Third parties role in EU and French merger control

Workshop organized by Concurrences in partnership with Herbert Smith Freehills.


David Bosco (Professor, Aix-Marseille University)

Asking questions about the place of third parties in French and European merger control presupposes first defining the terms of the subject: what notion of third party? If they are defined negatively, as in contract law, third parties are all those who are not parties. The notions of "notifying" party, "interested party", "undertaking concerned" are found in Regulations 139/2004 and 802/2004 and the same notion of party is also present in the draft guidelines of the French Competition Authority on merger control. As opposed to parties, it was therefore chosen to define third parties as persons not involved in the concentration. Behind this concept appears a wide variety of factual situations, including the competing undertaking, consumers, suppliers, etc.

The objective of competition law is to ensure the competitive functioning of markets. This objective litigation differs from subjective litigation, which is aimed at protecting competitors. In this respect, the Authority’s revised draft guidelines point out that third parties cannot rely on "a right to have their comments included in the Authority’s analyses, or a right to obtain certain remedies or certain types of decision".

Photos © Léo-Paul Ridet.

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  • University of Aix-Marseille
  • DG COMP (Brussels)
  • Herbert Smith Freehills (Paris)