transaction by the competition authorities (the European Commission, the competition authorities of EEA member states, US competition authorities and any other foreign competition authority provided that its merger control procedure is compatible with a maximum time frame of 10 weeks) at the end of the first phase of the review process can be inserted into the offer documents. In such case, the offer lapses and becomes void if any of the relevant competition authorities opens a second phase review. For these purposes, the offer period is extended until the end of the first phase.Documentation
What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?
Filings have notably to include:
- a copy of the merger agreement or draft agreement and a memorandum giving details of the legal and financial aspects of the transaction and its likely impact, in particular on competition;
- the identity of the parties concerned (including the entities economically linked to them);
- a definition of the relevant product and geographic markets, as well as the criteria used to identify any substitutable products or services; and
- a description of the position in the relevant market of the parties involved in the transaction.
Filing most often involves the provision of detailed information about the parties and their business. The time necessary to prepare a non-complex filing will, in general, range from 15 days to a month, depending on the size of the transaction, the markets concerned and the willingness of the parties to the transaction to cooperate. Filings also have to include a declaration certifying that the data provided is complete and accurate.
A distinction must be drawn between the markets ‘concerned’ by the concentration and those that are ‘affected’ by the transaction.
Markets ‘concerned’ are relevant markets on which the concentration will have an influence, either directly or indirectly. ‘Affected’ markets are those markets on which the notifying parties (or entities economically linked to them and that operate on a downstream or upstream market) together have a market share of 30 per cent or more (this threshold was raised from 25 to 30 per cent by the Decree of 18 April 2019 simplifying the notification of a merger to the Authority). The information required for the notification is much more detailed if the concentration involves ‘affected’ markets.
The Guidelines provide that transactions that should not, prima facie, raise anticompetitive issues may be eligible for a simplified procedure with less onerous information requirements.
In the Guidelines, the Authority emphasises the benefits of the simplified procedure and lists its conditions, allowing the concerned parties to obtain the transaction’s clearance within a shorter time period (of 15 to 20 working days on average) where no competition issues are anticipated (ie, where there is no horizontal or vertical overlap and where the parties are not active in neighbouring markets). Each year, approximately half of the filings reviewed by the Authority are dealt with under the simplified procedure.
An online notification form is currently in its testing phase and should be operational shortly. It will only concern mergers that benefit from the simplified procedure in its current form.
The notifying party should indicate in the notification which information constitutes business secrets so that this information be treated as confidential.
Since the entry into force of the Decree of 18 April 2019, the parties only have to submit one copy of the filing (annexes enclosed) to the Authority. This decree also simplifies the financial data of the parties to be provided to the Authority.
Providing inaccurate information or omitting information may result in fines up to 5 per cent of the undertaking’s turnover (taking into account the circumstances leading to the omission or misrepresentation, as well as the conduct of the undertakings with regard to the Authority). In addition, the clearance decision may be withdrawn, meaning that the parties must notify the transaction again within one month of the withdrawal (otherwise a fine may be imposed for gun jumping).Investigation phases and timetable
What are the typical steps and different phases of the investigation?
The Mergers Unit of the Authority examines concentrations notified to the Authority.
Informal pre-notification contacts are often necessary and highly recommended in the Guidelines to identify (and possibly resolve) potential issues. The Authority invites the parties to get in touch with its services at the earliest opportunity to anticipate any possible competition concerns (see question 35). Although not compulsory under the Code, pre-notification has now become systematic in practice.
Formal notification triggers the first phase review. The Authority may request information not only from the parties, but also from other market players, including the parties’ suppliers, customers and competitors. This is done notably through ‘market tests’ performed by the Authority. There is also a notice posted on the Authority’s website to allow for spontaneous comments by third parties. In addition, the Authority has the power to conduct onsite investigations, although the use of such powers remains exceptional. In cases raising competition concerns, the parties may propose remedies to avoid a second phase.
Should the Authority consider that a case raises major competition difficulties or should the Minister decide to request a second phase review of a case despite the clearance granted by the Authority at the end of the first phase (and should the Authority accept such request), an in-depth investigation is conducted by the Authority’s case handlers, who generally request additional information from the parties, in writing and, possibly, during hearings. The case handlers may also submit questions to the parties’ suppliers, customers or competitors and, where necessary, conduct onsite investigations. The case team issues a report to which the parties may reply in writing, and a formal hearing is then organised at the end of the second phase, during which third parties (customers, experts, etc) may be heard in the absence of the notifying parties. In its final decision, the Authority can authorise the concentration with or without commitments proposed by the parties. It can otherwise prohibit the transaction. It may also, if need be, take injunctions that impose conditions that were not proposed by the notifying parties (in the 2018 Financière Cofigeo/groupe Agripole case, the Authority used, for the second time ever, its injunction power: in the absence of suitable commitments from the parties, it granted clearance subject to appropriate remedies it imposed to protect competition).
Finally, the Minister for the Economy has the power, after a second phase decision of the Authority, to review the case and to take the final decision on public interest grounds, which it did for the first time in 2018 in the Financière Cofigeo/groupe Agripole case (see question 22).
What is the statutory timetable for clearance? Can it be speeded up?
The Authority’s formal examination of a concentration takes place in up to two phases and the clearance timetable is as follows.First phase (maximum 60 working days, unless clock is stopped by the Authority)
- This phase is common to all concentrations. The Authority may authorise the concentration within 25 working days of the date at which the notification is considered complete.
- This review period may be extended for an additional 15 working days if the notifying parties submit commitments.
- Two ‘stop-the-clock’ procedures exist:
- the parties may ask for suspension of the review for a period of up to 15 working days if necessary for, inter alia, the finalisation of commitments. In this case, the first phase can last up to 60 working days (including the five working days granted to the Minister for the Economy under its intervention powers); and
- the Authority may suspend the review period where the notifying parties fail to promptly inform the Authority of a new relevant fact or fail to provide requested information within the allocated deadline, or where third parties fail to do so for reasons pertaining to the notifying parties. Such a suspension lasts as long as its cause exists.
As explained in question 16, where no competition issues are anticipated, the simplified procedure allows the parties to obtain clearance within a shorter time period (ie, on average after 15 working days following the filing of a complete notification).
The Authority may also shorten its first phase review when one of the undertakings is facing financial difficulties or is subject to legal proceedings.
At the end of the first phase, the parties must still comply with the waiting period granted to the Minister (five working days, see below) if the Authority does not adopt a decision in writing but instead does not issue any decision by the end of first phase (ie, grants tacit approval).Second phase (maximum 130 working days from the opening of the second phase, unless clock is stopped by the Authority)
- Where, after a first-phase review, the concentration raises serious doubts as to its compatibility with competition on the relevant markets in France, the Authority will initiate an in-depth examination of the concentration. This will be the case where the concentration may lead to the creation or strengthening of a dominant position or the creation or strengthening of purchasing power that may lead to a situation of economic dependence for suppliers. The factoring of efficiencies into the competitive assessment may be also considered.
- The Authority will issue its decision within 65 working days of the opening of the second phase. The parties may submit commitments. The period of 65 working days is maintained if the commitments are submitted within 45 working days following the beginning of the review period. If the commitments are submitted less than 20 working days from the expiry of the 65-working-day deadline, the review period is extended by 20 working days from the receipt of such commitments. This extension is also applicable in case of a modification of already submitted commitments proposed less than 20 working days from the expiry of the 65-working-day deadline. In any case, the review cannot extend further than 85 working days.
- Two ‘stop-the-clock’ procedures exist:
- the parties may ask for suspension of the review for a period of up to 20 working days if necessary for, inter alia, the finalisation of commitments; and
- without any time limit, the Authority may also suspend the review if the parties fail to inform it of a new fact as soon as it occurs or fail in their duty to provide information or if third parties, as a result of the parties’ negligence, fail to provide the requested information. The review period starts to run again as soon as the issue giving rise to the suspension is resolved.
At the end of the second phase, the parties must still comply with the waiting period granted to the Minister (25 working days, see below).Powers of the Minister for the Economy
The Minister for the Economy no longer has jurisdiction over merger control. However:
- after the first phase, within five working days after the notification of the Authority’s clearance decision to the Minister, the latter can ask the Authority for an in-depth examination of the case. However, the Authority has a discretion as to whether to allow this request or not and has indicated that it would decide on the fate of such request within five working days from receiving it; and
- after the second phase, within 25 working days from the notification of the decision of the Authority to the Minister, the latter has, at his or her initiative, the power to review the case and take the final decision on the concentration on public interest grounds. These may include industrial and technological progress, companies’ competitiveness in an international context and social welfare, but not competition grounds. The law dated 6 August 2015 provides that, where the parties have failed to comply with the commitments provided for in the Minister’s decision in a timely fashion, the latter may withdraw his or her decision (thus obliging the parties to re-notify the transaction within one month), or enjoin the parties to comply with the relevant commitments subject to periodic penalty, or enjoin the parties to comply with new injunctions (replacing the initial commitments that were not complied with) subject to periodic penalties.
Since these powers were introduced in 2008, the Minister has used its power to review a merger on public interest grounds only once (see question 22).
Substantive assessmentSubstantive test
What is the substantive test for clearance?
The substantive test for clearance is whether the transaction significantly lessens competition, especially by creating or strengthening an individual or collective dominant position. Unilateral effects, even in the absence of dominance, are taken into account in practice (see question 21). In addition, at the end of the second phase, the Minister is entitled to call the case and take into account the economic and social effects (ie, effects other than the impact on competition) of the concentration to prohibit or authorise it (see question 22).
Is there a special substantive test for joint ventures?
No, there is no special test for joint ventures. A joint venture performing, on a lasting basis, all the functions of an autonomous economic entity, is treated like any other type of merger. However, possible coordination issues between parent companies will be examined.Theories of harm
What are the ‘theories of harm’ that the authorities will investigate?
The Authority broadly uses the same analytical framework as the European Commission. In addition to the level of market shares, it may take into consideration a wide variety of elements in its assessment of unilateral and coordinated effects in horizontal, vertical and conglomerate mergers.
In the Castel/Groupe Patriarche second-phase case (2012) the Authority used the upward pricing pressure test to analyse the incentives of the new entity to increase the prices of wines. The 2013 Guidelines insist on the increasing importance of such tests in the competitive assessment of transactions.
The Authority used the gross upward pricing pressure index (GUPPI) test in the Casino Guichard-Perrachon/Monoprix (2013) case as part of its analysis to impose divestments (see question 25). Conversely, in Orlait/Terra Lacta (2014), the Authority also used the GUPPI test to conclude that a price increase was unlikely to result from the merger, in view of the highly competitive market structure and the strong countervailing buyer power.
To quantify online competition in local markets, the Authority used for the first time a ‘scoring method’ in the recent Fnac/Darty case (2017), in addition to the market shares and GUPPI methods. Based on diversion evidence, each competitor was thus applied a weight (or ‘score’) reflecting the different levels of competitive constraint they imposed on the parties to the merger.
In Elsan/MediPôle-Partenaires (2017), in the healthcare sector, the Authority for the first time took account of the impact of the concentration on the quality of the medical treatment offer and required corresponding divestiture commitments. The assessment of non-price effects of mergers is, however, not unprecedented. For instance, the Authority previously took into account media pluralism issues in its merger assessment.
Under the in-depth investigation (Phase II) of the Axel Springer Group (SeLoger.com)/Concept Multimédia (Logic-Immo.com) merger, which, for the first time, involved two online platforms, the Authority took into account network cross-effects and focused particularly on the importance of data.
Market definition is sometimes key in assessing the possible theories of harm and the Authority may accept innovative market definitions. In Fnac/Darty (2016), following an in-depth investigation, the acquisition of Darty by Fnac was cleared by the Authority subject to the divestment of six stores, to maintain sufficient competition in the market for retail distribution of electronic products in Paris and its suburbs. This was the first case in which the Authority has ever defined a relevant market as including both in-store and online retail channels. It held that competitive pressure exerted by online sales had become significant enough to be integrated in the relevant market, whether it comes from pure players or from the bricks and mortar stores’ own websites. In 2019, the Authority also implemented this approach to the distribution of toys in the context of the Luderix International (Picwic)/Jellej Jouets (Toys’R’Us)/undivided ownership Mulliez. It considered that the characteristics of the toy distribution market justified analysing online sales and physical outlets as belonging to one and same relevant market, which was the first time such a conclusion was reached in the EU in the toy sector.
However, such conclusion as to online and physical sales channels is not systematic. For instance, in Sarenza/Monoprix (2018) and André/Spartoo (2018), while the Authority took into account the competition exerted by e-commerce players on the brick and mortar distributors, it did not conclude that there was a single relevant market for both channels. More recently, in Dimeco/Cafom group (2018), concerning a merger of two domestic electrical goods distributors active in Guadeloupe, the specificities of the French overseas markets (notably the low development of online sales and the insular location of Guadeloupe) led the Authority to define the relevant markets as brick-and-mortar retail points only.Non-competition issues
To what extent are non-competition issues relevant in the review process?
The Authority only considers competition issues in its assessment, possibly with efficiency defence arguments.
However, since 2008, at the end of a second phase, the Minister for the Economy may decide to examine the case. Although the Minister cannot challenge the findings of the Authority on competition analysis, he or she can make a decision based on grounds of public interest justifications other than the maintenance of competition. Notably, the Minister’s decision may be based on factors such as industrial development, maintaining of employment or the competitiveness of the undertakings in international competition. The decision of the Minister will then supersede that of the Authority.
For the first time, in June 2018, the Minister used this power in the Financière Cofigeo/groupe Agripole transaction. In this case, the Authority had cleared, following an in-depth investigation, the acquisition by Financière Cofigeo of certain securities and assets of Agripole group (carrying a ready-made meals business), subject to divestment injunctions (see question 17). On the very day of the clearance, the Minister announced that the transaction needed to be assessed on public interest grounds, in particular the maintaining of employment and industrial development. The Minister stressed that his review was taking place in the exceptional context of the serious fraud that led to the financial difficulties of the target, which required state intervention. On 19 July 2018, the Minister cleared the transaction, without divestment but subject to the maintenance of employment within the group for two years. The Minister considered that the divestment would have led to a material risk for employment. Besides, the Minister considered that his decision would allow Cofigeo to stimulate the markets on which it is active, which would have a positive impact on the whole sector.Economic efficiencies
To what extent does the authority take into account economic efficiencies in the review process?
The Code requires the Authority, during the second phase, to assess whether the transaction makes a sufficient contribution to economic progress to offset the damage to competition. To be taken into account, efficiencies must be both quantifiable and verifiable, they must be specific to the concentration, and at least some of their benefit must be passed on to consumers. The Authority can compel the parties to respect requirements aimed at ensuring that a sufficient contribution is made to economic progress to offset the damage to competition.
Remedies and ancillary restraintsRegulatory powers
What powers do the authorities have to prohibit or otherwise interfere with a transaction?
In addition to the standard a priori merger control review further to a notification, the Authority also has ex-post merger control powers for all concentrations in the following strictly defined scenario: the Authority may, in the event of an abuse of a dominant position or of a state of economic dependence, enjoin by a reasoned decision the undertaking or group of undertakings concerned to amend, supplement or terminate, within a specified timetable, all agreements and all acts by which the concentration of economic power allowing the abuse was brought about. This provision is applicable to concentrations below the notification thresholds that were not notified, as well as to those that have been subject to a merger control procedure. Under the former merger control regime, the Minister for the Economy, who used to be in charge of merger control in France, enjoyed similar powers, but used these only once, in 2002, to terminate joint venture arrangements on the market for drinking water supply. It must be highlighted that the Authority is currently considering the enlargement of its ex-post merger control review powers (see question 35).Remedies and conditions
Is it possible to remedy competition issues, for example by giving divestment undertakings or behavioural remedies?
Between filing and the final decision of the Authority, the notifying parties may submit amendments to the transaction to remedy competition issues. The parties may put forward various remedies (behavioural as well as structural), such as commitments to sell assets to third parties (those third parties should then be approved by the Authority), to execute a contract (eg, a trademark or patent licence), to amend conditions of sale, to keep the Authority informed of any change in the structure of the relevant market (such as an increase in the parties’ market share) or even sometimes to freeze their market share. Remedies can be submitted either in Phase I or in Phase II. However, not all second-phase investigations end in remedies, as shown by the Axel Springer/Concept Multimedia (2018) merger that was ultimately cleared without commitments.
The Authority can delay the concentration until the commitments are fulfilled. In the case of a divestment commitment, the parties may be required to prepare an equally or more effective alternative solution (‘crown jewels’), where the initial divestment turns out to be either unlikely or impossible.
The Guidelines introduced a standard form of divesture commitments and a standard form of trustee mandate to habilitate a trustee to monitor and audit fulfilment of the commitments.
A few recent cases illustrating the possible scope of remedies in France are set out below.
In Vinci/Aéroports de Lyon (2016), the Authority held that the vertical integration between a public works company and an airport management company would be harmful to competition in the absence of genuine competition in the context of calls for tender. Accordingly, Vinci undertook:
- to ensure greater transparency during the invitations to tender;
- to ensure a clear separation between members of the purchasing committee and the other Vinci group entities responding to invitations to tender; and
- to provide a list of the invitations to tender issued and of the successful bidders to a trustee.
These commitments were made binding until 2047 (ie, for the entire duration of the Lyon airport management and operating concession).
In Elsan/MediPôle Partenaires (2017), the Authority accepted alternative divestments (ie, the notifying party had to divest one healthcare facility it could choose among several identified in a given area, the divestment of any of them being able to solve the competitive concerns identified).
In La Poste/Suez (2017), the Authority cleared, subject to conditions, the creation of a full-function joint venture between La Poste and Suez. Interestingly, the commitments taken by the two merger parties for the creation of the joint venture were similar to those made legally binding, on the same day, by the Authority to close an antitrust procedure involving La Poste in the same sector (collection and recovery of office non-hazardous waste). In both cases, the identified concerns involved a risk of use of La Poste’s competitive advantages linked to the universal postal service, that could not be reproduced by competitors, and issues around services possibly priced below cost. Similar behavioural commitments have been submitted in the two proceedings and, given the concomitance of the two cases, the Authority specifically ensured that the antitrust commitments would not be deprived of their effect as a result of the implementation of the merger.
In the retail sector of gardening, DIY, pet and landscaping products, the Authority cleared the Groupe InVivo/Jardiland transaction (2018) subject to commitments to divest six outlets and to terminate five franchise contracts, which must be taken on by one or more competing chains. Alternative divestment and termination (crown jewels) commitments were also agreed upon.
In 2018, the Authority cleared under conditions the creation of the joint venture Cash Paris Tax Refund by Global Blue and Planet Payment. The joint undertaking was to operate at the end of the refund process, acting as a ‘desk’ carrying out the VAT refund procedure for tourists. Its clients would be its parent companies and their competitors. The establishment of the joint venture, which would access information on the parent companies and their competitors, could have enabled its parent companies to coordinate their behaviour in the upstream markets of VAT refund services in France. To remedy this issue, a commitment was taken to erect a ‘Chinese wall’ between the common undertaking and the parent companies to bar the latter from access to strategic information on their competitors.
In 2019, and for the third time ever, the Authority required a ‘fix-it-first’ commitment to clear the acquisition of Alsa by Dr Oetker (Ancel) (2019). The new entity would have become the leader in the market for production and marketing of dessert mixes to supermarkets and hypermarkets, with a market share greatly superior to 50 per cent, by combining the two main brands of this market (Ancel and Alsa). Dr Oetker thus committed to enter into an exclusive trademark licensing agreement for Ancel dessert mixes for five years, renewable once. The Authority agreed the proposed licensee before giving its clearance. To further ensure the existence of a credible alternative supplier in this market, Dr Oetker also notably committed to enter into an outsourcing contract with the licensee (for the supply of Ancel dessert mixes products) for a transitory period of three years, to avoid supply disruption and to enable the licensee to immediately stimulate competition, independently of the development of its own production capacities.
More recently, in CDG Express/RATP Dev/Keolis (2019), because the Authority identified a risk of tie-in sales between the future CDG (Paris airport) Express ticket and baggage registration and transport services (ie, the new entity may rely on its position on the market for the provision of public passenger transport services to sell, at the same time as a ticket for the CDG Express and on preferential terms, a check-in and baggage service to and from the airport), the parties committed to entrust the operation of the baggage service to an independent partner with autonomy in the determination of its commercial policy. This commitment was for the duration of the public service contract (ie, 15 years from the effective date of bringing the CDG Express connection into service).
From May 2018 to April 2019, the Authority was fairly active in the field of commitments, with seven clearances subject to remedies or injunctions, including one conditional clearance in Phase II (Cofigeo/Groupe Agripole merger in July 2018).
What are the basic conditions and timing issues applicable to a divestment or other remedy?
Undertakings can be submitted to the Authority at any time from the notification of the case, during the first 25 working days in the first phase and 65 working days in the second phase. Where the parties submit undertakings in the first phase, the review period of 25 working days is extended by 15 additional working days. Parties may also ask for a ‘stop the clock’ of up to 15 working days to finalise undertakings. During the second phase, where undertakings are submitted or modified more than 45 working days after the opening of the second phase, such in-depth review period is extended by 20 working days from the date when such remedies are proposed. On a few occasions, the Authority required ‘fix-it-first’ commitments requiring the notifying party to identify, prior to the adoption of the decision, a suitable acquirer to take on the asset that it has committed to divest.
Undertakings imposed on the parties by the Authority (ie, injunctions) aim at remedying anticompetitive effects of the operation. Moreover, remedies can be imposed by the Minister for the Economy to deal with other negative consequences of the operation (see question 22).
Failure to implement a remedy can result in the imposition of fines:
- for corporate entities - up to 5 per cent of their turnover in France in the previous financial year (plus, where applicable, the turnover in France over the same period of the acquired party); and
- for individuals - up to €1.5 million.
Moreover, the Authority may also:
- withdraw the decision authorising the operation. In such case, and except where the situation that existed prior to the concentration is restored, the parties will be bound to notify the transaction a second time within one month of the withdrawal of the decision;
- enjoin the parties to comply, within a certain deadline, with the orders, injunctions or undertakings provided for under its decision, under periodic penalty; and
- enjoin the parties, subject to periodic penalty, to comply with new injunctions or orders that will replace the initial commitments that were not complied with.
In 2007, a company was sanctioned for the first time for a breach of its commitments with a fine of €100,000. A divestment was also required.
In 2008, a breach of merger remedies was sanctioned in the TF1/AB Group/TMC case. TF1 and AB were enjoined to comply with the unimplemented commitments within one month, under a daily penalty of €5,000. The companies were also fined a total amount of €265,000 for breach of remedies.
In 2011, further to remedies agreed by Canal Plus in the 2006 Vivendi Universal/CanalSat/TPS case, the Authority considered in the course of a monitoring process that Canal Plus had breached several remedies and therefore decided to withdraw its authorisation and to fine the company €30 million. Vivendi and Canal Plus then re-notified the operation and the Authority opened a second-phase investigation in March 2012. In July 2012, the Authority finally cleared the operation subject to several injunctions. The case was confirmed on appeal. The Authority’s decision provided that the injunctions, taken for five years (until July 2017), could be renewed for five additional years (2017-2022), should the circumstances warrant it. Against this background, the Authority launched in July 2016 a public consultation to determine whether these obligations in force since 2012 should be lifted, adapted or renewed. The Authority’s analysis revealed that Canal Plus’s position is increasingly challenged, leading the Authority to modify on 22 June 2017 the injunctions initially imposed: certain injunctions have been lifted, or adapted to take into account the evolution of the markets, while others have been maintained. The new framework shall be applicable until 31 December 2019.
In April 2016, the Authority imposed a fine of €15 million on Altice/Numericable group for breach of remedies agreed in the 2014 Numericable/SFR case, relating to the divestment of Outremer Telecom. The Altice/Numericable group had undertaken to maintain the viability, market value and competitiveness of this business to favour its acquisition by a competitor. It subsequently appeared that Outremer Telecom’s tariffs rose by 17 to 60 per cent, giving customers the opportunity to terminate their subscriptions without incurring cancellation fees. As a result, cancellation rates were three times higher in January 2015 than in January 2014. This constituted a reversal in Outremer’s business strategy aiming at capturing new customers through aggressive competitive pricing. The Authority considered that this new strategy put the competitiveness of Outremer Telecom’s offer at considerable risk, thus breaching the commitments.
In addition, in March 2017, the Authority jointly fined Altice and SFR Group €40 million for breach of other remedies made binding under the same 2014 Numericable/SFR decision. In this case, SFR had basically committed to continue to perform the contract it had entered into with Bouygues Telecom for their co-investment in the development of optical fibre infrastructure in high-density areas. However, the Authority held that Altice/SFR Group had only very partially fulfilled this commitment. This case was also the first in which the Authority imposed injunctions subject to periodic penalty payment, to further secure their implementation.
In July 2018, the Authority for the first time fined a company for non-compliance with structural commitments consisting of divesting assets within a given deadline. It fined Fnac Darty Group €20 million for failing to divest three stores, as per the commitments, and ordered it to divest two specific stores in lieu of those that were not disposed. The Authority notably considered that, confronted with difficulties in finding a buyer for these three other stores, it was Fnac Darty’s responsibility to take the appropriate measures to fulfill its commitments (eg, by asking the Authority to substitute other stores for those it wasn’s able to sell).
It is also possible for the Authority to review remedies adopted for clearance of an operation in view of changes in circumstances. The Authority used this possibility for the first time in the Bigard/Socopa case (2011) where it authorised the enforcement of a review clause included in the clearance decision, changing a trademark licence remedy into a trademark sale remedy. However, in this case, the Authority also fined Bigard €1 million for various practices aimed at reducing the value of the trademark and at discouraging candidates.
As part of the re-examination of the commitments submitted in relation to the acquisition by Vivendi and Groupe Canal Plus (GCP) of Direct 8 and Direct Star, the Authority had to decide upon a proposal of modified commitments formulated by GCP. The Authority’s investigation revealed that Canal Plus’s position is increasingly challenged, leading the Authority to modify in June 2017 the initial commitments: certain of them have been lifted, or adapted to take into account the evolution of the markets, while others have been maintained. The new framework applies until the end of 2019. This review was made in parallel to the re-examination of the injunctions imposed by the Authority on GCP in the context of the Vivendi Universal/CanalSat/TPS case.
Likewise, in 2019 the Authority had to review remedies made binding in 2014 for the acquisition of Mediaserv (now Canal + Telecom) by Canal Plus Overseas (now Canal + International) for an initial duration of five years after which a new competitive analysis would be performed to examine whether or not they should be maintained. The Authority reviewed the new commitments proposed by Canal + and market tested them, concluding that certain existing obligations should be maintained, while others could be eased. All the commitments maintained or modified were renewed for a period of five years (ie, until 2024).
The Authority is clearly minded to exercise a more systematic ex-post control of the implementation of undertakings.
What is the track record of the authority in requiring remedies in foreign-to-foreign mergers?
Foreign-to-foreign mergers do not prevent the Authority reviewing the merger and, if necessary, requiring remedies (eg, the behavioural injunctions imposed in the Boeing/Jeppesen case (2001) and the divestment undertaking in the GE/Invision Technologies merger (2004)).
For obvious ease of enforcement purposes, remedies concerning the French national market are normally preferred. However, specific provisions exist for international coordination on remedies in cases where the affected markets are wider than national, or where competition on a single product market is affected in various countries.Ancillary restrictions
In what circumstances will the clearance decision cover related arrangements (ancillary restrictions)?
French decisional practice is not as developed as the European Commission’s on the issue of ancillary restraints. However, it was considered on a number of occasions that restrictions that are both necessary and directly related to a merger are covered by the clearance decision. As to the types of arrangements that may be covered, national practice closely follows (and often expressly refers to) the approach of the European Commission.
The Guidelines for the first time dedicated specific provisions to ancillary restraints. The Authority is therefore ready to treat as ancillary restrictions provisions such as non-compete clauses in favour of the purchaser (provided their scope and duration are not excessive), licence agreements as well as purchase and supply contracts (provided they are of a limited duration and are not exclusive).
The Authority has used these provisions and examined ancillary restraints in several cases (eg, Visa Europe/SAS Carte bleue (2009), Terrena/Groupe Bigard (2010), GFI-Bus/Thalès ‘Business Solutions’ (2012), Roullier/Fertilore (2013) and Carrefour/Unibail (2014)).
Involvement of other parties or authoritiesThird-party involvement and rights
Are customers and competitors involved in the review process and what rights do complainants have?
The Authority may interview any third parties during the review of the concentration and it may also seek comments from any person who may be considered relevant for the review process. The Authority may hear third parties in the absence of the notifying parties. Moreover, the works council (employees’ representative body) of the notifying parties shall be heard by the Authority at their request.
Third parties, such as complainants, are not directly involved in the merger control process as they have no automatic rights to be consulted or informed beyond the general information published on the Authority’s website concerning pending procedures. Third parties do not have access to the notification file, but they can intervene through their response to the ‘market test’ that may be carried out by the Authority in the first and second phases (and, if the notifying party agrees, even in the pre-notification phase). Third parties may also challenge the Authority’s decision before the administrative courts. There is, however, no legal obligation for the Authority to consult third parties when the commitments are amended. In the 2014 Wienerberger case, following the 2013 Bouyer-Leroux/Imerys clearance decision, a third party, the Wienerberger company, challenged the legality of the Authority’s decision as it had not been consulted on the modified commitments submitted by the notifying parties. The complaint was dismissed on appeal by the French Supreme Administrative Court.
In 2018, the Authority opened an in-depth examination into the Axel Springer Group (SeLoger.com)/Concept Multimédia (Logic-Immo.com) merger in the online property portal sector. To evaluate the capacity of current potential competitors to stimulate competition following the merger of two of the main operators in the French online property advertising market, the Authority launched a broad consultation, analysed numerous internal documents of the parties and, for the first time, issued an online questionnaire to more than 30,000 estate agencies.Publicity and confidentiality
What publicity is given to the process and how do you protect commercial information, including business secrets, from disclosure?
Information on previous and pending decisions of the Authority is publicly available on the Authority’s website. When a transaction is notified, a brief release is published on the Authority’s website. It includes the identity of the parties concerned, the nature of the operation and the markets concerned.
The Authority’s decisions are made public and parties may ask the Authority not to refer to confidential information in the public version of the decision. The Authority’s Rapporteur Général is in charge of the management of confidentiality of business secrets.
Decisions issued by the Minister for the Economy are published in the ministerial official publication, the electronic ‘Bulletin Officiel de la Concurrence, de la Consommation et de la Répression des Fraudes’ on the Ministry’s website.
Press releases from both the Authority and the Minister, if any, may also be found online. For important decisions, the press release is also published in English.Cross-border regulatory cooperation
Do the authorities cooperate with antitrust authorities in other jurisdictions?
Within the framework of the European Competition Network, competition authorities of EU member states inform each other of merger cases pending before them, in particular to be able to jointly request the application of article 22 of the EUMR. The Authority also cooperates with non-EU antitrust agencies.
Judicial reviewAvailable avenues
What are the opportunities for appeal or judicial review?
Decisions of the Authority and of the Minister may be challenged before the French Supreme Administrative Court (the Council of State) on the grounds of abuse of power or for breach of a procedural rule.
In 2007, the Council of State quashed the Minister’s decision clearing the acquisition of Delaroche by EBRA, mainly on the grounds that the Minister failed to correctly apply the concept of control and thus failed to properly review the merger.
In December 2013, the Council of State annulled the clearance decision of the acquisition of Direct 8 and Direct Star by Group Vivendi and Canal Plus, on procedural grounds and because it considered the agreed commitments insufficient. A new clearance decision based on strengthened commitments was then issued in April 2014.
The Council of State has, however, rejected several appeals lodged against decisions of the Authority (emergency suspension procedures and appeals on the merits).
In 2016, the Council of State rejected two appeals on the merits and, in another case, partially annulled the decision of the Authority clearing the acquisition of Totalgaz by UGI (2015), in the liquefied petroleum gas sector. While the decision was confirmed for three of the four relevant markets, the Council of State considered that the scope of the competitive assessment was too narrow in relation to the fourth one and annulled the clearance decision and the relevant commitments in respect of this market.
In 2016, the Council of State also rejected one request for suspensive interim measures. The applicants sought to suspend the Authority’s conditional clearance of the acquisition of Agri-Négoce by Axéréal Participations, claiming that the commitments were insufficient to meet the competition concerns on the market for the seed collection in a given French area. The Council of State, however, rejected their application on the grounds that their claim was neither such as to characterise the urgency to suspend the decision’s implementation, nor such as to raise a serious doubt as to the existence of an assessment error from the Authority.
In 2017 and 2018, the Council of State reviewed a number of appeals relating to the Fnac/Darty merger. As regards the scope of the commitments, a third party, who had entered into a lease agreement with Fnac, unsuccessfully lodged an appeal against the Authority’s decision, in that it provided for the divestiture of the store concerned by the lease. Besides, as regards the implementation of the commitments, the Fnac/Darty group (as vendor) and the Dray group (as a contemplated acquirer of divested stores) respectively challenged the Authority’s refusals to approve the contemplated purchaser as a suitable purchaser of the divested stores, and to extend the commitments’ implementation deadline, which were both rejected.
In 2018, the Council of State also rejected the appeals against the clearance decisions in the DCNS/Piriou joint venture case and in the Agri-Négoce/Axéréal Participations matter.Time frame
What is the usual time frame for appeal or judicial review?
Appeals against decisions of the Authority and of the Minister can be brought by the parties within two months of the date when the decision is notified, and by third parties within two months of publication of the decision on the Authority’s website. In principle, appeals do not result in the suspension of the decisions. However, an action aimed at suspending a decision issued by the Authority can be lodged before the Council of State through a specific procedure, the request for suspensive interim measures. Such a suspension can be granted if the parties demonstrate that there is an emergency and that there is a serious doubt concerning the legality of the decision. This emergency procedure was first used in the Cegid/CCMX case in 2004, in which the Council of State ruled that, in view of the high combined market share of the parties, the approval decision would have had irreversible effects on the structure of competition on the market. In this particular case, however, the merger was eventually cleared by the Council of State in its final decision of 13 February 2006.
Enforcement practice and future developmentsEnforcement record
What is the recent enforcement record and what are the current enforcement concerns of the authorities?
Recently, the Authority has been fairly active: approximately 250 clearance decisions were rendered from May 2018 to April 2019, of which seven were conditional clearances, mainly in the wholesale and retail and waste management sectors, and also in the public passenger transport market and the VAT refund services sector.
Again this year, several concentrations taking place in French overseas territories were examined, these kinds of mergers being generally good candidates for commitments given the specificity of the overseas markets and local vertical integration issues. For instance, the Authority cleared the acquisition of a hypermarket in Martinique by Bernard Hayot Group (2018), which is a wholesaler and importer of consumer goods in Martinique and already operates several hypermarkets under the Carrefour banner, subject to the conditions to operate the acquired hypermarket under the distinct ‘Euromarché’ banner (with a commercial independence from Carrefour which owns the Euromarché brand), to allocate the commercial cooperation budgets among its own stores and those of its rivals without discrimination and finally to run its wholesale and importer activities and its retail distribution activities independently (notably through information barriers).
Several merger cases were referred by the European Commission to the Authority in 2018-2019, upon request of the Authority or of the parties. Since 2009, the European Commission has referred 28 concentrations to the Authority.
To address the question of retailers’ buying power, the law dated 6 August 2015 and the subsequent Decree of 14 December 2015 (which were inspired in this respect by an opinion of the Authority) introduced the obligation for the parties to joint purchasing agreements in upstream retail to inform the Authority of their contemplated buying alliance, even though such arrangements do not fall within the scope of merger control (eg, because it is considered as a non-full-function joint venture). This obligation applies where the following cumulative thresholds are met:
- all the undertakings that are party to the contemplated arrangement achieved, during the previous financial year, a worldwide combined pre-tax turnover exceeding €10 billion; and
- all the undertakings that are party to the contemplated arrangement achieved in France, during the previous financial year, a combined pre-tax purchase turnover of over €3 billion.
In July 2018, the Authority opened two market investigations in relation to purchasing alliances it was informed of on the basis of the above-mentioned provisions.
The law dated 30 October 2018 made some amendments to the existing framework (without however modifying the thresholds). The Authority must now be informed at least four months prior to completion (instead of two) and the Authority is entitled to carry out a competitive assessment of the implementation of the agreement and the parties shall also agree to undertake appropriate remedies where anticompetitive effects are identified. The Authority now also has the power to order interim measures (including an injunction to return to the status quo ante or to request a modification of said agreement).Reform proposals
Are there current proposals to change the legislation?
In October 2017, the Authority launched a public consultation to modernise and simplify the French merger control rules. In light of this consultation, in June 2018, the Authority took the view that:
- the existing French merger control notification thresholds remain appropriate, and that introducing a transaction value notification threshold would not be relevant at this stage;
- the introduction of a targeted ex-post merger control review should be further explored;
- the current notification form should be simplified (notably by removing requests for certain financial information);
- the simplified procedure should be enlarged (eg, by including certain merger involving limited horizontal and vertical overlaps) and an ‘ultra-simplified’ online procedure should be introduced for the mergers that today fall within the scope of the simplified procedure (ie, those with no overlap); and
- the current merger control guidelines should be revised.
As a result of this process, the Decree of 18 April 2019 for the simplification of the national merger control procedure implemented a number of measures aiming at alleviating the burden on companies making a prior notification of their transaction to the Authority (see question 16).
As regards the simplified procedure, an online notification form is currently in testing phase and is expected to be operational shortly.
Also, the issuing of new merger control guidelines is still being considered by the Authority.
The possible introduction of an ex-post (ie, post-closing) merger control review by the Authority is still under discussion, following the dedicated public consultation on this subject that ended in September 2018. Numerous stakeholders have pointed out that an ex-post regime would generate significant legal uncertainty for undertakings. It is expected that the Authority will soon provide its views on this matter.
Update and trendsKey developments of the past year
What were the key cases, decisions, judgments and policy and legislative developments of the past year?Key developments of the past year36 What were the key cases, decisions, judgments and policy and legislative developments of the past year?
See question 35.