FRANCE Law and Practice Contributed by: Malik Idri and Mathieu Relange, FTPA Avocats
5.5 Conditions and Timing for Divestitures In Phase I, parties submit commitments within the 25-business day period and can have an automatic 15-day extension. In Phase II, commitments can be offered at any time. If this happens in the last 20 working days, a 20-day deadline extension applies. The parties must provide all information necessary for the FCA to assess the commitments. The FCA checks that proposed remedies respect the conditions detailed in 5.3 Legal Standard . In complex or structural packages, it typically appoints a trustee to monitor implementation. The Guidelines provide a model trustee mandate. If commitments or ordered remedies are not fully or timely complied with, the FCA may rely on the full range of sanctions provided for in Article L.430‑8 FCC, including: • withdrawing the clearance decision and requiring a re‑notification or a return to the pre‑merger situa - tion (status quo ante); • ordering compliance with the remedies, where appropriate subject to periodic penalty payments; and • imposing fines of up to5 % of the turnover achieved in France by the undertakings concerned Decisions adopted by the FCA are first notified to the notifying parties before publication. The parties receive a confidential draft of the decision prior to its public release. Pursuant to Article R.430 6 FCC, a press release is then published on the FCA’s website within five busi - ness days from the date of the decision. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions The FCA has prohibited transactions only twice, in 2020 (Decision No 20‑DCC‑116 of 28 August 2020) and in 2021 (Decision No 21-DCC-79 of 12 May 2021). in the preceding financial year. 5.6 Issuance of Decisions
Both types of remedies may also be combined. For example, in Groupe Bernard Hayot / Vindémia (Decision No 20-DCC-72 of 26 May 2020), the FCA cleared the transaction after the acquirer committed to structural remedies (divesting several stores) and behavioural remedies (protecting local suppliers in La Réunion, such as maintaining current supplier levels). Remedies Limited to Competition Concerns The FCA cannot impose remedies for non-competition objectives. However, any remedies adopted must still comply with other applicable laws and sector-specific regulations. 5.3 Legal Standard Remedies must be strictly necessary and effective to maintain or restore sufficient competition. The FCA has emphasised that it does not intend for its reme - dy-imposing power to become a “protectionist tool” aimed at shielding national economic actors”. In addition, remedies must be: • proportionate; • neutral and clearly defined (to avoid uncertainty in implementation); • capable of swift implementation; and • verifiable (practical monitoring must be possible). 5.4 Negotiating Remedies With Authorities A discussion regarding remedies can be initiated at any stage of the merger control process: during pre- notification, Phase I and Phase II. Before opening these discussions, the FCA informs the parties and requests their comments. Nevertheless, in practice, the FCA expects parties to propose remedies them - selves, which it may refine and shape afterwards. The FCA may impose measures on its own initia - tive (Article L.430 7, III FCC), although it uses that power increasingly rarely. In Canal +/ TPS , the FCA first cleared the merger subject to the implementation of commitments offered by the parties. After the parties were in breach of their commitments, it re-examined the case, converted some of the commitments into binding orders and added new conditions (Decision No 12-DCC-100 of 23 July 2012).
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