Merger Remedies in France: How the Autorité de la Concurrence Resolves Competition Concerns

Commitments vs. Injunctions: The Fundamental Distinction

When competition concerns are identified, remedies can arise through two distinct channels (LD-AdIC § 351):

Commitments (engagements) are proposed by the parties themselves at any stage of the procedure — during pre-notification, at the time of notification, at any point in Phase 1 before the decision, or during Phase 2. They are voluntary in origin but become legally binding once accepted by the Autorité in its authorisation decision. Injunctions are rare in practice: they are considered only where parties refuse to propose commitments or the proposed commitments are insufficient (LD-AdIC § 355).

Injunctions and prescriptions (injonctions et prescriptions) are imposed by the Autorité at the end of Phase 2 when commitments are inadequate and prohibition would be disproportionate (Art. L 430-7, III). They must be proportionate: they cannot exceed what is necessary to restore sufficient competition (CE, 21 December 2012, n° 353856). An important liability principle applies: enterprises bear greater responsibility for commitments they themselves proposed than for injunctions imposed on them. Having subscribed to a commitment, parties cannot later invoke impossibility or difficulty of compliance, since they approved the content and implementation timeline themselves (Aut. conc., 20 November 2011, n° 11-D-12, pt. 30).

Structural vs. Behavioural Remedies

What a Valid Divestiture Commitment Requires

When Commitments Can Be Submitted

Commitments can be submitted at five distinct moments in the procedure (LD-AdIC §§ 358–360):

• During pre-notification — earliest possible; allows the most time to design and test
• At the time of notification
• At any point in Phase 1 before the 25-working-day deadline; submission automatically extends the Phase 1 deadline by 15 working days
• During Phase 2; late submission (less than 20 working days before the 65-working-day deadline) extends the total Phase 2 deadline to 20 working days after receipt, with a cap of 85 working days from the opening of Phase 2
• In the context of ministerial evocation; the minister may impose conditions going beyond competition maintenance to reflect general interest grounds

A market test may (but need not) be organised to consult market players on the proposed commitments (LD-AdIC § 360).

The Trustee (Mandataire) System

For transactions authorised subject to commitments, the Autorité typically requires the appointment of a trustee (mandataire) to monitor compliance and, in the case of structural remedies, to supervise or conduct the divestiture process if the parties fail to execute in time (LD-AdIC §§ 424 et seq.). The trustee must meet three conditions for approval: independence from the parties; the required competencies and sufficient resources; and the absence of any conflict of interest. The parties propose a shortlist of three candidates within one month; the Autorité approves one. If no proposed candidate is approved, the parties submit a new list within a week; if still rejected, the Autorité designates its own choice at the parties' expense.

Two types of trustee may be used: a monitoring trustee who verifies compliance and reports to the Autorité (during which the activity to be divested must be maintained as a viable, competitive business); and, subsequently, a divestiture trustee empowered to conduct the sale itself if no approved buyer has been found within the commitment timeline.

Remedy Review and Modification

In exceptional circumstances, parties can request a review of their commitments, including extension of divestiture deadlines or revision of behavioural measures to better reflect new competitive conditions (LD-AdIC §§ 442 et seq.). Examples:

• LVMH/Les Echos (letter 19 July 2012): the Autorité terminated earlier ministerial commitments following profound changes in the daily economic and financial press market (disappearance of the printed daily La Tribune)
• Canal Plus: repeated reanalysis and modification of injunctions following successive transactions (TPS, D8/D17, SFR), most recently by decisions n° 17-DCC-92 and n° 17-DCC-93 of 22 June 2017; and the non-renewal of most SFR-era commitments (decision n° 19-DCC-199 du 28 October 2019)
• Groupe Bigard/Socopa Viandes: a brand licence commitment was replaced by a brand sale following non-compliance, illustrating how a review can arise from enforcement proceedings rather than changed market conditions

Non-Compliance: Sanctions and What the Autorité Can Do

Where the Autorité finds that parties have not executed a commitment, injunction, or prescription within the fixed deadline (Art. L 430-8, IV), it can take any of the following measures:

• Withdraw the authorisation decision: unless the parties restore the pre-concentration situation, they must re-notify within one month. Constitutional conformity of this power confirmed (Cons. const., 12 October 2012, n° 2012-280 QPC)
• Injunction under daily fine: parties are ordered to comply within a fixed deadline under a daily penalty of up to 5% of average daily worldwide turnover per day of delay (Art. L 464-2, II)
• Substitute injunctions under daily fine: the Autorité can impose substitute measures to replace the unexecuted obligation
• Financial sanction: up to the same maximum as for failure to notify (5% of French pre-tax turnover)

Deconcentration for Abuse of Dominant Position

A distinct power — used only once in French competition law history — is the Autorité's ability to order deconcentration in the event of abusive exploitation of a dominant position or economic dependency (Art. L 430-9). The Autorité can enjoin the enterprise to modify, complete, or terminate all agreements and acts through which the economic concentration that enabled the abuse was achieved, even if those acts were subject to prior merger control review. The single instance of use was the 2002 secteur de l'eau potable et de l'assainissement case (Cons. conc., 11 July 2002, n° 02-D-44), which was ultimately resolved through EU-level authorisations of cross-shareholding unwinds between Veolia and Lyonnaise des Eaux in 2009.

This article is for general information and educational purposes only. It does not constitute legal advice. Always seek qualified legal advice for your specific transaction or enforcement situation.