The new Guidelines first address the procedural constraints for undertakings submitting a proposed merger. In particular, the document develops the obligations of notification and suspension of the transaction, as well as their sanctions provided for in Article L. 430-8 (failure to notify, missing or inaccurate declaration, early completion of the transaction). The new guidelines thus establish the offence of gun jumping, of which the Altice 16-D-24 decision of November 8, 2016 was the first case study in France. The Guidelines take into consideration certain contributions sent in response to the public consultations launched by the Authority. Thus, in order to anticipate the notification of a merger, undertakings may now contact the Merger Department to send an (optional) request by e-mail for the appointment of a rapporteur, who will be responsible for examining the case, and which must contain certain information (now set out in point 189), including the contact details of the parties and their legal counsels and an accurate description of the transaction. Within five working days, the name of the deputy head of the merger control department responsible for examining the file is communicated to the notifying party. For greater legal certainty, the document now provides for a reply on the completeness (or incompleteness) of the notification file within 10 working days after notification (point 207), as well as a further period of 10 working days (point 244) to inform the notifying party whether the proposed merger can be dealt with under the simplified procedure.
After reminding that it is possible to pre-notify the transaction (points 191 to 200) – including in the event of a referral to the Commission – the document describes the procedure for submitting the notification file in paper form, as well as the new paperless notification procedure (points 234 to 238) open to mergers in the retail sector, provided that (i) they do not lead to a change of name, and (ii) they do not result in an overlap of activities, irrespective of their horizontal, vertical or conglomerate nature.
Reminding the various pieces of information that should be included in the notification file, the document states that its content may be simplified for undertakings that make a large number of notifications per year, such as investment funds or major players in the retail trade. As an unprecedented contribution, the new guidelines identify the transactions which, in principle, are not likely to harm competition and, as such, are eligible for the simplified procedure (point 230).
“The content of the notification file may also be simplified for the following transactions (…):
– when the combined market shares of the undertakings concerned is less than 25% on markets consistently defined by the decision-making practice,
– when there is an overlap of activity between the parties, where the combined market share of the undertakings concerned is less than 50% and the addition of market shares resulting from the transaction is less than 2 percentage points in markets consistently defined by decision-making practice,
– when present on vertically related markets, where the combined market share of the undertakings concerned on those markets is less than 30% in markets consistently defined by decision-making practice,
– when present on related markets, where the market shares of the undertakings concerned on the related markets are below 30% in markets consistently defined by decisional practice,
– in case of acquisitions of exclusive control of undertakings, where the acquirer exercised joint control of the target prior to the transaction,
– where the transaction relates to the creation of a full-function joint venture exclusively active outside the national territory,
– where the transaction relates to the acquisition of joint control of a real estate asset for sale before completion (vente en l’état futur d’achèvement (VEFA))”.
After describing phases I and II of the procedure, the guidelines reconsider the Minister of the Economy’s evocation authority by incorporating the Agripole decision of July 19, 2018, whereby the Minister authorized a merger that the Authority had previously subject to a divestiture condition.
The new document develops the remedies that may be adopted in the context of merger control (points 351 et seq.) – commitments made by the notifying party prior to or during Phase I (Art. L. 430-5, II, French Commercial Code) or Phase II (Art. L. 430-7, II); injunction for failure to give sufficient commitments or failure to comply with commitments (Art. L. 430-7, III) imposed by the Authority during Phase II only -, lists the remedies of a structural nature – including ‘fix-it-first’ commitments which the Authority has recently used on several occasions -, or of a behavioral nature (see recently Competition Authority, January 29, 2019, 19-DCC-15, and May 26, 2020, GBL, not yet published, and codifies the decision-making practice as regards monitoring (points 420 et seq.), review of remedies (points 442 et seq.) and non-compliance with commitments (points 456 et seq.). Appeals before the Conseil d’État are also extensively discussed in points 471 to 499.