FRANCE Law and Practice Contributed by: Malik Idri and Mathieu Relange, FTPA Avocats
The formal notification occurs once the transaction is considered as a “sufficiently advanced project”. The FCA assesses the completeness of the notification within ten working days of submission. The FCA also provides an indicative response within ten working days to confirm whether the operation qualifies for the simplified procedure (Guidelines, § 232). Upon receipt of a complete notification, and generally a few days after filing, the FCA also publishes a notice on its website (Articles L 430-3 FCC). Phase I Review The first phase lasts 25 business days, starting on the working day after receipt of the notification. The FCA can propose an extension of 15 working days if the parties offer commitments. Parties may also request an additional 15 business days under Article L. 430-5 FCC, for “special needs”, such as finalising commit - ments. The FCA investigates to determine whether (i) the transaction falls outside the scope of Article L. 430-2 FCC or can be cleared, or (ii) whether there are serious doubts about the potential harm to the affected mar - ket, warranting an in-depth investigation (Phase II). At the end of its Phase I review, the FCA may there - fore: (i) approve the transaction, (ii) prohibit the trans - action, (iii) clear the transaction subject to remedies, or (iv) initiate Phase II for further investigation. Phase II In-Depth Review Phase II begins if the FCA retains serious doubts about the merger’s risks to the market. Under Article L. 430-7-1 FCC, the Minister of the Economy may also request an in-depth analysis, though the FCA is not bound to comply. Phase II must be completed within 65 business days from its opening (under Article L. 430-7 FCC). The parties may also request a suspension of up to 20 business days for special needs (eg, finalising com - mitments). The FCA may suspend the timetable if the parties fail to inform it of a new relevant fact, or if the parties do not provide requested information within the prescribed time limit (or if third parties fail
to respond for reasons attributable to the notifying parties). The deadline is also postponed by 20 working days after receipt of the commitments, with a maxi - mum duration of 85 business days. The purpose of Phase II is to assess (i) whether the transaction is likely to harm competition, in particular by creating or strengthening a dominant position, (ii) whether it is likely to create or strengthen buyer power that would place suppliers in a situation of economic dependence, and (iii) whether the transaction makes a sufficient contribution to the economy to offset any restrictive effects on competition. A hearing may be organised before the decision, where the Collège (the FCA’s decision-making body) hears case handlers, the parties and the Ministry of the Economy. By the end of Phase II, the FCA will either approve the merger, impose remedies or commitments, or prohibit the transaction. Under Article L. 430-7-I FCC, the Minister of the Econ - omy may “call in” the case within 25 working days for reasons of general interest other than competition (see 4.6 Non-Competition Issues ). 3.8 Pre-Notification Discussions With Authorities The 2020 Guidelines introduced an additional optional step before the pre-notification phase. Parties may request the assignment of a case handler to begin reviewing the transaction. Upon request, the FCA will appoint a deputy head of unit within five working days to oversee the case (Guidelines 2020, § 190). This step is similar to the European Commission’s “case team allocation request” process. Pre-notification is optional, but possible. It is par - ticularly useful in cases involving uncertainties about the controllability of the transaction, complex market delineation or competitive analysis, as well as when parties intend to refer the case to the European Com - mission. It also allows the notifying party to ensure it meets the filing completeness requirement under R. 430-2 FCC. If the controllability of the transaction is in question, the Mergers Unit will review the evidence.
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