On 23 July 2020, the French Competition Authority (hereinafter, the “FCA”) published its new guidelines on merger control proceedings, which therefore replace the previous ones dated 4 July 2013. These new guidelines aim to (i) modernize the merger control regime applicable in France, (ii) integrate the evolution of case law since 2013, and (iii) provide clear guidance to enable companies to better anticipate the various elements taken into account by the FCA when assessing mergers.
The below non-exhaustive summary presents some of the main inputs.
While the previous guidelines did not contain any reference to gun jumping, the updated version expressly refers to this infringement, following the first gun jumping case “Altice” in 2016 (Decision n°16-D-24, 8 November 2016). In this context, when assessing whether a concentration has been carried out before clearance has been obtained, the Authority analyses if the behavior of the buyer has led, in any way whatsoever, to exert decisive influence on the target in an anticipated manner, such concept of decisive influence refers to the one used to assess merger control. For instance, the fact that the buyer has appointed managers in the target during the suspensive period would be considered as key evidence of its decisive influence exercised over the target (§ 179). Another aspect the FCA particularly considers when assessing gun jumping cases is whether the Parties entered into a memorandum of understanding, and whether its scope, purpose, and implementation requirements are compatible with the provisions sanctioning gun jumping (§ 178).
In order to reduce the review period pertaining to the notification of concentrations to the FCA, the new guidelines add an optional step even before pre-notification phase which is the appointment of a case handler. Following a request made by the notifying party, the FCA will appoint within five working days one of its deputy Head of Unit who will be in charge of reviewing the case (§ 190). This optional step is reminiscent of the “case team allocation request” already implemented by the Commission, where the parties have to fulfill a standard form giving brief details about the parties, the transaction, the markets involved and the anticipated complexity of the case by 12pm on Fridays in order that the case can be allocated at the next management meeting.
The new guidelines also list additional new types of concentrations which are unlikely to affect competition and therefore eligible for the so-called “simplified procedure”. For instance, (i) when the parties’ combined market share is less than 25% on the relevant markets in horizontal concentrations, or, (ii) in the case vertical concentrations, when the parties’ combined market share is less than 30% on their relevant markets, or (iii) where the concentration concerns the creation of a full-function joint venture exclusively active outside national territory (§ 230).
The FCA introduces a ten working days indicative deadline after notification to confirm to the notifying party whether the operation may be subject to simplified procedure or not (§ 232). Moreover, the FCA will inform the notifying party regarding the completeness of its notification within another ten working days indicative deadline after the filed notification (§ 207).
Inclusion of online sales in the assessment of mergers effects
In 2016, the FCA integrated for the first-time online sales in its assessment of the effects of a retail merger (Fnac / Darty decision, n°16-DCC-111, 27 July 2016). Thus, based on its recent case law, the FCA detailed the criteria used to analyze the existence of substitutability between online and in-store sales, such as online sales penetration rate, the internal organization of operators in the sector, or the existence of tariff uniformity between the different distribution channels.
GRALL & ASSOCIÉS AVOCATS, FRANCE