Exception de l’entreprise défaillante: une résurgence en temps de crise?

The Failing Company Defence is a merger control law defence which enables the merging parties to avoid the prohibition that would normally apply to their merger by relying on the failure of one of them, i.e. the fact that one of the merging firms would exit the market if the merger was prohibited. Competition authorities generally require the fulfilment of restrictive conditions and hence rarely accept the Failing Company Defence. However, in the context of the covid-19 crisis, there is a resurgence of the Failing Company Defence in different domestic laws, for example in English, French and Italian laws. The UK Competition Market Authority (CMA) and the French Competition Authority recently applied the Failing Company Defence to authorise mergers. The Italian legislator adopted a decree to allow rescue of specific failing firms for a limited period of time. These recent developments give rise to interesting questions, in particular in relation to the issues of whether a more lenient…