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
days, up to a maximum of 85 working days. The parties may request a further extension of 20 work - ing days. Following a Phase II decision, the Minister of the Economy can take up the case to review the con - centration on grounds other than that of maintaining competition, such as general interest, industrial devel - opment and employment concerns. Suspensory Filing Filing is suspensory. Therefore, the transaction cannot be implemented prior to the FCA’s clearance. Review of Concentrations Under Thresholds In line with the ECJ’s TowerCast judgment of 16 March 2023 (C-449/21), the FCA can conduct sub-threshold reviews that lead to an abuse of dominant position prohibited by Article 102 of the Treaty on the Func - tioning of the European Union (TFEU) or constitute an anti-competitive agreement under Article 101 of the TFEU. 6.2 Criteria for Antitrust/Competition Review The extent of the competitive assessment by the FCA will largely depend on the impact of the concentration on the market. Concentrations that are eligible for a simplified procedure (eg, operations that are unlikely to cause any harm to competition) will require signifi - cantly less information than standard filings. In standard filings, the parties are expected to pro - vide market share and competitor information and describe the competitive environment in which the new entity will compete post-concentration, includ - ing the existence of barriers to entry, the existence of countervailing buyer power, the potential entry of new players, or the existence of spare capacity. 6.3 Remedies and Commitments Commitments can be offered by the parties at any time during the procedure and can be either of two types: • structural (eg, divestiture of assets or transfer of contracts); or
• behavioural (eg, granting of access to networks or infrastructure in a non-discriminatory and transpar - ent manner). Although this is rarely the case, the FCA can also impose necessary and proportionate remedies when the parties do not propose any commitments or when they are insufficient. 6.4 Antitrust/Competition Enforcement Any operation that qualifies as a concentration opera - tion and meets the thresholds must be notified to the FCA and cannot be implemented before clearance. The FCA can impose a fine of up to 5% of the entity’s French turnover for failure to notify or for early imple - mentation. In the event of failure to notify operations, the party responsible for notification must resubmit the notification. Following a Phase II review, the FCA may prohibit a concentration. A prohibition decision may be appealed to the Conseil d’Etat , the highest administrative court, within two months from the date on which the deci - sion was notified to the parties. 7. Foreign Investment/National Security 7.1 Applicable Regulator and Process Overview As mentioned in 1.2 Regulatory Framework for FDI , France has an FDI review/approval process in place, with the Direction Generale du Tresor within the Minis - try of Economy and Finance in charge of such review. Please also refer to 1.2 Regulatory Framework for FDI for the types of FDI subject to review. As a general rule, intra-group operations (made between entities ultimately under the same control) are exempted. French FDI clearance is a mandatory regime – ie, a foreign investment cannot be completed before FDI clearance is obtained. As such, French FDI clearances are often provided as conditions precedent to closing a transaction. The authorisation process takes place in one or two phases, depending on the nature of the French activi -
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