FRANCE LAW AND PRACTICE Contributed by: Michael Doumet, François-Xavier Naime, Guillaume Nataf, Léna Sersiron, Eléonore d’Anthonay, Nella Picou, Pauline Celeyron and Magalie Dansac Le Clerc, Baker McKenzie Paris
6. Antitrust/Competition 6.1 Applicable Regulator and Process Overview Transactions that constitute a concentration and meet the French thresholds must be notified to the French Competition Authority (FCA) prior to their implemen - tation. Types of Transactions Covered A concentration occurs under either of the following circumstances: • two or more independent undertakings merge; or • one or more persons or undertakings already con - trolling at least one undertaking acquire control of the whole or parts of one or more other undertak - ings. Following a concentration, an undertaking may exer - cise decisive influence alone – in which case, it will be deemed to have exclusive control. An undertak - ing may also exercise decisive influence jointly with another undertaking(s) – in which case, they will together be deemed to have joint control. Joint con - trol over an undertaking arises either from parity in the voting rights or the ability for a minority shareholder to block certain strategic decisions (such as the adop - tion of the budget or business plan or the appointment of top management). Creating a joint venture that performs all the functions of an autonomous economic entity on a lasting basis also constitutes a concentration. Thresholds Concentrations must be notified to the FCA when the following three thresholds are cumulatively met: • the combined worldwide turnover exceeds EUR150 million; • the domestic turnover of each of at least two par - ties exceeds EUR50 million; and • the transaction does not fall within the jurisdiction of the EC. Specific thresholds apply to the retail trade sector when at least two parties operate one or more retail
outlets in France, as well as to concentrations involv - ing undertakings conducting all or part of their busi - ness in the following French overseas territories: Gua - deloupe, Martinique, Guyana, La Réunion, Mayotte, Saint-Pierre-et-Miquelon, Saint-Martin and Saint-Bar - thélemy. French Polynesia and New Caledonia have their own competition authorities. Exemptions There are no exemptions under French merger control rules. Filing is mandatory whenever the thresholds are met. However, a simplified procedure is available in certain unproblematic cases, such as the constitution of an offshore joint venture or a concentration leading to no horizontal overlaps or vertical links. Filing Process and Timeline The notification process is divided into the following three phases. • Pre-notification phase – pre-notification is not mandatory but is encouraged for cases that may raise concerns (eg, preliminary questions on the controllability or if it is anticipated that the transac - tion will give rise to competition issues). The pre- notification phase takes about one to two weeks and can be longer for complex cases. The FCA indicates in its guidelines that a notification that has undergone an effective pre-notification phase is generally declared complete on the day on which it is submitted. Transactions eligible for the simpli - fied procedure are notified directly, without pre- notification. • Phase I – this phase takes about 25 workings days. If commitments are offered, this phase can be extended by a further 15 working days, and an additional 15 working days may be granted at the request of the parties. Following a Phase I review, the FCA can authorise the concentration (either unconditionally or subject to remedies) or, if serious doubts remain as regards anti-competitive effects, initiate an in-depth examination known as Phase II. • Phase II (for complex cases only where an in- depth analysis in necessary) – Phase II takes about another 65 workings days. If commitments or amendments to commitments are submitted fewer than 20 days before the decision deadline, the review period may be extended by 20 working
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