Publication of the new French merger control guidelines

Merger control guidelines provide a practical framework for notifying undertakings regarding the application of merger control rules and the expected content of the notification file. They also help companies to understand potential competition law issues which may be raised by a transaction.

The new guidelines take into account the most recent case law of the FCA and the French Conseil d'Etat since 2013 – in particular with regard to gun jumping as well as the monitoring/revision of commitments – and announce some innovations both in terms of procedure and competition analysis.

Changes in the merger notification procedure include in particular:

• the extension of the eligibility of certain transactions to the simplified procedure (allowing companies to submit a lighter notification file and leading to a decision of the FCA within a shortened period of approximately 3 weeks);
• the communication to the notifying party of an indicative provisional timetable if the transaction needs an in-depth competition assessment (i.e. phase 2);
• the possibility to have a case handler appointed within 5 working days to start pre-notification discussions;
• the FCA’s commitment to confirm within 10 working days of the notification whether or not (i) the notification file is complete and (ii) the transaction is eligible for the simplified procedure. Although this is a non-binding deadline for the FCA, it should give companies better visibility on the timeline for the investigation of their transaction.

Changes regarding the description of the substantive competitive analysis include:

• a new structure of the section on the competitive analysis (no longer broken down depending on the nature of the concentration: vertical, horizontal or conglomerate) making it easier for undertakings to anticipate the factors and principles taken into account by the FCA when assessing the competitive effects of a transaction;
• the addition of new appendices relating to the assessment of the effects of concentration at local level in the retail trade sector, the extent to which pressure from online sales may be taken into account, a template for structural commitments, a template for a mandate contract and the details of the documents that may be requested by the FCA during the assessment.

All in all the changes brought about by the new guidelines are relatively limited, which is not surprising given that guidelines are a soft law instrument and that any more substantial reform would have required a legislative approval. In this respect the introduction of an ex post control mechanism or of a new threshold based on the value of the transaction which was considered by the FCA and submitted to the public consultations were finally abandoned, at least for the time being. 

The revised merger control guidelines are available here (in French) and the FCA’s press release here (in English).

For more information please contact Thomas Oster or Elliot Costet.