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The acquisition of a stake in a company or the creation of a joint subsidiary with other partners are operations that must be notified to the competition authorities. The company must be particularly vigilant because it exposes itself to heavy penalties.
The controllability of notification operations is an important step since it will determine whether the company must notify the planned operation (acquisition of another company, creation of a joint subsidiary, etc.) to the competition authorities. There are two conditions to check. First, it must be checked whether the condition relating to the turnover thresholds is met. If these thresholds are reached, it will also be necessary to examine whether the planned operation constitutes a concentration operation within the meaning of competition law. This is particularly the case for an exclusive takeover of one company over another or by the creation of a joint subsidiary. If these two conditions are met, the company must therefore notify the operation to the competition authorities.
THE DEED OF ACQUISITION
When a company is considering the acquisition of a company or the creation of a joint subsidiary , these operations must be formalized in a deed of acquisition or a memorandum of understanding. The company must consider including a suspensive clause, that is to say a condition which suspends the operation from the authorization of the competition authorities. With this clause, the operation cannot be carried out until the competition authorities have given their authorization. It is also important to take into account the processing time for the file, which can take several months. The company must therefore prepare the file as far in advance as possible and set the schedule for carrying out the operation, taking these time constraints into account.
PREPARATION OF THE FILE
The notification file takes a long time to compile, particularly given the large amount of information to be collected. The company must first of all delimit the market concerned by the operation, both at the level of the products and at the geographical level. Then, on these markets concerned, the notification file must also mention the market shares of the company and of its main competitors. You have to think about adopting the most favorable segmentation possible. A competitive analysis of the file is to be expected to demonstrate that this file does not pose a problem in terms of competition law and that the company will not have too strong a position on the market by carrying out the operation.
In the absence of notification or in the event of inaccurate information, the company is liable to extremely high financial penalties, which can reach 5% of the worldwide turnover of the entire group under French law. Furthermore, the operation may be decentralized by the Competition Authority and therefore cancelled, which may have detrimental consequences for the company.
DAMY Law Firm , Nice, Notification Operations, Update 2022