Adoption Of 'Macron' Bill: Broader Powers For The French Competition Authority

Author:Mr Renaud Christol and Elsa Pinon
Profession:August & Debouzy

The bill for economic growth and activity ("Macron bill") was adopted on 10 July 2015 after three applications of an exceptional measure based on Article 49-3 of the French Constitution to bypass a parliamentary vote. It expands the French Competition Authority's ("the FCA") powers and confirms the key nature of competition law in the French economy.

Control of mass-market retailing

Firstly, the Macron bill extends to the whole territory the FCA's structural injunction power[1]. It could formerly be used only in DROM and COM[2] against dominant retailers or groups of retailers which position raised competition concerns resulting from high prices and margins. Hence, the bill unifies the applicable procedure to metropolitan companies to the one applicable to companies located in DROM and COM. If those companies or groups do not provide a satisfactory answer to the FCA's competition concerns expressed in a motivated report, the FCA can force them to modify or terminate the agreements or acts by which their economic strength has been constituted, or even to sell sales areas. The only remaining particularity of the procedure applicable to DROM and COM is the dominant position of the companies or groups of companies operating one or several retail stores which is not estimated through a market share higher than 50%, but "having regard to the specific constraints related to these territories resulting particularly from their geographic and economic characteristics". The bill also states that it is not possible to stay proceedings on an injunction taken on this basis, when it orders a divestment of assets.

The bill also introduces a procedure of prior notice of any new partnership agreement to the FCA. These agreements do not usually fall under merger control and are not consequently subject to the prior control of the FCA. This is why, the FCA, entrusted by the French minister for economics and the Committee on Economic and Monetary Affairs of the Senate, issued, on 31 March 2015, an opinion concerning the joint purchasing agreements in the food retail sector[3]. According to new Article L. 462-10 of the French commercial code, if a turnover threshold fixed by decree was reached, these agreements would be subject to FCA's control.

It must be noted that the procedure, formerly set forth by the bill, of consultation of the FCA in commercial planning about projects or any modification of projects of territorial coherence program, local and...

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