Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
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Global Competition Law

Before merger control proceedings were transferred to the Competition Authority under the terms of the LME Law, the Minister of the Economy was in charge of proceedings. He/she now only has residual powers which allow him/her to take over proceedings at the end of the preliminary or the detailed examination phase. New Article L. 430-7, I, CC deals with the Minister's intervention.
The Minister of  …

Intervention by Minister of the Economy

Since May 2001, it is mandatory for mergers that fall within the scope of the competition rules to be notified to the Competition Authority. The operation cannot be implemented before the Competition Authority has authorized it (Article L. 430-3 of the Commercial Code).

The Merger Guidelines encourage undertakings to favor a faster and more flexible process and therefore emphasize the importance of the informal “pre-notification” phase, which enables undertakings and the Authority to address any potential problems related to the eligibility criteria of the review of the operation or to peculiarities of the companies or markets involved, or even anticipate any possible competition problems. Contact prior to notification can in effect minimize the risk of the file being incomplete when formally notified and can accelerate the Authority's review of the operation. To initiate this informal process, the parties send a presentation of the merger project to the Authority which will inform them, within five days of its receipt, of the name(s) of the case handler(s) handling the review of the notification.

A list of the information that must be notified is set out in Annexes 4-3 and 4-4 of the Commercial Code. The Annexes state in particular that undertakings must give an indication of the affected markets where the market share of the undertakings concerned is 30% or greater. Decree No 2019-339 of 18 April 2019 significantly reduced the amount of data to be provided. In addition, mergers that fall within the ambit of simplified proceedings may be notified online since October 2019.  

Merger notification

Under Article L. 430-5 of the Commercial Code, the Competition Authority must issue its decision in respect of a merger operation within 25 working days of the date it received the completed notification. During this time, the parties to the merger may propose commitments with a view to rendering the concentration compatible with the competition rules. If the Authority receives commitments, the deadline is extended by 15 working days. A stop-the-clock mechanism has been introduced by the 2015 Macron Law which allows for a suspension of the 25 working-day period where the notifying parties have failed to inform the Competition Authority immediately of  the occurrence of a new fact which should have been notified if it occurred prior to a notification within the meaning of Article L. 430-3, or when they have failed to communicate all or part of the information requested within the time-limit, or when third parties have failed to provide the requested information for reasons attributable to the parties having carried out the notification. The 25 working-day period starts to run again when the cause of the suspension ceases to exist. 

If no decision is issued within the 25 working-day period - or the extended period - the merger is deemed authorized. The Authority may authorize the merger, subject to conditions and obligations or, if it considers that the concentration is likely to adversely affect competition, it can initiate an in-depth examination under the conditions set out in Article L. 430-6 (Phase 2).

A simplified review procedure is also available for operations not likely to raise competition issues. In order to facilitate access to that procedure which allows a clearance within a period of fifteen working days, the Authority clearly specified the conditions of eligibility in its Merger Guidelines. The simplified procedure is applicable to operations for which the acquirer(s) is present neither on the same markets as those on which the target(s) operate, nor upstream, downstream or on related markets and which can be notified in application of section II of Article L. 430-2 of the Commercial Code governing mergers between retail stores and which do not lead to a change in the trade name of the retail store(s) concerned. The Authority stipulates however that it can, where it deems necessary, decide to use the non-simplified procedure even if the operation fulfills said conditions.

Decisions are published on the Competition Authority's web site.

Proceedings before the Competition Authority (Phase 1)

  According to Article L. 430-6 CC, during the course of the in-depth examination, the Authority will assess whether any harm to competition is likely as a result of the creation or strengthening of a dominant position or the creation or strengthening of a buyer power putting the suppliers into a position of economic dependency. The assessment of the contribution to efficiency takes place at this stage of the procedure. The in-depth examination phase must not exceed 65 working days as of its initiation, following the 25 working days (that may be extended) granted to the Authority to rule on the concentration pursuant to Article L. 430-5 CC. A stop-the-clock mechanism is also available during phase 2 where the parties having carried out the notification have failed to inform the Competition Authority immediately of  the occurrence of a new fact which should have been notified if it occurred prior to a notification within the meaning of Article L. 430-3, or when they have failed to communicate all or part of the information requested within the time-limit, or when third parties have failed to provide the requested information for reasons attributable to the parties having carried out the notification. The 65 working-day period starts to run again when the cause of the suspension ceases to exist. Like in phase 1, commitments may be offered by the undertakings at this stage.

Proceedings before the Competition Authority (Phase 2)

  The Competition Authority may, pursuant to the terms of Article L. 430-7 CC, prohibit the merger, modify it or authorize it by reasoned decision.

  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 of the Authority

Before merger control proceedings were transferred to the Competition Authority under the terms of the LME Law, the Minister of the Economy was in charge of proceedings. He/she now only has residual powers which allow him/her to take over proceedings at the end of the preliminary or the detailed examination phase. New Article L. 430-7, I, CC deals with the Minister's intervention.

The Minister of the Economy may, within 5 working days of the receipt of the Authority's decision or from the date he was informed that the Authority has not made any decision within the 25-day period from full notification, request the opening of a detailed investigation by the Authority.

The Minister also has the power to preempt the case for reasons of public interest where, at the end of the detailed examination, the Authority takes one of the decisions provided for in Article L. 430-7 CC or when it fails to take a decision within the period of sixty-five working days (which may be extended) from the initiation of the in-depth examination phase. The “general interest reasons other than the maintenance of competition” likely to compensate for the harm to competition are, inter alia, industrial development, the competitiveness of the undertakings at issue with regard to international competition or the preservation of jobs. The Minister may either clear a transaction that the Authority has prohibited, modify the conditions of authorization or prohibit an authorized operation. Since the 2015 Macron Law, where the Minister deems that the parties did not comply with a commitment set in its decision, he/she may withdraw the authorization or enjoin the parties on whom the unfulfilled obligation was incumbent, subject to a penalty within the limits set out in Article L. 464-2 (II), to fulfill, within a period which it shall fix, the orders, requirements or commitments set out in the decision or enjoin the parties on whom the unfulfilled obligation was incumbent, subject to a penalty within the same limits, to fulfill, within a period which it shall fix, the orders, requirements or commitments in substitution for the unfulfilled obligation.

Global Competition Law

299. Intervention by Minister of the Economy

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Les notions juridiques connexes

299. Intervention by Minister of the Economy

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

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise