AUTORITÉ DE LA CONCURRENCE – WORK TO PROPOSE A REFORM ON M&A THRESHOLDS

28/04/2025

 

French competition authority, the Autorité de la Concurrence has announced that following the public consultation, it is continuing its work to propose a balanced reform that will ensure effective control and sufficient legal certainty to address below-threshold mergers and acquisitions that are likely to harm the competition in the markets. On January 14 2025, the Autorité launched a public consultation to solicit views on possible legislative changes to the control of transactions below the current notification thresholds, having identified in its work over the past years that there are transactions that play, or are likely to play, an important competitive role in the relevant markets, but which are not subject to M&A control due to the low turnover of the target company at the time of the proposed transaction. In this context, the Autorité opened for public consultation two main options:

• a new set of notification criteria for certain companies found by previous decisions to have market power, or
• a call-in power based on quantitative and qualitative criteria, similar to the frameworks already in place in the ten Member States of the European Economic Area (EEA).

As regards the first option, criticisms were raised that referring to merger control, anti-competitive practices or previous decisions taken on the basis of the EU Digital Markets Act (DMA) would raise various legal and interaction issues and would lead to the inclusion of transactions that do not raise competitive concerns and would exclude several transactions that should be examined. The Autorité stated that the second option was more favorably received in that it would only allow for the review of potentially harmful transactions that do not meet the notification thresholds, thus avoiding the reporting of problematic transactions and giving the Autorité the flexibility to take action when necessary, with suggestions that the criteria and how the framework would be applied should be more specific. Finally, the contributors stated that the possible changes should remain exceptions for both legal and operational reasons.

Considering public consultation and the experience of EEA Member States that have implemented similar provisions, the Autorité has announced that it is continuing its work to introduce a call-in power based on clear criteria including:

•  A turnover threshold that can be easily assessed by the companies concerned;
•  A nexus to the French territory, to prevent mergers that would have no impact on the French territory from falling within the scope of the framework;
•  A criterion for identifying a risk to competition on the French territory;
•  Time limits for implementing the call-in power, which are clearly defined and short enough to ensure the predictability required by companies.

The Autorité has announced that it aims to submit proposals to public authorities in 2025 and will issue guidelines setting out practical details if reforms take place.

(Autorité – 10.04.2025)

 

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