COMPETITION • FRENCH LAW • MERGERS
Pursuant to Article L. 430-3, paragraph 3 of the Commercial Code, the notification of the merger to the Competition Authority is the subject of a press release published within five working days. The purpose of publication is to enable those interested in the transaction to submit their observations to the regulatory authorities. It contains the relevant information concerning the transaction (date of notification, names of the undertakings, sector concerned). The Authority carries out a market test if the transaction so requires, in particular if it has never analyzed the relevant market, if the analysis is old, or if the transaction is likely to raise competition issues. Questionnaires relating to the activity of the recipient undertaking, the relevant markets, their operation or the expected effects of the transaction are sent to the parties’ competitors, customers or suppliers.
Moreover, the procedure must be inter partes i.e. adversarial, not only with regard to the parties directly involved, but also with regard to third parties who may benefit from asset disposals in the context of the commitment procedure. Failure to communicate the draft decision to a third party interested in the authorization decision leads, when it does not give the third party an opportunity to present its observations, to the annulment of the decision for violation of the general principle of the rights of the defense. However, the right to submit observations is limited to the third parties concerned, since there is no text or general principle of law requiring that the decision be preceded by an adversarial procedure with the interested third parties.
In addition, the Competition Authority and the Minister of the Economy may, under the terms of Article L. 430-10 of the Commercial Code, hear third parties with respect to the transaction, its effects and the proposed commitments. During that hearing, they must take into account the legitimate interest of the notifying parties or the persons named in the notification in ensuring that their business secrets are not disclosed.
