Competition regulator: proposals for streamlining and modernising checks on concentration

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Competition regulator: proposals for streamlining and modernising checks on concentration

On 7 June 2018 the competition regulator expressed its wish to streamline the formalities for companies wishing to merge, and announced a significant reduction in the amount of information requested from them.

You will recall that a notification file must be sent to the competition regulator for any merger in which the two thresholds below are both reached:

total global sales before tax of all the parties to the merger is more than EUR 150 million, and 

total sales before tax achieved individually in France by at least two of the parties to the merger is more than EUR 50 million.

The competition regulator carried out a quality assessment of the concentration checks that it had performed over the last ten years. From this review it concluded that the notification thresholds applicable to company concentrations were appropriate, including by international standards.

However, it suggested that the law should perhaps be supplemented to address supervisory shortcomings, especially given the specific nature of takeovers of digital or high tech companies (biotech and medicines) that may result in high valuations for companies "with no sales".

On this matter the regulator concluded that introducing a new type of concentration check based on deal value (as adopted recently in Germany and Austria) was not appropriate for the French economy. The regulator did however wish to examine the option of checking, after the event and in a targeted manner, a very limited number of deals that might turn out to be problematic in terms of competition as per the models used in numerous countries (such as Sweden, the UK and the USA).

In addition, the regulator announced with immediate effect a significant reduction in the amount of information requested from companies under the streamlined procedure and the creation of a new, ultra-streamlined declaration procedure via a digital platform.

Accordingly, the regulator is proposing to eliminate several items of information that were hitherto required, especially financial information (such as income from investments, intangible, tangible and financial assets and debt) and to reduce the number of copies of the file sent from the current four to just one.

The regulator is also proposing to broaden the scope of the streamlined procedure (which allows companies to lodge a simplified file and the regulator to issue a decision within a shorter time frame) to include procedures that originally fell within the scope of the traditional procedure (such as where the deal involves the creation of a fully operational joint venture operating solely outside French territory).

The regulator stresses that this broadening of scope would increase the number of deals processed within the shorter time frame of around three weeks to over 70%.

Lastly, the regulator explained that an "ultra-streamlined and paperless" notification procedure is to be introduced via the regulator's website for deals that qualify for the streamlined procedure in its existing form.

According to the competition regulator, the planned measures could be implemented by the end of 2018.

A streamlining of the merger supervision rules might encourage mergers, and therefore foreign investment, in France. It is therefore worth keeping an eye on the terms and the effective date of these changes.

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