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

Under Article L. 430-10 of the Commercial Code, “when the Competition Authority and the Minister of the Economy question third parties on the subject of the concentration, its effects and the commitments proposed by the parties and make public their decision in accordance with the conditions specified [by this article], they shall take account of the legitimate interest of the notifying parties or …

Business secrets

The Competition Authority may, pursuant to the terms of Article L. 430-7 of the Commercial Code, adopt a reasoned decision either:

-prohibiting the concentration and ordering the parties to take all possible measures to re-establish adequate competition;

-or authorizing the concentration and ordering the parties to take all necessary measures to ensure sufficient competition, or obliging them to respect certain instructions such that a sufficient contribution to economic progress is made to offset the harm to competition ;

- or authorizing the concentration by reasoned decision, by making realization of the operation conditional upon the fulfilment of certain commitments by the parties involved.

The draft decision is sent to the interested parties, who are given a reasonable period of time to make their observations. These provisions and those of Article L. 463-1 which require compliance with the adversarial principle during the investigation and the proceedings before the Authority are applicable only to decisions prohibiting or authorizing mergers and to decisions in matters of anticompetitive practices, and therefore they cannot be successfully relied upon by a prospective buyer in the context of an appeal for misuse of power against the decision of the President of the Competition Authority refusing authorization in application of  Article L. 461-3 .

If none of the above decisions is announced, the Authority will inform the Minister of the Economy thereof. The concentration is tacitly authorized at the end of the period allowed for the Minister to preempt the case.

The decision must be rendered within 65 working days from the initiation of the detailed examination. Before expiry of that period and after taking cognizance of the detailed examination, the parties may still offer commitments. If those commitments - or amendments to commitments already offered - are submitted to the Authority in less than 20 working days before expiry of the 65-day period, that period is extended for a further 20 working days within the limit of 85 days from the opening of the detailed examination. This time-limit runs from the date the acknowledgements of receipt are received, subject to the file being complete . The deadline may be suspended at the request of the parties within those twenty days, in cases of a particular need, such as the finalization of the commitments. The suspension may be at the initiative of the Authority where the notifying parties have not informed it of a new fact or that the information requested of the parties or of third parties have not been submitted in a comprehensive manner within the deadlines due to the responsibility of the notifying parties. Where the reason for the suspension no longer applies, the time period resumes as normal. The Competition Authority, sitting in plenary session, renders decisions taken in application of Article L. 430-7 either by division or by standing committee. 

Before the adoption of the Macron Law, merger clearance decisions could not be subject to detailed examination by the president alone or one of the vice-presidents . Now, in application of Article L. 461-3 of the Commercial Code, the president, or a vice-president designated by him, may adopt measures for the review or implementation of commitments or injunctions in Phase II alone . According to the Conseil d’État, under Article L. 430-7 the Authority may modify commitments, injunctions or requirements that it has adopted, to reduce or even remove their scope depending on the evolution of the situation of the relevant markets and the value of their continued implementation . However, irrespective of the developments observed on the market, the Competition Authority is not empowered, in the context of a review of the corrective remedies adopted under a merger control procedure, to impose on the parties more onerous commitments than in the initial decision, in this case the authorization decision . When reviewing the commitments and injunctions to which the takeover of GST by Group Canal Plus was subject, the Authority, on completion of a new competitive analysis, thus lifted certain injunctions to take into account the evolution of the competitive situation on the markets concerned . The decision to review the commitments is by its very nature related to the decision authorizing the merger: a plea of inadmissibility on the grounds that it is not separable from the procedure for monitoring compliance with commitments, which may result in a fine, is not admissible .

Injunctions are binding on the parties irrespective of any stipulations that may have been agreed between them. Supervision of the performance of the commitments, to which clearance of the merger is subject, does not involve an overall assessment, but focuses on compliance with the commitments taken individually, each commitment being mandatory . The commitments are assessed in light of the authorization decision which lays out the criteria by which the Authority is to be guided, and the Commercial Code and the merger control guidelines, but the Authority is not bound by the appraisals made by the trustee in the exercise of his/her role in overseeing the implementation of the commitments . If an injunction or commitment is ignored, the Competition Authority, pursuant to Article L. 430-8, IV, may:

-withdraw authorization, in which case the parties must either return to their initial states, or proceed with a new notification within one month of withdrawal ; the Competition Authority's withdrawal power, the compliance of which with the principle of entrepreneurial freedom has been submitted to the Constitutional Council, is, according to the latter, justified by the objectives of preservation of economic public policy that the legislator assigned to itself ; in particular, the importance of the commitments which have not entirely or partially been complied with, having regard to all the corrective measures adopted and the anticompetitive effects they were intended to remedy, and the extent of the consequences - which are difficult to reverse - caused by their non-implementation on the level of competition on the markets concerned, justify a withdrawal of the authorization and a pecuniary sanction ;

-order performance within a specified time period on penalty of a periodic fine; injunctions are addressed to the parties upon whom the non-performed obligation was incumbent;

- issue, subject to periodic penalty payment within the limits indicated, injunctions or requirements replacing the non-performed obligation ; according to the Conseil d’État , the penalties handed down to enforce the injunctions pursuant to Article L. 430-8, IV of the Commercial Code cannot be deemed in themselves to disregard the ceilings set out in Article L. 464-2, II, of the same code. Furthermore, when the Authority settles a provisional penalty ordered pursuant to Article L. 430-8, it may moderate or even cancel it .

The Competition Authority has a choice between the options under IV of Article L. 430-8 of the Commercial Code for breach of commitments on which the authorization of the merger is contingent depending on the seriousness of the shortcomings found, the type of commitments undertaken and of their importance in the general scheme of the authorization decision, or of the time elapsed since the operation and the duration of outstanding commitments remaining at the date of its ruling . The existence of particular difficulties or the impossibility of performing the commitments within the time-limits laid down in the authorization decision do not preclude a finding that the parties have failed to fulfill their obligations and may justify an application by them to the Authority for a review .

Fines are only imposed where ministerial injunctions or undertakings' commitments are not respected. The maximum penalty that can be imposed on corporate entities is a fine of up to 5% of the pre-tax turnover realized in France during the previous financial year. This can be increased to include the turnover realized in France during the same period by the acquired undertaking. Natural persons may be fined up to EUR 1.5 million . According to the Council of State, there is no Competition Authority provision or guidance stipulating that, for a sanction imposed in matters of merger control, it is required to specify the amount of the fine the perpetrator will face and then state the adjustments made to that amount to take account of the extenuating or aggravating circumstances upheld in light of the conduct of, the duties carried out and the difficulties encountered by the latter. However, as the aim of the financial penalty imposed in the event of failure to effectively fulfill commitments entered into by the parties to a concentration is purely punitive, it is incumbent on the Competition Authority, as well as on the appeal court having unlimited jurisdiction in the case, to assess the proportionality of such a sanction in the light of the seriousness of the shortcomings noted, i.e. the extent of the failure to comply with the commitments in respect of all the corrective measures adopted in order to prevent the anticompetitive effects of the concentration, the behavior of the company in the implementation of the commitments entered into and its particular - notably financial - situation . In effect, the amount of the sanction in case of failure to comply with a commitment on which authorization of the concentration is dependent must be determined in such a way that the undertaking in question would not have any incentive to engage in an economic calculation consisting in offering commitments in order to obtain the authorization but without any intention of actually performing them or taking the necessary measures to that effect . 

See especially Competition Authority decision No 12-DCC-100 of 23 July 2012, LawLex201200001977JBJ, authorizing the takeover of TPS by Groupe Canal Plus subject to the imposition of injunctions for a renewable period of five years; Cons. d'Ét., 21 December 2012, LawLex201200002481JBJ, stressing that the grant of injunctions, according to Article L. 430-7, excludes the possibility of making the clearance of the merger subject to the effective realization of commitments by the parties. The Authority may therefore prefer to order injunctions when the commitments submitted by the parties are not likely to remedy the anticompetitive effects of the transaction.

Cons. d'Ét., 26 July 2018, LawLex201800001259JBJ.

Competition Authority decision No 18-D-16 of 27 July 2018, LawLex201800001519JBJ, specifying that even if the trustee responsible for the supervision of execution of the commitments did not warn the new entity about the risk of a refusal to authorize the potential buyer and expressed positive opinions in support of the request for authorization, the Authority is not bound by the assessments made by the latter in the exercise of its mission to monitor commitments.

See e.g. Competition Authority decision No 11-D-12 of 20 September 2011, LawLex201100001470JBJ, withdrawing the decision authorizing the concentration between Canal Plus and TPS stressing that in the case of non-compliance with the commitments, affecting the authorization decision, the withdrawal can be made if this solution is the only remedy for the serious failings identified.

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

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

Law 2015-990 of 6 August 2015 for growth, activity and equality of economic opportunities, Art. 215, 7°. For the first application, see decision No 16-DCC-111 of 27 July 2016, LawLex201700000147JBJ.

Cons. d'Ét., 28 September 2017, LawLex201700001535JBJ.

Competition Authority decision No 22-D-15 of 22 September 2022, LawLex202200008121JBJ. 

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

Competition Authority decision No 18-D-16 of 27 July 2018, LawLex201800001519JBJ.

For an application see Ministerial Decree, 21 August 2007, LawLex200700001369JBJ, non-performance by the Carrefour group of its commitments offered under French merger control.

For an example of the calculation of the deadline, see Cons. d'Ét., 9 April 1999, LawLex200200002021JBJ.

Cons. d'Ét., 7 November 2019, LawLex201900001369JBJ.

Competition Authority decision No 16-D-07 of 19 April 2016, LawLex201600000852JBJ; No 18-D-16 of 27 July 2018, LawLex201800001519JBJ, holding that failure to fulfill the commitments relating to half of the stores subject to divestments and to two-thirds of the relevant markets on which the new entity was able to maintain its market shares at a very high level and benefit from weakened competition is particularly serious, justifying a fine of EUR 20 million and an injunction to sell two other stores, to replace the non-transferred stores, given the difficulties in finding a buyer.

Cons. d'Ét., 23 December 2013, LawLex201300001889JBJ.

Commercial Code, Article L. 461-3: “The president or vice-president designated by him may adopt on his own the decisions mentioned in Articles L. 464-2 to L. 464-6 when they refer to matters that have been referred to the Competition Authority by the Minister in application of paragraph 4 of  Article L. 464-9. He may do the same with respect to the decisions mentioned in Article L. 430-5, the review decisions of the measures referred to in III and IV of Article L. 430-7 or the decisions necessary for the implementation of these measures”. The Conseil d’État will refer a question for a preliminary ruling on constiutionality to the Constitiutional Council relative to the compliance with the principle of equality before the law and entrepreneurial freedom of the provisions of Article L. 461-3 of the Commercial Code, Cons. d'Ét., 1 February 2018, LawLex201800000309JBJ.

Cons. d'Ét., 4 March 2016, LawLex201600000653JBJ.

Competition Authority decision No 19-DCC-199 of 28 October 2019, LawLex202000000024JBJ, considering that in view of its change in strategy, with the new entity now favoring the deployment of optical fiber and with the modifications made to this effect in December 2018 to the “Faber” contract - a co-investment contract in optical fiber in very dense areas under which the target was committed to ensuring on its behalf and that of Bouygues Telecom (BT) the final connection of the fiber to the buildings - it is necessary to lift the injunctions except for the penalties imposed which aimed at forcing it to comply with  its commitments relating to the Faber contract in order to avoid the foreclosure of BT from access to some very high speed broadband clients.

Competition Authority decision No 17-DCC-93 of 22 June 2013, LawLex201700001502JBJ: the Competition Authority lifts certain injunctions imposed on Group Canal Plus in the GST takeover in the light of the emergence of non-linear international operators, which, through digital means, offer content that can be consumed on-demand, either for a charge or free, and due to the general convergence strategy implemented by Altice of its activities as an internet service provider, TV broadcaster and distributor.

Competition Authority decision No 16-D-07 of 19 April 2016, LawLex201600000852JBJ.

Powers of Competition Authority 

Under Article L. 430-10 of the Commercial Code, “when the Competition Authority and the Minister of the Economy question third parties on the subject of the concentration, its effects and the commitments proposed by the parties and make public their decision in accordance with the conditions specified [by this article], they shall take account of the legitimate interest of the notifying parties or the persons cited that their business secrets are not disclosed” . The notifying parties have fifteen days starting from the date they received the decision in which to inform the Competition Authority of any statements which they consider to be covered by business secrecy. Certain elements cannot, in principle, be eliminated:

-information whose publication is mandatory pursuant to regulations in effect in France or in another country of the European Union;

-information disclosed by the undertaking itself;

-information that has lost its commercial value;

-information forming part of the competition assessment or permitting the definition of the scope of the commitments made by the parties.

The competition authorities are not bound by the requests for elimination made by the parties and they are responsible for reconciling the legitimate interest of the parties to protect their business secrets with the interests of third parties. They therefore will not accept requests for the elimination of items which are the necessary justification of the decision and the elimination of which would deprive the decision of its meaning as regards third parties. Furthermore, in accordance with European case law, information that is five years old or older at the date of the proceedings before the Court of Appeal can no longer be protected as trade secrets, unless it can be proven that such protection is still justified. Where it is proven that the protection of confidential information more than five years old is still justified, the court must examine whether the documents are indispensable for proving the facts alleged and whether the interference is not strictly proportionate to the objective pursued .

See prior to NRE law, Cons d'Et. decision of 9 May 2001, LawLex200200001939JBJ, finding that it is of the Minister's duty and competence to conceal anything likely to reveal business secrets. See Revised guidelines, pts 240 et seq.

CA Paris, 22 May 2025, LawLex202500004325JBJ.

The general principle of the rights of defense must be respected throughout the control procedure. The parties must be able to submit their comments before the authorities' decision. This is satisfied, for example, when representatives for the parties have been received by the competition authorities on several occasions after submitting a letter proposing changes to the transaction . Third parties must also be permitted to submit their observations . Based on the principle of the respect of the rights of defense, the Conseil d’État annulled a judgment where third parties had not received the draft decision accompanied by the Competition Authority's opinion . The Conseil d’État, broadly interpreting Article L. 430-5 of the Commercial Code, has established a duty to notify the draft decision to third party undertakings affected by the decision .

The fact that the case-handler responsible for gathering the elements allowing the Competition Authority to assess the interest in bringing proceedings ex officio is subsequently designated for the purposes of investigating the matter cannot be regarded as having infringed the requirements related to the principle of impartiality, insofar as the case-handler is involved in neither the decision to initiate proceedings nor the decision to impose sanctions. Likewise, the fact that some of the members of the Authority who have taken part in an authorization decision subject to injunctions have also deliberated on the withdrawal of this authorization, cannot be regarded as having infringed the provisions of Articles L. 461-1 et seq. of the Commercial Code or the principle of impartiality .

When ruling on a merger, the Competition Authority does not adjudicate rights and obligations of a civil nature, but exercises a power of enforcement on the basis of legal norms applicable to an organized procedure. Its decisions do not therefore fall within the scope of application of the provisions of Article 6(1) of the ECHR . 

Cons. d'Ét., 31 May 2000, LawLex200200002045JBJ.

Cons. d'Ét., 5 March 2021, LawLex202100000685JBJ: the Competition Authority cannot be criticized for not having allowed third parties to the transaction to submit their observations, since the notification of the merger was published on the Authority's website within the time-limit provided for in Article R. 430-4 of the Commercial Code and the transaction was the subject of several market tests with the parties' competitors in order to obtain their observations on its effects and the commitment proposed by the notifying undertaking.

Cons. d'Ét., 9 April 1999, LawLex200200002060JBJ.

Cons. d'Ét., 27 June 2007, LawLex200700000866JBJ.

Cons. d'Ét., 21 December 2012, LawLex201200002481JBJ.

Cons. d'Ét., 21 December 2012, cited above.

French Competition Law

588. Business secrets

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

588. Business secrets

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