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 Commercial Code does not specifically provide for appeals against decisions rendered in merger control cases. As in ordinary law, they may be the subject of annulment proceedings on the grounds of ultra vires  as they are issued by an administrative authority .  As there is no provision stating that appeals against decisions of the Competition Authority must be brought directly before the Cons …

Action for annulment

The Commercial Code does not specifically provide for appeals against decisions rendered in merger control cases. As in ordinary law, they may be the subject of annulment proceedings on the grounds of ultra vires  as they are issued by an administrative authority .  As there is no provision stating that appeals against decisions of the Competition Authority must be brought directly before the Conseil d'État (Council of State), they had to be lodged before the administrative tribunal since they concern non-regulatory decisions. Since Decree No 2000-389 of 4 May 2000 which came into force on the 1 January 2001, the Conseil d'État is now the only competent body able to rule on appeals brought against the decisions of the Minister of the Economy . The guidelines confirm the exclusive competence of the Conseil d'État to hear appeals on merger decisions of both the Competition Authority , which is an independent administrative authority, and of the Minister . The Conseil d'État now has a decisive influence in matters of merger control . The jurisdiction of the administrative judge does not exclude that of the civil courts to grant claims for damages actions by operators having suffered loss due to non-compliance with the commitments to which clearance of a merger is subject .

All decisions on the authorization  or prohibition of a concentration and also some related decisions - in particular in the field of publication or the approval of a suitable purchaser of the assets to divest - are open to appeal . The referral request made by the Competition Authority to the Commission on the basis of Article 22 of Regulation No 139-2004, which concerns the review of a merger, is not detachable from the review of this transaction carried out by the Commission under the control of the Court of Justice. The administrative court cannot, however, hear the action for annulment brought against the review application .

Acts of soft law (opinions, recommendations, warnings and statements of position) adopted by the Authority in the exercise of its missions may be referred to the judge reviewing applications for ultra vires  when they relate to general and mandatory provisions, or concern individual requirements which could be subsequently sanctioned by the Authority for non-compliance, or where they are likely to produce significant, specifically economic, effects, or are intended to significantly influence the behavior of the persons to whom they are addressed. Thus, the Conseil d'État is competent to hear an action for annulment against a decision of the Competition Authority which has had the effect of changing the practical scope of an injunction attached to a previous decision authorizing a concentration . On the other hand, remarks made by the Authority in the reasons for an authorization decision on the control exerted by an association other than the notifying parties may not be the object of an application for judicial review for ultra vires . The Competition Authority's decision to open a pre-notification phase of a merger transaction at the parties' request is of a purely preparatory nature, which means that it cannot be appealed on the grounds of misuse of powers, even though during this phase, the officials in charge of investigating the case may request information or documents from third parties to the transaction, subject to penalties for failure to comply . 

If they have a legitimate interest that gives them standing to bring proceedings and believe that the decision is detrimental to the maintenance of sufficient competition in the markets affected by it, third parties may challenge the validity of a clearance decision accompanied by commitments, but they may not challenge the legality of the Competition Authority's choice to take such a decision without recourse to a detailed examination . 

An action for annulment may be lodged before the Conseil d'État which examines, within a period of two months, the legal basis and lawfulness of the act  and carries out a comprehensive review of the decision which can lead to it taking an economic approach . The Conseil d'État thus held that the annulment of the Competition Authority's decision authorizing, subject to commitments, the buyout of Direct 8 and Direct Star by the Canal Plus group and Vivendi Universal had to be deferred on account of the excessive effects on the economic public order of an immediate annulment .

Cons. d'Ét. 31 May 2000, LawLex200200001934JBJ: appeal for excessive use of Ministerial powers against Ministerial Decree adopted during an irregular procedure.

On the occasion of the transfer of power of the Minister to the Competition Authority, it would have been conceivable to unify the competition litigation by providing that all appeals be brought before the courts (Paris Court of Appeal, Court of Cassation - commercial chamber), exclusively competent for appeals against the decisions of the Competition Authority in matters of restrictive agreements and abuse of dominance. This was the solution adopted in German law which provides that an appeal against decisions of both the Federal Cartel Office and the Minister must be brought before the Court of Appeal (Oberlandesgericht) of Düsseldorf, which has exclusive jurisdiction in respect of all   decisions of the Federal Cartel Office (Art. 63 et seq. GWB - German Law against Restrictions of Competition). In the absence of similar specific provisions in French law, the transfer of jurisdiction to specialized courts for matters of competition created within the judicial order would appear difficult to achieve. 

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

Cons. d'Ét. 9 April 2014, LawLex201400001161JBJ, finding that the assessments of the Competition Authority in the grounds of the decision ruling on a merger on the exercise by natural persons or legal entities other than the notifying parties of a control over the latter, in order to take into account, in the competitive analysis, of the activity of all persons concerned by the operation are not separable from the operative part of that decision. 

Cons. d'Et., 1 March 2022, LawLex202200001250JBJ: the decision to open a pre-notification phase of a merger transaction is of a preparatory nature which makes it ineligible for annulment, even if it constitutes an element of the procedure which may result in the Competition Authority ruling on the transaction.

Cons. d'Ét., 8 November 2021, LawLex202100005866JBJ; 3 July 2023, LawLex202300008719JBJ.

See especially Cons. d'Ét. 9 April 1999, LawLex200200002021JBJ; 6 February 2004, LawLex200400000223JBJ; 31 January 2007, LawLex200700000141JBJ; 27 June 2007, LawLex200700000866JBJ. 

Revised guidelines No 487. See especially Cons. d'Ét., 13 February 2006, LawLex200600000595JBJ.

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

See prior to the reform Cons. d'Ét. 9 April 1999, LawLex200200002021JBJ; 9 May 2001, LawLex200200001939JBJ. Article R. 311-1 of the Code of Administrative Justice provides that the Conseil d'État is the competent first resort court to rule on “appeals against Ministerial decisions on the control of economic concentrations”. 

A decree of 22 February 2010 amended Article R. 311-1 of the Code of Administrative Justice which now provides for the jurisdiction in the first and last resort of the Conseil d'État to hear appeals against the decisions taken by the Competition Authority, in its supervisory and regulatory role.

For the Conseil d'État, even if the Authority is required to follow the method of analysis set out in its guidelines, it may depart from it in the event of special circumstances, see Cons. d'Ét., 17 May 2018, LawLex201800000807JBJ, the failure to use a market test; holding a market share of 65.5% in a given area is not such as to characterize on its own the insufficiency of the divestment commitments proposed by the parties and accepted by the French Competition Authority to overcome the anticompetitive effects of the concentration, Cons. d'Ét., 9 May 2018, LawLex201800000810JBJ.

CA Paris, 3 June 2016, LawLex201600001012JBJ.

Cons. d'Ét. 21 October 2016, LawLex201600001757JBJ, considering that the authorization by the Competition Authority of a merger in the biomedical sector cannot be regarded as having of itself the automatic effect of leading to an infringement of Article L. 6223-5 of the Public Health Code. Also see Cons. d'Ét. 21 October 2016, LawLex201600001756JBJ: holding that the Authority does not have to take into consideration the provisions of the Public Health Code which prohibit certain categories of operators from holding shares in companies operating private biomedical laboratories, before authorizing a merger in the sector. Also see Cons. d'Ét., 5 March 2021, LawLex202100000685JBJ: no provision of the Labor Code or the Commercial Code requires the Competition Authority to ensure, prior to adopting its decision to authorize a merger, that the provisions relating to information and to consulting the social and economic committee are complied with by the undertaking concerned and therefore the authorization cannot be considered as automatically and in effect leading to a failure to comply with these provisions, justifying the annulment of the authorization decision.

Cons. d'Et., 10 February 2023, LawLex202300003314JBJ.

A ministerial decision clearing a concentration may be the subject of an application for its suspension only in certain conditions . An interim suspension must be filed in conjunction with an action for annulment. The admissibility of such an action is limited, according to the Council of State, in the non-performance phase of the decision, i.e. before the concentration has produced all its effects . If, on the day the application for annulment proceedings is made, shares have already been purchased and transferred and the majority of the company's executives have been replaced, the decision is considered to have been entirely enforced and any suspension is consequently inadmissible . This is also the case where the elements of the operation required to ensure the effective and autonomous operating of the target undertaking have been transferred to the purchaser . In addition to the condition that the decision must still produce legal effects on the day of the application for suspension, there are two other cumulative conditions: urgency  and the existence of a means of creating a serious doubt as to the legality of the decision .

The urgency condition invoked by the notifying party to obtain the suspension of the conditional clearance decision pending a judgment on the merits is appraised in light of the financial impact of the disputed commitments on sales outlets and the turnover of the new entity and not of potential effects on each catchment area . A motion to suspend a decision making the authorization of a concentration subject to compliance with 11 injunctions must be rejected for lack of urgency, insofar as the implementation of those injunctions is not likely to cause irreversible harm to the economic and financial situation of the applicants before a decision on the merits is rendered . There is no urgency warranting an interim suspension order when the concentration does not appear, in itself likely to adversely affect the competitive situation on the market concerned in such a way that the commitments ordered in the authorization decision would, due to their inadequacy or their inappropriate nature, be liable to allow serious and immediate harm to competition or to the applicant's situation . Similarly, urgency is not characterized by the fact that the commitments to which the merger is subject would leave the new entity with a market share which is too high . It is also not necessary to stay the execution of the refusal by the President of the Competition Authority to authorize the acquisition of points of sale, insofar as the applicants could not be unaware of the fact that their acquisition plans, in application of the commitments made by the purchaser, were subject to approval by the Authority, and therefore the expenses incurred were in full knowledge of the risk attached to the operation, the amount of which, moreover, was not such as to create serious and immediate harm to their financial or economic viability . 

An application for a référé instruction i.e. interim proceedings for the appointment of experts or investigatory measures, may also be made to the Council of State pursuant to Article L. 521-3 of the Code of Administrative Justice .  While the administrative court may, under this article, order the production of documents or information enabling the petitioner to file an appeal, an interim investigation procedure can only be rejected when it is in fact intended to require the Competition Authority to answer immediately, before the start of the upcoming legal proceedings, whether it has the power to authorize a proposed merger, the national dimension of which is being challenged .

Article L. 521-1 of the Code of Administrative Justice provides: “When an administrative judgment, even a dismissal, is the subject of an application for annulment or reversal, the interim relief judge, hearing an application to this effect, may order the stay of enforcement of the judgment, or of some of its effects, where this is justified by urgency and where a motion is entered,  which, in view of the state of the investigation, is likely to give rise to a serious doubt as to the lawfulness of the decision.When the stay is ordered, a ruling is given on the application for annulment or reversal of the judgment as soon as possible. The stay shall end at the latest when a ruling is given on the motion to set aside or reform the judgment.”

Cons. d'Ét., 19 May 2005, LawLex200500005772JBJ.

For the  Darty/Fnac merger see, Cons. d'Ét., 30 October 2017, LawLex201700001920JBJ. See also Cons. d'Ét., 30 October 2017, LawLex201700001918JBJ, LawLex201700001919JBJ and LawLex201700001912JBJ.

“In case of urgency and upon simple application, which will be admissible even in the absence of a prior administrative judgment, the interim applications judge may order all other appropriate measures without obstructing the enforcement of any administrative judgment”.

Cons. d'Ét., 5 November 2021, Iliad, LawLex202100005889JBJ.

Cons. d'Ét., 25 July 2006, LawLex200600001672JBJ.

Cons. d'Ét., 1 June 2006, LawLex200600001674JBJ.

Cons. d'Et., 20 December 2022, LawLex202300000123JBJ, holding that the applicant is not entitled to request the suspension of the decision by which the Competition Authority approved the transferees of the assets that the notifying undertaking had undertaken to transfer with a view to the authorization of the merger, insofar as, in the absence of immediate harm to its financial situation or interests, it failed to demonstrate the existence of a situation of urgency justifying such a suspension, and the circumstance - if established, despite the guarantees given by the parties - that one of the principal mobile telephony operators would be in a position to influence certain decisions by the transferees is not, in itself, such as to cause the transferee to be considered as creating a risk of harm to competition in the market for passive infrastructures for hosting mobile telephony equipment, or to the interests of ensuring good coverage of the territory.

Cons. d'Ét., 6 September 2019, LawLex202100000694JBJ : neither the provisions of Article R. 430-2 of the Commercial Code, nor any other text or principle oblige the Competition Authority to rule in the light of the opinions of the employee representative bodies which would be required, where applicable, within the undertakings concerned by the transaction pursuant to the provisions of Articles L. 2312-17, L. 2312-24 or L. 2312-41 of the Labor Code, so that the argument that the Competition Authority's decision authorizing the disputed merger is unlawful because it did not rule after proper consultation of the employee representative bodies is not, in the light of the investigation, such as to create a serious doubt as to the legality of the decision at issue.

Cons. d'Ét., 26 May 2010, LawLex201100000978JBJ 

Cons. d'Ét., 22 October 2012, LawLex201200002176JBJ

Cons. d'Ét., 27 November 2013, LawLex201300001706JBJ; 9 July 2015, LawLex201500000905JBJ.

Cons. d'Ét., 17 October 2016, LawLex201600001712JBJ,

French Competition Law

592. Action for annulment

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592. Action for annulment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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