Merger control in France: overview
A Q&A guide to merger control in France.
The Q&A gives a high level overview of merger control, regulatory framework and regulatory authorities, relevant triggering events and thresholds in France. It also covers notification requirements, procedures and timetables, publicity and confidentiality, third party rights, substantive test, remedies, penalties, appeals, joint ventures and proposals for reform.
For information on restraints of trade, monopolies and abuses of market power in France, visit Restraints of trade and dominance in France: overview.
This Q&A is part of the global guide to competition and cartel leniency. For a full list of jurisdictional Merger Control Q&As visit www.practicallaw.com/mergercontrol-guide. For a full list of jurisdictional Restraints of Trade and Dominance Q&As visit www.practicallaw.com/restraintsoftrade-guide.
For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-guide.
The applicable provisions to merger control in France are:
Articles L.430-1 to L.430-10 and R.430-1 to R.430-10 of the French Commercial Code (FCC).
Merger Control Guidelines on the implementation of the above provisions (Guidelines), adopted by the French Competition Authority (Autorité de la concurrence) (FCA) (see below, Regulatory authority) in 2013.
French legislation refers to Regulation (EC) 139/2004 on the control of concentrations between undertakings and the Guidelines also refer to the Commission Consolidated Jurisdictional Notice on the control of concentrations between undertakings (2008/C 95/01).
The regulatory authority responsible for merger control is the FCA, which is an independent administrative authority.
The Minister of Economy, who was formerly in charge of implementing merger control until 2009, still holds the following residual powers (Article L.430-7-1, FCC):
At the end of Phase 1, even if the concentration is cleared by the FCA, the Minister of Economy can request to open a Phase 2 investigation.
At the end of Phase 2, in exceptional circumstances, the Minister of Economy can decide to overturn the FCA's decision for reasons of public interest that are different from the protection of competition, such as industrial development, to preserve the competitiveness of the undertakings involved in the context of global competition or to maintain employment.
A concentration arises in one of the following circumstances (Article L.430-1, French Commercial Code (FCC)):
When two or more undertakings previously independent from each other merge.
When one or several individuals or undertakings acquire control of all or part of one or more undertaking(s).
When a joint venture or common undertaking fulfilling all the functions of an independent economic entity on a lasting basis (that is, a full-function joint venture) is created.
''Control'' arises from the rights, contracts or any other means that enable a party to exercise a decisive influence on the activity of an undertaking.
''Decisive influence'' is the power to impose or block the adoption of strategic commercial decisions of an undertaking. The ability to exercise this influence is sufficient to qualify as a decisive influence; it does not have to be effectively exercised.
''Control'' can be taken and/or exercised individually or jointly. Minority interests may be caught when specific rights are attached to the minority shareholding (for example, veto rights on the appointment of senior management, on the approval of the budget or of the business plan) and enable the minority shareholder to block the strategic commercial decisions of the undertaking.
Control can be established on a de jure or a de facto basis.
A concentration must be notified to the French Competition Authority (FCA) when all of the following cumulative thresholds are met (Article L.430-2, FCC):
The total pre-tax worldwide turnover of all the undertakings concerned during the previous financial year exceeds EUR150 million.
The individual total pre-tax turnover in France of each of at least two of the undertakings concerned exceeds EUR50 million.
The transaction is not caught by Regulation (EC) 139/2004 on the control of concentrations between undertakings (Merger Regulation).
Those thresholds are reduced respectively to EUR75 million and EUR15 million in the case of a concentration involving undertakings in the retail trade sector or undertakings operating in French overseas territories.
The turnover is calculated in accordance with Article 5 of the Merger Regulation and with the Commission Consolidated Jurisdictional Notice on the control of concentrations between undertakings (2008/C 95/01).
Mandatory or voluntary
Notification is mandatory for all concentrations that meet the requisite thresholds and conditions (see Question 2). No exceptions are provided by the law.
A concentration must be notified before completion. Notification can be made as soon as the parties concerned can present a sufficiently binding commitment (for example, by a binding letter of intent or a memorandum of understanding). It is not necessary to wait for the parties to execute the final purchase agreement.
Pre-notification and formal/informal guidance
Pre-notification is advisable, though not compulsory. The draft application form can be submitted by e-mail to the French Competition Authority (FCA) at the following address: email@example.com.
Pre-notification discussions are likely to cover:
The scope and amount of information to be provided in the form, for the formal notification to be deemed complete.
Market definition issues.
Initial competition concerns identified by the case team of the FCA.
The FCA will often request additional information during pre-notification. Once the draft application has been supplemented with the information requested by the case team, the concentration can be officially notified.
Pre-notification discussions are generally confidential. However, the FCA can ask the notifying party for permission to conduct a market test (that is, seek the views of customers, competitors and suppliers, during the pre-notification phase to assess early on whether the transaction is likely to raise competition concerns).
Responsibility for notification
The concentration must be notified by the party that acquires the control (see Question 2, Triggering events). In the case of the creation of a joint venture or an acquisition of joint control over an existing company, all controlling parent companies must file a joint notification.
Notification must be made to the FCA.
Form of notification
The template merger notification form is available online (www.autoritedelaconcurrence.fr/doc/formulaire_notification_concentration.pdf).
The notification file must include all of the following:
A description of the concentration.
A description of the undertakings concerned and the groups to which they belong.
A definition of the relevant product and geographic markets and the market shares of the parties and their main competitors.
The parties must provide more detailed information for any "affected" markets. A market is deemed to be affected by the transaction if one of the following applies:
The parties have a combined market share of 25% or more.
The parties operate on upstream, downstream or connected markets and they have a market share of 25% or more on one of those markets.
The concentration leads to the potential disappearance of a competitor.
Four hard copies (sent by registered post with acknowledgment of receipt or hand-delivered) and one electronic copy of the application must be supplied to the FCA.
There is no filing fee.
Obligation to suspend
The notification has the effect of suspending the transaction and the transaction must not be completed before the FCA's clearance decision.
In exceptional circumstances, such as the takeover of a firm in insolvency proceedings, the FCA can, on request of the notifying party, grant a derogation from the suspension obligation and authorise the parties to implement the transaction prior to approval.
In the case of a public takeover bid, the suspension obligation does not prevent the purchaser from acquiring the shares of the target, provided that the voting rights attached to the shares are not exercised until clearance is obtained.
Procedure and timetable
Once the transaction has been notified and the notification file is considered complete, the French Competition Authority (FCA) has 25 business days to review it (Phase 1). At the end of Phase 1, the FCA can:
Decide that the transaction is not subject to a notification obligation.
Authorise the transaction, possibly subject to remedies.
Initiate an in-depth investigation (Phase 2), if serious doubts remain as to the anti-competitive effects of the transaction.
If the FCA does not make any decision at the end of Phase 1, it must inform the Minister of Economy. The transaction is deemed approved if the Minister does not request the opening of a Phase 2 investigation within five working days.
The 25-business day period can be reduced when the circumstances allow the FCA to issue an early decision. It can also be extended up to 15 business days at the parties' request, and up to 15 additional business days when the parties submit commitments (see Question 10).
However the extension cannot exceed 60 working days.
When there are still serious doubts of anti-competitive effects at the end of Phase 1, or at the request of the Minister of Economy, the FCA can initiate an in-depth investigation (Phase 2).
The FCA sends a report to the notifying parties and to the representative of the Minister, who can submit observations within 15 business days. The parties can also offer commitments to remedy the anti-competitive concerns identified. A hearing takes place at the FCA.
At the end of Phase 2, the FCA can either:
Prohibit the concentration and order the parties to take any appropriate measures to restore a sufficient level of competition.
Authorise the transaction and order the parties to implement appropriate measures to ensure a sufficient level of competition or to comply with requirements aiming at compensating for the distortion of competition.
The decision is notified to the Minister of Economy, who has 25 working days to overturn the FCA's decision for reasons of general interest (see Question 1, Regulatory authority). To date, the Minister has never used this power.
The final decision is issued within 65 working days from the opening of Phase 2. However, it may be extended in one of the following circumstances:
If the commitments are not offered 20 business days before expiry of the 65-working day review period, this time limit may be extended for 20 additional working days.
A "stop-the-clock" mechanism also allows the parties to request a maximum 20-working day extension to finalise their remedies' proposal.
The FCA can also use the "stop-the-clock" mechanism when the parties fail to provide the information requested or to inform it of any new facts. The procedure is suspended until information is communicated.
Publicity and confidentiality
The notification file is not public. However, the French Competition Authority (FCA) will publish on its website a short non-confidential summary of the concentration when it is notified, and a press release, when it decides to open a Phase 2 investigation.
The final decision is published in full on the FCA's website, subject to any business secrets of the parties (see below, Confidentiality on request).
There is no automatic right to confidentiality. The parties can submit a confidential request (see below, Confidentiality on request), otherwise the decision is published in full on the FCA's website.
Confidentiality on request
After being notified of the FCA's decision, the parties have 15 working days to submit a confidentiality request on the information covered by business secrecy and a proposal for a redacted non-confidential version of the decision.
The following information is generally deemed to constitute business secrets:
Manufacturing or industrial secrets.
Recent turnover data, which are not public.
Market shares (replaced by ranges).
Recent financial information that is not public (such as production costs, prices, margins and investment projects).
Other information can also be redacted if the request is based on serious grounds.
Rights of third parties
Following the publication of the summary of the notified concentration, any interested third parties can submit comments within a time limit specified by the French Competition Authority (FCA).
In addition, where the transaction leads to affected markets or where the FCA deems it appropriate, it can conduct a market test (that is, send requests for information to customers, suppliers, and competitors to seek their views, notably on market definitions and the impact of the proposed transaction).
Where the notifying party offers commitments, the FCA will also conduct a market test to assess whether the proposed remedies adequately address competition concerns.
Third parties only have access to non-confidential information that the FCA deems necessary to communicate to them in the context of the review procedure.
Third parties have no specific rights to be heard during the transaction's review procedure.
The substantive test is the same as under Regulation (EC) 139/2004 on the control of concentrations between undertakings (that is, whether there is a substantial lessening of competition). The French Competition Authority (FCA) examines whether the transaction may lessen competition, notably by creating or strengthening an individual or a collective dominant position.
To clear a transaction in Phase 1, the FCA must be satisfied that the transaction raises no competition concerns or that any competition concerns have been properly addressed by the remedies submitted by the parties.
If the FCA still has "serious doubts" about the impact of the transaction on competition at the end of Phase 1, it will open a Phase 2 investigation. In Phase 2, the FCA further examines whether the transaction may lessen competition. It also assesses whether the potential anti-competitive effects can be outweighed by efficiencies or consumer benefits resulting from the transaction. If the Phase 2 investigation confirms that the transaction raises serious competition concerns, the parties must offer suitable remedies.
When examining the proposed acquisition of Imerys' assets (a company that specialises in the manufacturing and marketing of structural materials) by Boyer-Leroux (Decision No 13-DCC-101 of 26 July 2013), the FCA considered that the commitments offered by Boyer-Leroux in Phase 1 were not sufficient to remove competition concerns and therefore opened a Phase 2 investigation. In Phase 2, Boyer-Leroux offered new commitments, which were considered sufficient by the FCA to authorise the transaction.
During a Phase 2 investigation, the French Competition Authority must assess whether the efficiency gains expected from the merger may be of benefit to consumers, and whether they are sufficient to outweigh the identified anti-competitive effects. Merged firms can counter any apparent reduction of competition caused by the merger by showing efficiency gains that are quantifiable, verifiable and merger-specific, and that a portion of these gains are then passed on to consumers.
It is possible for merging parties to raise a failing/exiting firm defence. For example, in the case of a purchase of a firm that would otherwise have shortly exited the market, the French Competition Authority can potentially authorise the transaction, despite anti-competitive effects, to the extent that:
The difficulties experienced by the failing firm are such that it would quickly exit the market in the absence of a takeover.
There is no other purchase offer that would be less anti-competitive.
The disappearance of the failing company would be more harmful to consumers than the proposed transaction.
Remedies, penalties and appeal
Remedies can be offered by the notifying parties anytime during Phase 1 and Phase 2 to address competition concerns expressed by the French Competition Authority (FCA).
Remedies can be structural or behavioural. The FCA gives preference to structural remedies, which include notably divestitures of assets. Structural remedies may be supplemented by behavioural remedies, which aim at ensuring or favouring the competitors' access to the market. To be accepted, commitments must be effective (that is, adequately address the FCA's concerns), verifiable, neutral and proportionate.
The FCA's timetable for reviewing a notified transaction (Phase 1) can be extended by up to 15 business days when the parties submit commitments (see Question 4, Phase 1).
When authorisation of the transaction by the FCA is conditional on remedies, the FCA can appoint an independent third party (a trustee) to monitor the actual implementation of the remedies. It can also send information requests to the parties and third parties, and make use of any information spontaneously provided by third parties.
Failure to notify correctly
If the notifying parties provide inaccurate information or omit to provide information in the notification process, the French Competition Authority (FCA) can impose a fine on the failing firm of up to 5% of its annual turnover generated in France plus, if relevant, 5% of the acquired business. For individuals, the fine is capped at EUR1.5 million.
Implementation before approval or after prohibition
A firm that carried out a notifiable merger without having first notified it or without waiting for the clearance decision (that is, ''gun-jumping'') can be ordered to:
Notify the transaction.
Unwind the transaction to a pre-merger state.
Pay a daily financial penalty of up to 5% of its daily turnover.
The sanctions on a firm that implemented a transaction after prohibition are similar to the sanctions for an incorrect notification (see above, Failure to notify correctly).
Failure to observe
When a party fails to observe the FCA's decision, the FCA can:
Order the implementation of the commitments, or new commitments as a substitute to the commitments provided in the decision.
Order the payment of a daily financial penalty (up to 5% of the average daily turnover for each day's delay as of the decision date).
Withdraw its authorisation, whereby the parties must return to the previous situation (which is almost always impossible) or re-notify within one month.
In addition, the sanctions on a firm that failed to observe an FCA decision are similar to the sanctions for an incorrect notification (see above, Failure to notify correctly).
Rights of appeal
All decisions of the French Competition Authority (FCA) and of the Minister of Economy in relation to merger control can be appealed before the French Administrative Supreme Court (Conseil d'Etat).
The appeal can be lodged by the notifying parties and by any interested third party within two months:
For the parties: from the notification date of the FCA's decision.
For third parties: from the date of publication of the decision.
To prevent the effects of the decision, the claimant can also request interim measures, such as the suspension of the FCA's decision.
The appeal process can take between eight months and two years.
Third party rights of appeal
A third party can challenge the FCA's decisions if it can demonstrate that its situation or rights may be adversely affected by the FCA's decision. This condition will generally be met by competitors.
Automatic clearance of restrictive provisions
Restrictive provisions (such as non-compete or exclusive supply obligations not exceeding three years in the case of an acquisition) may be automatically cleared by the French Competition Authority's authorisation decision, provided they are directly related and necessary to the implementation of the transaction (that is, in their absence, the transaction could not have been implemented). The Merger Control Guidelines (see Question 1, Regulatory framework) state that the Notice on restrictions directly related and necessary to concentrations (OJ 2001 C188/05) provides useful guidance for the assessment of these restrictions.
Other restrictive provisions that are not directly related and necessary to the implementation of the transaction can still benefit from an individual exemption, provided they comply with the criteria set out under Articles L.420-4 of the French Commercial Code and 101(3) of the Treaty on the Functioning of the European Union.
Regulation of specific industries
The following industries are specifically regulated:
Retail sector: the notification thresholds are lower (see Question 2, Thresholds).
Broadcasting, banking and insurance sectors: the French Competition Authority (FCA) must consult the competent sector-specific regulatory authority when it starts a Phase 2 investigation.
Media sector: there are restrictions on conglomerate mergers in newspapers, radio and television.
In the retail sector, the Law for economic growth and activity No 2015-990 of 6 August 2015 also introduced an obligation to report to the FCA the creation of any joint purchasing or negotiating alliances or joint ventures (typically non-concentrative entities) when specific turnover thresholds are met at least two months before their implementation.
Joint ventures are subject to merger control (see Question 2, Triggering events), provided that they perform all the activities of an independent economic entity on the market, on a lasting basis. In particular, they must have sufficient resources, in particular in terms of staff and financial resources, to operate in the market autonomously from their parent companies.
Regulation (EC) 139/2004 on the control of concentrations between undertakings (Merger Regulation) provides an efficient system of exchange of information between national competition authorities (NCAs), which is necessary to avoid duplicating the notification process in EU member states. The following provisions aim to implement this principle:
The European Commission must transmit copies of the notifications and most important documents it receives to national authorities (Article 19, Merger Regulation). Member states can express their views on those procedures.
In the case of parallel notifications in several member states, the European Competition Authorities (ECA) working group provides for a systematic minimum exchange of information mechanism, which aims to encourage joint referral to the Commission and avoid multiple notifications.
Non-binding Best Practices on co-operation between NCAs in merger review, implemented within the European Competition Network in 2011, also provides for a mechanism of exchanging information to allow NCAs to discuss transactions subject to their review, markets concerned and remedies considered. It also ensures the protection of the parties' business secrets.
In addition, best practices and protocols on co-operation have also been implemented by the ECA regarding the exchange of information with competition authorities in the US, in Australia and in New Zealand.
The following notable recent mergers have been reviewed by the French Competition Authority (FCA):
Acquisition of Darty by Fnac. Following a Phase 2 investigation, the FCA cleared the acquisition of Darty (a specialised retailer for brown and grey products) by the Fnac group, subject to the divestiture of six stores in Paris. For the first time the FCA considered that the relevant markets included both sales completed in-store and online. It deemed that competitive pressure exerted by online sales had become significant enough to be integrated in the concerned market, whether it comes from pure players (such as Amazon or Cdiscount) or from the stores' own websites (No 16-DCC-111, 18 July 2016).
Acquisition of Quick by Burger King. The FCA cleared the acquisition of Quick by Burger King, subject to the termination of a franchise agreement in Corsica. Corsica was the only area where the transaction raised competition issues as other major fast food restaurants were not present (No 15-DCC-170, 10 December 2015).
The Law for economic growth and activity No 2015-990 (Macron Law) was adopted on 6 August 2015 and introduced the following measures to enhance the French Competition Authority's (FCA) procedural efficiency:
New conditions for the granting of a derogation to implement the agreement before the notification. The parties must submit a notification within three months of their request for a derogation (Article L.430-4, French Commercial Code (FCC)).
Introduction of a "stop-the-clock" mechanism in Phase 1 when the notifying parties fail to inform the FCA of any new significant event, when they fail to submit requested information within the time limits, or when third parties failed to submit requested information for reasons attributable to the notifying parties (Article L.430-5, FCC).
Specifications on the calculation of notification thresholds in the French overseas territories (Article L.430-2, FCC).
Extension of the Minister of Economy's powers when evoking a case. If he considers that the parties failed to comply with their commitments, the Minister can withdraw the authorisation, order the parties to comply with their commitments or to comply with substituted commitments (Article L. 430-7-1, FCC).
The French Constitutional Court (Conseil Constitutionnel) invalidated provisions of the bill that aimed to enable the FCA to impose structural injunctions in the retail sector. In particular, it considered that it was a disproportionate restriction on an undertaking's freedom to conduct business and property rights, as the FCA did not have to evidence any abuse of dominant position from the company.
There are no ongoing reforms of the French merger control regime.
French Competition Authority (Autorité de la Concurrence) (FCA)
Description. The FCA's website provides all the applicable legislation, formal and informal guidelines, as well as all official decisions regarding competition. It also provides English translations of some materials (such as guidelines, press releases and some decisions).
Directorate-General for Competition, Consumer Affairs and Fraud Control (DGCCRF)
Description. The official DGCCRF website provides information on competition regarding the decisions of the Minister of Economy, and studies on competition matters.
The regulatory authority
French Competition Authority (Autorité de la concurrence) (FCA)
Head Isabelle de Silva
Contact details – 11, rue de l'Échelle, 75001, Paris, France
T +33 155 040 000
F +33 155 040 022
Outline structure. See the organisational chart available on the FCA's website:
Responsibilities. The FCA is responsible for the enforcement of competition rules regarding anti-competitive practices and merger control. It also has consulting functions.
Procedure for obtaining documents. All public documents are available on the FCA's website.
Sergio Sorinas, Partner
Herbert Smith Freehills Paris LLP
Professional qualifications. Lawyer, Paris and Barcelona Bars
Areas of practice. All aspects of EU and French competition law, including merger control, anti-trust, distribution, compliance and state aid.
Acting for Lagardère Services in obtaining French merger control clearance for the extension of its joint venture with Aéroports de Paris.
Advising Gecina in securing French merger control clearance for its public bid over Foncière de Paris.
Acting for Photobox in connection with merger control approvals for the acquisition of Photobox by Exponent and Electra.
Languages. French, English, Spanish
Marie Louvet, Associate
Herbert Smith Freehills Paris LLP
Professional qualifications. Lawyer, Paris Bar
Areas of practice. All aspects of EU and French competition law, including merger control, anti-trust, distribution, compliance and state aid.
Languages. French and English.