Les engagements dans le droit français des concentrations

Francois Blanc

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At first glance, merger law illustrates the modern role played by the State in the economy: it is no longer a question of building markets, but of controlling one or more operators in particular on a case-by-case basis. The liberal State thus makes mergers between companies subject to prior authorisation in order to check that they do not harm competition. However, in the silence of the law, everything happens as if the administration were using concentration as a vector for reorganizing markets. The process is all the more subtle in that it closely involves the companies themselves: everything is based on the "commitments" that the companies propose to the administration in order to prevent the anti-competitive effects of their project. For these commitments undergo a decisive legal change: once issued, they become an economic policing measure, incorporated into the administrative authorisation. The procedure, developed at the time of the administered economy, denotes the constancy of French law beyond the variation of economic objectives. These undertakings bind the parties to the concentration, on the one hand in their dealings with other operators on the market and, on the other hand, in their relations with the administration: they guide the action of the concentration vis-à-vis third parties while extending administrative control. Incorporating the commitments into its act, the administration modifies and then monitors relations between the parties and third parties to the operation. Thus, its intervention moves, ratione temporis, from the proposed concentration to the actual concentration, and, ratione personae, from the parties to the operation to third parties. In short, it moves from the concentration to the market. While it is no longer a question, as in the past, of directly constructing the market, the administration now uses the companies subject to its authorisation for this purpose.