FRANCE Law and Practice Contributed by: Malik Idri and Mathieu Relange, FTPA Avocats
applies exclusively to printed daily newspapers of general political information ( information politique et générale ) and does not extend to magazines or other periodicals. 1.3 Enforcement Authorities Merger control in France is enforced by the FCA, an independent administrative authority. The Minister of Economy retains limited residual pow - ers under Article L. 430-7-1 FCC: • the Minister may request the FCA to initiate a Phase II review at the end of Phase I, although the FCA retains full discretion as to whether to act upon such a request; • if a Phase II investigation is conducted, the Minis - try of Economy receives the FCA’s report and may submit observations; and • after the FCA issues its final Phase II decision, the Minister may call in its power on public inter - est grounds (excluding competition concerns) and overturn the FCA’s decision. The Minister exercised this power only once, in 2018. Appeals against FCA merger decisions lie with the Conseil d ’ Etat (French Administrative Supreme Court) (see 8. Appeals and Judicial Review ). 2. Jurisdiction 2.1 Notification Pre-merger notification is mandatory when the juris - dictional thresholds are met. 2.2 Failure to Notify Where the jurisdictional thresholds are met, the acquiring party – or, in the case of a merger or joint venture, all parties concerned – must notify the FCA before completion, and refrain from implementing the transaction prior to clearance, unless a derogation is granted under Article L. 430-4 FCC. If a transaction has been implemented without prior notification, the FCA may order the parties, under periodic penalty payments, to submit a notification, unless they unwind the transaction (Article L. 430-8,
I FCC). In addition, the FCA may impose a fine for failure to notify. Sanctions for failure to notify may be cumulated with those imposed for gun-jumping (implementing a con - centration before the FCA’s clearance decision) (see 2.13 Penalties for the Implementation of a Transac- tion Before Clearance ). In both cases, fines may reach up to 5% of the French turnover of the undertakings concerned, regardless of intent. Intent will be considered only when determining the fine amount. The FCA has imposed several fines for failure to noti - fy and breach of the standstill obligation. The most recent case is Decision No 22 D 10 of 12 April 2022, in which the FCA fined COFEPP EUR7 million for both failing to notify its acquisition of Marie Brizard Wine & Spirits without prior notification, and completing the transaction without clearance. Pursuant to Article L. 462-7, I FCC, the FCA cannot examine facts that occurred more than five years before the date of the change of control, unless inves - tigative, establishment or sanctioning measures were taken within that period. 2.3 Types of Transactions Under Article L. 430-1 FCC, a concentration shall be deemed to arise in the following cases: • a merger between two or more previously inde - pendent undertakings; • the acquisition of control (directly or indirectly, in whole or in part) over one or more undertakings by one or more undertakings, through the purchase of securities or assets, contracts or any other means (including shareholders’ agreements or changes to the articles of association that result in a change of control); and • the creation of a joint venture that performs, on a lasting basis, all the functions of an autonomous economic entity. 2.4 Definition of “Control” The notion of control in French law is aligned with the definition under EU merger control. Under Article L.
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