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

The object of structural measures is to create the necessary conditions for the emergence of a new competitive entity or to strengthen existing competitors. They constitute the most effective way to preserve competition on the market. They consist in the selling back of shareholdings or assets , where the transfer must relate to those assets likely to solve the competition problem raised. The effe …

Structural commitments

Merger control has shifted into the domain of conditions and obligations that the Authority or the Minister can impose on undertakings, either through injunctive means (imposition of conditions and/or obligations) or, as is more often the case, by the accepting of commitments . The operation can be approved despite the risks of undermining competition not being offset by a possible contribution to economic progress, but the decision authorizing it is subject to conditions.

To be accepted, the commitments must be effective, unambiguous, quick to implement and verifiable .

The Authority's power to impose or instigate remedies is an essential part of merger control and it is all the more surprising that said power is not subject to any legal limits . The German legislator is empowered to impose conditions and obligations on condition that, “These shall not aim at subjecting the conduct of the participating undertakings to a continued control” (GWB Section 40-3).

While affirming that in the exercise of its power of injunction, it is bound to comply with a principle of proportionality , to protect the interests of undertakings and the verifiability of injunctions and commitments, the Competition Directorate adds that “it cannot be excluded that in some cases it may be impossible to avoid imposing behavioral injunctions” . In fact, administrative theory seems to be heading towards an end to behavioral injunctions or commitments.

The adjustments that are most frequently imposed on undertakings are of a structural nature, but they may also be behavioral .

The notifying party is generally asked to appoint an independent trustee to ensure the proper implementation of the remedies regardless of their nature and to inform the Authority thereof . The trustee's role, the provisions aimed at guaranteeing his or her independence with regard to the parties and the means by which the trustee will report on the task to the Competition Authority must be specified in the commitments undertaken.The Authority provides a standard trustee agreement  particularly for commitments to divest assets although its provisions can also be used in the case of behavioral commitments.

Irrespective of the date on which the corrective measures attached to a merger clearance are adopted, the Competition Authority is competent to instigate proceedings of its own motion to verify compliance with the injunctions or commitments in the decision authorizing the merger operations and in the event of failure to comply, may, if necessary, hand down sanctions as provided for in Article L. 430-8 of the Commercial Code  and/or issue new commitments or injunctions . Having regard to their purpose which, as well as being punitive also aims to preserve public economic policy, such actions must be proportionate to the serious nature of the failure to comply and to the requirements of the maintenance or restoring of a sufficient level of competition on the markets concerned . Non-compliance with or circumvention of an important commitment will justify a fine where it is of a particularly serious nature  and can lead to the withdrawal of the authorization .

Recourse to injunctions and orders is rare: between 2000 and 2008, of transactions authorized subject to conditions, only three were subject to the implementation of injunctions or orders. 

Cons. d'Ét., 21 December 2012, LawLex201200002482JBJ.

Competition Authority decision No 12-D-15 of 9 July 2012, LawLex201200001277JBJ. The importance of the non-implemented commitment is assessed in respect of its imputability and its impact on competition regardless of the difference of assessment between the Authority and the trustee responsible for overseeing the implementation of commitments to which the merger clearance is subject, see Cons. d'Ét., 21 December 2012, LawLex201200002482JBJ.

Cons. const., decision No 2012-280 QPC, 12 October 2012, LawLex201200002129JBJ.

According to the Council of State corrective remedies must be proportionate, see its decision of 9 April 1999, LawLex200200002021JBJ.

Competition Council opinion No 95-A-01 of 7 February 1995, LawLex200200002042JBJ, which states that the Minister cannot force the purchaser to reduce its participation in the target company to a level lower than he previously held.

Méthode d'analyse pour le contrôle des concentrations [Methods of analysis for merger control], Etudes DGCCRF, June 1993.

Competition Authority decision No 24-DCC-141 of 28 June 2024, LawLex202400005755JBJ: to remedy the risk of harm to competition due to the conglomerate effects of the new entity's strategy of implementing bundling offers when marketing the respective advertising spaces of La Provence and the BFM PACA channels, ultimately leading to the exclusion of La Provence's competitors due to the loss of part of their advertising revenues, and ultimately depriving consumers and local advertisers of competing offers in PQR newspapers in La Provence's circulation area, The purchaser has given five-year behavioral commitments, in particular not to engage, directly or indirectly (vis-à-vis advertisers, media agencies or third parties), in any form of coupling (including indirect forms), i.e. subordination or the granting of advantages and compensation) between the sale of advertising space by La Provence, on the one hand, and the BFM PACA channels (local BFM channels whose broadcasting area overlaps with that of La Provence), on the other.

Revised Guidelines of 20 July 2020, Annex p. 259.

Competition Authority decision No 17-D-04 of 8 March 2017, LawLex201700000705JBJ: fine of EUR 40 million and injunctions with periodic penalty payments to compel the parties to comply.

Remedies

The object of structural measures is to create the necessary conditions for the emergence of a new competitive entity or to strengthen existing competitors. They constitute the most effective way to preserve competition on the market. They consist in the selling back of shareholdings or assets , where the transfer must relate to those assets likely to solve the competition problem raised. The effectiveness of such a measure requires the potential investor to meet the highest standards of independence, both legal and commercial, vis-a-vis the new entity and for it to be able to exert sufficient competitive pressure on the latter . The following structural commitments have been proposed or accepted: 

- transfer of intellectual property rights ,

A divestment of activities is only effective if there is an appropriate buyer, i.e. independent of the parties and possessing the adequate skills and financial capacity to compete with them but without giving rise to further harm to competition. Identifying the buyer can be done in three ways:

- within a time-limit fixed by the commitments after adoption of the decision;

- after adoption of the decision authorizing the operation but before the operation is implemented ("up-front buyer") ; 

- before the adoption of the decision ("fix-it-first")  - in this case, the identification of a buyer of the assets to be transferred under a structural commitment is included within the elements notified and any change will call into question the good faith of the notification as a whole .

In its revised guidelines, the Competition Authority proposes a new standard commitment agreement for asset divestment based on the practices of the European Commission and other competition authorities. The standard model lists the required legal references and the terms of the commitment. It contains a draft of divestment procedure and the minimum guarantees that the Authority deems necessary for maintaining the viability of the divested assets.  When the Competition Authority accepts subsidiary commitments called “crown jewels” in the event of uncertainties as to the transferability, the viability or the competitiveness of the assets proposed for divestment, they also constitute, like the commitments they substitute, an element of the merger authorization decision which cannot remain confidential to avoid undermining the possibility of challenging the legality of that decision in the courts on the grounds of ultra vires . Such alternative commitments are only justified in that specific hypothesis, especially as once potential purchasers become aware of them, the primary commitments may become devoid of effect as purchasers will want to derail negotiations on the initial points of sale to be divested in order to gain access to those proposed under the substitute commitments .

Competition Council opinion No 91-A-04 of 19 March 1991, LawLex200200002033JBJ; Ministerial Degree of 10 May 1991, LawLex200200002050JBJ; 18 March 1993, LawLex200200002006JBJ; 1 February 1994, LawLex200200001986JBJ; 4 October 1994, LawLex200200002046JBJ; 7 October 1994, LawLex200200002014JBJ; 20 August 1996, LawLex200200002051JBJ; 10 January 1997, LawLex200200001995JBJ; 17 September 1998, LawLex200200002052JBJ; Minister of the Economy, letter of 5 May 1999, LawLex200300002012JBJ; 13 August 1999, LawLex200300002751JBJ; 1 September 1999, LawLex200300002119JBJ; 26 January 2000, LawLex200200001951JBJ; Cons. d'Ét., 31 May 2000, LawLex200200001934JBJ; Ministerial Degree of 5 July 2000, LawLex200200001961JBJ; Minister of the Economy, letter of 12 December 2000, LawLex200200002099JBJ; 21 February 2001, LawLex200200002116JBJ; Ministerial Degree of 22 June 2001, LawLex200200002111JBJ; Minister of the Economy, letter of 24 November 2001, LawLex200200002121JBJ.

Competition Authority decision No 16-DCC-111 of 27 July 2016, LawLex201700000147JBJ.

Cons. d'Ét., 4 April 2016, LawLex201600000873JBJ.

Minister of the Economy, letter of 19 December 2007, LawLex200800000117JBJ; 4 January 2008, LawLex200800000117JBJ; 4 April 2008, LawLex200800000605JBJ; Competition Authority decision No 13-DCC-57 of 10 May 2013, LawLex201300000871JBJ; No 13-DCC-90 of 11 July 2013, LawLex201300001208JBJ, authorization of the Casino/Monoprix merger, subject to the divestment of 55 stores in the 50 areas identified as being at risk; No 15-DCC-53 of 15 May 2015, LawLex201500000714JBJ: in order to avert any anticompetitive risk by the restriction of access to its infrastructures, the notifying party undertakes to transfer a part or the whole of the capital of the points of loading small bulk loading sites located in areas in which the merger significantly strengthens its storage capacity.

Ministerial Degree of 20 July 1991, LawLex200200002015JBJ; Minister of the Economy, letter of 4 February 2000, LawLex200200001958JBJ.

Minister of the Economy, letter of 1 September 1999, LawLex200300002119JBJ; 29 June 1999, LawLex200200002089JBJ.

Minister of the Economy, 17 May 2002, LawLex200300002078JBJ; Competition Authority decision No 11-DCC-187 of 13 December 2011, LawLex201200000262JBJ: merger cleared subject to the fulfilment of the commitment to transfer a well-known rum trade mark, a distillery, and to provide annual volumes of rum subject to quotas to the island of Reunion; No. 19-DCC-36 of 28 February 2019, LawLex201900000494JBJ: subject to the divestment of some brands, the Authority authorized the merger which gave the new entity a market share of between 80% and 90% of the tequila and port markets.

Minister of the Economy, letter of 13 November 2007, LawLex200700001953JBJ: the concentration which leads to the formation of sustainable quasi-monopoly on the market for management of trade fairs and exhibitions may be cleared, subject to the commitment taken by the parties to achieve a significant extension of the exhibition areas, as the creation of assets constitutes a form of structural remedy which is more effective that a commitment to divest assets on a market where there is already pressure on prices because of the rarity of available space. On the creation of a distribution network, see Minister of the Economy, letter of 11 March 1992, LawLex200200002101JBJ.

Competition Authority decision No 19-DCC-180 of 27 September 2019, LawLex201900001225JBJ: concentration cleared subject to an unprecedented up-front buyer commitment which offers a reliable guarantee of efficiency in its implementation to the extent that the transaction cannot be carried out until the buyer of the transferred assets is approved and the Competition Authority has ensured that the latter has obtained all the guarantees necessary for the takeover (independence, continuation of the activity). Revised Guidelines pt. 393 et seq.

Revised guidelines, pt 390 et seq. The Competition Authority had recourse to  a "fix-it-first" commitment to authorize the acquisition of sole control of Alsa France SAS and the intangible assets necessary for the manufacture and sale of food products under the Alsa and Moench brands by the Dr. Oetker group, see Competition Authority decision No 19-DCC-15 of 29 January 2019, LawLex201900000290JBJ and earlier decisions  Nos 09-DCC-67 of 23 November 2009, LawLex201000000124JBJ and 15-DCC-53 of 15 May 2015, LawLex201500000714JBJ.

Competition Authority decision No 15-DCC-53 of 15 May 2015, LawLex201500000714JBJ.

Before adoption of the NRE law of 15 May 2001, the supervisory authorities were often restricted to imposing behavioral injunctions. The absence of any obligatory prior notification in effect made control difficult and the imposition of structural measures was impossible, as the merger had already been completed. This tendency should reverse itself in favor of structural remedies as Article L. 430-3 now imposes obligatory notification and suspension of the transaction pending authorization . The  Competition Authority's merger guidelines also specify that behavioral commitments may be considered as a prerequisite for structural measures, in particular when a divestiture proves to be difficult to achieve in the short term after completion of the transaction .  They can also be requested on their own or in conjunction with structural commitments . Monitoring compliance with behavioral commitments is more complex than for structural measures, as formal compliance with the letter of a commitment is deficient when the undertaking in question takes measures resulting in it losing all or some of its intended effect . A behavioral commitment, even when linked to a commitment to the principle of divestiture of an activity, is still an autonomous commitment, non-compliance with which is likely to be sanctioned by the Competition Authority . While the guidelines stipulate that a representative may be appointed to oversee their implementation and report back to the Authority, the latter may depart from this if circumstances justify not appointing such an agent .  In addition, while reports drawn up by the authorized agent may provide useful information for the Authority's analysis, the Authority is not bound by the latter's assessments as part of its mission to monitor commitments .

- re-negotiation of pricing arrangements ,

- access to certain infrastructures and opportunities ,

- renouncing certain customer-bases or activities ,

- obligation to grant trade-mark, patent or manufacturing licenses 

- prohibition of range discounts  or bundled discounts ;

- prohibition of communication of certain information  or, on the contrary, obligation to communicate ;

- early termination of a long-term agreement ;

- maintaining commercial  or editorial  autonomy;

- creation of a fund for the stimulation of competition .

In its new merger guidelines, at pt 414, the Authority states that, like the Commission, its priority is to seek structural measures aimed at ensuring competitive market structures through the transfer of activities or certain assets to a suitable purchaser likely to exercise effective competition or the elimination of capital ties between competitors.

Minister of the Economy, letter of 12 December 1995, LawLex200200002012JBJ; 22 February 1999, LawLex200300002008JBJ; 29 August 2002, LawLex200300000576JBJ. Obligation to refrain from any intervention in the relations between competing suppliers and distributors to obtain a de facto exclusivity: see Competition Authority decision No 11-DCC-134 of 20 September 2011, LawLex201100001622JBJ; No 19-DCC-157 of 12 August 2019, SALTO, LawLex201900001072JBJ: to remedy the risk, after the launch of their joint Salto platform, that the parent companies will have the capacity and be incited to prevent competing distributors from accessing, at least partially, their channels and associated services and functionalities,  committments were given i) that Salto cannot contract exclusive distribution rights for free-to-air DTT channels and their associated services and functionalities - while retaining the possibility of benefiting from temporary exclusivities for services and functionalities which it would initiate itself in order to preserve its incentive to innovate - ii) to offer directly, i.e. without the intermediary of Salto, to any third-party distributor, the distribution of their DTT channels free to air and their associated services and functionalities on objective and non-discriminatory terms.

Minister of the Economy, letter of 17 March 2000, LawLex200200001994JBJ; Competition Authority decision No 11-DCC-87 of 10 June 2011, LawLex201100001388JBJ.

Minister of Industry, letter of 22 May 1996, LawLex200200002047JBJ; 5 July 2002, LawLex200200006185JBJ. E.g.  granting of a trade mark license (see Commission decision No M.2621 Seb/Moulinex, LawLex200500005378JBJ); obligation to grant on reasonable terms and conditions a patent license to any applicant (decision C2002-8 MSA/Gallet, LawLex200200006300JBJ); grant of manufacturing licenses (Order Seiko/Seiki/S2M of 22 May 1996, LawLex200200002047JBJ); fall of a patent into the public domain if not sold to another operator (decision C2003-161 Delachaux/Pandrol, LawLex200500006664JBJ).

Minister of the Economy, letter of 12 December 2000, LawLex200200002099JBJ; Competition Authority decision No 19-DCC-157 of 12 August 2019, SALTO, LawLex201900001072JBJ: to remedy the risk, with regard to French original content and flow programs, that the parent companies implement a generalized strategy of bundling their purchases of linear and non-linear broadcasting rights in order to favor the access of their Salto platform to non-linear broadcasting rights, they have committed to limiting their  possibilities of bundling linear and non-linear broadcasting rights as well as the capacity to purchase exclusive Salto content from them.

Minister of the Economy, letter of 29 May 1998, LawLex200200001996JBJ; 13 August 1999, LawLex200300002751JBJ; 12 December 2000, LawLex200200002099JBJ; Ministerial Degree of 3 September 1990, LawLex200200002016JBJ; Decision NRJ/ Euler Investissements of 29 May 1998, LawLex200200001996JBJ: prohibition of any bundling between advertising managements. Decision C2004-166 Lactalis/Pochat: no price or financial advantages for bundled sale of reblochon cheese with other cheese; Decision C2004-127 TFI/AB/TMC: prohibition of bundled sales of advertising space between TF1 and TMC; Competition Authority decision No 12-DCC-101 of 23 July 2012, LawLex201200001978JBJ,  authorizes the takeover of Direct 8 and Direct Star by Group Canal Plus provided it limits tied sales of free to air and pay broadcasting rights of first TV showings of US films and recent US series.

Minister of the Economy, letter of 12 December 2000, LawLex200200002099JBJ; 4 July 2001, LawLex200200002112JBJ. E.g. through internal Chinese walls (decisions C2000-189 EDF/Vivendi/Dalkia LawLex200200002099JBJ, C2001-33 Boeing/Jeppesen, LawLex200200002112JBJ), acceptance of which is increasingly rare in light of the difficulties in their monitoring - see conclusion of OECD round table on remedies on this topic; Competition Authority decision No 19-DCC-157 of 12 August 2019, SALTO, LawLex201900001072JBJ: taking into account the links created by the concetration between the parent companies and the strengthening of transparency between them and/or Salto on the markets for the acquisition of broadcasting rights for audiovisual content and for the publishing and marketing of free-to-air DTT, and to a lesser extent, pay channels, they commit to putting in place a set of individual and collective guarantees intended to limit to the bare essentials and within a precise framework the exchange of information between them and Salto.

Competition Authority decision No 12-DCC-20 of 7 February 2012, LawLex201200000582JBJ.

Minister of the Economy, letter of 13 November 2007, LawLex200700001953JBJ; 19 December 2007, LawLex200800000117JBJ.

Competition Authority decision No 16-DCC-167 of 31 October 2016, LawLex201700000405JBJ: merger cleared subject to the fulfilment of the commitment of the recipient to conduct consultations for any supplies and services contract of more EUR 90,000, the award of which will remain the sole competence of the Purchasing Committee set up within the target and on which a representative of the DGCCRF must sit, and the publication of a notice of consultation on its website for each expenditure of more than EUR 15,000; No 11-DCC-134 of 2 September 2011, LawLex201100001622JBJ; Minister of the Economy, letter of 13 November 2007, LawLex200700001953JBJ.  

Minister of the Economy, letter of 7 December 2007, LawLex200800000118JBJ; 19 December 2007, LawLex200800000117JBJ

Revised Guidelines, pt 415. According to the Authority, the choice of the most appropriate type of remedy depends on the effects of the transaction: where the transaction affects competition mainly because of the horizontal overlap between the parties' activities, asset divestitures are the most effective remedies; where risks of foreclosure of upstream or downstream markets need to be addressed, behavioral measures aimed at ensuring competitors' access to inputs or customers may be sufficient, while preserving the efficiencies associated with vertical integration (Guidelines, pt 416).

Sodhexo/Jacques Borel International (Decree of 5 October 1982), Gillette/Wilkinson-Eemland (Decree of 11 March 1992 Rollin/Jager of 22 February 1999: maintenance of commercialization by an intermediary and waiver of the benefit of an exclusivity deal; Decision C2002-129 Point P/Ardi of 23 December 2002: maintenance of the supply of all construction material trading companies in the Ile-de-France region. Prohibition on creating or approving measures liable to directly or indirectly lead to a restriction on the capacity of access of users (Total/Dépôt pétrolier de Fos); maintenance of fair access by operators to fuel storage depots (Sogelfa/CGES of 28 October 1999); maintenance of a depot to continue supplying in conditions like those of the clientele (Solvay/Sodi of 7 March 1997); availability for third party of access to storage sites (C1999-255 CSME/MSCA/Rock).

Competition Authority decision No 11-DCC-34 of 25 February 2011, LawLex201100000795JBJ; No 15-DCC-170 of 10 December 2015, LawLex201600000164JBJ: merger authorized where the transfer of a restaurant to another franchisor can remedy the potential monopoly situation of the operation in the area concerned.

Competition Authority decision No 11-DCC-114 of 12 July 2011, LawLex201100001401JBJ: in order to ensure the maintenance of editorial diversity of the securities concerned, the concentration is authorized subject to the parties commitment that harmonization of the contents of the newspapers will be limited to general news and that the publications in question will  continue to have their own dedicated editor-in-chief and that they are distributed in the three departments where the operation has a competitive impact; see Competition Authority decision No 24-DCC-04 of 12 January 2024, LawLex202400001380JBJ: authorizing the acquisition of OCS and Orange Studio by Canal Plus Group, subject to the maintenance of a Ciné +/OCS acquisition team dedicated to the pre-purchase of French first window pay-TV films, separate from that of Canal Plus.

Competition Authority decision No 16-DCC-155 of 14 October 2016, LawLex201700000070JBJ: merger authorized subject to compliance with the commitment to remove the contractual provisions restricting the commercial autonomy of licensees of the franchisor group; Cons. d'Et, 22 July 2022, LawLex202200006356JBJ, considering that when a distribution network acquires, as a result of a merger transaction, a market power likely to harm competition, the Competition Authority is justified, where appropriate, to accept behavioral commitments aimed at restoring the autonomy of franchised stores, without severing all contractual ties with the network owner, when it appears that these commitments constitute appropriate measures, in view of the circumstances of the case, to remedy the expected effects of the transaction. 

Competition Authority decision No 10-DCC-198 of 30 September 2010, LawLex201100000105JBJ.

Competition Authority decision No 17-D-04 of 8 March 2017, LawLex201700000705JBJ.

Cons. d'Ét., 31 March 2017, LawLex201700000703JBJ: the merged entity has not fulfilled its behavioral commitment to make the best efforts to avoid any risk of loss of competitiveness of its subsidiary to be divested and not to carry out actions which could alter its commercial strategy, where pre-merger it made unjustified tariff increases going from 17 to 60% according to the contracts concerned, which resulted in a decrease in sales of up to 65%. 

Cons. d'Et., 22 July 2022, LawLex202200006356JBJ.

Competition Council opinion No 91-A-06 of 25 June 1991, LawLex200200002040JBJ; Ministerial Degree of 20 July 1991, LawLex200200002015JBJ.

Total/Dépôt pétrolier de Fos decision of 21 July 1995, LawLex200200001998JBJ: prohibition of modification of financial terms granted; decision C2000-189 EDF/Vivendi/Dalkia decision of 12 December 2000, LawLex200200002099JBJ: prohibition of range discounts.

Minister of the Economy, letter of 21 July 1995, LawLex200200001998JBJ: prohibition on creating or approving measures liable to directly or indirectly lead to a restriction on the capacity of access of users; 7 March 1997, LawLex200300002063JBJ: maintenance of fair access by operators to fuel storage depots;  5 January 1998, LawLex200300002046JBJ; 22 February 1999, LawLex200300002008JBJ; 1 September 1999, LawLex200300002119JBJ: availability for third party of access to storage sites; Competition Authority decision No 10-DCC-11 of 26 January 2010, LawLex201000000194JBJ,clearance of merger between TF1, TMC and NT1 on condition that the new entity committed to a duration of five years to facilitate the movement of rights for the benefit of competing channels; No 11-DCC-150 of 10 October 2011, LawLex201100001859JBJ; No 15-DCC-54 of 13 May 2015, LawLex201500000894JBJ: commitment by the notifying party to give third parties access to its infrastructures under non-discriminatory conditions at a cost-oriented price may be a remedy to any input foreclosure strategy; No 19-DCC-157 of 12 August 2019, SALTO, LawLex201900001072JBJ: because the contracts for the purchase of linear broadcasting rights concluded by the parent companies incorporating contractual terms are likely to make the purchase of non-linear broadcasting rights by the competitors of their common platform more complex (holdback clauses, priority rights and pre-emption rights), the parnt companies undertook to strictly regulate the possibilities for Salto to benefit from the contractual clauses appearing in those contracts.

French Competition Law

575. Structural commitments

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575. Structural commitments

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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