French Competition Law provides a comprehensive review of the French rules relating to competition: restrictive agreements, commercial negotiation, abuses of a dominant position, procedure and merger control.

French Competition Law

Article 11 of the Law of 1 August 1986 prohibits, “under penalty of nullity, the acquisition, takeover or leased management of a printed daily political and generalist newspaper where such operation has the effect of allowing a natural or legal person or a group of natural or legal persons to own, directly or indirectly control, or edit as lease managers daily printed general or political newspape …

Press

In order to delineate the scope of application of the rules of the Commercial Code in the field of merger control, it is necessary to take account of the rules specific to the press, audiovisual communications, banking and insurances sectors.

Sector-specific rules

Article 11 of the Law of 1 August 1986 prohibits, “under penalty of nullity, the acquisition, takeover or leased management of a printed daily political and generalist newspaper where such operation has the effect of allowing a natural or legal person or a group of natural or legal persons to own, directly or indirectly control, or edit as lease managers daily printed general or political newspapers of which the total of distribution exceeds 30% of the distribution on the national territory of all daily print publications of the same kind”. Similarly, the law of 30 September 1986 on freedom of communication contains provisions (Art. 38 and 39) aimed at limiting direct or indirect equity participation in a television station by a single person, as well as the accumulation of broadcast authorizations, whether these concern a single means of audiovisual communication or several (mergers in the area of multimedia). In particular, Article 39(I) prohibits holdings of more than 49% of the target undertaking, except where the latter's audience share does not exceed 8% of the total television ratings for both analog and digital broadcasting. How these specific provisions sit with rules of a more general nature is open to debate. Some commentators consider that the exclusion of these sectors is called into doubt by Article L. 410-1 of the Commercial Code, which provides that Book IV on competition applies to all economic areas without distinction.

The former “Commission de la concurrence” had declared, with regard to the press sector, that the existence of laws applying specifically to the press “seemed to exclude the application of ordinary merger control to companies in this sector pursuant to the Law of 19 July 1977 on the control of economic concentration” . The exclusion, which may have seemed hesitant, was nevertheless clear: the specific provision, which responds to a particular imperative for the protection of the pluralism of the trends in sociocultural opinion, should derogate from the general law. The age of the Competition Commission's statement, the general aim of competition law, the evolution toward the concurrent application of ordinary law and the sector specific rules , the influence of EU law  and legal doctrine, and the lack of any practical interest in relying on the special provisions in the light of the fact that the advertising activities of newspapers fall under the general merger control law ultimately won the day over the derogation scheme for the press sector. In its opinion given on 11 October 2005, the Competition Council stated that in the absence of any provision expressly removing press publications from the application of Articles L. 430-1 et seq. of the Commercial Code, newspaper publishing and distribution falls both under general merger law and the provisions of the law of 1 August 1986 concurrently . 

Opinion of 2 October 1986, LawLex200300002121JBJ, Competition Commission Report for 1986, 12.

See above on the application of ordinary law to audiovisual and banking mergers.

See approach adopted in Article 21(4) of Regulation No 139/2004 of 20 January 2004, providing that specific objectives such as the plurality of the media, may be the subject of state measures in addition to the European provisions on competition but should not replace them.

Competition Council opinion No 05-A-18 of 11 October 2005, LawLex200500010086JBJ, concerning buy-out of Western region Socpresse operations and SEMIF by SIPA upheld by Cons. d'Ét., 31 January 2007, Sté France Antilles, LawLex200700000141JBJ.

For audiovisual communications, the Law of 1 August 2000  amended the wording of Article 41-4 of the Law of 30 September 1986, which formally excluded this sector from the field of application of the general law governing concentrations . Since the NRE Law , paragraph 1 of Article 41-4 has expressly subjected this sector to merger control. The LME Law of 4 August 2008  changed the wording of the provision without changing its meaning. The text now provides that “when a concentration directly or indirectly concerning a producer or a distributor of radio and television services is the subject of an in-depth review in  application of the last subparagraph of III of Article L. 430-5 of the Commercial Code, the Competition Authority shall, before taking a decision in application of Article L. 430-7 of the same code, obtain an opinion from the Audiovisual Supervisory Authority (Conseil supérieur de l'audiovisuel - CSA).  To that effect the Competition Authority forwards any applications for such operations to the CSA. The CSA then provides its observations to the Competition Authority within a period of one month following the receipt of this communication”. Both the general rules and the sector-specific rules will be concurrently applicable.  

Law 2000-719 of 1 August 2000, OJ of 2 August 2000.

The Competition Authority had clarified the scope of this exclusion by stressing that it did not concern advertising markets on the different media which could be affected by a concentration. See Competition Council Opinion No. 94-A-26 of 15 November 1994, LawLex200200002010JBJ.

Law 2001-420 of 15 May 2001, OJ of 16 May 2001.

Audiovisual

Prior to the enactment of the NRE law, considerable controversy surrounded the issue of whether banking came under provisions on merger control. The administration has traditionally considered that it does, and that the sector-specific rules added to, rather than replaced, ordinary provisions. The DGCCRF (General Directorate for Competition Policy, Consumer Affairs and Fraud Control) in its analysis  considered that “there is however the cause to consider that Title V of the 1986 Ordinance (now Book IV, Title III, of the Commercial Code) could apply to merger operations concerning credit institutions, insofar as the special rules laid down by the banking law with regard to concentrations were included essentially for the sake of prudence and were not related to the general objectives of maintenance of competition pursued by the ordinance. Those special rules are therefore applied in addition to the general rules of law under Title V, but cannot be considered as derogating from them or as substitutes for them”. Although the Administration had reserved the right to take action, it appears never to have intervened in a bank merger, even though there were a relatively high number of them. The adoption of the NRE Law did not put an end to differences of interpretation, since it contained no specific provision on the control of concentrations in the banking sector. Debate was centered around the apparent conflict between two provisions. Article L. 410-1 of the Commercial Code provides that the rules defined in Book IV applied to all production, distribution and services activities, thus possibly making the banking sector subject to merger control under the ordinary law. Article L. 511-4 of the Monetary and Financial Code provided however that Articles L. 420-1 to L. 420-4 of the Commercial Code applied to credit institutions for banking operations and related transactions. The lack of any reference to the rules relating to concentrations seemed therefore to exclude banking activities from such control under French law, while European law is certainly applicable to them. This interpretation has received the endorsement of the Conseil d’État on the occasion of the Crédit Agricole /Credit Lyonnais merger. Hearing an application for the annulment of the conditions posed for the merger by the Credit Institutions and Investment Firms Committee (CECEI), since integrated with other institutions within the Prudential Supervisory and Resolution Authority (Autorité de Contrôle Prudentiel et de Résolution), which considered itself to have the authority to review sectoral mergers, the Conseil d’État declared that “merger operations of banking activities are not subject to the prior authorization of the Minister of the Economy” and added that “despite the authorization bestowed by the legislator on the CECEI to ensure the proper functioning of the banking system, that body does not have a general competence to carry out merger control but must limit itself to ensuring that the operation in question is not contrary to Article L. 420-2 of the Commercial Code, which prohibits the abuse of a dominant position, and not the creation or strengthening thereof” .The banking sector was not subject to merger control where the operation in question was not of a European dimension. After that case, the legislature amended Article L. 511-4 of the Monetary and Financial Code  the provisions of which are, as a result of the integration of the CECEI within the Prudential Supervisory Authority, now to be found in Article L. 612-22 of the Monetary and Financial Code and which requires the Competition Authority to request an opinion from the Prudential Supervisory Authority prior to ruling after an in-depth review of a concentration in the banking sector . The control of banking mergers, as in other sectors, is therefore clearly under the jurisdiction of the competition authorities.

Cons. d'Ét., decision of 16 May 2003, Fédération des employés et cadres (CGT/FO) et al., LawLex200300001948JBJ.

Law 2003-706 of 1 August 2003, OJ, 2 August 2003, Article 24.

Ordinance 2010-76 of 21 January 2010, Article 1, OJ No 18 of 22 January 2010, 1392. 

Banking

The LME Law had introduced provisions to the Insurance Code relating to merger control in this sector. Article L. 413-2 provided that where a concentration concerning, directly or indirectly, a company referred to in Articles L. 310-1 or L. 310-1-1 was the subject of an in-depth review in the application of the last subparagraph of III of Article L. 430-5 of the Commercial Code, the Competition Authority should elicit, before taking a decision in application of Article L. 430-7 of the same code, the opinion of the Committee of Insurance Undertakings (Comité des entreprises d'assurance). The Competition Authority had to inform the Committee of Insurance Undertakings of any actions relating to such operations. The Committee sent its opinion to the Competition Authority within a period of one month following receipt of this information. The opinion of the Committee was made public under the conditions laid down in Article L. 430-10 of the Commercial Code. These provisions have been moved to Article L. 612-22 of the Monetary and Financial Code , which applies to all entities subject to supervision by the Prudential Supervisory and Resolution Authority  created from the merging of the Banking Commission , the Insurance and Mutual Societies Supervision Authority , the Committee of Insurance Undertakings  and the Committee of Credit Institutions and Investment Undertakings . 

Under Ordinance No 2010-76 of 21 January 2010, Article 1, OJ No 18 of 22 January 2010, 1392.

Autorité de Contrôle Prudentiel et de Résolution (ACPR).

Autorité de contrôle des assurances et des mutuelles (ACAM).

Comité des entreprises d'assurance (CEA).

Comité des établissements de crédit et des entreprises d'investissement (CECEI).

French Competition Law

528. Press

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

528. Press

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise