FRANCE Law and Practice Contributed by: Malik Idri and Mathieu Relange, FTPA Avocats
Sometimes, notifying parties abandon the problematic transaction rather than face a prohibition (for example TF1/M6 in 2022). To date, the FCA has never prohibited a foreign-to- foreign transaction. In 2024, the FCA reviewed 295 transactions. It cleared 97% of them unconditionally and made commitments binding for 3% of them. Transactions involving commitments are typically not foreign-to-foreign transactions. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications A merger clearance decision authorises the concen - tration itself, but it does not grant an exemption or “blanket approval” for related agreements such as non-compete clauses, exclusivities, long-term sup - ply or distribution arrangements. These agreements remain subject to assessment under general anti- competitive agreement rules. In practice, the FCA may review obvious ancillary clauses as part of its assessment. However, merger clearance does not constitute a formal decision on all restraints. Parties must self-assess whether their ancillary restraints fall within the block exemption or consti - tute restrictions that can be individually justified under Article L. 420-4 FCC. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights During Phase I and Phase II, the FCA may contact third parties – such as customers, competitors or complainants – to gather additional information, as provided under Articles L. 430-5 and L. 430-6 FCC.
Third parties may also spontaneously submit com - ments to the FCA, either following the public announcement of a transaction, or in response to a market test of proposed remedies (see 7.2 Contacting Third Parties ). Under Article L. 430-10 FCC, business secrets are protected. Third parties remain external to the pro - cedure and do not have a general right of access to the file. 7.2 Contacting Third Parties The FCA typically contacts third parties as part of its review process. In practice, the FCA primarily uses email question - naires to gather information from third parties. How - ever, phone calls or meetings may also be conducted with key third parties to complement written respons - es. When parties propose remedies, the FCA typically conducts a “market test”. It generally sends targeted questionnaires to the most relevant third parties. It may also publish a notice on its website to invite pub - lic comments. 7.3 Confidentiality After filing, the FCA publishes a notice on its website, which includes the names of the parties, the nature of the transaction, the economic sector concerned and the timing granted to third parties to submit their observations as well as a non-confidential synopsis of the transaction provided by the notifying party. The filing form is kept confidential and is not disclosed to third parties. Under Article L. 430-10 FCC, the FCA must ensure that business secrets are kept confidential at all stag - es of the procedure. 7.4 Co-Operation With Other Jurisdictions The FCA actively co-operates with other jurisdictions to enhance its assessments. The FCA is a member of the European Competition Network (ECN), which facilitates co-operation with the
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