The European Antitrust Review 2014 • Section 3: Country chapters
France: Joint Ventures
Under both European and French law, the competitive assessment of joint ventures is at a crossroads between merger control and antitrust law. Depending on the ‘full-function’ character of the operation, a joint venture can be subject to either merger control or a general antitrust assessment. The following chapter focuses on the specifics of French competition law regarding joint ventures. A general analysis of French merger control and restrictive agreements regimes can be found in the relevant chapter of this book.
If a joint venture is found to be ‘full-function’, it will constitute a concentration under article L.430-1 of the French Commercial Code and will thus be subject to merger control if the thresholds are met. If the joint venture falls outside of the full-function scope or if the thresholds are not met, its competitive risks will still be assessed, but through a general antitrust analysis under principles stated in article L.420-1 of the French Commercial Code (and article 101 of the TFEU).1
Joint ventures subject to merger control
The characteristics of a concentration
Article L.430-1 of the French Commercial Code (FCC) sets out the triggering events for a concentration to arise. For a joint venture to constitute a concentration, the operation must fulfil a set of requirements; ie, it must:
- be under the joint control of its parent companies;
- have a ‘full-function’ character; and
- function on the market on a lasting basis.
The undertaking must be ‘common’ (ie, under the joint control of two or more parent companies). In this respect, the merger control guidelines (the Guidelines)2 issued by the French Competition Authority (FCA) provide that the creation of a joint venture can result from:
- the creation of a new entity on the market;
- the transfer of assets from the parent companies to an existing joint venture, if this transfer enables the joint venture to expand its business; or
- the acquisition by one or more new shareholders of joint control over an existing company.3
The concept of joint control is the same for a joint venture or any other form of concentration. As a reminder, under both French and European Law, ‘joint control’ is the situation in which two or more companies have the possibility of exercising a decisive influence on another company.4
The undertaking must be ‘full-function’, which means:
- it is financially independent, with sufficient resources; and
- it fulfils all the functions of an autonomous economic entity.
The project of the FCA for new Guidelines provides that the concept of ‘full function’ is different from the concept of ‘autonomous from the parent company’, as developed by the FCA in litigation relating to anti-competitive practices.5
The French definition of a ‘full-function’ joint venture is very similar to the European approach,6 and the FCA often refers to European principles such as the Commission’s guidelines on merger assessment7 when deciding on French merger cases.8
Sufficient resources to function autonomously on the market
The joint venture will be ‘full-function’ if it possesses the necessary resources to function independently on the market and in particular ‘all the structural elements that are necessary for entities to function on a stand-alone basis (human resources, its own budget, commercial responsibility)’.9
The FCA, in its decision No.11-DCC-171,10 ruled, by referring to the Commission’s Consolidated Jurisdictional Notice,11 that a joint venture was sufficiently autonomous to be full function if it possessed all the necessary means to pursue its activity, including staff, tangible and intangible assets and financial resources.
The means necessary to pursue an independent activity on the market can, however, be transferred from the parent companies. Such is the case ‘for intangible assets such as brands and other human assets such as staff’.12
Fulfil all the functions of an autonomous economic entity
To be full-function, the joint venture must be active on the market by fulfilling all the functions that are usually carried out by other companies on the same market.13
This criterion is strictly applied and the French State Council, acting as the ultimate judge for merger control in France, ruled that the joint venture ‘Opéra’, serving as a global purchasing entity with a primary purpose to reference its parent company’s suppliers, did not possess the required full-function character to result in a concentration. In this case, the French State Council focused on the fact that purchasing decisions continued to be taken by the parent companies and their subsidiaries that remained active buyers on the market. Although the joint venture purchased some products on its own behalf, this activity represented only a very small portion of its parent’s acquisitions. The joint venture thus lacked the required autonomy and independence on the market to be full-function.14
A joint venture will not be seen as full-function if its turnover depends solely on economic transactions with one of its parents and its prospective sales remain purely hypothetical,15 or if it only acts as an intermediary between the parent companies and their suppliers to negotiate the best prices for its parents that will, in the end, decide whether or not they wish to purchase the products.16
Operating on the market on a lasting basis
The joint venture must be intended to operate on the market on a lasting basis.
Therefore, a joint venture established only to last long enough for the realisation of a temporary project cannot constitute a concentration.
According to the Guidelines, ‘the creation of a joint venture for the sole purpose of creating an artwork and which is destined to be dissolved at the end of the art project cannot result in a concentration’. 17
The fact, however, that the parent companies have envisaged that the joint venture will be dissolved, should they enter into a disagreement or the venture fail, does not systematically disable the latter from qualifying as a concentration.18
If there is no ‘dissolution provision’ in case of failure, the joint venture will fulfil the long-lasting criteria if its duration is sufficiently long to bring about a change in the structure of the undertakings.
In conclusion, if the joint venture performs, on a lasting basis, all the functions of an autonomous economic entity, it will constitute a concentration which must be notified to the FCA in either of the following instances:
- the concentration does not have a European dimension – which is to say that, if the operation meets the relevant European thresholds provided in the Council Regulation No.139/2004 on the control of concentrations between undertakings,19 it will fall within the European Commission’s scope and will have to be notified to the latter that can, as provided by the Regulation No.139/2004, refer it back to the FCA; or
- the French merger control thresholds are met (see the French merger control chapter).
Please note that when joint control is acquired over a newly created joint venture, the relevant turnover to consider is that of the controlling parent companies. The newly created company is not considered a relevant undertaking ‘as it has no turnover of its own before the operation’. If one of the controlling companies transfers assets to the newly created company, the turnover attributed to these assets is taken into account when calculating the turnover of this parent company.20
The Guidelines specify that in cases where the joint venture over which the parent companies acquire joint control already exists on the market, the undertakings concerned are those assuming control along with the pre-existing acquired undertaking. However, when the pre-existing undertaking was already under the sole control of another undertaking and one or more new shareholders acquire joint control while the initial shareholder remains, the undertakings concerned are each of the undertakings exerting joint control (including the initial shareholder). In such a case, the target is not a concerned undertaking and its turnover is included in the initial shareholder’s turnover.21
Pursuant to article L.430-3 of the FCC, in the particular case of new shareholders acquiring joint control, all the undertakings exerting joint control, even those who had control before the operation must jointly notify.22
Competitive assessment of the joint venture
The competitive assessment of a joint venture is specific in the sense that the competitive impact of the latter calls for two forms of control, a structural assessment of the operation and a behavioural assessment due to the risk of coordination that a joint venture can entail.
Under French law, a full-function joint venture assessment is a clear two-step process containing:
- a classic ‘concentrative test’ of the operation based on a structural approach of the market(s); and
- a ‘coordination test’ based on the undertaking’s potential behaviour on the market(s).
The ‘concentrative test’
At first, the FCA will focus its competitive assessment on the sole concentrative elements of the operation. In this regard, the analysis is similar to that of any other transaction subject to merger control. The impact of the operation will thus be evaluated via the ‘classic’ merger control test, which consists in assessing the horizontal, vertical (or conglomeral) and coordinated effects on the market(s).
The FCA will assess the ‘weight’ of the joint venture on the market by appraising the respective contributions of its parent companies.
In the case of the acquisition of joint control over an existing company, the FCA will combine the respective markets shares of
- the joint venture; and
- the parent company or companies also active on the same market.23
In the case of the creation of a joint venture by parent companies, if, at least one of the parent company remains active after the operation on the same market as its joint venture (ie, the parent company has transferred only part of its activity to the joint venture and wishes to continue to carry out its own activity on the same market), the minister of the economy (the minister) – who, until January 2009, was in charge of merger control (this power has been since transferred to the FCA) – considered that the competitive assessment should take into account the market power of the entity formed by the joint venture and the relevant parent company.24 In order to so, the minister assessed both the coordinated and concentrative effect of the operation at the same time.
Such a position seems questionable to the extent that it is the result of the combination of two distinct tests, which should be applied separately. The analysis is flawed as it ignores the fact that the parent companies remain independent despite the creation of the joint venture.25
The FCA has reviewed the position consisting in considering that the coordination and the concentrative aspects of the operation should be assessed together and drew a clear distinction between the two tests in its decision No. 09-DCC-91.26 The project of the FCA for new Guidelines also provides that the assessment must be carried out in two distinct steps.27
The vertical and conglomeral effects of the concentration will also be assessed as for a traditional merger. For example, the FCA will appraise the vertical effects by contemplating the risks of thwarting input or customers if a vertical integration arises from the operation. In a merger decision relating to a change from joint to sole control over a joint venture in the field of rail track installation and maintenance, the minister held ‘that the competitive risk arose from the vertical integration of the parties due to the switch from joint to sole control over the ‘full-function joint venture’28 as one of the parent company’s exit from the joint venture could facilitate the implementation by the remaining parent company of a strategy to evict its competitors on upstream, downstream and neighbouring markets.
The ‘coordination test’
Embarking on a joint venture can lead parent companies to coordinate their behavior on the market through their joint participation.
At this stage, a distinction can be drawn between European and French law as the French approach of the ‘coordination test’ and its content is slightly different from the European approach.
Under French law, this coordination test was first applied by the Minister in 2006 in Natixis29 when the Banque Populaire group and the Caisse d’Epargne group created a joint venture, Natixis, to operate in the field of investment banking and finance.
As explained above, the minister considered that the coordination risk and the concentrative aspect of the operation should be assessed together as in this case the overall market strength of the entity composed by the parents and the joint venture should be taken into account. The minister appraised the risk on markets connected to Natixis’ activity on which both parent companies are active, even if the joint venture is not. In this regard, the minister clearly asserts that ‘some of Natixis’ activities in the investment and commercial banking sector could have an influence on its parents’ retail activities’ as the joint venture’s products provide an essential input for both its parent companies on specific markets.
The implementation of a coordination test is firmly stated in the Guidelines which provide the following three criteria to evaluate the risk.30
Firstly, the FCA will assess whether there is a causal relationship between the creation of the new undertaking and a risk of coordination. According to the Guidelines, the causal link can be established if the joint venture’s activity is essential for the markets on which the parent companies are active.31
Secondly, the FCA will have to establish the likelihood of coordination by considering the structural framework of the market and the incentives for the parent companies to coordinate their behaviour on that market. In other words, the market structure must be conducive to coordination and there must be an economic rationale for the parent companies. The Guidelines provide that ‘coordination is more likely to arise if the parent companies can easily reach a common understanding on how the coordination should function and if the joint venture enables them to monitor their respective behaviours on the market’.32 Corporate governance of the joint venture must also be considered when assessing the anti-competitive effect of the operation (the joint venture’s management scheme and its general organisation can, for instance, lead to the creation of an information exchange system).
Finally, the FCA will determine if the coordination can have a significant impact on the market. To do so, it will consider factors such as the size of the parent company’s market share and whether their common course of action can be jeopardised by their clients or competitors.33
If the parent company’s position on the market is not sufficiently weak to eliminate all risks of coordination, the FCA will take into account all factors that could enable coordination whether de jure or de facto and in particular elements such as ‘symmetry between the parent companies, the homogeneity of their products, the stability of demand, the pace of innovation in the sector, the existence of common pricing rules or the opportunity for each parent to have access to information about the other parent, especially due to the creation or strengthening of the joint venture.’34
The main difficulty that arises when applying the coordination test is defining the very notion of ‘coordination’. Coordination between companies can take several forms. It can be an ‘express’ coordination when the parent companies enter into a restrictive agreement to adopt the same course of action on the market. It can also be ‘tacit’ with reference to the ‘collective dominance test’ when the joint venture creates or strengthens a pre-existing dominant position of either one or both of the parent companies.
As the Guidelines state, the creation of a joint venture can strengthen the structural links between the parent companies thus enabling them to anticipate their behaviour and to align their strategies without explicitly entering into a restrictive agreement.35
The ‘tacit’ coordination test was first brought up in 2006 when the minister cleared a merger consisting in the acquisition of sole control of Delaroche by L’Est Républicain, a company in the press sector.36
The minister then referred to the FCA asking if the risk should be assessed only for ‘express’ coordination (ie, restrictive agreements) or include ‘tacit’ coordination (ie, collective dominance).
The FCA held that the competitive assessment must cover both forms of coordination whether tacit or express. ‘The Council considers that if, under the following Community practice of sections 2.4 and 2.5 of Regulation 139/2004 on the control of concentrations, the question asked by the minister [about the double meaning that could have the concept of “tacit coordination”] is relevant, it is not relevant with regards to national law: Articles L.430-1 and following of the Commercial Code target both types of risks without drawing a distinction.’37
The FCA based its decision on the Council of State’s judgment regarding a joint venture between TF1 and AB in which the Council of State assimilated the risk of coordination to the risk of creating or strengthening a collective dominance.38
The coordination test thus indistinctly targets both types of risks of coordination whether through restrictive agreements or collective dominance.
In this regard, French competition law differs from European law. Although the Guidelines on the applicability of article 101 of the TFEU to horizontal cooperation agreements provide that ‘the assessment under article 101 as described in these guidelines is without prejudice to the possible parallel application of article 102 of the Treaty to horizontal cooperation agreements’,39 Regulation No.139/2004 clearly states that the coordination test should only cover ‘express’ coordination by referring only to article 101(1) and (3) of the TFEU.40
The FCA however, has now made its position very clear in the Guidelines which provide that the FCA will assess either forms or coordination, ‘no matter the form of the coordination: express, with reference to restrictive agreements or tacit, with reference to case law on collective abuse of dominant position’.41
Joint ventures that do not result in a concentration
Under French law (as under European law) joint ventures that do not meet all the criteria stated above will not constitute a concentration and will thus not be subject to French merger control. They will however be subject to a competitive assessment under articles L.420-1 and L.420-4 of the FCC and under article 101 of the TFEU, if applicable.
Non-full-function joint ventures are commonly used for manufacturing or commercialising products, creating a central purchasing body or a GIE.
These joint ventures are subject to a competitive assessment as they can be a means for the parent companies to coordinate their behaviour on the market, either between themselves, or with the joint venture itself.
Similarly to article 101 of the TFEU, article L.420-1 of the FCC provides that:
Common actions, agreements, express or tacit understandings or coalitions, particularly when they are intended to:
(1) limit access to the market or the free exercise of competition by other undertakings;
(2) prevent price fixing by the free play of the market, by artificially encouraging the increase or reduction of prices;
(3) limit or control production, markets, investment or technical progress;
(4) share markets or sources of supply,
shall be prohibited, even through the direct or indirect intermediation of a company in a group established outside France, when they have the object, or may have the effect, of preventing, restricting or distorting competition in a market.
Pursuant to article L.420-3 of the FCC, agreements or provisions that infringe article L.420-1 are void and unenforceable.
A specific provision found to be anti-competitive may render the whole contract void42 should the voided provision be decisive for the parties when deciding to enter into an agreement or depending on the content of a severability clause in the contract.
The FCA’s competitive assessment of non-full-function joint ventures
The creation of a joint venture cannot, in itself, restrict competition. It can however infringe article L.420-1 or article 101(1) TFEU if the conditions laid out in these articles are met.
As the FCA recently explained: ‘A joint venture or a marketing agreement between competitors is not in itself a restriction of competition, but it may be contrary to article 101, paragraph 1, TFEU and L.420-1 of the Commercial Code if all the conditions laid down in those provisions are met (...) but can satisfy the conditions for an exemption under section 101, paragraph 3, of the Treaty and L .420-4 of the Commercial Code’.43
Due to its non-full-function character, the joint venture cannot benefit from an ex ante clearance before it is implemented. The undertakings will thus have to conduct their own competitive assessment of the operation.
In its competitive assessment, the FCA will analyse whether the parent companies are not in fact, through their joint venture, setting up mechanisms which have the same object or effect as restrictive agreements to fix prices or allocate markets and clients. Indeed, according to the FCA: ‘A joint venture, under cover of pooling resources, can be a means to restrict competition’.44
The FCA’s analysis will thus go beyond the mere fact that two companies have set up a joint venture. It will carry out an in-depth assessment of the provisions contained in the contract governing the joint venture and their object or practical effects on the market.
In this regard, in 2007, the FCA sanctioned a GIE between agricultural cooperatives designed for the joint selling of its member’s products due to its non-compete clause which forbade its members from approaching their respective clients.
The FCA ruled that, ‘In this case, a non-compete clause included in the rules of the GIE and forbidding its members from approaching the clients of other members is unlawful because it is likely to allocate the market share of each member and artificially crystallise their positions’.45
Another example of the FCA’s reasoning can be found in its 2012 decision regarding the creation of a joint venture, France Farine, by several companies specialised in milling to market packaged flour to food retailers. The FCA held that, although joint ventures can lead to efficiency gains and rationalise certain segments of production or commercialisation of products, France Farine was the grounds for a restrictive agreement between the millers.
The FCA found that France Farine marketed the packaged flour for a fixed price set by its members for products under the France Farine private label brand and products under low-cost brands. In addition, once it had concluded the commercial negotiation with food retailers, France Farine would allocate customers based on their proximity to each of the millers. The joint venture thus enabled a centralised organisation of the market for price fixing and customer allocation which eliminated all sources of competition between the millers46. Consequently, the FCA sanctioned the parent companies €146.9 million euros.47
Furthermore, even full-function joint ventures, although notified to and cleared by the FCA after an extensive merger assessment, can infringe article L.420-1 due to the undertaking’s application of certain provisions.
In 2004, two companies, ship-owner APMM and cargo-handling company Perrigault, notified the creation of a full-function joint venture, TPO, for the purposes of operating a handling station in the port of Le Havre.
The agreement founding the joint venture contained a non-compete clause providing that TPO and Perrigault would refrain from soliciting their respective customers as they were both active on the cargo handling market.
In 2006, the minister cleared the concentration stating that ‘this concentration is not likely to harm competition and especially not by creating or strengthening a dominant position’.48 It must be noted that no ancillary restraints were identified.
Both parents had agreed that the joint venture would act autonomously and independently – as a full-function joint venture and that it could thus ‘offer its services to third-party maritime companies’. Perrigault and TPO however, decided to extensively apply the non-compete clause by prohibiting TPO from conducting business with any customer other than APMM.
APMM brought a complaint before the FCA as TPO refrained from initiating any effort to conduct business with other companies. In 2010, the FCA ruled that TPO and Perrigault’s interpretation of the non-compete clause created an anti-competitive effect. The FCA held that: ‘The anti-competitive practice is not the result of the existence of the non-compete clause as such but is due to Perrigault and TPO’s extensive application of the clause’49. In this respect, the FCA identified three cases in which TPO had refused to contract with potential clients even if they were not Perrigault’s favoured clients. As a result, competition was distorted as other ship owners operating at the port of Le Havre were left with very limited alternatives when trying to find a cargo-handling company to conduct business with.
The FCA fined TPO €135,000 and Perrigault €370,000 for a violation of article L.420-1 and ordered them to stop their extensive application of the non-compete clause.
Both companies appealed before the Paris Court of Appeal that, in fine, found that, in this case, there could be no infringement of article L.420-1 as TPO lacked the sufficient autonomy to have entered into a restrictive agreement with Perrigault, even if TPO was considered to be a full-function joint venture in 2006. Therefore, the practice could not fall within the scope of article L.420-1 as TPO was not independent and thus could not enter into a restrictive agreement with its parent companies. The Court further held that TPO’s refusal to conduct business with third parties was due to a conflict between Perrigault’s and APMM’s executives. In any case, the Court of Appeal’s judgment did not examine the anti-competitive nature of the practice and solely focused on the possibility of an agreement between TPO and APMM.50
It must also be noted that the creation of a joint venture must not lead to an information exchange system, which is likely to be a violation of articles L.420-1 and 101 TFEU.
Exemptions under article L.420-4 or 101(3) TFEU
Under French law, provisions or practices that tend to restrict competition can however be exempted if they meet the conditions laid down in article L.420-4 of the FCC, ie,, the practices give rise to economic progress, by creating or maintaining employment and allowing consumers to benefit from a fair share of the resulting benefit, without eliminating competition on a substantial part of the relevant products. Due to the primacy of European law, the FCA will refer to article 101(3) of the TFEU and its exemption agreements when applying article L.420-4.
In this regard, the FCA has recently recalled that it ‘may grant an exemption under article L.420-4 of the Commercial Code only if the practices are likely to be exempted under article 101, paragraph 3, of the TFEU. However, the conditions of the exemption provided under paragraph 2 of I of article L.420-4 of the Commercial Code are identical to those provided for under article 101 substance, paragraph 3 of the TFEU. The Authority will thus carry out an assessment of the exemption based on both French and Community law.’51
- Please note that even if a joint venture is full-function, one cannot exclude the possibility that it could be challenged under articles L.420-1 of the FCC or 101 of TFEU, for example, in case of non-ancillary anti-competitive restrictions. ↑
- The Guidelines are currently under review. The new Guidelines should enter into force by the end of the first semester 2013. ↑
- FCA, Merger Guidelines, paragraph 53. ↑
- FCA, Merger Guidelines, paragraph 32. ↑
- FCA, Project for new Guidelines, paragraph 556. ↑
- Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No. 139/2004 on the control of concentrations between undertakings, paragraphs 91 and 92. ↑
- Ibid, 6. ↑
- See for example FCA, decision No. 11-DCC-171. ↑
- Guidelines, paragraph 55. ↑
- FCA, decision No. 11-DCC-171, 25 November 2011, paragraph 5. ↑
- Ibid, 5. ↑
- See for example letter from the minister of the economy No. C2007-19, 10 September 2007, BOCCRF No. 8 bis, 26 October 2007, Spir/Schibsted. ↑
- Guidelines, paragraph 55. ↑
- State Council decision, 31 May 2000, No. 213161 and 213352. ↑
- FCA decision, No. 10-DCC-69, 1 July 2010, Le Carbonne Lorraine/ Boostec. ↑
- FCA, decision No.10-DCC-49, 8 June 2010. ↑
- Guidelines, paragraph 58. ↑
- Guidelines, paragraph 58. ↑
- Council Regulation No.139/2004 of 20 January 2004 on the control of concentrations between undertakings. ↑
- Guidelines, paragraph 70. ↑
- Ibid, 21. ↑
- Guidelines, paragraph 100. ↑
- Letter from the minister of the economy No. C2007-27, 10 August 2006,BOCCRF No. 7 bis 14 September 2007, EBRA and FCA, decision No.09-DCC-91, 24 December 2009, paragraph 39. ↑
- Letter from the minister of the economy No. C2006-45, 10 August 2006, BOCCRF No. 7 bis 15 September 2006, Natixis. ↑
- David Tayar, ‘L’articulation des tests concentration et coordination’, Concurrences Review, No. 3-2012. ↑
- FCA, decision No.09-DCC-91, 24 December 2009, paragraphs 30 to 32. ↑
- Project for new Guidelines, paragraph 515. ↑
- Letter from the minister of the economy No. C2007-20, 6 July 2007, BOCCRF No. 7 bis 14 September 2007, Vossloh infrastructure service. ↑
- Letter from the Minister of Economy No. C2006-45, 10 August 2006, BOCCRF No. 7 bis 15 September 2006, Natixis. ↑
- Guidelines, paragraph 475. ↑
- Guidelines, paragraph 476. ↑
- Guidelines, paragraph 480. ↑
- Ibid, 33 ↑
- Guidelines, paragraph 483. ↑
- Guidelines, paragraph 473. ↑
- Letter from the minister of the economy No. C2007-27, 14 September 2007, Ebra. ↑
- Competition Council, opinion No. 07-A-09, 2 August 2007. ↑
- State Council No.278652, 27 June 2007. ↑
- Guidelines on the applicability of article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, paragraph 16. ↑
- Council Regulation No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings, article 2, paragraph 4. ↑
- Guidelines, paragraph 473. ↑
- Cour de cassation, 29 January 2002, No. 00-11.433 and No. 00-11.951. ↑
- FCA, decision No. 12-D-09, 13 March 2012, paragraph 572. ↑
- FCA, decision No. 12-D-09, 13 March 2012, paragraph 573. ↑
- FCA, decision No. 07-D-16, 9 May 2007, paragraph 85. ↑
- FCA, decision No. 12-D-09, 13 March 2012. ↑
- This case is currently being appealed before the Paris Court of Appeal. ↑
- Letter from the minister of the economy No. C2006-49, Moller Maersk/Perrigault. ↑
- FCA, decision No. 10-D-13, 15 April 2010, paragraph 493. ↑
- The Supreme Court dismissed the appeal, Court of Cassation, 30 May 2012, No. J 11-12.886. ↑
- FCA, decision No. 12-D-08, 6 March 2012, paragraph 564. ↑
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