ARTICLES - Merger control (EC and French) - Standard of judicial review in merger control - Economic assessment - Manifest error standard - Legal qualification of the facts - Restriction to free trade and industry as constitutional liberty - Demanding French merger control review - EC and French differences in standard of merger judicial review - Ground substitution (“substitution de motifs” ) - Standard of proof - Equal level of evidence

Jurisdictional merger review: Differences of approaches between EC and French regimes

The standard of judicial review in merger cases is different in EC and French law. As regards EC law, the Community Courts’ review of assessments of an economic nature that the Commission conducts is restrained and limited to the manifest error standard. However, the notion of economic assessment does not exist in France. Instead, the French administrative judge reviews the legal qualification of the facts provided in a decision. Moreover, as merger control can become a restriction to free trade and industry, a constitutional liberty, the French merger review is «normal» or «maximum», i.e. more demanding. Beyond this different standard of judicial review, the existence in French administrative law of specific concepts, such as the «substitution de motifs» (ground substitution) which allows the judge to confirm a wrong-grounded decision, is another source of difference. Moreover, EC law lies on particular criteria, such as the standard of proof or the equal level of evidence required for a positive and a negative decision. These specificities in French and EC law leads to predict a growing difference.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. 1. Jurisdictional control of mergers is increasingly being developed. It is being initiated in France before the Conseil d'Etat. At the Community level, the Court of First Instance (hereafter the "CFI") and the Court of Justice of the European Communities (hereafter the "ECJ") are now also regularly referred to by companies that are dissatisfied with the decisions adopted by the European Commission. This judicial review is based, in France, on an action for abuse of power and, before the Community Courts, on the action for annulment provided for in Article 230 of the EC Treaty. The debate initiated by Judge Hubert Legal on judicial review by the Community

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Didier Theophile, Hugues Parmentier, Jurisdictional merger review: Differences of approaches between EC and French regimes, February 2006, Concurrences N° 1-2006, Art. N° 464, pp. 39-46

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