FRANCE Law and Practice Contributed by: Malik Idri and Mathieu Relange, FTPA Avocats
3.4 Parties Responsible for Filing The obligation to notify a merger to the FCA falls on: • the natural or legal persons acquiring control of all or part of an undertaking; and • in the case of a merger or the creation of a joint venture, all parties concerned. They must notify jointly. For new shareholders acquiring joint control, all par - ties holding joint control – including those who already held control prior to the transaction – must notify jointly. 3.5 Information Included in a Filing Content of the Filing The information required in a French merger filing is outlined in Annexes 4-3 to 4-5 FCC, and a model noti - fication form is available on the FCA’s website. The filing comprises five sections: • description of the transaction; • presentation of the undertakings concerned and their groups; • presentation of the markets concerned, including market definitions and market shares; • detailed presentation of each affected market. This is only required if a market is “affected” (see 4.2 Markets Affected by a Transaction ); and • statement attesting to the accuracy and complete - ness of the information provided. The description of the transaction must include a non-confidential summary of up to 500 words for publication on the FCA’s website to allow third-party observations. It must identify the undertakings and their activities but may not pre-assess the competitive effects of the transaction. Copies of legal instruments (eg, agreements, distribu - tion or franchise contracts) necessary to understand the transaction must be appended to the filing. Language and Translation The filing must be submitted in French. For docu - ments drafted in a foreign language, translation may
be limited to the excerpts that are necessary for the FCA’s review. No certification, notarisation or apostille is required for translations. The notifying party is fully responsible for the accuracy, completeness and verification of all information provided to the FCA (Guidelines, § 216). Simplified and Electronic Procedures Simplified filing is available for transactions unlikely to raise competition concerns, with reduced information requirements (Guidelines, § 230). Electronic notification is permitted for certain transac - tions, including: • retail transactions not involving a change of trade name; • motor vehicle distribution transactions; and • transactions with no horizontal, vertical or con - glomerate overlap. Specific forms for electronic notification are set out in paragraph 239 of the FCA Guidelines. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification Providing inaccurate or misleading information in a notification constitutes a sanctionable procedural infringement, regardless of the substantive outcome of the case. According to Article L. 430-8 FCC, parties may be liable to fines up to 5% of the undertaking’s turnover achieved in France during the last financial year, and for up to EUR1.5 million for individuals. Beyond financial penalties, the Authority may with - draw the clearance decision. In practice, the FCA has already withdrawn merger clearances, ordered re-notification, and imposed fines. In the Vico case (2006), parties were fined EUR10,000 for failing to declare the acquisition of another undertaking active in markets concerned by the transaction. Such cases remain quite rare. 3.7 Review Process For the pre-notification process, please see 3.8 Pre- Notification Discussions With Authorities .
237 CHAMBERS.COM
Powered by FlippingBook