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

In the specific case of an abuse of dominant position or of economic dependence, Article L. 430-9 of the Commercial Code of trade confers on the Competition Authority a special power of injunction i.e. the possibility, by reasoned decision, of ordering the undertakings concerned “to amend, supplement or cancel, within a specified period, all agreements and all acts by which the concentration of ec …

De-merger

If the Competition Authority considers that a transaction is likely to harm competition despite the commitments given by the parties, it is not obliged to replace or add injunctions which, in view of the nature and extent of the anticompetitive effects of the proposed transaction and the difficulty of determining appropriate measures to offset them, - the feasibility or effectiveness of which would not have been established by the investigation, or which would substantially change the nature of the transaction concerned, - it may decide to prohibit the merger . It can also prohibit an operation and call upon the parties, where appropriate, to take all measures to restore sufficient competition. Within the framework of his or her evocation power (exceptional power to review a decision), the Minister of the Economy can also, in the context of his power to preempt the case, prohibit an operation, but only for reasons of public interest other than the maintenance of competition. The mere opposition to a concentration likely to produce significant anticompetitive effects does not, according to the “Conseil d'Etat”, affect the freedom of trade and industry, where it is deemed necessary for the protection of competition on the national market . An injunction to cancel the merger operation also does not constitute any misuse of power .

Cons. d'Et., 15 February 2024, LawLex202400001378JBJ, upholding Competition Council decision No 21-DCC-79 of 12 March 2021, LawLex202100004675JBJ: the merger in question should be prohibited in the absence of efficiencies offsetting the anticompetitive risks identified by the transaction, since the commitments proposed by the parties are not sufficient to remedy them, no structural or behavioral injunctions are appropriate - only injunctions akin to control by a sector-specific Competition Authority can effectively address the concerns raised by the new entity's behavior - and thus no appropriate remedies can be envisaged in the form of injunctions or commitments.

Cons. d'Ét., 6 October 2000, LawLex200200002008JBJ.

Cons. d'Ét., 9 April 1999, LawLex200200002021JBJ.

Prohibition of the transaction

In the specific case of an abuse of dominant position or of economic dependence, Article L. 430-9 of the Commercial Code of trade confers on the Competition Authority a special power of injunction i.e. the possibility, by reasoned decision, of ordering the undertakings concerned “to amend, supplement or cancel, within a specified period, all agreements and all acts by which the concentration of economic power allowing the abuse has been carried out, even if these acts have been subject to the procedure specified by this title”. The power to order a de-merger falls solely to the jurisdiction of the Competition Authority both as regards its principles and in its terms. A transaction that has been deemed lawful in respect of merger control may fall foul of Article L. 430-9 insofar as it contributes to the creation of a situation of dominance .

See Competition Council decision No 02-D-44 of 11 July 2002, LawLex200200002118JBJ; Revised guidelines No 500 et seq.; Cass. com., 12 July 2004, LawLex200400000174JBJ, finding the incompetence of the law courts to rule on a decision of the Competition Council requiring the application of Article L. 430-9 of the Commercial Code. A concentration which would have enabled the abuse of a dominant position may be called into question on the basis of Article L. 430-9 of the Commercial Code, even if it was authorized ex ante, even though the concentration which allowed the abuses does not in itself constitute an abuse, see Competition Authority decision No 20-D-01 of 16 January 2020, LawLex202000000074JBJ, recognizing the application of Article L. 430-9 to a non-notifiable transaction. 

French Competition Law

578. De-merger

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578. De-merger

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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