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Notification to the French Competition Authority of an acquisition or a merger carried out in Monaco

08/04/2021

Although the Principality of Monaco is still engaged in negotiations with the European Union for the conclusion of an association agreement, it remains to this date a third party to the European Union.

Consequently, the Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings is not applicable in Monaco, the latter also having no national merger control regulations.

It could be inferred from the above that the transfer of a group of Monegasque companies is not subject to the economic concentration rules provided for by the French legislator.

The answer is however not that obvious.

In France, merger and acquisition transactions exceeding a certain size are submitted to the French Competition Authority which examines the impact of the transaction on the competition dynamic of a market.

The purpose of this control, prior to the merger of two or more companies, is to prevent the creation of excessively strong positions or monopolies.

However, the merger control provided for in Articles L.430-1 and following of the French Commercial Code, as interpreted by the guidelines of the French Competition Authority, does not only apply to French companies.

In which case should a notification to the French Competition Authority be considered in the context of an acquisition or merger transaction carried out in Monaco?

First, the transaction must consist of a “concentration”. It can involve the merger of two independent companies, the creation of a joint venture or even the take-over of one company by another.

Second, the only transactions subject to review are the ones meeting the following three criteria:

  • The total worldwide turnover, excluding taxes, of all the companies or groups of natural or legal persons party to the concentration exceeds 150 million euros;
  • The total turnover, excluding tax, generated in France by two or less of the companies or by involved groups of natural or legal persons exceeds 50 million euros;
  • The transaction does not fall within the jurisdiction of the European Union [1].

In the case of a take-over of a group of companies, are taken into consideration the purchaser and the target’s turnover (i) on a worldwide level, for the first threshold, and (ii) generated in France, for the second threshold.

The French Competition Authority states in its guidelines that the control of concentrations applies to all companies, regardless of their nationality or their location, whether or not they own assets or a structure in France, and whether or not the transaction is carried out outside the national territory, as long as they generate a turnover in France and exceed the controllability thresholds [2].

Lower thresholds are applicable in the event of the operation of one or more retail stores [3]  by at least two of the parties to the concentration (the first worldwide threshold is set at 75 million euros and the second, for activities carried out in France and in the retail sector, is set at 15 million euros).

This means that the purchaser (whether of French nationality or not) of a group of companies exclusively or partially Monegasque, whose worldwide turnover and turnover generated in France exceed the above-mentioned thresholds (alone or by aggregating in the purchaser’s turnover), must notify the French Competition Authority of the projected transaction.

Failure to do so results in sanctions.

The French Competition Authority may require the purchaser, under penalty, to notify a concentration that has been carried out without being notified.

Additionally, it may impose a financial penalty on the persons responsible for the notification (the purchaser in this case), the maximum amount of which is 5% of the turnover generated in France during the last financial year, excluding taxes (amount increased, if applicable, by the acquired party’s turnover generated in France during the same period), and 1,500,000 euros for natural persons.

The question of a possible notification to the French Competition Authority should therefore not be evaded in cases of a certain size transactions in which transferred or merged Monegasque companies lead a significant activity in France.

[1] Where the transaction involves the territory of multiple Member States and the turnover of the involved undertakings is very significant (in particular where the worldwide turnover exceeds 5 billion euros for all the parties to the transaction and 250 million euros generated by at least two of the companies in the European Union), the European Commission is competent.

[2] French Competition Authority Guidelines of 23 July 2020, point 132.

[3] Defined in point 103 of the French Competition Authority's Guidelines as "a store which, for more than half of its turnover, sells goods to consumers for domestic use".

Authors

Portrait of Stephan Pastor
Stephan Pastor
Avocat Associé | Partner
Monaco
Portrait of Coralie Trudon
Coralie Trudon
Advanced Associate
Monaco