French Merger Control: Thresholds, Procedure, and Media Pluralism

French merger control (contrôle des concentrations) is governed by the Code de commerce and enforced by the Autorité de la concurrence (Competition Authority). The system reviews mergers and acquisitions that meet certain thresholds to ensure that they do not harm competition in French markets. French merger control operates within the broader framework of EU merger regulation, with mechanisms for referral between French and EU authorities. The system also incorporates distinctive criteria, including media pluralism, reflecting French concerns about democratic transparency.

The Autorité de la Concurrence

The Autorité de la concurrence is the French competition authority responsible for enforcing merger control and competition law. Established by the Loi de modernisation de l’économie of 2008, the Autorité replaced the former Conseil de la concurrence. It is an independent administrative authority with powers to investigate mergers, impose remedies, and sanction anticompetitive conduct.

The Autorité is composed of a college of members appointed for renewable terms. The college includes judges, economists, academics, and competition law specialists. The Autorité’s merger control decisions are subject to appeal before the Conseil d’État. The Autorité also issues opinions on competition matters at the request of the government, Parliament, or local authorities.

Notification Thresholds

Merger transactions are subject to mandatory notification to the Autorité when certain turnover thresholds are met. The current thresholds require notification when: (1) the combined worldwide turnover of all parties exceeds €150 million, and (2) the turnover of at least two parties in France exceeds €50 million. Additional thresholds apply to the retail sector.

The turnover thresholds are calculated on a group-wide basis, including the turnover of all entities within the same group. The thresholds are periodically adjusted by decree. Transactions that do not meet the thresholds are not subject to mandatory notification, though the Autorité may request notification of transactions that raise competition concerns even below the thresholds.

Jurisdiction and Referral to the European Commission

The European Commission has jurisdiction over mergers with a Community dimension under the EU Merger Regulation (139/2004). A merger has a Community dimension when the combined worldwide turnover of all parties exceeds €5 billion and the EU-wide turnover of at least two parties exceeds €250 million. The Commission has exclusive jurisdiction over such mergers, and Member States cannot apply their national merger control rules.

However, the EU Merger Regulation provides for referral mechanisms. A merger that does not have a Community dimension may be referred to the Commission if it affects trade between Member States and threatens to significantly affect competition. Conversely, a merger that has a Community dimension may be referred to the French Autorité if it primarily affects competition in French markets. The referral mechanism ensures that mergers are reviewed by the most appropriate authority.

The Merger Review Procedure

The merger review procedure has two phases. Phase I (25 working days) is a preliminary examination to determine whether the merger raises serious competition concerns. If the Autorité finds no concerns, it clears the merger unconditionally. If it identifies potential concerns, it either clears the merger subject to remedies or opens a Phase II investigation.

Phase II (65 working days) is an in-depth investigation of the merger’s competitive effects. The Autorité gathers evidence from the parties, competitors, customers, and other stakeholders. It may hold hearings and request economic analyses. At the end of Phase II, the Autorité may clear the merger unconditionally, clear it subject to remedies, or prohibit it.

Substantive Assessment

The Autorité assesses mergers under the test de l’atteinte substantielle à la concurrence (significant impediment to effective competition, SIEC test). The test examines whether the merger would significantly impede effective competition in the relevant market, particularly through the creation or strengthening of a dominant position.

The assessment considers both horizontal effects (between competitors) and vertical effects (between suppliers and customers). The Autorité analyses market shares, concentration levels, entry barriers, countervailing buyer power, and efficiency gains. The Autorité may also consider broader public interest factors, including employment, industrial policy, and territorial development.

Remedies

When a merger raises competition concerns, the Autorité may impose remedies (engagements) to address those concerns. Structural remedies require the divestiture of assets or businesses to maintain competitive market structures. Behavioural remedies impose ongoing obligations on the merged entity, such as commitments to supply competitors or to maintain certain pricing practices.

The Autorité prefers structural remedies, which are more effective and require less ongoing monitoring. Remedies must be proportionate to the competition concerns identified and must be capable of effective implementation. The Autorité may appoint a trustee to monitor compliance with remedies.

Media Pluralism Criterion

French merger control incorporates a distinctive criterion for media pluralism. Under Article L. 430-10 of the Code de commerce, the Autorité must consider whether a merger involving media enterprises would harm media pluralism (pluralisme des médias). This criterion reflects the constitutional importance of media pluralism for democratic debate.

The media pluralism assessment is conducted by the Autorité de la concurrence in consultation with ARCOM (the audiovisual and digital regulatory authority). The assessment examines the impact of the merger on the diversity of media voices, editorial independence, and access to information. The Autorité may impose specific remedies to protect media pluralism, including commitments to maintain editorial independence or to preserve separate newsrooms.

Sanctions and Appeals

Failure to notify a notifiable merger (gun jumping) is subject to significant fines. The Autorité may impose a fine of up to 5% of the turnover of the parties. The Autorité may also order the parties to restore the pre-merger situation, including through divestiture.

The Autorité’s merger control decisions are subject to appeal before the Conseil d’État. The appeal is a full review of the Autorité’s decision, including the factual assessment and the legal analysis. The Conseil d’État may uphold the decision, annul it, or modify it.