I OVERVIEW OF M&A ACTIVITY2

Despite Macron's agenda to promote investments in France, French M&A activity in 2018 recorded its lowest level in terms of aggregate value since 2014 as material deals announced in France reached €54.5 billion against €99 billion in 2017. The number of material transactions reached 875, which is lower than the number seen in the past two years, with 932 deals announced in 2016 and 922 announced in 2017. Compared to 2017, when five deals worth over €5 billion were announced, France did not attract jumbo deals in 2018, and all transactions targeting French companies announced in 2018 were valued below €3.5 billion.

This decrease in value and volume of M&A activity can be explained by factors such as a lack of significant deals and investors' caution following the 2017 presidential election, as a great number of reforms were implemented and others have been adopted since then. As expected, 2018 was a significant year in terms of economic regulation: the government has notably reformed and simplified certain corporate and financial market rules applicable to French companies and the provisions related to their funding. It has also strengthened the control regime of foreign investments in French companies. Such decrease may also be explained by the uncertainty arising out of the conditions of Brexit and unforeseen social instability in the second half of 2018: these required an urgent political response from the government the economic consequences of which were difficult to predict.

The only sector that has not been affected by this decline is private equity. Indeed, private equity transactions, which reached their highest annual value since the financial crisis at €24.2 billion, amounted to 44.4 per cent of the aggregate value of the deals announced in 2018.

M&A activity was driven by a few large cap deals, including the €2.6 billion bid made by Total SA for Direct Energie SA, with a view to enhancing Total's market share in electricity distribution activities. The largest transaction in 2018 was the acquisition by Merck & Co of Antelliq for €3.25 billion from a UK private equity firm.

II GENERAL INTRODUCTION TO THE LEGAL FRAMEWORK FOR M&A

The French Commercial Code and the French Civil Code – in respect of which the provisions relating to contract law were reshaped in October 2016 and clarified in April 2018 – provide the statutory framework and form the legal basis for the purchase and sale of assets or legal entities. Additionally, the French Monetary and Financial Code and the General Regulations of the French Financial Markets Authority (AMF) provide the regulations relating to takeovers. As a general rule, French takeover rules apply if a target is a French or EU public company whose securities are listed in France and, in some instances, if the company is dual-listed.

Rules relating to the financial services industry, the listing and public offering of securities and the prevention of market abuse are set out in the Monetary and Financial Code and in the General Regulations of the AMF.

French merger control rules are mainly contained in the Commercial Code. These rules apply to cross-border mergers having effects on the French market (as currently defined in accordance with worldwide and France-wide turnover thresholds) but with no EU dimension. Mergers with an EU dimension (i.e., involving companies whose turnover exceeds the thresholds set by the EU Merger Regulation) are instead subject to the review of the European Commission.

Within the framework of the applicable laws and the General Regulations of the AMF, NYSE Euronext operates the three French regulated markets, one stock market (Euronext Paris) and two derivative markets (Monep and MATIF), and some organised markets (such as Euronext Growth).

III DEVELOPMENTS IN CORPORATE AND TAKEOVER LAW AND THEIR IMPACT

i New additional regulations regarding the use of Blockchain technology

Further to and as required by an ordinance dated 8 December 2017, France adopted an implementation decree on 24 December 2018 that authorises and regulates the effective use of blockchain technology to record and operate the transfer of certain securities. This regulation governs the registration and transfer of securities issued in France and governed by French law that are not listed on a regulated market or on a multilateral trading facility. The French provisions do not impose a specific share electronic recording device, therefore granting total freedom to issuers and parties regarding the selection of such devices.

In practical terms, non-listed French issuers may decide to issue their securities on shared electronic recording devices (i.e., a blockchain) instead of the current book entry. Such shared electronic recording device shall guarantee the registration and integrity of entries and enable holders of securities to be identified, together with the number of securities they hold. In this regard, any holder may ask to be provided with a certificate setting out its transactions. Registration in a shared electronic recording device, such as registration in a buyer's account in the book entry system, entails a transfer of securities. Similarly, a pledge over securities registered in a shared electronic recording may be constituted under the same terms and conditions as a pledge over securities registered in a book entry.

ii Promoting the growth and transformation of companies

On 11 April 2019, a law relating to an action plan for corporate growth and transformation of French companies (also known as the PACTE law) was adopted. The PACTE law aims to simplify corporate law and promote corporate financing. It also aims to instil a new vision of capitalism by allowing (but not requiring) French commercial companies to define in their bylaws not only their objects, but also their own objectives.

This reform entails the following main practical developments:

  1. a decrease of the squeeze-out threshold (from 95 to 90 per cent) in order to facilitate the delisting process;
  2. the possibility offered to non-listed companies to issue preferred shares with multiple voting rights attached and preferred shares that are redeemable on the holder's request;
  3. facilitating the access of companies to diversified funding (both public and private funding) through a simplification of the rules applicable to public offerings and a new initial coin offering (ICO) legal framework. This new framework will provide investors with certain safeguards and guarantees that French-based ICO issuers will have the possibility of requiring the approval (visa) of the Financial Markets Regulator certifying a set of requirements concerning the security and transparency of the token issued, and the creation of rules with respect to the secondary market for tokens;
  4. a simplification of the rules applicable to mergers. While French merging companies used to be required to file with the commercial registry a statement in which they state that and acknowledge that they have performed the merger in accordance with the applicable rule, French companies will now be exempt from the requirement to perform such a compliance declaration. The PACTE law also introduces the possibility for a French SA to implement a merger by using a delegation of powers;
  5. strengthening the rules governing gender balance in the corporate governance of French sociétés anonymes and French SCAs. First, decisions taken by a board of directors or a supervisory board that do not comply with the rules relating to gender balance may be deemed void. Secondly, appointment procedures for new executives in French sociétés anonymes shall now endeavour to achieve a balanced representation of women and men; and
  6. privatisation of certain state-owned companies, and notably Aéroport de Paris (ADP), la Française des Jeux and Engie. The privatisation of ADP is, however, currently on hold due to political opposition.

iii Simplifying corporate law

A law to simplify, clarify and update French corporate law was adopted on 10 July 2019, with immediate effect. This law notably contains the following main reform proposals:

  1. the extension of the scope of the simplified merger regime, which allows the implementation of a merger without a shareholder decision approving the merger and without any report from special auditors, to mergers between sister companies wholly or 90 per cent owned by the same parent company;
  2. the removal of the obligation to submit every three years a draft resolution on a capital increase to the benefit of employees; and
  3. abstentions in general meetings of shareholders will no longer be counted as negative votes.

iv Protection of trade secrets

A law on the protection of trade secrets was adopted on 3 July 2018 and is currently in force. This law implements Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against unlawful acquisition, use and disclosure into French law.

Under this new regime, any information known by a limited number of people with a commercial value and being subject to reasonable protective measures shall be regarded as trade secrets. The secrecy alone of information is not sufficient to benefit from the protection provided by law, as companies will have to prove that protective measures were put in place (e.g., confidentiality rules or restrictions on access rights) for that information.

The acquisition, use and disclosure of a trade secret is unlawful when it is carried out without the consent of its legitimate holder and arises from unauthorised access or unfair access in a way contrary to the normal course of trade.

v Strengthening the foreign investment control regime

Like most G20 countries, France has recently revised its foreign investment regulation to widen the scope for scrutiny of foreign investments by expanding the list of business sectors deemed sensitive to public order, public safety or national defence interests. The new business sectors falling within the scope of the foreign investments regime are notably:

  1. activities related to operations in space;
  2. activities related to electronic and IT systems that are required for the performance of police or customs duties;
  3. activities related to cybersecurity, artificial intelligence, robotics, additive manufacturing and semiconductors; and
  4. activities related to data hosting.

The scope has also been extended to the provisions of services related to business sectors that were already within purview (e.g., war materials or activities performed pursuant to an agreement entered into with the French Ministry of Defence).

Furthermore, it is also now possible in France for target companies to ask the French Ministry of Economy whether a contemplated investment is subject to the French foreign investment control regime. Such extension stems from a suggestion made by French tech companies to facilitate their fundraising, as the business sectors subject to foreign investment control have been correlatively extended to the activities they may pursue.

As part of the PACTE law, France has also introduced a potentially more widespread use of golden shares in certain strategic companies in which the state has a stake if it becomes necessary to protect national essential interests relating to public order, public health, public security or national defence. Golden shares will grant the state with blocking powers (e.g., the right to block asset disposals or transfers of intellectual property or know-how outside France) and information rights regarding the exercise of the rights attached to a golden share. In any case, one ordinary share held by the state may be converted into a golden share by decree, and the rights attached to such golden share may also be increased or reduced by decree.

IV FOREIGN INVOLVEMENT IN M&A TRANSACTIONS3

In 2018, French companies (as bidders or target companies) were involved in only one of the top 20 announced European deals, and French investors were more active in acquiring outside Europe. The United States remains the leading investor in France, with US investments representing 18 per cent of the foreign investments completed in France.4

i Cross-border inbound deals

Material inbound M&A transactions included, inter alia, the €3.25 billion acquisition of Antelliq by Merck & Co Inc, a US pharmaceutical company; the €2.59 billion acquisition by General Electric Company of Alstom's stakes in three energy joint ventures created with General Electric in 2015; and the €2.25 billion acquisition of Linxens Group by Tsinghua Unigroup.

ii Cross-border outbound deals

Notable outbound M&A transactions included, inter alia, the €12.4 billion acquisition of XL Group Ltd, a US insurance company, by AXA SA;5 the €5.41 billion acquisition of a 50.01 per cent stake in Gatwick Airport Limited by French Vinci Airports SAS; and the €3.7 billion acquisition of Ablynx, a company conducting pharmaceutical, medical and biotech activities, by the French listed company Sanofi SA.

V SIGNIFICANT TRANSACTIONS, KEY TRENDS AND HOT INDUSTRIES6

i Less activity in 2018, many opportunities in 2019

As mentioned in Section I, M&A activity declined in 2018 compared to 2016 and 2017. However, the first months of 2019 give signs of hope, as the deals announced so far this year have already reached an aggregate value of €9.9 billion, compared to the €8.6 billion reached for the first quarter of 2018.

The contemplated sales of significant stakes owned by the state in la Française des Jeux, Aéroport de Paris and Engie could generate high-value transactions and boost the M&A market in the second half of 2019. Private equity firms are also planning exits from high-valued portfolio companies.

ii Development of private equity activity

In 2018, the private equity trend was still moving upwards both in terms of value and deal count. Buyout and exit deals reached an aggregate value of €23.6 billion, which is close to pre-crisis levels, 39 per cent of which is being driven by domestic private equity firms.

iii Most active sectors in 2018

In 2018, telecoms, media and technology (TMT), consumer, industrial, chemical and business services were the most targeted sectors.

The TMT sector broke all European records, reaching €169.1 billion in 2018 up from €61.5 billion in 2017. The sale by Altice of the fibre-to-home services provided by SFR to Allianz, AXA and OMERS for €1.8 billion was a notable transaction.

The consumer sector was the second-most active sector in 2018 with the acquisition of Neovia Group by Archer Daniels Midland Company for €1.54 billion being a key transaction.

The industrial and chemical sector was the third-most active sector in 2018.

iv Tender offers in 2018

In 2018,7 tender offers declined considerably, both in terms of the number of bids (22 in 2018 compared with 27 in 2017) and the aggregate value of the target companies (€12.5 billion in 2018, which is eight times less than the value seen in 2017, when the equivalent figure was €106.2 billion).

All the offers made in 2018 were friendly, with half being initiated by the companies themselves (as part of share buyback programmes) or by their long-standing shareholders. The takeover bid made by Allianz SE for Euler Hermes was one of the most important public M&A deals of 2018, with a target company valuation of around €5.2 billion, together with the bid made by Total SA for Direct Energie for €2.6 billion.

VI FINANCING OF M&A: MAIN SOURCES AND DEVELOPMENTS

i Overview of financing sources

After a remarkable year in 2017, 2018 was characterised by a slowdown in M&A transactions due notably to the return of market volatility. As a result, a decrease in activity was observed in all financing segments.

2018 marked a turning point for the corporate eurobond market as it was the first time the amounts raised have decreased since 2011. By mid-December 2018, €270 billion had been raised compared to €300 billion in 2017. This decrease can be partly explained by an announcement by the European Central Bank (ECB) in June 2018 that it was ending its quantitative easing policy (which occurred at the end of December 2018). Since March 2015, the ECB had acquired nearly €2,600 billion worth of assets on the markets, including nearly €180 billion corporate bonds. However, French non-financial companies issued nearly €65 billion worth of bonds in the course of 2018, which represented 16 per cent more than 2017. On the other hand, convertible bonds issues fell by nearly 40 per cent, representing a total amount of €2.4 billion in 2018 compared to €4 billion in 2017.

Additionally, with nearly €90 billion borrowed by way of loans by companies between January and November 2018, the syndicated loan market recorded a year roughly in line with 2017 (€95 billion). However, one of the traditional drivers, namely acquisition finance, only had a limited impact on these results. Indeed, despite a few significant transactions, M&A accounted for only around 20 per cent of the total amounts of loans raised in 2018.

ii Recent legal reforms

Amendments to the 2016 reform of the contract law

On 1 October 2018, the law modifying and clarifying the 2016 reform of the contract law came into force. Such reform has a direct impact on all contracts, including finance documentation. This law is attempting to strike a balance between developing familiar features of French law (for instance, the obligation to inform the other party of any information of decisive importance for its consent, and the requirement that contracts be negotiated, formed and performed in good faith) while adding certainty for creditors (for instance, the legal provision on hardship introduced by the 2016 reform – Article 1195 of the French Civil Code – is now expressly excluded when it comes to transactions on securities or finance documents further to Article L211-40-1 of the French Monetary and Financial Code). Such law has also reconfirmed that parties are allowed to assign under French law through two distinct procedures, either through receivables arising out of a loan contract or the benefit of the entire contract as a whole.

Further inroads into the banking monopoly regime

The publication of Decrees No. 2018-1004 and No. 1008 of 19 November 2018 is further evidence that the banking monopoly rules are ever-shrinking in relation to investment funds, as a number of funds could purchase a participation in non-revolving loans but were precluded from being initial lenders for the same loans. While Ordinance No. 2017-1432 of 4 October 2017 had defined a new regime for certain specialised financing vehicles (which were then allowed to lend within the framework of the European long-term investment funds Regulation, or alternatively within the restrictions imposed on the securitisation vehicles), the new Decrees have redefined the direct lending capabilities of such specialised finance vehicles and securitisation vehicles by reference to the rules applicable to specialised professional funds, which represent a relative alleviation of the applicable conditions.

Modernisation of the law on security interests

The 2018 edition of this publication mentioned that the security agent role had been modernised through Ordinance No. 2017-748 dated 4 May 2017, which came into force on 1 October 2017. Such reform allowed security agents to be the direct holder (rather than the initial lender) of both security interests and personal guarantees granted by the security grantor. Foreign institutions have welcomed this reform, which was designed by reference to the common law of trusts for security agent roles in common law countries. However, it appears that as a matter of practice, French banks have generally chosen to stick, by and large and somewhat surprisingly, to the previous regime whenever possible.

The PACTE law contains a number of proposals with a view to reforming the law pertaining to security interests and allows the government to legislate by way of ordinances to that effect.

The law suggests establishing a general right of assignment of receivables as security. This security interest currently exists in France only to the benefit of banking institutions, which are the only possible assignees of receivables in the context of certain forms of security by way of assignment (Cession Dailly). The creation of this new security interest would have the effect of aligning French law with the laws of other countries such as England, where this security already exists as security assignments. The PACTE law also aims at modifying the rules relating to guarantees and third-party security. It also suggests introducing more flexibility regarding the rules on security trusts in the Civil Code. Finally, the PACTE law aims at a better articulation between the securities law and insolvency proceedings, and for this purpose authorises the government to simplify, clarify and modernise the rules relating to security interests and secured creditors in the context of insolvency proceedings.

iii Recent legal reforms

Looking forward, it is already clear that France will witness a number of important changes over the next few months. In particular, the impact of Brexit (the modality of which is not yet settled at the time of writing), the rapid emergence of green lending (either as regards green projects or merely with loans whose margin will be affected by the environmental performance of the borrower) will ensure that the French financings sector will remain very dynamic for the foreseeable future.

VII EMPLOYMENT LAW

On 22 September 2017, the government enacted several ordinances8 that were ratified by Parliament on 29 March 2018: the Macron labour law reform has brought significant changes to French labour law with a view to simplifying the existing rules and regulations under the French labour code and granting more flexibility for employers in respect of employee management, thus attempting to make France more attractive to foreign investors. The Macron labour law reform includes provisions that may have an effect on M&A transactions: the main ones are as outlined below.

The Macron labour law reform has created a unique representative body in lieu of the existing staff delegates, works councils and health and safety committees: social and economic committees (SECs). An SEC will have to be implemented in companies with 11 or more employees by 31 December 2019 at the latest. SECs will replace the works councils as from such date, and will exercise similar functions to those of the works councils. As is the case for works councils, relevant compulsory consultations with SECs must be carried out within certain time limits (see Section VII.iv).

Introduction of greater flexibility around employment restructuring

Rules governing collective redundancies for economic reasons

Under French law, to implement collective redundancies for economic reasons employers must provide valid economic grounds justifying the redundancies. Since the Macron labour law reform, these grounds must now be assessed at the level of the French territory only (i.e., at the level of the French employer company only, or at the level of the French company and any other entities of the group located in France if those entities belong to the same business sector as the French company). Before the Macron labour law reform, such grounds were assessed at the level of the group as a whole in France and abroad.

These amendments further progressed the simplification of the redundancy rules that had been initiated under Law No. 2016-1088, which entered into force on 8 August 2016 (El Khomri law). The El Khomri law introduced two main changes to the redundancy rules: the codification of two grounds of dismissal previously only recognised by case law (restructuring aimed at safeguarding a company's competitiveness and the closure of a company); and the addition of economic indicators defining the concept of economic difficulties.

Since the El Khomri law was enacted, economic difficulties are now mainly appreciated on the basis of a significant decrease in the number of orders from or the turnover of a company, appreciated by reference to a number of quarters and the number of employees within a company (e.g., in companies with less than 11 employees, a decrease of the turnover during one quarter is considered as a sufficient ground for an economic redundancy). These indicators do not constitute an exhaustive list, and any other element justifying the existence of economic difficulties can be used to justify economic difficulties. Therefore, despite these modifications, French case law will continue to be of key relevance when establishing whether a company is facing economic difficulties.

The Macron labour law reform has also provided security and visibility with regard to potential disputes arising following a dismissal by introducing a judge-binding scale of damages – the Macron scale – granted for unfair dismissals (employees with less than one year of seniority within a company can be awarded up to one month's salary, while employees with 30 years' seniority and above can be awarded up to 20 months' salary). However, since its enactment, the Macron scale has met with resistance from the labour courts, as some judges consider that the capping of damages would interfere with the right to adequate compensation granted by the Termination of Employment Convention (No. 158) of the International Labour Organization and the European Social Charter. A future ruling of the French Supreme Court on this issue is therefore awaited.

Collective mutual termination procedure

To facilitate job reorganisations and head count adjustments other than for economic reasons, the 2017 Macron labour law reform introduced an ad hoc voluntary termination procedure called the collective mutual termination procedure. Recent case law has specified that this procedure could also apply to headcount adjustments based on economic grounds.9 Under the collective mutual termination procedure, employees apply for a voluntary departure plan that must be validated by the French Labour Administration. Companies will not have to demonstrate economic difficulties before implementing such an agreement. Under the supervision of the Labour Administration, a voluntary departure plan must contain specific provisions, and in particular on the maximum number of job terminations contemplated and the modalities of information for SECs (no consultation with an SEC is required). The collective mutual termination procedure does not prevent an employer from hiring new employees either for a new position or a position occupied by an employee who agreed to the mutual termination of his or her employment contract.

ii Employees' right to make an offer to buy shares or assets in small and
medium-sized companies

Pursuant to the Hamon law of 2014, as modified by the Macron law of 2015, companies with fewer than 50 employees, or companies with between 50 and 250 employees that fall into the category of small and medium-sized companies (i.e., companies with a turnover below €50 million or a balance sheet total below €43 million), must inform their employees of any proposal to sell 50 per cent or more of the shares of the company or the sale of the company's business as a going concern with a view to allowing them to make an offer to purchase the shares or the business.10 The Hamon law does not grant any priority or pre-emption rights to employees; however, the procedure does impact the timetable for a proposed transaction, and can also have an impact on the confidentiality of the transaction.

Regarding companies with fewer than 50 employees, such employees must be informed of a proposed sale no later than two months prior to the signing of the transaction. In addition, the transaction cannot take place before the expiry of this two-month period unless all employees have informed the company that they do not wish to make an offer.

In companies with between 50 and 250 employees, the employees must be informed of a proposed sale at the latest when the works council or the SEC of the company is informed and consulted on the transaction in question. Unlike in the case of companies with fewer than 50 employees, the law does not set any specific deadline prior to which the transaction cannot take place (except that the works council or SEC consultation process will have to be completed before any binding documentation with respect to the transaction is signed, in compliance with generally applicable French employment law rules).

The law provides that employees are subject to an obligation of discretion with respect to the information that they receive by virtue of the new law. For the moment, it is not clear what information regarding a company and its activities must be given to its employees in connection with a specific procedure. According to a strict interpretation of the law, when a company informs its employees of their right to make an offer to buy the company or the business, it is not required to give information on any other potential bidders or any documents relating to the company or its strategy.11 However, should one or more employees ultimately decide to make an offer to buy the company or the business, the Hamon law (and its implementing Decree of 28 October 2014) is silent as to the level of information that the company must provide.

Failing to comply with the obligation to inform employees that they can make an offer to purchase the shares or assets of a company exposes a seller to a monetary fine that cannot exceed 2 per cent of the value of the underlying transaction.

Following an information procedure under the Hamon law, the contemplated sale must take place within two years of the date on which the employees are informed of the transaction; otherwise, the company must complete the information process again.

iii Reinforced role of the works council or the SEC of the target of a takeover bid

Pursuant to Law No. 2014-384, which entered into force on 29 March 2014 (Florange law), in a public company takeover context, the works council or SEC of a target company must be formally consulted and issue an opinion (either positive or negative) on the takeover bid (whether friendly or hostile).

The consultation of the target company's works council or SEC must be completed (i.e., a positive or negative opinion must be issued) within one month of an offer being filed. If the works council or the SEC has not issued an opinion within this time frame, it will be deemed to have been consulted, except in certain exceptional circumstances where the works council or the SEC can justify in court that it did not receive sufficient information about a transaction.

In any case, the board of directors or the supervisory board of the target company cannot make a decision with respect to a takeover bid (including whether to recommend the bid) until the consultation process with the target company's works council or SEC has been completed. Note that in a situation in which the bidder has entered into a prior agreement with the target (generally called a tender offer agreement) specifying the main terms and conditions of the offer and providing for a break-up fee based on the recommendation of the target's board, it should be carefully assessed whether such agreement triggers the obligation to consult the works council or SEC prior to its signature.

During the consultation process, the target company's works council or SEC may ask the offeror questions about its industrial and strategic plans for the company. It may also choose to be assisted by a third-party expert (whose fees will be paid by the target company, and who will issue a report that will assess the offeror's industrial and strategic plans and their impact on the target company and its employees). The third-party expert has three weeks from the filing of the offer to issue its report.

iv Defined time limits for works councils or SECs to issue opinions in compulsory consultation situations

A decree dated 27 December 2013 establishes the relevant time limit for works councils to issue their opinion in the event that their consultation is compulsory. Unless an agreement is reached between an employer and trade union representatives (or, failing that, the works council) that provides for a specific time frame for their consultation, the members of a works council must issue their opinion within the following time limits (the starting point being the date on which a employer discloses the information):

  1. one month generally;
  2. two months if a works council is assisted by an expert;
  3. three months if one or more health and safety committees (CHSCT) are involved in a project; and
  4. four months if a temporary coordination committee of a CHSCT is created.

If a works council has not issued an opinion within the relevant time limits, it will be deemed to have been consulted and to have issued a negative opinion.

As indicated in Section VII.i, SECs will replace works councils on 31 December 2019 at the latest. The defined time limits within which SECs will have to render their opinion in compulsory consultations (and that apply as from the setting up of an SEC) are as follows: one month generally; two months if an SEC is assisted by an expert; and three months in very specific situations where the consultation is carried out in a company that has one or more local SECs involved in the consultation process being assisted by at least one expert.12

As is the case with works councils, these time limits apply in the absence of an agreement entered into between an employer and the trade union representatives (or, failing that, the SEC), providing for a specific time frame for the consultation of SECs.

v Obligations to look for a buyer in the event of the closure of a business division

Among its provisions, the Florange law has introduced an obligation for an owner seeking to close a business to attempt to find a buyer for the business. This obligation applies to an intention to close any business division with more than 1,000 employees when such closure would result in planned collective redundancies (i.e., more than 10 employees). This obligation provides for specific information obligations toward the works council and the employees of the target business, as well as an obligation on the company or the group to consider all offers to acquire the business and to justify any decision taken in respect of such offers to the works council.

vi Obligations of employers to fight corruption and protect whistle-blowers

The Sapin II Law on transparency, the fight against corruption and the modernisation of the economy created two new obligations for employers aimed at fighting corruption and protecting whistle-blowers.

Since 1 January 2018, employers with more than 50 employees must implement an internal process allowing employees to report, confidentially, any of the following that they have had knowledge of personally during their employment: any crime or criminal offence, a serious and obvious violation of an international treaty ratified or approved by France, or a threat or serious damage caused to the general interest.

Employers with more than 500 employees must also implement a code of conduct that must give a definition as well as examples of what could constitute an act of corruption, and also include disciplinary sanctions to be taken in cases of its violation; a process allowing employees to report, confidentially, any violations of the company's code of conduct; and a training programme for executives and staff most exposed to the potential risks of corruption.

Any employee who submits in good faith a report of a violation will be considered as a whistle-blower and will benefit from a specific protective status against dismissal. Reports of violations must also be followed by an internal investigation that must verify the truthfulness of the report. Therefore, when implementing such processes, employers must ensure their compliance with the French labour regulations, in particular with regard to the protection of employees' rights to privacy as well as with regard to mandatory information and the consultation of employee representatives, particularly when implementing monitoring devices.

vii Risk of requalification of equity instruments granted to managers (management packages) as remuneration subject to social security charges

The Paris Court of Appeal ruled in July 2017 that gains realised by managers upon the sale of equity instruments (warrants in the case at hand) in the context of an leveraged buyout exit, when such instruments were granted to managers (because of their status) and kept by the latter to the extent that they remained within a company, should be considered as a salary for social contributions purposes (i.e., the gain would be subject to social contributions at a rate of around 40 to 50 per cent on an employer's part, and around 20 to 30 per cent on an employee's part).13

Indeed, it was held that the conditions under which such warrants were granted (to employees only) and may be kept (for as long as the beneficiaries remain within a company) establish a strong link with the employment agreement or corporate office (e.g., directorship) of the relevant beneficiary.

The case was referred to the French Supreme Court, which confirmed the analysis of the Paris Court of Appeal insofar as it approved that its finding that such gains should be considered as salary as long as they were granted to managers because of their status of employee or corporate officer of the company. However, contradicting the Paris Court of Appeal, it considered that the basis for calculating the related social security contributions was the acquisition gain and not the capital gain on disposal. In turn, the Supreme Court remanded the case back to the Paris Court of Appeal, but made up of a different panel of judges. Should the decision be confirmed, it cannot be ruled out that this principle would apply to any kind of equity instrument awarded in the same circumstances as the ones at stake. The final outcome of this litigation will need to be monitored closely, considering its potential significant impact on the cost of management packages.

viii The PACTE law

Published on 23 May 2019, the PACTE law provides for a large set of rules intended to increase employees' involvement in company decisions and achievements, notably by promoting employee share ownership, enhancing employee representation on boards of directors and supervisory boards and promoting employee profit-sharing and saving plans.

Promotion of employee share ownership

The conditions for the allocation of free shares have been simplified and broadened. In particular, the French Commercial Code limits the total number of free shares that could be granted by a company to its employees and managers to a maximum corresponding to 10 per cent of the share capital. Article 163 of the PACTE law provides that, for the purposes of this limit, free shares that have not been definitively allocated at the end of the vesting period, or those that are no longer subject to the retention obligation, are no longer taken into account (Article L 225-197-1 of the Commercial Code, amended). In addition, Articles 162 et seq. of the PACTE law support the development of employee share ownership by allowing, under certain conditions, the allocation of shares to employees in simplified joint-stock companies and by allowing employers to contribute unilaterally to employee share ownership funds.

Enhancement of employee representation on boards of directors and supervisory boards

The law provides for an increased number of employees on boards of directors and supervisory boards. More specifically, the boards of directors and supervisory boards of companies with more than 1,000 employees in France (including subsidiaries) or 5,000 employees in France and abroad (including subsidiaries) must include at least two employees when the number of non-employee board members exceeds eight (instead of 12) and at least one employee when the number of non-employee members is less than or equal to eight (instead of 12). In parallel, the scope of the exemption from the obligation to appoint employees within boards of directors and supervisory boards has reduced. In particular, public holding companies with less than 50 employees, which had so far been exempted from this obligation if one of their subsidiaries had appointed employees as board members, no longer are.

Promotion of employee profit-sharing and saving plans

Companies with fewer than 50 employees are exempted from the 20 per cent employer flat contribution on amounts paid for mandatory profit-sharing and voluntary profit-sharing, as well as on payments into an employee savings plan. Companies with 50 or more employees and less than 250 employees are also exempted from this contribution, but only on the amounts paid as voluntary profit-sharing.14 Such measures originated from parliamentary discussions about the PACTE law but were enacted in Law No. 2018-1203 of 22 December 2018 on the financing of social security for 2019.

VIII TAX LAW

i New mechanism to limit the deduction of interest expenses

The French finance law for 201915 carries out an overall reform of the deduction of interest expenses for companies subject to corporate income tax (CIT). The reform implements a general limitation on interest deduction to comply with the EU 2016 Anti-Tax Avoidance Directive (ATAD 1),16 under which Member States are required as a minimum standard to determine a threshold for deductibility of interest by reference to taxable earnings before interest, tax, depreciation and amortisation (EBITDA). These new rules are applicable for fiscal years opening as from 1 January 2019.

Article 34 of the French finance law for 2019 repeals the 25 per cent general reduction pursuant to the rabot mechanism as well as the Amendement Carrez limitation (an anti-abuse rule targeting acquisitions without substance), modifies the current thin capitalisation rules and incorporates them into the new limitation by lowering the applicable thresholds in the case of thin capitalisation (see below). However, the excessive interest rate rule for interest payments to related parties,17 the Amendement Charasse (an anti-abuse rule targeting acquisitions of shares of tax consolidated entities)18 and the French anti-hybrid provision19 still apply under the new rules.

The net borrowing costs within the scope of the new limitation are broadly defined as the excess of deductible financial expenses (after application of the above-mentioned excessive interest rate and anti-hybrid rules) over taxable financial income and other equivalent income received by a company. As under the rabot rule, financial income and expenses correspond to interest on all forms of debt, which can be sums left at the disposal of, or made available to or by, related or unrelated parties.

The new mechanism limits for non-thinly capitalised companies the deductibility of interest if and to the extent that the net borrowing costs of the concerned taxpayer exceed the higher of 30 per cent of its EBITDA and €3 million. A safe harbour rule applies for companies that belong to a consolidated group for financial accounting purposes: taxpayers are allowed to deduct an additional 75 per cent of the amount of net borrowing costs not allowed for deduction under the general limitation described above, provided that the ratio between their equity and their total assets is equal to or greater than the same ratio determined at the level of the consolidated group for financial account purposes to which they belong. As a tolerance measure also set out in ATAD 1, this condition is deemed to be met if the taxpayer's ratio is lower than the group's as a whole by a maximum of two percentage points.

The interest deduction threshold is reduced for thinly capitalised companies. The finance law provides for a new and wider definition of a thin capitalisation situation. While until now a situation of thin capitalisation was characterised when three different ratios were cumulatively exceeded (debt-to-equity ratio, adjusted earnings ratio and interest income ratio), a thin capitalisation situation is now only based on the excess of a single debt-to-equity ratio. Under the new deduction limit applicable in the case of thin capitalisation, the fraction of interest expenses related to indebtedness towards unrelated parties and indebtedness towards related parties up to one-and-a-half times the company's net equity is deductible within the limits of the regular threshold (i.e., the higher of €3 million and 30 per cent of the company's EBITDA but reduced pro rata to the proportion of the corresponding debt over the total indebtedness of the taxpayer). The remaining portion of the net interest (i.e., related to indebtedness towards related parties exceeding one-and-a-half times the company's net equity) is deductible within the limits of the reduced threshold, which is the higher of €1 million and 10 per cent of the company's EBITDA (again reduced pro rata to the proportion of the corresponding debt over the total indebtedness of the taxpayer). A specific safe harbour provision allows a thinly capitalised company not to be subject to these reduced thresholds if the debt-to-equity ratio of such company is not higher, by more than two percentage points, than the debt-to-equity ratio of the consolidated group to which it belongs for financial account purposes.

The reform also provides for interest expenses and unused interest capacity carry forwards.

For taxpayers that are members of a French tax consolidated group, the rules apply at the level of the French tax consolidated group result. The applicable rules are broadly similar to those applicable to companies that are not members of a consolidated tax group. However, for thin capitalisation purposes, the above rules do not apply to interest paid between members of the same French tax consolidated group.

ii Modification of the tax consolidated group regime

The finance law for 2019 amends the French tax consolidated group regime, mostly to align this regime with EU principles.

Certain changes apply to the tax treatment of dividend payments. The 99 per cent exemption applicable under the French participation exemption regime between companies that are members of a French tax consolidated group (and also to dividends paid by eligible EU and EEA subsidiaries to members of a French tax consolidated group) is extended to dividends paid by eligible EU and EEA subsidiaries to a French company that is not a member of a tax consolidated group in cases where the French shareholder and the eligible EU or EEA subsidiary would have fulfilled the requirements to be members of a French tax consolidated group had the foreign subsidiary been located in France. Dividends paid between members of a French tax consolidated group that do not benefit from the parent–subsidiary regime are now exempted at the tax consolidated group level up to 99 per cent of their amount (they were totally exempt prior to the reform). In the same manner as for the dividends eligible for the parent–subsidiary exemption, this exemption is also extended to dividends paid by eligible EU and EEA subsidiaries to a French company that is not a member of a tax consolidated group in cases where the French shareholder and the eligible EU or EEA subsidiary would have fulfilled the requirements to be members of a French tax consolidated group had the foreign subsidiary been located in France.

The reform also repeals the neutralisation at the French tax consolidated group level of the taxable portion of capital gains on share transfers eligible to the participation exemption regime, and debt waivers and subsidies granted between members of a French tax consolidated group. The taxable portion of capital gains on share transfers initially planned to be reduced to 5 per cent was eventually maintained at 12 per cent.

The finance law for 2019 legalises the ability to perform sales and provide services within the same French tax consolidated group for a price lower than the fair market value but at least equal to the cost price.

Finally, several mechanisms have been introduced to prevent the termination of existing French tax consolidated groups as a result of the Brexit by:

  1. postponing the closing of the fiscal year for the ineligibility of a French tax consolidated group or a group member triggered by the Brexit; and
  2. allowing without termination of the French tax consolidated group the substitution of a non-resident parent company by a foreign company directly or indirectly held by it, which fulfils the requirements to become a non-resident parent company.

Furthermore, the election by the parent company from one type of tax consolidation to another type (e.g., from a horizontal tax consolidated group to a vertical tax consolidated group) and the merger of the parent entity of a French tax consolidated group into another company of the same group no longer trigger the termination of the group, provided that certain conditions are met.

These new rules are applicable for fiscal years opened as from 1 January 2019 except for provisions concerning the termination of French tax consolidated groups that apply for fiscal years closed as from 31 December 2018.

iii Calculation of the holding period of shares received by the contributor in a partial asset contribution

The finance law for 2019 provides for a new, favourable method for calculating the holding period for shares received by a transferring company in exchange for a contribution assimilated to a complete branch of activity (certain share-for-share transactions) and benefiting from the favourable rollover regime for French CIT purposes. A contributor is now deemed to have held new shares received as a result of a contribution as from the original acquisition date of the contributed shares by the contributor (i.e., the holding period is rolled over on the new shares received as a result of the contribution).

This is a welcomed change as until now, Article 210, B, 2 of the French Tax Code (FTC) only provided that capital gains relating to shares received in exchange for a contribution were calculated by reference to the value of shares in the transferring company accounts, but no legal disposition of the FTC indicated that the holding period of the shares received by the contributor was also rolled over. This point had become crucial given that the finance law for 2018 had repealed the former requirement to hold shares received in exchange for a contribution for three years in order to benefit from the favourable CIT regime, and the French participation exemption regime for capital gains is conditioned to a two-year holding period of the eligible shareholdings.

This change applies for fiscal years closed as from 31 December 2018.

iv Introduction of a general anti-abuse rule for CIT purposes

A new anti-abuse rule for CIT purposes is applicable for fiscal years beginning on or after 1 January 2019. The new Article 205 A of the FTC implements into French law the general anti-abuse disposition of ATAD 1.

The wording of this new anti-abuse clause replicates the wording of the general anti-abuse clause of Article 6 of ATAD 1. Consequently, an arrangement or a series of arrangements that, having been put into place for the main purpose, or as one of the main purposes, of obtaining a tax advantage, defeats the object or purpose of the applicable tax law, are not genuine, and thus will not be taken into account for tax purposes.

Contrary to the general abuse of law regime provided by Article L.64 of the French Book of Tax Procedures, there are no automatic penalties attached to the anti-abuse clause of Article 205 A of the FTC.

The new clause is not intended to replace other current anti-abuse mechanisms but will exist in addition to them.

Ix COMPETITION LAW

The French Competition Authority has had responsibility for merger control since 2009, and has increasingly adopted a more efficient approach to the application of its rules. In 2018, 235 concentrations were reviewed and cleared by the Authority, five of which were cleared conditionally (that is, with remedies or injunctions).

It is also important to note that for the first time, the Minister of Economy made use of his power to evoke a case. Subsequent to an in-depth examination, the Competition Authority had cleared Cofigeo's acquisition of securities and assets of the ready meal branch of Agripole20 subject to the divestment of both a production site and a brand. Without such injunctions, not only would Cofigeo become the undisputed leader in most of the relevant markets, but it would also own all the best-known brands in the sector. The remedies, therefore, aimed at preventing the price increase regarding essential goods.
The Minister of Economy made use of his power to evoke a case no later than on the day the Competition Authority's decision was issued. This power enables the Minister of Economy to decide on a concern operation on the basis of public interests (other than the protection of competition), such as industrial developments or the stability of employment. The Minister highlighted that the target company was facing severe financial difficulties and that Cofigeo was an important job provider in a difficult employment area. The transfer of assets ordered by the Competition Authority would have exposed Cofiego and its employees to insolvency.

As a resultant, the Competition Authority's decision will not be implemented and shall be replaced by that of the Minister of Economy.

i Application of the merger control guidelines of 10 July 2013

On 10 July 2013, new guidelines on merger control were adopted by the Competition Authority, revising the previous guidelines of December 2009 and taking into account the Authority's experience since.

The guidelines on merger control set out measures aimed at facilitating the pre-notification process, specifying the criteria for the simplified notification procedure, the conceptual framework of the analysis of relevant markets and the role of this analysis, and proposing standard models for transfers of assets and trustee mandates. The guidelines also place greater emphasis on economic and econometric analysis, especially quantitative tests, when the data and methodology used are reliable and verifiable. In particular, the new guidelines introduce a reference to the upward pricing pressure, illustrative price rise and gross upward pricing pressure index (GUPPI) tests, used to measure the impact of a merger on prices without having to define the relevant market.

The GUPPI test was last used by the Competition Authority in its decision of 27 July 2016 authorising the acquisition of the Darty company by the Fnac group.21 In this decision, the Authority, for the first time in France and Europe, considered the market for the retail distribution of certain domestic electronic products to include both online and in-store sales. The Authority then based its analysis of the horizontal effects on the GUPPI test to conclude that a post-merger price increase by the new entity was likely. The Authority also noted that the transaction would lead to a risk of stores not being incentivised to propose price discounts or punctual promotions that would likely enhance local competition. To meet the identified concerns, the Fnac group has committed to divest six stores to one or more retailers of electronic products. Consequently, the Authority cleared the acquisition, considering that this divestiture will guarantee sufficient competition in the market of retail distribution of electronic products in Paris and its suburbs.

It should be noted that the French Competition Authority is currently reflecting upon a revision of its merger control guidelines. Such revision aims at incorporating recent case law developments regarding decision-making practices into the existing soft law rules governing the analysis of merger operations. Following the consultation of interested third parties, the Competition Authority has announced the adoption of new guidelines during the course of 2019.

ii Substantial penalties for gun-jumping

When French thresholds are met, a pre-merger filing is mandatory. This applies to all concentrations, including foreign-to-foreign transactions, even in the absence of an overlap between parties' activities.

Individuals and companies acquiring control of all or part of an undertaking are responsible for notifying. In the case of a merger, this obligation is incumbent upon the merging entities. In the case of a joint venture, parent companies must file a joint notification.

Sanctions for not filing or for closing before clearance are as follows:

  1. corporate entities: up to 5 per cent of the turnover in France during the previous financial year (plus, where applicable, that of the acquired part generated in France); and
  2. individuals: up to €1.5 million.

An example of a sanction for the first type of gun-jumping (i.e., for failing to notify) can be found in case No. 13-D-22.22 On 26 December 2013, the Competition Authority imposed a fine of €4 million on Castel Frères, a company active in the wine sector, for failing to notify its acquisition of six companies before closing the transaction on 6 May 2011. It was only in September 2011, in the context of the examination of another acquisition, that this merger was reported to the Authority by a third party. On appeal, the fine was reduced to €3 million on the grounds that the transaction was notified shortly after the Authority's request and that Castel Frères did not intend to bypass the competition rules.23

Regarding the second type of sanction for premature implementation, the Competition Authority imposed a fine for a breach of the standstill obligation for the first time in 2016. In 2014, Altice, active in the French telecom market through its subsidiary Numericable, notified the planned acquisition of SFR and OTL, which was authorised by the Authority in October 2014. In April 2015, the Authority conducted a dawn raid on the premises of Numericable, SFR and OTL, and found evidence that Altice was involved in SFR's business and strategy prior to clearance, notably in approving the participation of SFR in a public tender, assisting SFR in renegotiating a network sharing agreement with Bouygues Telecom, determining the prices of SFR internet retail offers and coordinating with SFR in the context of OTL's acquisition. As a result, on 8 November 2016, the Competition Authority imposed a fine of €80 million on Altice Group for implementing two transactions prior to obtaining merger control clearance.24 This is one of the highest fines worldwide ever enforced for such a practice.

Finally, parties may be required, subject to a periodic penalty for non-compliance, either to file a concentration or to demerge. Transactions that have been completed without clearance are illegal and not enforceable. There are no criminal sanctions for not filing.

iii Diversification of remedies that can be imposed by the Competition Authority

Regarding commitments and injunctions, in its new merger control guidelines the Competition Authority provides several examples of its decision-making practice, which is characterised by a preference for structural remedies (e.g., divestment of minority shareholdings). However, in the case of complex transactions, the Authority pragmatically accepts behavioural remedies, of which it provides several examples. Merger review over the past few years tends to confirm such trend. For instance, in 2016, in five cases out of six, the Authority conditioned its approval only on behavioural remedies. However, 2018 was a more balanced year, as in half of its cases, the Authority cleared transactions subject to structural remedies,25 and conditioned its approval only on behavioural remedies for the other half.26

Recently, the French Competition Authority accepted fix-it-first commitments so as to remedy the anticompetitive effects of the acquisition of Alsa by Dr Oetker (Ancel).27 Within the market for fabrication and marketing of dessert mixes to supermarkets and hypermarkets, the Competition Authority identified the risk of a price increase following the completion of the transaction as well as a lack of credible alternative suppliers. The Competition Authority addressed in advance the aforementioned competition concerns and granted Dr Oetker approval to enter a trademark licensing agreement for Ancel mixes for a duration of five years, renewable once. Thereafter, the licence would be conceded to Sainte Lucie, which is active in a distinct market, namely the market for fabrication and marketing of baking aids to supermarkets and hypermarkets. Sainte Lucie's consistent growth in the past few years served to assure the Competition Authority of a credible alternative in the relevant market.

It is important to note that the Competition Authority carefully monitors the implementation of remedies, and may withdraw an authorisation in cases of non-compliance. In such a case, the parties will then have to either restore the situation to what it was before the transaction (i.e., unwind the operation) or re-notify the transaction to the Competition Authority within a month. Compliance with commitments by companies is central to the process of French merger control. The power of the Authority to withdraw merger approvals was validated in 2012 by a decision of the French Constitutional Court in the context of the appeal by Canal Plus and Vivendi against an order to re-notify the purchase of its former rival TPS.28 The Authority withdrew its approval on the ground that Canal Plus Group did not fulfil several commitments that were attached to the authorisation decision.

If such non-compliance with remedies is confirmed, the Competition Authority is also able to impose financial penalties on the notifying parties of up to 5 per cent of their net turnover achieved in France. In this regard, in 2018, the Competition Authority fined the Fnac and Darty Group €20 million for non-compliance with commitments made when Darty was taken over by Fnac.29

iv Contemplated changes in the French merger control regime

The Competition Authority launched an initiative on 20 October 2017 to modernise and simplify the merger law. The topics proposed for consideration included, among others, the simplification of merger procedures (especially the current simplified procedure) and the introduction of limited ex post control by the Competition Authority or the reintroduction of a market share threshold.

On 25 April 2019, a decree was issued regarding the simplification of merger procedures: namely, the notification procedure has been streamlined. Parties are only required to submit one copy of the notification notice instead of four material copies. Additionally, the threshold from which a market is considered to be affected for the analysis of vertical effects was raised from 25 to 30 per cent. The decree also simplifies the summary tables of the financial data of the companies concerned.

The French Competition Authority's reflection on limited ex post control is ongoing. To date, the Authority contemplates an ex post control system for concentrations that do not fall within the Commission's jurisdiction but that present substantial competition concerns in France. The Authority is considering a time limit of between six months and two years at the end of which an ex post intervention would no longer be possible; and a cumulative worldwide total turnover excluding VAT of those companies exceeding a certain threshold (for example, the current threshold €150 million).

X outlook

On 19 March 2019, the European Union adopted Regulation 2019/452, which establishes a framework for the screening of foreign direct investment into the Union. This new Regulation, which will apply as from 11 October 2020, aims to encourage cooperation and information-sharing between Member States and the European Commission where a foreign direct investment in one Member State is likely to affect the security or public order of other Member States.

It does not establish any centralised screening mechanism at an EU level under which an EU body would make the final decision on foreign investments. However, this new Regulation confirms the power granted to each Member State to implement a foreign investment control regime that may notably consider the effect of a contemplated investment on critical infrastructure (e.g., defence, electoral or financial infrastructure), on critical technologies or on the freedom of the press and media plurality.

More significantly, the new Regulation sets forth a cooperation mechanism in relation to foreign direct investments undergoing screening. Each Member State shall inform the European Commission and the other Member States as soon as possible when foreign investments are subject to a control procedure on its territory. The other Member States may then send comments to the Member State in which an investment is contemplated if they consider that such foreign investment is likely to affect its security or public order or if they have information relevant to such investment. At the request of a Member State or on its own initiative, the Commission may issue an opinion, and must issue such opinion when at least one-third of Member States consider that a foreign investment is likely to affect their security or public order. The Commission and Member States shall issue their comments and opinions within a reasonable period of time, and no later than 35 calendar days following receipt of the notification made by the Member State in which the investment is planned. The Member State conducting the screening of the related foreign investment shall give due consideration to the comments of the other Member States and to the Commission's opinion.

Even though the Members States will retain the ultimate decision-making power in this respect, this new EU Regulation can be expected to add a layer of complexity to the review process and potentially impact approval timelines in the future.


Footnotes

1 Didier Martin is a partner at Bredin Prat.

2 Financial data extracted from Mergermarket, 'Trend Reports Q1–Q4 2017 and 2018 (France)'.

3 Financial data extracted from Mergermarket, 'Trend Report Q1–Q4 2018 (France)'

4 Financial data extracted from BusinessFrance, 'Report on foreign investments in France 2018'.

5 Financial data extracted from Deloitte, 'M&A Predictor 2018 Annual Report'.

6 Financial data extracted from Mergermarket, 'Trend Report Q1–Q4 2018 (France)' and 'Deal Drivers EMEA FY 2018'.

7 Financial data extracted from the Observatoire des offres publiques 2019 report.

8 Ordinance No. 2017-1385 to No. 2017-1389 dated 22 September 2017; Ordinance No. 2017-1718 dated 20 December 2017.

9 Administrative Court of Cergy-Pontoise, 16 October 2018, No. 1807099

10 These provisions of the Hamon law do not apply to companies that are subject to insolvency proceedings.

11 The guidelines that have been published by the French Ministry of Labour for the implementation of the Hamon law confirm this approach.

12 Decree No. 2017-1819 dated 29 December 2017, Article 1.

13 Paris Court of Appeal, 6 July 2017, No. 14/02741.

14 Article L 137-15 of the Social Security Code.

15 Finance law for 2019 n° 2018-1317 of 28 December 2018.

16 Directive 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market.

17 Article 39-1-3 of the FTC.

18 Article 223 B, paragraph 6 of the FTC.

19 Article 212-I-b of the FTC.

20 Case No. 18-DCC-95.

21 Case No. 16-DCC-111.

22 Situation of the Castel Group in light of Article 430-8 of the Commercial Code, decision dated 20 December 2013, case No. 13-D-22.

23 Judgment of the Supreme Administrative Court dated 15 April 2016, appeal No. 375658.

24 Situation of the Altice group with regard to Section II of Article L 430-8, decision dated 8 November 2016, case No. 16-D-24.

25 Acquisition of Zormat, Les Chênes and Puech Eco by Carrefour Supermarchés France, decision dated 27 April 2018, case No. 18-DCC-65; acquisition of Jardiland by InVivo Retail, decision dated 24 August 21018, case No. 18-DCC-148.

26 Acquisition of SDRO and Robert II by Groupe Bernard Hayot, decision dated 23 August 2018, case No. 18-DCC-142; creation of a full-function joint-venture between Global Blue and Planet Payment, decision dated 28 December 2018, case No. 18-DCC-235.

27 Case 19-DCC-15.

28 Case No. 2012-280 further to a request for a preliminary ruling on a question of constitutionality.

29 Case No. 18-D-16.