On 25 March, the French government's Council of Ministers adopted an ordinance relating to the extension of deadlines expiring during the emergency health situation, as well as the adjustment of procedures during this period, published in the Official Journal of 26 March. It applies to the Competition Authority's deadlines and procedures in relation to merger operations in order to take account of the Covid-19 crisis.
The ordinance of 25 March 2020 applies to deadlines expiring between 12 March 2020 and the end of a period of one month following the end of the emergency health situation (i.e. in principle until 24 June 2020, since the end of the health emergency has currently been set at 24 May 2020). The following are excluded from the scope of the legislation, with the exception of a number of exhaustively listed deadlines, including those applicable in criminal cases or to custodial measures, as well as deadlines and measures adjusted under the emergency law to tackle the epidemic.
The order contains several specific provisions relating to administrative deadlines and procedures, which apply to all administrative authorities, including the Competition Authority.
Under Article 7 of the ordinance, for instance, deadlines applicable to the Competition Authority for issuing authorisation decisions in merger control cases which had not expired by 12 March 2020 are suspended for the duration of the period specified above. The same rules apply to deadlines applicable to the Competition Authority for verifying the completeness of a file, requesting additional documents and for public consultation (we are thinking particularly of market tests or deadlines issued to third parties for submitted observations on a notified merger). Furthermore, the starting point for deadlines which should have occurred during that period is postponed until the end of the period.
However, the ordinance allows the possibility of defining by decree categories of legal documents, proceedings and obligations for which the deadline periods are resumed, on grounds of fundamental protection of the national interest, security, protection of public and environmental health, preservation of the environment and protection of children and young people.
Similarly, a decree may, for the same reasons, define a date for resumption of the deadline for a specific legal document, procedure or obligation, provided that the persons concerned are informed.
This ordinance therefore clarifies questions relating to the processing deadlines for merger cases pending before the Competition Authority and thereby completes the information provided by the Authority in its press release of 17 March on the adaptation of merger control procedures due to Coronavirus/Covid-19.
In that publication, the Competition Authority already indicated that, given the exceptional circumstances, it could no longer guarantee the usual processing times for mergers, which could therefore be amended. In this respect, the Competition Authority asked companies to postpone any non-urgent economic merger plans and stated that, due to the closure of the Authority's premises, all documents should be delivered to it by electronic means.
Application of the provisions of the ordinance will mean that:
- for cases which were at the “pre-notification” stage before declaration of the health emergency – an informal stage which is not subject to any deadline – exchanges may continue with the Competition Authority’s investigation department, albeit at a slower pace, although no formal notification issued before 24 June 2020 will trigger the examination deadline periods provided for in Article L.430-5 of the French Commercial Code to run;
- For cases which had already been notified before 12 March 2020 and are considered to be complete, the deadline for examination by the Competition Authority is suspended as from 12 March and will begin again from 24 June 2020, from the point at which it was interrupted;
- For all cases in which the deadlines for investigation had already suspended due to additional information requests, those deadlines will only resume from 24 June 2020, even if the parties reply punctually.
In respect of the suspension of deadlines, in a press release dated 27 March 2020 the Competition Authority stated that, if conditions allow, it may nevertheless continue to issue authorisation decisions during this period. However, questions could arise regarding the legal certainty of such decisions, insofar as the deadlines applicable to third parties for presenting observations on the mergers being examined, the Minister’s right to object and the appeal deadlines against those decisions, would not have been triggered.
The European Commission, meanwhile, despite having asked companies to postpone their notifications and informed them of delays in the processing of cases, has not yet taken official steps to suspend the deadlines.
To learn more about the effects of the Covid-19 crisis on competition law, see our article: “Emergency law to tackle the Covid-19 epidemic: measures in competition law”.
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