FRANCE Law and Practice Contributed by: Malik Idri and Mathieu Relange, FTPA Avocats
3.10 Accelerated Procedure A simplified filing allows parties to provide less infor - mation due to a lightened notification process. The review typically lasts 15 business days. The FCA Guidelines (§231) outline the criteria for determining whether a transaction qualify for this procedure. A transaction may qualify if: • the combined market share of the undertakings concerned is below 25% on markets consistently defined in past decisions; • for horizontal overlaps, the combined market share of the undertakings concerned is below 50%, and the increment in market share resulting from the transaction is less than 2% on markets consist - ently defined in past decisions; • for vertically related markets, the combined mar - ket share is below 30% on markets consistently defined in past decisions; • for related markets, the market shares of the undertakings concerned are below 30% on mar - kets consistently defined in past decisions; • the transaction involves the acquisition of sole control over an undertaking in which the acquirer already exercised joint control prior to the transac - tion; • the transaction involves the creation of a full func - tion joint venture whose economic activity is car - ried out exclusively outside France; and • the transaction involves the acquisition of joint control over a real estate asset for sale in a future state of completion.
If the transaction is not subject to FCA control, the notifying party will receive a comfort letter signed by the Head of the Mergers Unit. To initiate a pre-notification phase, the transaction must be sufficiently advanced (not theoretical) to ini - tiate pre-notification. The notifying party must submit a detailed presenta - tion of the transaction, including a description of the undertakings involved, a description of the proposed transaction, an analysis of controllability, and infor - mation on relevant markets, competitors and market shares. This presentation may take the form of a preliminary notification file in line with Appendix 4-3 FCC. Not all appendices need to be attached initially; additional documents may be requested later by the case han - dler. If the notifying party plans to include ad hoc economic studies in the notification file, working meetings may be held with the Mergers Unit and the Chief Econo - mist’s team to ensure the methodology is robust. The entire pre-notification phase is strictly confidential and not publicised on the FCA’s website or shared with third parties. However, with the prior written con - sent of the notifying party, the FCA may conduct a market test to gather additional information, helping to minimise the risk of incompleteness or anticipate competition concerns. 3.9 Requests for Information During the Review Process Information requests are common during the review process, depending on the complexity of the case. Information requests as such do not halt the statu - tory review periods. However, the FCA may “stop the clock” and suspend the review when the parties do not provide requested information within the prescribed time limits, and where third parties fail to respond for reasons attributable to the notifying parties.
4. Substance of the Review 4.1 Substantive Test
Under Article L. 430-6 FCC, the FCA must determine if the operation “may harm competition”, particularly through the creation of strengthening of a dominant position, or the creation or strengthening of purchas - ing power that places suppliers in a situation of eco - nomic dependency.
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