COMPETITION • FRENCH LAW • MERGERS
If the Competition Authority deems that there is a serious doubt that competition has been harmed, it may initiate an in-depth review of the transaction (Commercial Code, Art. L. 430-5). As in Phase I, the parties may request a suspension of the review period (Art. L. 430-7). The text also provides for a “stop the clock” procedure, at the Authority’s initiative, which allows it to suspend the time-limit for examining the transaction in two circumstances: in the event of a new fact or the failure to respond to a request for information from the Authority.
During the in-depth examination, the Competition Authority checks whether competition is being harmed by the creation or strengthening of a dominant position or by the creation or strengthening of a purchasing power that places suppliers in a position of dependence. The assessment of the contribution to economic progress is made at this stage of the procedure. The in-depth examination phase may not exceed sixty-five working days from its opening at the end of the twenty-five working days, which may be extended, granted to the Authority to rule on the transaction by Article L. 430-5. Commitments may, as in phase I, be proposed.
The merger control procedure is largely identical to that applicable to anticompetitive agreements, abuse of dominant position and abuse of economic dependence, to which Article L. 430-6 of the Commercial Code refers, except for the time-limits, which are different. However, as the procedure is non-contentious, it does not involve the service of a Statement of Objections. For the rest, the principle of adversarial proceedings applies. The report prepared by the rapporteur is based on information gathered from the undertakings, but the preparation of minutes of the hearing is not required. It is communicated to the undertakings involved in the merger and to the Government Commissioner. It is accompanied by the documents on which the rapporteur bases his report and, possibly, the observations of the parties. The notifying parties and the Government Commissioner have a period of fifteen working days to present observations in response. Third parties and undertakings may be heard by the Competition Authority in the absence of the notifying parties. The Authority also obtains the opinion of the sectoral authority concerned.