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Process and timing
Is the notification process voluntary or mandatory?
The notification process is mandatory.
What timing requirements apply when filing a notification?
No timing requirements apply when filing a notification. However, filing must occur and merger clearance must be obtained before closing. Therefore, the proposed transaction should be notified sufficiently early to allow closing to occur on or before the date agreed by the parties to the concentration.
What form should the notification take? What content is required?
A standard form is available at www.autoritedelaconcurrence.fr/doc/formulaire_notification_concentration.pdf.
Detailed information will be provided regarding:
- the parties;
- the transaction;
- the relevant and affected markets; and
- the parties’ shares in the relevant and affected markets.
In particular circumstances, a transaction can be eligible for a simplified procedure. In this context, a simplified form can be completed. The guidelines stipulate the eligibility conditions for a simplified procedure.
Is there a pre-notification process before formal notification, and if so, what does this involve?
Yes, a pre-notification process is available to parties to a concentration. Pre-notifying prevents the risk of the FCA declaring a filing incomplete and the party having to restart the process.
Can a merger be implemented before clearance is obtained?
A proposed transaction should not be implemented before merger clearance.
Guidance from authorities
What guidance is available from the authorities?
On July 10 2013 the French Competition Authority (FCA) published revised merger guidelines, replacing those of December 2009, which are available at: www.autoritedelaconcurrence.fr/doc/ld_concentrations_juill13.pdf.
For case-specific guidance, parties may pre-notify a proposed transaction in order to initiate informal discussions with the FCA.
What fees are payable to the authority for filing a notification?
No filing fees apply.
Publicity and confidentiality
What provisions apply regarding publicity and confidentiality?
Information that contains business secrets and is provided by the parties in the course of the notification process is kept confidential.
After the notification of a proposed transaction, the FCA publishes a brief summary of the case on its website (www.autoritedelaconcurrence.fr/user/dccencours.php). This brief summary contains limited information, including:
- the identity of the parties concerned;
- the nature of the operation; and
- the sectors of activity concerned.
Non-confidential versions of FCA decisions are publicly available on its website (www.autoritedelaconcurrence.fr/user/tableaudcc.php).
Are there any penalties for failing to notify a merger?
Several types of penalty may be imposed on parties that fail to file a reportable transaction. The parties may be ordered, subject to a periodic penalty, either to file the concentration or demerge. Further, the FCA can fine:
- undertakings up to 5% of their pre-tax turnover in France (as reported for the past financial year); and
- individuals up to €1.5 million.
However, no criminal penalties apply for failure to notify.
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