Merger Control

Fourth Edition

Contributing Editors: Nigel Parr & Catherine Hammon Published by Global Legal Group CONTENTS

Preface Nigel Parr & Catherine Hammon, Ashurst LLP

Albania Renata Leka, Boga & Associates 1 Argentina Julián Peña & Federico Rossi, Allende & Brea 8 Australia Sharon Henrick, Wayne Leach & Michael Robert-Smith, King & Wood Mallesons 13 Brazil José C. M. Berardo, Bruno B. Becker & Guilherme Morgulis, BMA – Barbosa, Müssnich, Aragão 24 Canada Randall J. Hofl ey, Micah Wood & Kevin H. MacDonald, Blake, Cassels & Graydon LLP 37 Colombia Alfonso Miranda Londoño, Esguerra Barrera Arriaga S.A. 45 Cyprus Anastasios A. Antoniou & Aquilina Demetriadi, Anastasios Antoniou LLC 53 Denmark Olaf Koktvedgaard & Erik Kjær-Hansen, Bruun & Hjejle 60 Finland Katri Joenpolvi, Leena Lindberg & Jarno Käkelä, Krogerus 67 France Pierre Zelenko & Daniel Vasbeck, Linklaters LLP 77 Germany Peter Stauber, Noerr LLP 99 Hungary Márton Horányi & Andrea Jádi Németh, bpv JÁDI NÉMETH Attorneys at Law 109 India Farhad Sorabjee & Amitabh Kumar, J. Sagar Associates 119 Indonesia Yogi Sudrajat Marsono & HMBC Rikrik Rizkiyana, Assegaf Hamzah & Partners 123 Israel Dr David E. Tadmor & Shai Bakal, Tadmor & Co. Yuval Levy & Co., Attorneys-at-Law 130 Japan Kentaro Hirayama, Morrison Foerster / Ito & Mitomi 141 Kazakhstan Aldash Aitzhanov, Nikolay Radostovets & Kuanysh Kholtursunov, JSC Center for Development and Protection of Competition Policy 149 Kosovo Sokol Elmazaj & Delvina Nallbani, Boga & Associates 155 Macedonia Jasmina I. Jovanovik & Dragan Dameski, Debarliev, Dameski & Kelesoska Attorneys at law 160 Malta Ron Galea Cavallazzi & Lisa Abela, Camilleri Preziosi 167 Morocco Amin Hajji & Aïcha Brahma, Hajji & Associés 170 New Zealand Grant David, Neil Anderson & Melissa Hay, Chapman Tripp 175 Norway Jan Magne Juuhl-Langseth & Erik Martinius Klevmo, Advokatfi rmaet Simonsen Vogt Wiig AS 182 Portugal António Mendonça Raimundo & Sónia Gemas Donário, Albuquerque & Associados 194 Romania Silviu Stoica & Mihaela Ion, Popovici Nițu & Asociații 201 Singapore Kala Anandarajah, Dominique Lombardi & Tanya Tang, Rajah & Tann Singapore LLP 215 Spain Jaime Folguera Crespo, Raquel Lapresta Bienz & Tomás Arranz Fernández-Bravo, Uría Menéndez 223 Sweden Pontus Lindfelt, Mina Gregow & Hanna Wingren, White & Case 232 Switzerland Franz Hoffet, Marcel Dietrich & Gerald Brei, Homburger AG 242 Turkey Gönenç Gürkaynak & Öznur İnanılır, ELIG, Attorneys-at-Law 249 Ukraine Igor Svechkar & Alexey Pustovit, Asters 259 United Kingdom Nigel Parr & Emily Clark, Ashurst LLP 264 USA Christopher A. Williams & Paul S. Jin, Wilson Sonsini Goodrich & Rosati 279 France

Pierre Zelenko & Daniel Vasbeck1 Linklaters LLP

Overview of merger control activity during the last 12 months Further to the Law of Modernisation of the Economy dated 4 August 2008 (the “LME”), the French Competition Authority (the “FCA”) has been in charge of French merger control since 2 March 2009, when it took over this responsibility from the DGCCRF (a directorate reporting to the Minister of the Economy). It issued useful Guidelines in December 2009 (the “2009 Guidelines”), of which it published an updated version in July 2013 (the “2013 Guidelines”), each time organising a broad and open consultation of all stakeholders, including businesses, economists and law fi rms (together the “Guidelines”). The main provisions of the Guidelines are in line with the practice of the European Commission (the “EU Commission”), but they also contain some differences. Key features of the 2013 Guidelines The 2013 Guidelines did not completely overhaul the 2009 Guidelines but updated them by taking into account the FCA’s decision-making practice over the last four years. The new elements are relatively limited in scope and mainly concern the following points: • additional guidance is provided on the pre-notifi cation procedure and cases in which pre-notifi cation contacts with the FCA may be particularly useful; • the conditions for the application of the simplifi ed procedure are further specifi ed; • the FCA clarifi es its approach with regard to the defi nition of relevant markets and the substantive assessment of mergers, with a stronger emphasis being put on economic analysis and quantitative tests; and • the FCA details its policy as to the nature and implementation of remedies and publishes standard models for the transfer of assets and trustee mandates. Statistics The summary table below shows relevant indicators of the FCA’s activity in the period from 2012 to 2014: FCA statistics 2012-2014

2012 2013 2014 Notifi cations 1932 2143 1894 Referrals by the EU Commission 25 46 57 Decisions 185 201 200 Phase II openings 38 29 110 Conditional clearances (overall) 11 7 10 Conditional clearances after Phase I 911 512 913

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2012 2013 2014 Conditional clearances after Phase II 214 215 116 Prohibition decisions 000

The following comments can be made regarding this table: • Based on the number of decisions issued, the merger control activity of the FCA in 2014 remained at approximately the same level as in 2013. However, the number of notifi cations decreased in 2014, falling below the levels of 2013 and 2012. • The number of Phase II decisions slightly decreased in 2014. While the FCA opened two or three Phase II investigations every year from 2010 to 2013, it only reviewed a single Phase II case in 2014, representing 0.5% of all merger decisions (the corresponding fi gure amounted to 1% in 2013, 1.6% in 2012, and 0.9% in 2011). • The number of conditional clearances increased in 2014 compared to 2013, both in absolute value and in percentage. While conditional clearances only reached a rate of around 3.5% of all merger decisions in 2013, they represented 5% in 2014. • Since 2009, the EU Commission has made four referral decisions under Article 917 of the EC Merger Regulation No 139/2004 of 20 January 2004 (the “ECMR”) and 13 referral decisions under Article 4§418 of the ECMR to France. That statistic could give rise to several interpretations, the one favoured by the FCA being that it proves the EU Commission’s trust in its role as national merger control authority. • Until now, the FCA has never blocked a notifi ed merger since it took over responsibility for French merger control on 2 March 2009. However, it is interesting to note that, in the Kingfi sher/Mr. Bricolage case referred to by the EU Commission, in order to alleviate the competition concerns identifi ed by the FCA, the buyer Kingfi sher intended to submit commitments that were deemed incompatible with the principles of the transaction by Mr. Bricolage, which had to give its prior agreement on the commitments under the terms of the parties’ agreement. In light of this disagreement, the parties decided to abandon the deal. This case illustrates that, even in the absence of a proper prohibition decision, the FCA may de facto prevent a deal from proceeding where the commitments necessary are such that they render the transaction unattractive to the parties.19

New developments in jurisdictional assessment or procedure There have been some recent developments in terms of jurisdictional assessment and procedure. For instance, in the 2013 Guidelines, the FCA provided additional guidance on the pre-notifi cation procedure and the simplifi ed procedure. In addition, most signifi cantly, the FCA imposed several substantial fi nes on undertakings in the period from 2011 to 2014 for their failure to implement commitments they had given to secure clearance, as well as for their failure to notify mergers to the FCA (“gun-jumping”). According to the President of the FCA, Bruno Lasserre, several more proceedings are currently pending. 20 Warehousing As regards the issue of warehousing, it appears that the FCA follows EU decision-making practice and case-law. The Guidelines21 refer to Article 3, paragraph 5 of the ECMR and mention the EU Commission’s approach, as well as the Odile Jacob22 ruling in which the EU General Court addressed the issue of warehousing. The Guidelines also contain a specifi c provision23 regarding warehousing in the retail sector which specifi es that the FCA takes a more cautious line with respect to intermediate transactions where the identity of the

GLI - Merger Control Fourth Edition 78 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Linklaters LLP France ultimate purchaser is unknown and where there are no clear and binding agreements for the resale. This was illustrated by a transaction that was presented by the parties as provisional but was assessed by the FCA as a concentration in its own right.24 Pre-notifi cation procedure The pre-notifi cation procedure enables the notifying parties to submit, prior to the formal merger fi ling, either a presentation of the contemplated transaction (describing the parties, the intended transaction, the relevant markets, the competitors and the market shares of the parties) or a preliminary draft of the notifi cation form to the FCA. The 2013 Guidelines emphasise the importance of the pre-notifi cation phase and aim at facilitating pre-notifi cation contacts: • The 2013 Guidelines specify that the notifying parties may engage in pre-notifi cation contacts irrespective of the degree of advancement of the contemplated transaction. • In the 2013 Guidelines the FCA commits to providing the notifying parties within fi ve working days from receiving their submission with preliminary feedback on (i) the name(s) of the case handler(s) in charge of the examination of the notifi cation and (ii) the information to be provided, where necessary, to complete the notifi cation fi le. • The 2013 Guidelines set out a series of circumstances in which the pre-notifi cation procedure may prove particularly useful, e.g. where there are doubts as to whether the transaction qualifi es as a merger to be reported to the FCA, where the notifying parties envisage a referral to the EU Commission, where the transaction raises particular issues regarding the defi nition of relevant markets, where the notifying parties intend to rely on specifi c economic studies, or in the event of complex cases. More generally, the 2013 Guidelines emphasise that pre-notifi cation contacts reduce the risk of declarations of incompleteness and thereby speed up the review of transactions by the FCA. Although the 2013 Guidelines seek to facilitate the use of the pre-notifi cation procedure, they do not alter the nature of said procedure, which continues to be optional. It remains to be seen how the changes will impact in practice on pre-notifi cation contacts with the FCA. Review of simple cases: additional guidance on the simplifi ed procedure It must be recalled that there is no legal obligation on the FCA to handle simple cases in less than the standard period of 25 working days. Nevertheless, the FCA has demonstrated its pragmatic approach as regards simplifi ed notifi cation forms and accelerated procedures. Indeed, the FCA has indicated in different public speeches and in the Guidelines that it would endeavour to reach a decision within a reduced timeframe of approximately 15 working days for cases that do not raise any competition issues. The 2013 Guidelines further specify the conditions for the application of this simplifi ed procedure: • Firstly, the simplifi ed procedure applies to transactions that do not give rise to any horizontal overlaps, nor to any vertical or conglomerate relationships, i.e. where the buyer(s) do(es) not engage in business activities in the same markets as the target(s), nor in vertically related markets or neighbouring markets. The 2013 Guidelines specify that this case is likely to cover most transactions implemented by investment funds (which rarely have an impact on competition). • Secondly, the simplifi ed procedure also applies to transactions that (i) are not caught under the standard jurisdictional threshold provided by Article L. 430-2, I of the French Commercial Code but meet the lower threshold provided by Article L. 430-2, II of the French Commercial Code (which catches certain transactions in the retail sector), and (ii) do not give rise to a change in the shop sign of the retail stores concerned. The

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2013 Guidelines specify that this case may be relevant, inter alia, for transactions implemented in the food retail sector and the automotive retail sector. The application of the simplifi ed procedure triggers several consequences: • as indicated above, the FCA will issue a clearance decision within a reduced timeframe (approximately 15 working days); • the notifying parties may submit a shortened notifi cation form;25 and • the FCA will adopt a simplifi ed clearance decision which does not include any reasoning but merely states that the notifi ed transaction does not raise any competition issues. Even where the abovementioned conditions are fulfi lled, the FCA formally reserves the right to revert to the standard procedure where it considers it necessary. However, it is our experience that the FCA has proved fl exible when handling simple cases within signifi cantly reduced timeframes. According to the Guidelines, the simplifi ed procedure applied to 40% of the decisions adopted in 2011, and to 48% of the decisions adopted in 2012. This fi gure even increased in 2013, when the rate reached around 51%. In 2014, the simplifi ed procedure applied to 41.5% of the decisions. Although the scope of the simplifi ed procedure appears to be relatively narrow, the procedure has therefore been applied to a signifi cant number of transactions reviewed by the FCA over the last few years. An analysis of the FCA’s recent decision-making practice shows that the FCA issued its simplifi ed clearance decisions in 2014 in an average period of 15.6 working days from the date the notifi cation fi le was declared complete, meeting thereby the objective set out in the Guidelines. Beyond this average fi gure there is a signifi cant spread between cases, depending on the FCA’s workload when receiving the notifi cation. For example, one decision was issued in only two working days26 while another decision was adopted in 24 working days,27 i.e. barely quicker than the standard period. Derogation from the suspension obligation Under exceptional circumstances, notifying parties may be granted a derogation from the suspension obligation, which enables them to implement their transaction prior to its clearance by the FCA. Unlike the EU Commission, the FCA does not publish decisions by which it grants such derogations, which explains why there is little insight into the FCA’s practice in this fi eld. The 2013 Guidelines provide, however, additional guidance on the circumstances that may justify derogations from the stand-still obligation. The 2009 Guidelines already referred to the case of takeover offers of companies in liquidation or redressement judiciaire or the risk of the imminent disappearance of the target company. The 2013 Guidelines added further justifying circumstances, including the opening of insolvency proceedings and the necessity for the buyer to secure guarantees or to obtain adequate fi nancing to ensure the survival of the target. Failing fi rm defence While the recent period could have provided a good opportunity to apply the failing fi rm defence to certain acquisitions concerning targets in fi nancial diffi culties, the FCA has applied a classic merger control analysis to certain acquisitions of companies in liquidation or redressement judiciaire, while presumably taking into account the situation of the target.28 In the 2012 Eurotunnel/SeaFrance case, the FCA made a reference to the concept of failing fi rm defence but considered that the strict and cumulative criteria of that defence were not met in the case at issue, given that alternative takeover offers of the target had been submitted.29

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Signifi cant fi nes for gun-jumping Since it took over the responsibility for merger control in France in March 2009, the FCA has adopted three decisions in which it imposed substantial fi nes on undertakings that implemented mergers without notifying them to the FCA, thereby infringing the pre-merger notifi cation requirement (see the table below). In the most recent of these decisions, the FCA imposed an unprecedented fi ne of €4m on the Castel group, which is the highest fi ne ever imposed in France for this type of infringement.

Fines for gun-jumping / 2009-2014

Date of the Undertakings Amount Appeal decision fi ned of the fi ne 11 May 201230 Colruyt €392,000 Appeal dismissed,31 fi nal decision 31 January 201332 Réunica/Arpège €400,000 No appeal, fi nal decision 20 December Castel €4m Appeal pending; question for a priority 201333 preliminary ruling on constitutionality dismissed34

In addition to these three cases, the FCA carried out dawn raids in April 2015 in the offi ces of Numericable and SFR, in order to ascertain whether the parties had implemented the acquisition of SFR by Numericable prior to the clearance decision,35 in violation of the stand- still obligation.36 This decision-making practice illustrates how active and severe the FCA’s approach is with regard to those infringements and demonstrates that businesses incur substantial risks when they fail to examine whether their transactions qualify as mergers that are reportable to the FCA. It is interesting to note in this regard that the FCA became aware of the transaction which the Castel group failed to notify within the framework of a separate merger control investigation involving third parties. In this case, Copagef (Castel’s parent company) challenged the constitutionality of the provisions that enable the FCA to impose fi nes for the failure to notify a concentration. However, the Conseil d’Etat (the highest French administrative court) dismissed Copagef’s allegations in a judgment delivered on 16 July 2014,37 while the main appeal appears to be still pending. The three cases also provided the FCA with the opportunity to clarify certain procedural issues regarding the infringement of the pre-merger notifi cation requirement (the clarifi cations provided in this regard have been incorporated into the Guidelines): • The FCA specifi ed that such infringements are subject to a fi ve-year limitation period (which was not mentioned in the law). • The FCA clarifi ed that the entities that are liable for such infringements are those that were responsible for the merger fi ling to the FCA, i.e. the entities that ultimately acquired control of the target. • The FCA indicated that, in order to determine the amount of the fi ne, it will take into account the seriousness of the infringement, the individual situation of the entity that is held liable as well as all relevant aggravating or mitigating circumstances. Such circumstances include, for instance, the fact that it was obvious that the transaction had to be notifi ed to the FCA, the size and resources of the undertakings concerned, and the fact that the undertaking concerned spontaneously informed the FCA of the transaction which it failed to notify. It has to be noted in this regard that the absence of anticompetitive effects of the transaction is not regarded as a mitigating circumstance,

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given that the failure to comply with the pre-merger fi ling requirement is in itself regarded as a serious infringement. These indications remain, however, fairly broad, and the FCA did not provide specifi c guidance on the actual method it follows for the setting of fi nes in those cases.38 Strict monitoring of the implementation of remedies Since March 2009, the FCA has adopted two fi ning decisions by which it sanctioned undertakings for their failure to implement commitments given to obtain merger clearance. On 20 September 2011, the FCA sanctioned Canal Plus for its failure to implement the remedies it had given to obtain clearance of its acquisition of TPS and CanalSatellite in the pay-TV market.39 In this landmark decision, the FCA not only obliged Canal Plus to re- notify this acquisition, but it also imposed a fi ne of €30m (reduced to €27m by a judgment dated 21 December 2012 of the Conseil d’Etat40), whereas the previous fi ne for such an infringement only represented €250,000 (imposed on another TV channel, TF1). On 9 July 2012, the FCA imposed a fi ne of €1m on a smaller company, Bigard, for its failure to implement the remedies upon which the clearance of its acquisition of Socopa was conditional.41 In January 2015, the FCA announced in a press release that, following its 2014 clearance decision42 in the Numericable group/SFR case, it is currently investigating Numericable’s effective implementation of the commitment it gave to divest Outremer Telecom’s mobile telephony activities in certain overseas territories and to preserve the economic viability, market value and competitiveness of the business concerned until the divestiture.43 Through these cases, the FCA sent a clear message to all businesses committing to remedies that they should carefully implement them within the deadlines assigned. This strict verifi cation of the implementation of remedies could be seen as the counterbalance of the FCA’s open approach to creative behavioural remedies while other competition authorities, such as the EU Commission, seem more reluctant to accept commitments other than clear- cut structural ones.

Fines for failure to comply with commitments given to obtain merger clearance, 2009-2014

Date of the decision Undertakings fi ned Amount of the fi ne Appeal 20 September 2011 Canal Plus €30m Fine reduced to €27m on appeal 9 July 2012 Bigard €1m No appeal, fi nal decision

First use of injunction powers in 2012 In 2012, the FCA used its injunction powers for the fi rst time. As mentioned above, the FCA withdrew its clearance of the Canal Plus/TPS and CanalSatellite merger due to the parties’ failure to implement the remedies they had given. On 23 July 2012,44 when clearing this merger again following its re-notifi cation, the FCA took the view that reverting to the situation of 2006 (date of the merger) was not an option, but considered at the same time that the proposed remedies were insuffi cient, and consequently imposed injunctions on the parties, pursuant to Article L. 430-7 III of the French Commercial Code. Canal Plus appealed against this decision before the Conseil d’Etat, which rejected its action for annulment45 as well as its petition for interim measures.46

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Key industry sectors reviewed, and approach adopted, to market defi nition, barriers to entry, nature of international competition etc. As in 2013, French merger control in 2014 focused particularly on the retail sector. Other key industry sectors reviewed by the FCA in 2014 include the media and telecommunications sectors. The retail sector In terms of volume, the retail distribution sector again generated, as in the past few years, numerous notifi cations. Out of the 200 decisions adopted by the FCA in 2014, we have identifi ed 94 decisions relating to the retail distribution sector.47 This is partly due to the lower thresholds set by the LME for retail stores (in short, turnover achieved in France exceeding €15m instead of €50m). ITM, one of the major players in the French food retail sector, alone accounted for 30 decisions in 2014. 60 merger cases in the retail distribution sector were cleared within short timeframes, which meant that the FCA’s resources were not saturated by this administrative burden. Nevertheless, in some of these decisions, the FCA addressed challenging issues, as demonstrated by the number of conditional clearances in 2013 (3 out of 7) and 2014 (3 out of 10) concerning the retail sector. In 2014, all mergers in the retail sector requiring remedies were cleared subject to structural commitments: • In a decision dated 28 January 2014,48 the FCA cleared the acquisition of 47 points of sale under the shop sign Le Mutant by Franprix Leader Price Holding, subject to the divestiture of three points of sale. • In a decision dated 4 June 2014,49 the FCA cleared the acquisition of sole control of Nocibé by Advent (Douglas), subject to the divestiture of 38 points of sale belonging to Advent’s network. • In a decision dated 21 November 2014,50 the FCA cleared the acquisition of Dia France by Carrefour France, subject to the divestiture of 50 shops, and the termination of six franchise agreements. All these decisions were based on a detailed analysis of the relevant local markets. Where the transactions would result in high market shares in certain areas, the FCA conditioned its clearance upon the divestiture of a suffi cient number of points of sale to make sure that competition would not be harmed. In 2013, the Casino/Monoprix case was particularly signifi cant as it was one of the two Phase II decisions adopted by the FCA in 2013. This 110-page decision enabled the FCA to address a number of interesting issues: • Firstly, the case provided the FCA with a further opportunity to clarify that although transactions that entail a change of ownership of the target from joint control to sole control are generally themselves unable to signifi cantly alter the competitive conditions, they may, however, do so in more complex cases. In the case at issue, the FCA devoted substantial developments in the decision to demonstrating that, contrary to the submission of the buyer (Casino), the merger was not neutral from a competition point of view, but altered Casino’s incentives in a signifi cant manner, given that (i) prior to the merger, Casino was unable to solely determine the commercial and pricing strategy of the target, and (ii) unlike Casino, the withdrawing co-shareholder in the target (Galeries Lafayette) was not a player in the food retail sector. Nevertheless, the FCA did not completely ignore the fact that Casino already exercised joint control over the target Monoprix prior to the transaction, since it decided to attribute to Casino, for the purposes of the calculation of market shares, 50% of the market shares held

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by Monoprix prior to the transaction. The market share increment resulting from the merger therefore only concerned 50% of the market shares of the target. • Secondly, the FCA provided guidance on its approach with regard to the defi nition of relevant markets in the food retail sector. The FCA specifi cally found that the relevant product market included the main generalist food retail stores such as supermarkets and hypermarkets but excluded open-air food markets and certain specialist food stores such as frozen food stores, because they did not offer a comparable range of food products. With regard to the geographic scope of the market, the FCA focused its analysis in Paris on catchment areas with a radius of 300 to 500 metres around the target points of sale. • Thirdly, based on this market defi nition, the FCA identifi ed 47 catchment areas in Paris (in addition to three other catchment areas outside Paris) in which the merger raised signifi cant competition issues. In order to identify these problematic catchment areas, the FCA relied on a fi lter composed of several parameters including the combined market share of Casino and Monoprix, the extent of the increment resulting from the merger as calculated on the basis of the Herfi ndahl-Hirschman Index, and the number of signifi cant competitors that the merged entity would face in the relevant catchment areas following the merger. • Finally, the FCA rejected a number of arguments raised by Casino in an attempt to minimise the extent of the market power of the merged entity. In this part of the decision, the FCA mentioned and examined several economic studies and quantitative tests referred to by Casino. Most of the debate focused on the question to what extent hypermarkets located outside of the catchment area but within Paris or in its close suburbs could exert competitive pressure on the target points of sale. The FCA measured that competitive pressure on the basis of three different methods, including the so-called hypothetical consumer method, and reached the conclusion that although certain hypermarkets did exercise competitive pressure on the target points of sale (which needed to be taken into account for the calculation of market shares), it was nevertheless insuffi cient to signifi cantly alter the competitive analysis. In addition, the FCA considered that there were signifi cant barriers to entry in the food retail market in Paris, particularly due to the lack of available space. Furthermore, Casino relied on the so-called GUPPI test (Gross Upward Pricing Pressure Index) to demonstrate that it had no incentives to increase prices as a result of the transaction. The FCA examined this submission but refuted the calculation method proposed by Casino and, therefore, dismissed the argument. The media and telecommunications sectors In the period from 2012 to 2014, the TV sector came under particular scrutiny due to several major transactions involving Canal Plus: • The fi rst transaction, already referred to above, consisted of the acquisition of TPS and CanalSatellite by Canal Plus in the pay-TV sector.51 This merger was originally cleared in 2006 but, as specifi ed above, it had to be re-notifi ed following the withdrawal of clearance and was cleared again on 23 July 2012 subject to injunctions imposed by the FCA. On 7 June 2013, within the framework of this saga, the FCA approved three offers made by Canal Plus as part of the execution of the injunctions, following a market test conducted in March 2013. • The second transaction consisted of the acquisition of Direct 8 and Direct Star by Canal Plus in the free-to-air TV sector, which was cleared by the FCA on 23 July 2012 in Phase II, subject to commitments.52 As detailed below, in December 2013 the Conseil d’Etat annulled part of this clearance decision, following which the transaction had to

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be re-notifi ed and was cleared again on 2 April 2014, subject to several commitments (these commitments were identical to those made in 2012, with the exception of the one related to the acquisition of the rights to French fi lms, which has been strengthened).53 This decision put an end to the saga, as the decision was not subject to any appeal before the Conseil d’Etat. • The third transaction consisted of the acquisition of Mediaserv by Canal Plus Overseas, a subsidiary of the Canal Plus Group.54 This transaction, which concerned telecommunications and the TV sector, enabled Canal Plus to enter the tele- communications market in France’s overseas departments and regions. It was cleared by the FCA on 10 February 2014 in Phase I, subject to several behavioural commitments. The FCA also issued two clearance decisions regarding the press sector in 2013. The fi rst transaction concerned the specialist press and was cleared unconditionally on 29 October 2013.55 The second transaction concerned the daily regional press. It involved the acquisition of certain companies of the Hersant Média group by Rossel, a Belgian press group which the FCA cleared on 16 April 2013 subject to behavioural commitments.56 The FCA noted that the distribution area of some of the parties’ newspapers overlapped in a limited area where the buyer would own all of the regional daily newspapers, facing no competitor at all following the transaction. The FCA was concerned that the transaction could lead to uniformity in the content of the newspapers and reduce the quality and diversity of the regional daily press for readers. In order to address these concerns, Rossel undertook to ensure the diversity of content in the newspapers, to maintain dedicated editorial boards and committed not to proceed with a harmonisation of regional content, and to continue distributing certain newspapers in the area at issue. This decision may be put into perspective with the FCA’s decision dated 12 July 2011, in which it cleared the acquisition of Est Républicain Group by the Crédit Mutuel,57 subject to similar conditions aimed at avoiding harmonisation between the newspapers, so as to prevent a lowering in the quality and diversity for readers. In 2014 the telecommunications sector was, with six cases,58 one of the key industry sectors reviewed. Among them, the FCA cleared a major transaction involving Numericable (a cable operator and telecommunications services company) and SFR (a major telecommunications company), which was the only Phase II opened by the FCA in 2014. The transaction consisted of the acquisition of sole control by Numericable group of SFR. The FCA identifi ed in its decision several competition concerns but decided to grant clearance to the transaction on 30 October 2014 subject to several commitments, both behavioural and structural. The FCA was particularly concerned about the strengthening of the combined entity’s position in the retail market for the provision of high-speed broadband access. The FCA considered that Numericable could pre-empt the high-speed broadband customers at the expense of other operators that only started to deploy fi bre-optic, given that the new entity would be able to provide a high-speed broadband access that could not be replicated in any manner by competitors in the short term. In order to address this competition concern, Numericable committed to grant competitors, including internet providers and mobile virtual network operators, access to its cable network, at a non-squeezing price level to allow competitors to have suffi cient economic leeway to develop. Clarifi cations on the defi nition of relevant markets In the 2013 Guidelines, the FCA also clarifi ed its approach with regard to the defi nition of relevant markets. For instance, the 2013 Guidelines explain how the FCA will assess whether

GLI - Merger Control Fourth Edition 85 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Linklaters LLP France branded products and private label products belong to the same relevant product market. In addition, the 2013 Guidelines refi ne the FCA’s practice with regard to the defi nition of relevant geographic markets. In this regard, they make a reference to the hypothetical monopolist test (or SSNIP test) and provide additional guidance concerning the defi nition of local markets in the food retail sector. More generally, the 2013 Guidelines put a stronger emphasis on quantitative tests when it comes to the defi nition of relevant markets.

Key economic appraisal techniques applied With regard to economic appraisal, it must fi rst be stressed that the Guidelines refer frequently to economic theory, even more so following the additions of the 2013 Guidelines. The 2009 Guidelines included a specifi c annex offering practical recommendations for the submission of economic studies. This guide has now been converted into a general guide on the submission of economic studies which is applicable not only to merger control proceedings, but also to proceedings for anticompetitive practices. In any event, the use of this guide for merger control signals the fi rm resolution of the FCA to use detailed economic analysis when reviewing complex merger cases. The FCA also set up a team of economists, now comprised of eight economists, which is headed by a chief economist and is involved whenever a merger raises complex competition issues. The fi rst Phase II case handled by the FCA (TF1/TMC-NT159) was one of the transactions that required the most thorough economic assessment, because of the mutual infl uences of the markets for broadcasting rights and TV advertising and the supposed ability to build on the market share of a strong channel (namely TF1) to develop two smaller general interest channels (TMC and NT1). The assessment involved the analysis of several scenarios for different segments of TV advertising (unilateral effects) as well as of possible conglomerate effects. The transaction was cleared through a detailed set of behavioural remedies further detailed below. As regards economic appraisal of concentrations, it is also noteworthy that, in several recent conditional clearance decisions to date (including Rubis/Chevron,60 Crédit Mutuel/Est Républicain61 and Rossel/Hersant Media62), the theory of harm relied almost exclusively on non-price effects: • In the Rubis/Chevron case (concerning petrol stations in the overseas départements of Guadeloupe and French Guiana), the FCA had concerns that the merger would result in a lower quality of services (Rubis gave divestiture commitments). • In the two other cases relating to the daily regional press sector, the FCA feared horizontal effects which would have led to a reduction in the quality and diversity of the regional press. The parties gave behavioural commitments not to harmonise the content of the press titles. It has to be noted that the FCA places a stronger emphasis in the 2013 Guidelines on quantitative tests, such as the UPP (Upward Pricing Pressure), GUPPI (Gross Upward Pricing Pressure Index) and IPR (Illustrative Price Rise) tests. The FCA is prepared to rely on those concepts where they are useful, in particular where the products at issue are differentiated and the precise defi nition of relevant markets is diffi cult. Nevertheless, the FCA also stresses that the relevance of these tests is limited, with regard to their methodology and their nature. It remains to be seen to what extent the FCA will refer to these quantitative tests and how it will apply them in conjunction with the concept of relevant markets. It is worth mentioning that the FCA has already made a reference to the GUPPI test in several decisions, including

GLI - Merger Control Fourth Edition 86 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Linklaters LLP France the Castel Frères/Patriarche63 and Casino/Monoprix64 cases, without however following the parties’ assessment of the results of such tests. More recently, in the Orlait/Terra Lacta case,65 the FCA used the GUPPI test to corroborate its conclusion that, although the transaction signifi cantly reinforced the market position of the new entity, it was unlikely to lead to a price increase and, therefore, it did not give rise to competition concerns.

Approach to remedies (i) to avoid second stage investigation and (ii) following second stage investigation In the Guidelines, the FCA indicates that it seeks, by priority, structural remedies, i.e. essentially divestitures to a buyer capable of exercising genuine competitive pressure, but specifi es that such structural commitments may be completed by behavioural measures. The 2013 Guidelines detail the different techniques and mechanisms of structural commitments, such as the “crown jewels”, the “upfront buyer” and the “fi x-it-fi rst” mechanisms. The 2013 Guidelines further clarify that the choice of the most appropriate remedy also depends on the effects of the transaction. They suggest that while divestitures are most effi cient to address competition issues arising essentially due to horizontal overlaps, behavioural remedies aimed at guaranteeing the access of competitors to inputs or customers may prove suffi cient, whilst preserving effi ciency gains connected with the vertical integration where the competition concerns consist in the risk of foreclosure of the upstream or downstream market. The number of Phase II proceedings handled by the FCA in 2012 (three), 2013 (two) and 2014 (one) has remained signifi cantly lower than the number of Phase I conditional clearances (nine in 2012, fi ve in 2013 and nine in 2014). This would tend to show that notifying parties prefer to seek an acceptable solution with the FCA in Phase I rather than drifting towards Phase II. This may be partly explained by the FCA’s open-minded approach to creative and behavioural remedies that address the issues identifi ed, and focus on them without jeopardising too signifi cantly the synergies of the mergers in question. Behavioural remedies However, following either Phase I or Phase II proceedings, one of the most distinctive features of the FCA’s practice when it comes to merger remedies is its willingness to assess and accept behavioural commitments66 (whereas the EU Commission gives a clear and almost systematic preference to divestiture commitments). As mentioned above, in 2010 the FCA had to review the acquisition by TF1 of TMC and NT1, which, despite low market shares of the targets, would have strengthened the TF1 group’s dominant position in the markets for broadcasting rights and TV advertising. The remedies offered by TF1 were essentially of a behavioural nature and spanned a period of fi ve years (with apparently fl exible review clauses). In short, TF1 undertook to facilitate the circulation of broadcasting rights for the benefi t of competing channels, to renounce any kind of cross-promotion on TF1 of the programmes shown on the acquired channels (TMC and NT1), and to separately handle the advertising business for TF1 on the one hand, and for TMC and NT1 on the other. The Électricité de Strasbourg/Enerest case67 in 2012 provided yet another example of a complicated transaction cleared only through behavioural remedies. In this case, the Strasbourg area’s incumbent electricity provider was acquiring its gas counterpart, thus creating a very strong local entity with extremely high local market shares in gas and electricity, which would be the only supplier holding the right to offer regulated gas and electricity tariffs. This transaction was cleared with unprecedented behavioural remedies consisting

GLI - Merger Control Fourth Edition 87 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Linklaters LLP France of (i) prohibiting the new entity resulting from the merger from offering gas and electricity jointly where one of the two sources of energy was subscribed to at a regulated tariff, and (ii) for the open market, obliging the new entity to open its client books to competitors to enable them to compete with offers as well as being targeted to their prospects’ needs as those of the new entity. As mentioned above, in 2012 the FCA also had to assess a large merger in the TV broadcasting sector, namely the acquisition of Direct 8 and Direct Star by Canal Plus, which was cleared subject to behavioural commitments. This clearance decision was, however, partially annulled in December 2013 by the Conseil d’Etat, as detailed below. The FCA’s willingness to (exclusively) accept behavioural commitments was again confi rmed in more recent cases: • In 2013, in the Rossel/Hersant Media case, already referred to above, the notifying party committed not to harmonise the content of certain regional newspapers. The Bouyer-Leroux/Imerys TC case68 is even more interesting, as it was a Phase II decision and involved the commitment of the notifying party to sell a certain volume of wall bricks to competitors (as further detailed below). • In 2014, in the Antille Glaces/Brasserie Lorraine case,69 the notifying party notably committed to (i) offer its wholesalers a renewal of their distribution agreement on objective, transparent and non-discriminatory terms in order to alleviate the vertical effects of the operation, and (ii) refrain from making bundled offers comprising the sale of beer and other products to address the conglomerate effects resulting from the transaction. To ensure the effectiveness of the latter commitment, the notifying party also agreed to entrust the sale of beer to dedicated subsidiaries only. • In 2015, in the Rubis/SARA case,70 the notifying party committed to maintain the current cost of supplies of semi-fi nished and fi nished petroleum products for SARA stable for the next three years in order to prevent an increase in the prices of petroleum products. Moreover, the notifying party also committed that SARA will grant access to its storage capacity for jet fuel and marine fuel to any operator that requests so in order to address the competition concern identifi ed by the FCA consisting in a risk of denial of access or discrimination to SARA’s storage capacities. Innovative remedies More generally, the FCA has proved that it can be open to innovative commitments. In this regard, a commitment that was widely commented on is certainly the creation of a “competition stimulation fund”, proposed by Veolia Transport and Transdev in order to remedy the FCA’s concerns that their merger could reduce the incentive for smaller competitors to participate in public tenders. This Veolia/Transdev71 case involved the merger of two of the three national leaders in urban and intercity passenger transport. The FCA identifi ed competition concerns in fi ve local markets for intercity transport and in the national market for urban transport. The concerns relating to local markets were addressed mostly by “standard” divestitures, but it proved more diffi cult for the FCA to deal with the national market for urban transport, because this market is organised through public tenders launched by local public entities which own the assets concerned (vehicles, garages, etc.). Therefore, the FCA could not directly strengthen competitors through divestitures, but it had to ensure that future public tenders would see credible competitors facing the merged entity. The FCA accepted the parties’ innovative and unprecedented remedy to fi nance a competition stimulation fund (amounting to €6.54m) designed to allow the relevant public authorities

GLI - Merger Control Fourth Edition 88 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Linklaters LLP France to fi nance two types of measures: compensating all or part of the response expenses for rejected candidates following calls for tenders, thereby encouraging more competitors to take part in them; and the use by local and regional authorities, especially small ones, of project management assistance services in order to help them improve their knowledge of the networks and obtain the best prices within the framework of the tenders that they organise. Another example of innovative and unprecedented remedies accepted by the FCA is provided by the GDF SUEZ/Ne Varietur case72 (following Phase I proceedings). The FCA considered that the acquisition of sole control by GDF SUEZ of one of its few competitors in the market for delegated management of district heating networks would have a signifi cant impact on competition. The FCA’s concerns focused on three local areas, which were already highly concentrated and where the additions of market shares were signifi cant. The decision was conditional upon behavioural remedies offered by GDF SUEZ (i) to allow certain local authorities in these areas to unilaterally terminate their delegation contracts with Ne Varietur, and (ii) to allow one competitor in the market to unilaterally terminate one of its subcontracts. Therefore, the FCA preferred a free choice by the customers (in this case local authorities) to imposing divestiture remedies. In 2013, the FCA accepted innovative remedies in the Bouyer-Leroux/Imerys TC case.73 The FCA considered that the transaction would raise serious competition issues, since it would give rise to very high market shares in the wall brick market in the French region of Aquitaine and would allow the new entity to increase its prices. During Phase I, the notifying party proposed structural remedies, but they were ultimately considered disproportionate and inappropriate by the FCA. The transaction was eventually cleared subject to behavioural remedies. To remedy the competition risks identifi ed by the FCA, the notifying party Bouyer-Leroux undertook to transfer, during a period of fi ve years, 25,000 tonnes of bricks per year (a volume corresponding to the market share of the buyer) to competitors in the Aquitaine region, at cost price. These commitments were designed to enable competitors to develop and sell their own production of wall bricks in the region. In 2014 and 2015 again, the FCA demonstrated its ability to adopt innovative commitments. In the Numericable group/SFR case,74 Numericable committed to grant competitors access to its cable network in order to address the competition concerns raised by the FCA. According to the FCA, it was the fi rst European competition authority to obtain such commitment from a company.75 In the UGI/Totalgaz case,76 the FCA accepted for the fi rst time a “fi x it fi rst” remedy. This illustrates again that the FCA is open-minded and creative in its approach to remedies. It remains to be seen how such innovative remedies could work in other cases, and what further innovative remedies the FCA’s merger practice will endorse in the coming years. What remains certain, however, is that in France, as with many other competition authorities, a well prepared and explained set of remedies proposed in Phase I is the best way to avoid Phase II proceedings for cases that raise competition issues. This is again demonstrated by the signifi cant number of conditional clearances granted after Phase I from 2012 to 2014. Appeals of competitors against conditional clearance decisions It is fairly rare that third parties lodge an appeal against clearance decisions of the FCA before the Conseil d’Etat and it is even more rare that such appeals actually give rise to an annulment. In 2013, the Conseil d’Etat was called upon to examine two appeals brought by competitors against conditional clearance decisions of the FCA. In these appeals, the appealing competitors argued in particular that the commitments accepted by the FCA in those cases were insuffi cient to address the competition concerns raised by the mergers.

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Firstly, in an order dated 27 November 2013, the Conseil d’Etat rejected Wienerberger’s petition for interim measures directed against the FCA’s decision dated 26 July 2013 which had cleared the acquisition of Imerys TC by Bouyer-Leroux (referred to above). The Conseil d’Etat found, inter alia, that the condition of urgency was not fulfi lled.77 The appeal on the merits is currently pending. Secondly, in a judgment dated 23 December 2013,78 the Conseil d’Etat partly upheld the action for annulment lodged by M6 and TF1, two competitors of Canal Plus, against the FCA’s decision dated 23 July 2012 which had cleared, subject to commitments, the acquisition of Direct 8 and Direct Star by Canal Plus. The annulment was based on both procedural and substantive grounds. As regards the procedural grounds, the Conseil d’Etat recalled that the FCA’s clearance decisions in Phase II must, as a matter of principle, be adopted by the FCA sitting as a panel and cannot be adopted by its President alone. The Conseil d’Etat held that, in the event notifying parties submit several subsequent versions of commitments, that procedural requirement entails that the most recent version of the commitments must be examined and approved by the FCA sitting as a panel, even where, as was the case in the transaction at issue, this version is submitted at a very late stage of the procedure. As regards the substantive grounds, the annulment was also based on the fact that, in the Conseil d’Etat’s opinion, the FCA had committed an error of assessment when accepting one of the remedies offered by Canal Plus to address the risk of pre-emption of the free-to-air broadcasting rights for French fi lms. The Conseil d’Etat found that the commitments given were insuffi cient to remedy this competition risk. The judgment therefore illustrates the willingness of the Conseil d’Etat to thoroughly examine competitors’ appeals alleging that a transaction was cleared subject to insuffi cient remedies. The Conseil d’Etat limited, however, the temporal effect of the annulment, by deciding that it only takes effect from 1 July 2014. As mentioned above, the transaction was re-notifi ed and cleared again in 2014 subject to enhanced remedies.

Key policy developments The key features of the 2013 Guidelines have been presented above. Role held by the Minister of the Economy As mentioned above, pursuant to the LME, the FCA has been in charge of merger control cases since 2 March 2009. It would be incorrect, however, to say that the Minister of the Economy has lost all prerogatives in merger control. While entrusting the FCA with the main role with respect to merger control, the French legislation provides for two important possibilities of intervention. Firstly, following a Phase I clearance, the Minister of the Economy can ask the FCA to reconsider the need to carry out an in-depth examination (Phase II). Secondly, at the end of Phase II, the Minister of the Economy can decide to overrule the FCA’s decision on the grounds of public interest considerations, which specifi cally include, inter alia, industrial policy, the need to preserve the competitiveness of the undertakings concerned within the framework of international competition, or the creation or maintenance of employment. As far as we know, there has been no such offi cial intervention of the Minister of the Economy in a merger control case. It may, however, be noted that competitors requested the Minister of the Economy to intervene in the Canal Plus/TPS and CanalSatellite case79 and challenged the refusal of the Minister of the Economy to do so. In its judgment dated 21 December 2012,80 the Conseil d’Etat rejected that request, fi nding that it did not appear from the case-fi le that the FCA’s clearance decision would harm the general interest in the

GLI - Merger Control Fourth Edition 90 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Linklaters LLP France maintenance of employment or another general interest distinct from the preservation of competition. The Conseil d’Etat concluded, therefore, that the Minister of the Economy did not commit a manifest error of assessment when he decided not to use his prerogatives. This possible interference from the Minister of the Economy in merger control cases is one of the signifi cant areas of uncertainty for French practitioners when they are faced with a complex case, all the more since there are no precedents and little guidance in this respect. Focus on competition in French overseas territories Another area of policy development that is worth mentioning is the FCA’s focus on competition in French overseas territories, mainly the fi ve Départements d’Outre-Mer (the “DOM”). The lowered thresholds applicable to transactions concerning these geographic areas have led mechanically to a higher number of notifi cations, which enabled the FCA to assess the level of competition in the DOM. For instance, two out of the seven commitments decisions adopted by the FCA in 2010 exclusively concerned the DOM: (i) the Hoio/Delhaize case in Martinique,81 and (ii) the acquisition by Tereos of Groupe Quartier Français82 in May 2010 which raised concerns in the market for wholesale distribution of sugar in the overseas département of La Réunion. Tereos committed to divest local assets and to sign a 20-year supply contract to enable a third party to develop a competing business. The 2011 Rubis/Chevron case (already mentioned above), as well as the acquisition of Leclerc Lamentin by Groupe Parfait in 2012,83 provide further examples of a conditional clearance exclusively addressing competition issues in the DOM (Guadeloupe and French Guiana in the Rubis/Chevron case, Martinique in the case involving Groupe Parfait). Even more interestingly, in one of the fi rst detailed decisions issued by the FCA, the Banques Populaires/Caisses d’Epargne case in 2009,84 clearance was granted on the basis of only one remedy concerning the overseas département of La Réunion (the new group committed to maintaining the legal independence and management autonomy of three local branches for a period of fi ve years). This speaks volumes about the particular interest of the FCA regarding competition in the DOM, since this case related to a merger between two nationwide banks which, contrary to cases referred to previously, led to overlaps in several other geographic areas across France besides La Réunion. In 2014, two of the ten commitments decisions adopted by the FCA exclusively concerned French overseas territories: (i) the Mediaserv/ Canal Plus Martinique case;85 and (ii) the Antilles Glace/Brasserie Lorraine case.86 Furthermore, in the Numericable group/SFR case, one of the competition concerns related to the French overseas territories. In this landmark Phase II decision, the FCA considered that the merger of SFR and Numericable would allow the latter to gain a very considerable market power or even a near monopoly position in the region. To remedy such a situation, Numericable notably committed to selling all mobile telephony activities of its subsidiary, Outremer Telecom. Assessment of ancillary restrictions The FCA encourages merging parties to signal “those restrictions whose compatibility with competition law seems doubtful, either because of their form, their scope, their combination with other restrictions, or the general competitive landscape”.87 While the EU Commission no longer reviews or clears such ancillary restrictions, the FCA provides more legal certainty in this respect. This is particularly interesting for the merging parties because (i) the status of these ancillary restraints was less clear at the time when the DGCCRF had jurisdiction over merger control cases, and (ii) legal certainty following the review of such clauses is high since the FCA is also in charge of anticompetitive practices.

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One example of such a review is provided by the Berto/Lovefrance case,88 in which the FCA considered that a non-compete clause of 10 years could only be regarded as directly related and necessary to the transaction for a duration of three years. In 2013-2014, the FCA adopted several decisions on ancillary restrictions in which it cleared non-solicitation commitments and non-compete clauses which it found to be proportionate.89 In one case, the FCA only regarded such restrictions as directly related and necessary to the transaction after the notifying parties committed to reduce the duration and the geographic scope of said commitments and clauses.90 In another case, the FCA considered that a non-compete clause stating that, during a limited period, the seller should ask the buyer’s permission to invest in a specifi c mall project, was an ancillary restriction, but only to the extent that it did not prevent the seller from merely investing in a competing undertaking of the new entity where such investment would not confer managerial functions or substantial infl uence on that competitor. 91 Other restrictions were, however, considered as being not directly related and necessary to the transaction. For example, in the Groupe Charles André/Société Novatrans case, the FCA refused to consider as an ancillary restriction a fi ve-year exclusive supply agreement entered into by SNCF (the seller) and GCA (the buyer) providing for the supply by SNCF of railway traction services to the target.92 The FCA took the view that the exclusivity conferred upon the SNCF under this agreement was not necessary to the merger. In the Conforama/Atlas case,93 the FCA refused to consider as an ancillary restriction an agreement providing for cooperation between the buyer Conforama and the seller Mobilier Européen whereby, inter alia, the seller could rely for its purchases of furniture and decoration on certain services provided by the buyer group, such as logistics services, and the buyer was given a pre-emptive right on the sale of the business or the property assets associated to the target points of sale, in the event that an offer be made by certain competitors of Conforama. For the FCA, the transaction could have been realised even in the absence of such provisions without compromising the viability of the points of sale at issue.

Reform proposals Following the divergent appraisal of the Eurotunnel/SeaFrance merger by the FCA and the OFT, the French government asked the FCA to analyse the issue of divergent approaches of national competition authorities in multi-jurisdictional merger proceedings, and to submit recommendations to improve the current situation. On 14 March 2014, the report was offi cially published. It made a number of recommendations, which include enabling notifying parties to more easily request referrals of a transaction to the Commission in the event of cross-border mergers, and the proposal to harmonise the basic concepts of national law on merger control.94 However, if they were to be implemented, such proposals would need to be adopted at EU level and could not be adopted at national level. The so-called Macron bill, currently under review by the French Parliament,95 contains among other things certain reform proposals relevant to French merger control rules. The latest version of the bill includes, inter alia, the following changes: • A “stop the clock” mechanism in Phase I would be introduced, which would apply in particular in the event the parties fail to notify the FCA of the occurrence of new facts or to provide information required by the FCA within the specifi ed deadlines. • The extended period for the adoption of Phase II decisions (up to 85 working days), currently applicable where the parties submit commitments at a late stage of the procedure (i.e. less than 20 days before the expiration of the 65 days’ time limit),

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would also apply where the parties merely modify their initial commitments at this stage of the procedure. • In case of non-compliance with commitments or injunctions, the FCA would gain the power to order the parties to comply with revised injunctions replacing the existing remedies that the parties failed to implement (this power would complete the FCA’s existing powers to withdraw the clearance decision, to impose a fi ne and to order the parties to comply with the remedies prescribed). • It would be specifi ed that the FCA’s decisions to grant a derogation from the suspension obligation may be subject to conditions. In addition, such derogations would cease to be valid where the notifying parties do not submit a complete notifi cation fi le within three months from the effective implementation of the transaction. Moreover and as detailed above, the Minister of the Economy retains certain prerogatives in the fi eld of merger control which he has not used thus far. The question is therefore whether there will be cases in the future in which the Minister of the Economy will use that power to overrule the FCA’s decision. As explained above, in 2012 the FCA for the fi rst time used its power to impose injunctions to clear a merger. It will be interesting to see whether this case will remain exceptional or whether the FCA will extend the use of injunction powers to a signifi cant number of cases in the future. It remains to be seen whether the FCA will remain open to behavioural and creative remedies, although they are more diffi cult to monitor than clear-cut structural undertakings, as illustrated by the two fi ning decisions referred to above, and although they could be more easily challenged by competitors. The 2013 Guidelines did not address one of the recurrent criticisms raised against the FCA’s practice with regard to the delivery of the “letter of completeness” which certifi es the completeness of the notifi cation form as of the day it was fi led and thus triggers the period of 25 working days in which the FCA is required to adopt a Phase I clearance decision. Indeed, the FCA’s practice has been to deliver this letter of completeness at a very late stage of the procedure, i.e. a few days before the date of the clearance decision, and not immediately following the formal notifi cation of the transaction. This practice has been criticised as failing to ensure legal certainty for businesses, as it means that the notifying parties cannot be certain, until a very late stage in the procedure, of the exact date on which their transaction will be cleared.

* * *

Endnotes 1. The authors wish to thank Simon Hetsch and Zeïneb Bouraoui, legal interns at Linklaters Paris, for their help in the preparation of this chapter. 2. Source: Annual Report 2012 of the FCA, available at www.autoritedelaconcurrence.fr. This fi gure includes (i) notifi cations that gave rise to decisions published by the FCA in 2012, (ii) notifi cations that were under review by the FCA on 31 December 2012, and (iii) notifi cations that were withdrawn by the notifying parties. 3. Source: Annual Report 2013 of the FCA, available at www.autoritedelaconcurrence.fr. This fi gure includes (i) notifi cations that gave rise to decisions published by the FCA in 2013, (ii) notifi cations that were under review by the FCA on 31 December 2013, and (iii) notifi cations that were withdrawn by the notifying parties. 4. This fi gure includes 180 notifi cations which gave rise to decisions published in 2014 and

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nine notifi cations which gave rise to decisions adopted in 2015. Please note that this fi gure does not take into account (i) certain clearance decisions adopted in 2015 which were not yet published when this table was prepared, and (ii) notifi cations which were withdrawn by the notifying parties, given that they do not give rise to formal decisions published by the FCA. The actual number of notifi cations, which will be subsequently published in the FCA’s Annual Report 2014 may, therefore, be slightly higher. 5. Decisions 12-DCC-63 of 9 May 2012, Carrefour/Guyenne et Gascogne SA; 12-DCC- 129 of 5 September 2012, SNCF/Keolis. 6. Source: press release of the FCA dated 19 December 2013. Decisions 13-DCC-137 of 1 October 2013, CDC/Transdev; 13-DCC-102 of 26 July 2013, Glon Sanders Holding- Groupe/Euralis JV; 14-DCC-10 of 28 January 2014, Point P/Wolseley France Bois et Matériaux; 14-DCC-71 of 4 June 2014, Advent International/Nocibé. 7. Source: press release of the FCA dated 12 September 2014, websites of the FCA (www. autoritedelaconcurrence.fr) and of the Commission (http://ec.europa.eu/competition). Decisions 14-DCC-79 of 11 June 2014, Bridgepoint/Médi-Partenaires; 14-DCC-141 of 24 September 2014, Ramsay Health Care et Predica/Générale de Santé; 14-DCC-173 of 21 November 2014, Carrefour France/Dia France; Decisions 15-DCC-53 of 15 May 2015, UGI/Totalgaz SAS. In addition, decision of the Commission M.7283 of 11 August 2014, Kingfi sher/Mr. Bricolage (the transaction was subsequently abandoned by the parties). These are the only referrals that we are aware of, but it is not excluded that there were further referrals, given that the FCA does not systematically issue a press release when it receives a referral. 8. Decisions 12-DCC-92 of 2 July 2012, Castel Frères SAS/groupe Patriarche; 12-DCC- 100 of 23 July 2012, Vivendi-Groupe Canal Plus/TPS-CanalSatellite; 12-DCC-101 of 23 July 2012, Vivendi-GCP/Direct8-Direct Star. 9. Decisions 13-DCC-90 of 11 July 2013, Casino/Monoprix; 13-DCC-101 of 4 September 2013, Bouyer-Leroux/Actifs Briques de la société Imerys TC. 10. Decision 14-DCC-160 of 30 October 2014, Numericable group/SFR. 11. Decisions 12-DCC-20 of 7 February 2012, Électricité De Strasbourg/Enerest; 12- DCC-41 of 23 March 2012, Point P SA/Brossette S.A.S; 12-DCC-42 of 26 March 2012, Coopérative Champagne Céréales/Coopérative Nouricia; 12-DCC-48 of 6 April 2012, ITM/Sofi des; 12-DCC-57 of 4 May 2012, ITM Alimentaire Nord/Tilguit, Ludivan and Vanlube; 12-DCC-58 of 4 May 2012, ITM A N/Financière RSV; 12-DCC-59 of 4 May 2012, Groupe Parfait/Groupe Lancry; 12-DCC-129 of 5 September 2012, SNCF/Keolis; 12-DCC-154 of 7 November 2012, Eurotunnel/Actifs de Sea France. 12. Decisions 13-DCC-46 of 16 April 2013, Groupe Rossel/Groupe Hersant Media Pôle Champagne Ardennes Picardie; 13-DCC-57 of 10 May 2013, Groupe Casino/Norma; 13-DCC-96 of 23 July 2013, Chausson Matériaux/Réseau Pro; 13-DCC-137 of 1 October 2013, CDC/Transdev; 13-DCC-144 of 28 November 2013, FPLPH (Groupe Casino)/9 magasins à l’enseigne G20. 13. Decisions 14-DCC-10 of 28 January 2014, Point P/Wolseley France Bois et Matériaux; 14-DCC-11 of 28 January 2014, Franprix Leader Price Holding/Le Mutant; 14-DCC-15 of 10 February 2014, Canal Plus Overseas/Mediaserv, Martinique Numérique, Guyane Numérique and La Réunion Numérique; 14-DCC-50 of 2 April 2014, Vivendi SA and Group Canal Plus/Direct 8, Direct Star, Direct Productions, Direct Digital and Bolloré Intermédia; 14-DCC-71 of 4 June 2014, Advent International/Nocibé; 14-DCC-82 of 12 June 2014, M Finance group and investment fund Equistone/Park&Suites and GMI group; 14-DCC-123 of 21 August 2014, Antilles Glaces/Brasserie Lorraine; 14-DCC- 160 of 30 October 2014, Numericable group/SFR; 14-DCC-167 of 13 November 2014, Total SA/Société du Pipeline Sud-Européen; 14-DCC-173 of 21 November 2014, Carrefour France/Dia France. 14. Decisions 12-DCC-100 of 23 July 2012, Vivendi-Groupe Canal+/TPS-CanalSatellite; 12-DCC-101 of 23 July 2012, Vivendi-Groupe Canal+/Direct 8, Direct Star, Direct

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Productions, Direct Digital et Bolloré Intermédia. Please note that the transaction: 12-DCC-92 of 2 July 2012, Castel Frères SAS/groupe Patriarche, was cleared without conditions after Phase II. 15. Decisions 13-DCC-90 of 11 July 2013, Casino/Monoprix; 13-DCC-101 of 4 September 2013, Bouyer-Leroux/Actifs Briques de la société Imerys TC. 16. Decision 14-DCC-160 of 30 October 2014, Numericable group/SFR. 17. Decisions 10-DCC-02 of 12 January 2010, SNCF-Participations, Caisse de Dépôt et Placement du Québec/Keolis-Effi a; 10-DCC-98 of 20 August 2010, Eurovia/Tarmac; 10 -DCC-198 of 30 December 2010 Veolia/Transdev; Decision of the Commission M.5814 of 16 July 2010, Univar/Eurochem (the transaction was subsequently withdrawn). Source: Annual Reports 2009 and 2010 of the FCA, websites of the FCA (www. autoritedelaconcurrence.fr) and of the Commission (http://ec.europa.eu/competition). 18. Decisions 11-DCC-87 of 10 June 2011, HTM/Media Concorde SNC; 12-DCC- 41 of 23 March 2012, Point P/Brossette; 12-DCC-63 of 9 May 2012, Carrefour/ Guyenne-Gascogne; 12-DCC-129 of 5 September 2012, SNCF/Keolis; 13-DCC- 102 of 26 July 2013, Glon Sanders Holding-Groupe/Euralis JV; 13-DCC-137 of 1 October 2013, CDC/Transdev; 14-DCC-10 of 28 January 2014, Point P/Wolseley France Bois et Matériaux; 14-DCC-71 of 4 June 2014, Advent International/Nocibé; 14- DCC-79, of 11 June 2014, Bridgepoint/Médi-Partenaires; 14-DCC-141 of 24 September 2014, Ramsay Health Care et Predica/Générale de Santé; 14-DCC-173 of 21 November 2014, Carrefour France/Dia France; 15-DCC-53 of 15 May 2015, UGI/Totalgaz SAS; Decision of the Commission M.7283 of 11 August 2014, Kingfi sher/Mr. Bricolage (the transaction was subsequently abandoned). Source: Annual Reports 2010 to 2013 of the FCA, websites of the FCA (www.autoritedelaconcurrence.fr) and of the Commission (http://ec.europa.eu/competition). 19. Source: Kingfi sher’s press release dated 30 March 2015, available at http://www. kingfi sher.com/index.asp?pageid=55&newsid=1090, as well as Mr. Bricolage’s press release dated 25 March 2015, available at http://mr-bricolage.com/wp-content/ uploads/2015/03/mr-bricolage-renonciation-rapprochement-kingfi sher-2015-03veng. pdf; http://www.lsa-conso.fr/mr-bricolage-dit-non-a-kingfi sher,205579. 20. Bruno Lasserre, Navigating merger regimes across the globe: What are the new challenges?, Concurrences Review N° 2-2015, pp.46-53. 21. See paragraphs 68 to 74 of the Guidelines. 22. General Court, judgment of 13 September 2010, Case T-279/04, Odile Jacob v Commission. 23. See paragraph 630 of the Guidelines. 24. Decision 11-DCC-02 of 17 January 2011, ITM Alimentaire/Leman. See also, Decision 12-DCC-185 of 28 December 2012, Carrefour Amidis/4 fonds de commerce et Francy. 25. In addition, the Guidelines provide that businesses that implement a high number of annual transactions which must be notifi ed to the FCA, such as investment funds or major players of the retail sector, may provide the FCA at the beginning of the year with a standard form containing all information of a general nature which is likely to be repeated in all following notifi cations and can then limit the content of the notifi cation form to the information specifi c to the transaction at issue. 26. Decision 14-DCC-118 of 14 August 2014, ETS Adde/Etablissements Ramond. 27. Decision 14-DCC-72 of 27 May 2014, Expan U Est/Elomas et Pontadis. 28. Decisions 10-DCC-42 of 25 May 2010, 3 Suisses International/Quelle-La Source; 10- DCC-90 of 5 August 2010 Caravelle/Girard. 29. Decision 12-DCC-154 of 7 November 2012, Eurotunnel/Actifs de Sea France. 30. Decision 12-D-12 of 11 May 2012, Colruyt. 31. Conseil d’Etat, judgment of 24 June 2013, N° 360949, Colruyt. 32. Decision 13-D-01 of 31 January 2013, Réunica and Arpège. 33. Decision 13-D-22 of 20 December 2013, Castel.

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34. Conseil d’Etat, judgment of 16 July 2014, N° 375658, Copagef. 35. Decision 14-DCC-160 of 30 October 2014, Numericable Group/SFR. 36. http://www.lesechos.fr/tech-medias/hightech/0204274721426-sfr-numericable- lautorite-de-la-concurrence-place-des-bureaux-sous-scelles-1107868.php. 37. Conseil d’Etat, judgment of 16 July 2014, N° 375658, Copagef. 38. Pursuant to Article L. 430-8-I of the French Commercial Code, the upper amount of the fi ne that may be imposed is 5% of the turnover excl. tax realised in France by the entities responsible for the notifi cation, and, as the case may be, by the target. 39. Decision 11-D-12 of 20 September 2011, Canal Plus. 40. Conseil d’Etat, judgment of 21 December 2012, N° 353856, Canal Plus. 41. Decision 12-D-15 of 9 July 2012, Bigard. 42. Decision 14-DCC-160 of 30 October 2014, Numericable group/SFR. 43. Press release of the FCA dated 22 January 2015, available at www.autoritedela concurrence.fr. 44. Decision 12-DCC-100 of 23 July 2012, Vivendi-Groupe Canal+/TPS-CanalSatellite. 45. Conseil d’Etat, judgment of 21 December 2012, N° 362347, 363542 and 363703, Canal Plus. 46. Conseil d’Etat, order of 22 October 2012, N° 362346, Canal Plus. 47. Source: www.autoritedelaconcurrence.fr (sectors of activity 50 and 52). 48. Decision 14-DCC-11 of 28 January 2014, Franprix Leader Price Holding/Le Mutant. 49. Decision 14-DCC-71 of 4 June 2014, Advent International/Nocibé. 50. Decision 14-DCC-173 of 21 November 2014, Carrefour France/Dia. 51. Decision 12-DCC-100 of 23 July 2012, Vivendi-Groupe Canal+/TPS-CanalSatellite. 52. Decision 12-DCC-101 of 23 July 2012, Vivendi-Groupe Canal+/Direct 8, Direct Star, Direct Productions, Direct Digital et Bolloré Intermédia. 53. The commitment is similar to the one adopted by the parties in the FCA’s Decision 12-DCC-101 of 23 July 2012, Vivendi-Groupe Canal+/Direct 8, Direct Star, Direct Productions, Direct Digital et Bolloré Intermédia. However, the scope of this commitment has been extended to take into account the judgment of the Conseil d’Etat of 23 December 2013. Thus, the scope is now extended to any pre-purchase, which makes it possible to cover all the broadcasting windows sold by the producers when they organise the fi lm’s fi nancing. Moreover, this new commitment includes any purchases by Groupe Canal Plus, once the fi lm is produced, of the free-to-air broadcast rights to the fi lm up to 72 months after its cinema release, a period that corresponds to the three free-to-view broadcast windows. 54. Decision 14-DCC-15 of 10 February 2014, Mediaserv/Canal Plus Overseas. 55. Decision 13-DCC-150 of 29 October 2013, Infopro Digital/Groupe Moniteur. 56. Decision 13-DCC-46 of 16 April 2013, Groupe Rossel/Groupe Hersant Media Pôle Champagne Ardennes Picardie. 57. Decision 11-DCC-114 of 12 July 2011, Banque Fédérative Du Crédit Mutuel/Est Républicain. 58. Decisions 14-DCC-09 of 22 January 2014, Groupe Altice/Numericable Group; 14- DCC-15 of 10 February 2014, Canal + Overseas/Mediaserv; 14-DCC-55 of 18 April 2014, Société Orfi te/Société Vara; 14-DCC-62 of 29 April 2014, Vivendi/Telindus France; 14-DCC-160 of 30 October 2014, Numericable group/SFR; 14-DCC-179 of 27 November 2014, Numericable group/Omer Telecom Limited. 59. Decision 10-DCC-11 of 26 January 2010, Groupe TF1/NT1-Monte-Carlo Participations. 60. Decision 11-DCC-102 of 30 June 2011, Rubis/Société Antillaise des Pétroles Chevro. 61. Decision 11-DCC-114 of 12 July 2011, Banque Fédérative Du Crédit Mutuel/Est Républicain. 62. Decision 13-DCC-46 of 16 April 2013, Groupe Rossel/Groupe Hersant Media Pôle Champagne Ardennes Picardie. 63. Decision 12-DCC-92 of 2 July 2012, Castel Frères SAS/Groupe Patriarche.

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64. Decision 13-DCC-90 of 11 July 2013, Casino/Monoprix. 65. Decision 14-DCC-57 of 14 April 2014, Orlait/Terra Lacta. 66. Out of 45 commitment decisions adopted by the FCA since 2009, 33 decisions relied, at least in part, on behavioural remedies, Concurrences Review, N° 2-2015 pp.46-53. 67. Decision 12-DCC-20 of 7 February 2012, Électricité De Strasbourg/Enerest. 68. Decision 13-DCC-101 of 4 September 2013, Bouyer-Leroux/Actifs Briques de la société Imerys TC. 69. Decision 14-DCC-123 of 21 August 2014, Antilles Glace/Brasserie Lorraine. 70. Decision 15-DCC-54 of 13 May 2015, Rubis/SARA. 71. Decision 10-DCC-198 of 30 December 2010, CDC/Veolia environnement. 72. Decision 11-DCC-34 of 25 February 2011, GDF Suez/Ne Varietur. 73. Decision 13-DCC-101 of 4 September 2013, Bouyer-Leroux/Actifs Briques de la société Imerys TC. 74. Decision 14-DCC-160 of 30 October 2014, Numericable group/SFR. 75. Source: Press release of the FCA, 27 October 2014, available at www. autoritedelaconcurrence.fr; La Tribune newspaper: http://www.latribune.fr/technos- medias/20141027tribc7468bb53/feu-vert-sous-conditions-au-rachat-de-sfr-par- numericable.html. 76. Decision 15-DCC-53 of 15 May 2015, UGI/Totalgaz SAS. 77. Conseil d’Etat, order of 27 November 2013, N°373066, Wienerberger. 78. Conseil d’Etat, judgment of 23 December 2013, N° 363702 and 363719, Canal Plus. 79. Decision 12-DCC-100 of 23 July 2012, Vivendi-Groupe Canal+/TPS-CanalSatellite. 80. Conseil d’Etat, judgment of 21 December 2012, N° 362347, 363542 and 363703, Canal Plus. 81. Decision 10-DCC-25 of 19 March 2010, H Distribution (Groupe Hoio)/Cora Guyane Propadis Ecomax Sovenax. 82. Decision 10-DCC-51 of 28 May 2010, Tereos/Groupe Quartier Français. 83. Decision 12-DCC-59 of 4 May 2012, Groupe Parfait/Leclerc Lamentin. 84. Decision 09-DCC-16 of 22 June 2009, Banque populaire/Caisse d’Epargne. 85. Decision 14-DCC-15 of 10 February 2014, Mediaserv/Canal Plus Overseas. 86. Decision 14-DCC-123 of 21 August 2014, Antilles Glace/Brasserie Lorraine. 87. See paragraph 537 of the Guidelines. 88. Decision 09-DCC-74 of 14 December 2009, Groupe Berto/Lovefrance SAS. 89. Decisions 13-DCC-02 of 7 January 2013, Fluvéo/Routière De L’Est Parisien-Compagnie Marfret; 13-DCC-24 of 1 March 2013, Groupe Charles André/Société Anvil Finance; 13-DCC-58 of 22 May 2013, Opengate Capital Group Europe/Constellium Extrusion France Saint Florentin. 90. Decision 13-DCC-145 of 17 October 2013, Groupe Roullier/Sté Fertilore. 91. Decision 14-DCC-164 of 13 November 2014, Carrefour/Unibail-Rodamco. 92. Decision 13-DCC-34 of 14 March 2013, Groupe Charles André/Société Novatrans. 93. Decision 14-DCC-39 of 24 March 2014, Conforama Développement/Atlas. 94. Press release of the FCA dated 14 March 2014 available at http://www. autoritedelaconcurrence.fr/doc/cp_concentrations_transfrontalieres.pdf. The full report is available in English at http://www.economie.gouv.fr/fi les/rapport_concentrations -transfrontalieres_en.pdf. 95. The bill was adopted by the French National Assembly on 19 February 2015 and amended by the Senate on 12 May 2015. The version of the bill as adopted by the Senate is available (in French) at http://www.senat.fr/leg/tas14-099.html. The bill is now scheduled to be examined by a joint committee bringing together members of both the French National Assembly and the Senate.

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Pierre Zelenko Tel: +33 1 56 43 57 04 / Email: [email protected] Pierre is a partner in the Competition/Antitrust practice of Linklaters in Paris, specialising in EU and French competition law. Pierre graduated from the École Nationale d’Administration (ENA), the École Supérieure de Commerce de Paris (ESCP), the Institut d’Études Politiques de Paris (Sciences Po) and earned a Ph.D. in philosophy of law at the Paris Sorbonne University and a Ph.D. in economics at the École des Hautes Études en Sciences Sociales (EHESS). Pierre has been involved in major cartel cases such as the Euribor and Libor case and provided merger control advice on big ticket M&A deals, such as the acquisition of International Power by GDF Suez and the merger between Suez and Gaz de France. Pierre has published books on the oil sector, on the French and European Institutions, and has taken part in the drafting of the European Cartel Digest.

Daniel Vasbeck Tel: +33 1 56 43 57 04 / Email: [email protected] Daniel Vasbeck is an associate in Linklaters’ Paris offi ce. His practice focuses on EU and French competition law. He holds a Masters degree in Business Law from the IEP of Paris (Sciences Po Paris) and a Masters degree in Public Law from the University of Paris II-Panthéon-Assas. Daniel was admitted to the Paris Bar in 2012. He speaks fl uent French, English and German.

Linklaters LLP 25 rue de Marignan – 75008 Paris, France Tel: +33 1 56 43 56 43 / Fax: +33 1 43 59 41 96 / URL: http://www.linklaters.com

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