FRANCE Law and Practice Contributed by: Véronique Millischer, Léna Sersiron, Eléonore d’Anthonay, Guillaume Nataf, Olivia Chriqui-Guiot, Pauline Celeyron, Damien Berruyer and Nella Picou, Baker McKenzie Paris
Criteria for Antitrust/Competition Review The extent of the competitive assessment by the FCA will largely depend on the impact of the concentration on the market. Concentrations that are eligible for a simplified procedure (eg, operations that are unlikely to cause any harm to competition) will require signifi - cantly less information than standard filings. In standard filings, the parties are expected to pro - vide market share and competitor information and describe the competitive environment in which the new entity will compete post-concentration, includ - ing the existence of barriers to entry, the existence of countervailing buyer power, the potential entry of new players, and the existence of spare capacity. 6.2 Merger Control Procedure The notification process is divided into the following three phases: • Pre - notification phase : Pre-notification is not man - datory but is encouraged for cases that may raise concerns (eg, preliminary questions on controllabil - ity or if it is anticipated that the transaction will give rise to competition issues). The pre-notification phase takes about one to two weeks and can be longer for complex cases. The FCA indicates in its guidelines that a notification that has undergone an effective pre-notification phase is generally declared complete on the day on which it is sub - mitted. Transactions eligible for the simplified pro - cedure are notified directly, without pre-notification. • Phase I : This phase takes about 25 workings days. If commitments are offered, this phase can be extended by a further 15 working days, and an additional 15 working days may be granted at the request of the parties. Following a Phase I review, the FCA can authorise the concentration (either unconditionally or subject to remedies) or, if serious doubts remain as regards anti-competitive effects, initiate an in-depth examination known as Phase II. • Phase II ( for complex cases only where an in - depth analysis is necessary ): Phase II takes about another 65 workings days. If commitments or amend - ments to commitments are submitted less than 20 days before the decision deadline, the review period may be extended by 20 working days, up to
a maximum of 85 working days. The parties may request a further extension of 20 working days. Following a Phase II decision, the Minister of the Econ - omy may call in the case to review the concentration on grounds other than that of maintaining competition, such as general interest, industrial development and employment concerns. Suspensory Filing Filing is suspensory. Therefore, the transaction cannot be implemented prior to the FCA’s clearance. The FCA can impose a fine of up to 5% of the entity’s French turnover for failure to notify or for early imple - mentation. In the event of failure to notify operations, the party responsible for notification must resubmit the notification. 6.3 Cartels Article L. 420-1 of the FCC prohibits agreements and concerted practices which have as their object or effect the prevention, restriction or distortion of com - petition in a market. It is the national equivalent to Article 101 of the TFEU. In particular, such practice is prohibited where it (i) lim - its access to the market or the free exercise of com - petition by other undertakings, (ii) impedes the deter - mination of prices by the free play of market forces by artificially encouraging the increase or reduction of prices, (iii) limits or controls production, markets, investment or technical development, or (iv) shares markets or sources of supply. French competition law applies concurrently with EU competition law. In practice, the FCA, which is empowered to apply EU competition law, enforces national provisions in line with the decisional practice of the EC and the case law of the EU courts, reflecting the principles of effectiveness and the direct applica - bility of EU law within the national legal order. The FCA has jurisdiction where it can be established that there is a sufficiently close connection between the alleged infringement and the French territory. Such a close connection will be established where the fol - lowing cumulative conditions are met:
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