Yes. The French merger control rules are set out in the French Commercial Code. The French Competition Authority ("FCA") has also issued guidelines detailing its approach to merger control (see:https://www.autoritedelaconcurrence.fr/sites/default/files/Lignes_directrices_concentrations_2020_EN_adlc.pdf).

An independent administrative authority, the French Competition Authority ("FCA"), has jurisdiction over merger control cases in France and enforces the relevant merger control provisions.

The Minister for the Economy also holds residual powers in two circumstances: even if the concentration is cleared by the FCA at the end of the first phase, the Minister can ask that the FCA open a second phase in-depth review of the concentration (although the FCA has discretion to act upon this request or not) and, in addition, whatever the final decision of the FCA at the end of the second phase, the Minister can substitute his own decision based on public interest grounds (see "Other important/ notable information").

The European Commission has exclusive competence to review those concentrations that have a 'Union dimension' (please refer to EU Merger Regulation ("EUMR") thresholds).

The EUMR establishes a system of referral to ensure that a concentration is examined by the authority best placed to conduct the assessment.

Yes. Provided certain turnover thresholds set out in the French Commercial Code are fulfilled, the notification of a 'concentration' to the FCA is mandatory.

The French definition of ‘mergers’ is aligned with the definition set out in the EUMR. The French legislation thus applies to ‘concentrations’, which may occur when:

• two or more formerly independent undertakings merge; or
• one or several persons who already control at least one undertaking, acquire, directly or indirectly, control of all or part of one or several other undertakings.

Control is defined as the possibility to exercise a decisive influence over the conduct of an 'undertaking'. This control may be held by one (sole control) or several (joint control) persons or undertakings. Joint ventures are treated under French law as under the EUMR. It follows that the creation of a joint venture performing, on a lasting basis, all the functions of an autonomous economic entity, constitutes a concentration. A concentration also occurs when a joint venture that was not initially full-function becomes fully fledged.

No, unless it confers de jure or de facto control. It is to be noted that the FCA recently cleared the acquisition of Bio Pôle Antilles by Inovie Group under the condition that Inovie Group commits not to acquire a non-controlling minority stake in another company, Synergibio, for a period of ten years. The FCA considered that the additional acquisition of a minority stake was likely to harm competition on the market for routine medical biology examinations in Guadeloupe and Saint-Martin where Synergibio was the sole private competitor of Bio Pôle Antilles (Decision 22-DCC-35).

Where the relevant turnover thresholds are met, mergers, including foreign-to-foreign mergers, fall under French merger control rules and must be notified and cleared prior to completion.

French merger control applies where the following cumulative thresholds are met:

• all the undertakings that are party to the concentration achieved, during the previous financial year, a worldwide combined pre-tax turnover of over 150 million (approx. US$157,5 m); and
• at least two of the undertakings concerned each achieved, during the previous financial year, a pre-tax turnover in France exceeding 50 million (approx. USD $52,5m); and
• the transaction is not caught by the EUMR.

There are also lower thresholds applicable for concentrations involving i) undertakings in the retail trade or ii) undertakings operating in French overseas departments and communities.

Filing is mandatory. The concentration must be notified by the entities that acquire control of all or part of an undertaking.

Filing may be made at any time once the project is sufficiently well advanced, and in particular, is normally possible when the parties have entered into a gentlemen’s agreement or signed a letter of intent, or after the publication of the purchase or exchange offer.

In any event, a concentration must not be completed before approval has been obtained.

A concentration that requires notification must not be completed before approval has been obtained from the Authority.

Derogations may be granted to make it possible to proceed with the completion of all or part of the concentration without awaiting the decision of the Authority, or of the Minister as the case may be, provided that these derogations are necessary and duly justified. Derogations, which remain exceptional, may notably be obtained in cases where the target is subject to insolvency proceedings.

The template merger notification form is available on the FCA's website.

The notification file must notably include information on:

• the transaction;
• the undertakings concerned and the groups to which they belong;
• the relevant product and geographic markets definition;
• an analysis of the parties and competitors' position in these markets.

The parties must provide more detailed information for 'affected' markets which is the case where:

• The parties have a combined market share of 25% or more; or
• The parties operate on upstream, downstream or connected markets and they have a market share of 25% or more in one of those markets; or
• The concentration leads to the potential disappearance of a competitor.

Some transactions are eligible for a simplified procedure with less onerous information requirements:

• where the combined market share of the undertakings concerned is less than 25% in markets consistently defined by past decisions;
• in the case of overlap in the economic activities of 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 past decisions;
• in the case of presence on vertically related markets, where the combined market share of the undertakings concerned in those markets is less than 30% in markets consistently defined by past decisions;
• in the case of presence in related markets, where the market shares of the undertakings concerned in the related markets are below 30% in markets consistently defined by past decisions;
• in the case of acquisitions of sole control of undertakings, where the acquirer exercised joint control of the target prior to the transaction;
• where the transaction concerns the creation of a full-function joint venture whose economic activity is only outside France;
• where the transaction concerns the acquisition of joint control of a real estate asset for sale in a future state of completion.

For such transactions, the notifying party may provide a summary table of the financial data only for the last financial year ended and shall not provide the "list and description of the activity of the undertakings with which the firms or groups concerned and the groups to which they belong maintain significant and lasting contractual ties within the markets concerned by the transaction, the nature and description of these ties".

In addition, transactions that are unlikely, prima facie, to raise competition issues can benefit from an electronic procedure. The sectors concerned are food distribution motor vehicle distribution and transactions in any sector with no horizontal overlap or vertical or related links.

No.

Even though not mandatory, it is strongly recommended for the parties to enter into prenotification contacts with the FCA before formal filing, especially for cases that raise competition concerns.

Phase I:

• Formal time limit: 25 working days
• May be extended for an additional 15 working days if the notifying parties submit commitments.
  Please note that where no competition issues are anticipated, the simplified procedure allows the parties to obtain clearance within a shorter time period (i.e., on average after 15 working days following the filing of a complete notification).

Phase II:

• Formal time limit: 65 working days
• May be extended for an additional 20 working days if the notifying parties submit or modify commitments less than 20 working days before the expiry of the 65-day period.

These time limits do not take into account the potential 'stop the clock' at the request of the notifying parties or on the initiative of the FCA.

The FCA uses the same substantive test as the European Commission i.e. whether the notified transaction results in a significant impediment to effective competition in the French market.

Phase I:

The FCA can adopt a decision:

• authorizing the transaction; or
• authorizing the transaction subject to commitments;
• opening an in-depth review of the transaction (Phase II).

Phase II:

The FCA can adopt a decision:

• authorizing the transaction;
• authorizing the transaction subject to commitments;
• prohibiting the transaction.

Recently, the FCA has adopted its first prohibition decisions: in 2020, the FCA blocked the planned acquisition of joint control of a Géant Casino hypermarket in the conurbation of Troyes by Soditroy and the Association des Centres Distributeurs E. Leclerc which raised serious competition concerns relating to price increases for consumers without any remedies capable of addressing those concerns (decision 20-DCC-116). In 2021, the FCA blocked the planned acquisition of SPMR by Ardian group in the sector of hydrocarbon transport by pipeline because such a takeover would have had the effect of giving Ardian sole market power for the pipeline and thus being the sole trade policy maker regarding an essential infrastructure (decision 21-DCC-79).

As stated previously, the Minister for the Economy holds residual powers (please refer to "Identify the applicable national regulatory agency/agencies").
On 14 June 2018, for the first time, the French Minister for Economy and Finance made public his intention to review the acquisition by Cofigeo on its acquisition of the ready-meals branch of the Agripole group (owner of the William Saurin assets) authorized with injunctions by the FCA the same day. The decision of the French Minister was adopted on general interest grounds, such as preserving jobs and industrial development. Upon the expiry of the 25-day period provided by the French Commercial Code, the French Minister for Economy and Finance confirmed his intention and adopted an authorization decision that supersedes that of the French Competition Authority, consequently rendering its injunctions inapplicable (decision 18-DCC-95).

Between filing and the final decision of the FCA, the notifying parties may submit amendments to the transaction to remedy competition issues. The parties may put forward various remedies (behavioral as well as structural), such as commitments to sell assets to third parties (those third parties should then be approved by the FCA), to execute a contract (e.g., a trademark or patent license), to amend conditions of sale, to keep the Authority informed of any change in the structure of the relevant market (such as an increase in the parties’ market share) or even sometimes to freeze their market share.
FCA tends to favor structural remedies. Commitments can be offered in both Phase I and Phase II.

If a transaction meeting the conditions for a notification to the FCA is completed in breach of the prior notification requirement, the FCA may:

• order the parties to notify the transaction, coupled with a daily penalty payment of a maximum of 5% of their average daily turnover, unless they revert to the situation that existed prior to the operation; and/or
• impose on the party (parties) liable for the notification a fine of up to 5% of its (their) turnover in France excluding taxes during the latest financial year, increased by the turnover achieved by the target during the same period. For natural persons, the maximum amount of the fine is EUR 1.5 million.

In 2022, the FCA fined Cofepp for acquiring control of MBWS without prior notification of the transaction and without waiting for its decision. Cofepp did not contest the charges and therefore benefitted from a settlement procedure resulting in a EUR 7 million fine instead of the maximum amount of [35-40] million euros incurred (decision 22-D-10).

Closing before clearance is considered equivalent to an absence of filing and triggers the same sanctions (please refer to "Describe the sanctions for not filing or filing an incorrect/incomplete notification").

In principle, the FCA cannot review mergers that are not notifiable. However, the FCA may initiate proceedings against the merged entity notably on the basis of an abuse of the dominant position.
It should also be highlighted that in the event of abuses of the dominant position or position of economic dependency, the FCA may, by reasoned decision, require the undertaking or group of undertakings to amend, supplement or terminate, within a specified period, all agreements and acts embodying the pooling of economic power that made the abuses possible, even if such act complied with the procedure set forth in this title. However, to the best of our knowledge, this provision has been invoked by the FCA only once and was not actually implemented in this case.

The competence of the merger control authorities is being expanded with new, complementary instruments for ex-ante intervention, especially the new application of Article 22 of European Merger Regulation 139/2004 which allows national authorities to ask the European Commission to examine certain transactions "below the thresholds". A first case of application of the new approach of the European Commission regarding Article 22 intervened in 2021 with the referral made by the FCA to the EC concerning the acquisition of Grail by Illumina. The General Court (case T-227/21) confirmed the EC's decision to accept the FCA referral request.

The FCA can open an investigation leading, where appropriate, to a decision sanctioning the failure to notify (please refer to "Describe the sanctions for not filing or filing an incorrect/incomplete notification.").

The FCA tends to be more proactive in using its merger control tools.

In 2022, the FCA applied the settlement procedure to a case of gun-jumping (see "Describe the sanctions for not filing or filing an incorrect/incomplete notification").

In 2022, the exception of the failing firm was applied for the first time: the FCA unconditionally cleared the acquisition of Conforama by But in spite of competition issues (decision 22-DCC-78 ).

In 2022, the acquisition of Métropole Télévision by Bouygues was abandoned after the opening of a Phase 2 investigation and proposal of commitments by the Parties that were not addressing all the competition concerns of the FCA. Similarly, in 2020, Pisto, specialized in petroleum product storage withdrew its planned takeover of Trapil the leading company for refined product (petrol, diesel, heating oil, jet fuel) pipeline transport in France, given the FCA's high concerns relating to the market power of the new entity that was durably non-contestable by a competitor.

Not Applicable.