COMPETITION • FRENCH LAW • MERGERS
A concentration may be accompanied by restrictions facilitating its implementation , some of which are assessed in isolation and subject to Article 101 TFEU or Article L. 420-1 of the Commercial Code, while other “ancillary” restraints are assessed at the same time as the concentration itself. Restrictions considered to be ancillary are those which result from the concentration itself and which are inseparable from it, i.e. all restrictions directly related and necessary to the implementation of the concentration where without them the merger could not be carried out or its viability would be jeopardized.
Non-compete undertakings can be held to be ancillary where they are limited in time and in their geographical, material and personal scope. Likewise, licenses of patents and similar rights, or of know-how, licenses of trademarks, business names, design rights, copyrights or similar rights, whether they be simple or exclusive and are limited to certain fields of use, may be considered to be ancillary restraints, with the exception of those stipulations inherent to certain types of agreement designed to protect the vendor rather than the acquirer.