The French Competition Authority Publishes New Guidelines on Merger Control

By Cleary Gottlieb on July 23, 2020

On July 23, 2020, the FCA published its new guidelines on merger control^[1] (the “Guidelines”), which came into effect on the same day and therefore replaced the previous guidelines issued in 2013.

The Guidelines are more user-friendly and outline the legal and procedural framework for merger notifications in France. They now also include summaries and extracts of French and European case-law.

Simplified procedure

The simplified procedure is now available for more operations. In particular, the Guidelines clarify the transactions which will be eligible for the simplified notification procedure, such as concentrations with a horizontal overlap resulting in combined market shares below 25% in any relevant market; concentrations resulting in a market share increment of less than 2% (provided the combined market shares are below 50%); and concentrations with a vertical or conglomerate relationship with market shares below 30% in any relevant market.^[2]

Faster notification procedure

The FCA also took into account the feedback received during its public consultation and the guidelines now also allow companies to (i) warn the FCA ahead of an upcoming notification, (ii) request to be assigned to a case manager, and (iii) receive the case manager’s name within 5 working days of the request.^[3] In addition, notifying parties can now expect feedback on the completeness of their notification and confirmation that the notification form is eligible for the simplified procedure within 10 working days of receipt.

Gun-jumping guidance

The Guidelines also provide further guidance on how to comply with gun-jumping rules and address a few situations that must be dealt with carefully. First, while parties may enter into agreements before clearance notably in order to protect the value of the acquired entity, the parties must not give the buyer control over all or part of the acquired entity.^[4] Second, parties must also be careful when conducting any exchange of information, in particular with respect to the type of information exchanged, the recipients of such information and the process used to share this information.^[5] Third, the Guidelines provide that the acquirer should not interfere in the internal management of the target ahead of clearance, such as by allocating functions to a new manager of the target.^[6] Finally, parties should not make any commercial decisions that would not have been made, but for the merger.^[7]

Prospective analyses

The FCA also provides further guidance on the scope of prospective analyses and explains that it must take into account ongoing and expected evolutions over a reasonable horizon, although its exact scope will be sector-specific.^[8]

Additional annexes

Finally, the Guidelines come with additional annexes relating to a detailed analysis of online sales,^[9] the internal documents that may be requested by the FCA during its review,^[10] a structural commitment template,^[11] and an updated mandate agreement template for monitoring trustees.^[12]

The Guidelines come as the final step of the reform of the FCA’s merger control procedures, which started with the simplification of the FCA notification form in a decree published in April 2019^[13] and the creation of an online notification platform in October 2019.^[14]

[1] Now available here: https://www.autoritedelaconcurrence.fr/sites/default/files/Lignes_directrices_concentrations_2020.pdf.

[2] Para. 230 of the Guidelines – note that these thresholds only apply to markets with well-established market definitions.

[3] Para. 190 of the Guidelines.

[4] Para.178 of the Guidelines.

[5] Para.178 of the Guidelines.

[6] Para. 179 of the Guidelines.

[7] Para. 180 of the Guidelines.

[8] Para. 518 of the Guidelines.

[9] Annex D to the Guidelines.

[10] Annex E to the Guidelines.

[11] Annex F to the Guidelines.

[12] Annex G to the Guidelines.