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COMMISSION REGULATION (EEC) No 2367/90
of 25 July 1990
on the notifications, time limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (1), and in particular Article 23 thereof,
Having regard to Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (2), as last amended by the Act of Accession of Spain and Portugal, and in particular Article 24 thereof,
Having regard to Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (3), as last amended by the Act of Accession of Spain and Portugal, and in particular Article 29 thereof,
Having regard to Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (4), and in particular Article 26 thereof,
Having regard to Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down detailed rules for the application of the competition rules to undertakings in air transport (5), and in particular Article 19 thereof,
Having consulted the Advisory Committee on Concentrations, as well as the Advisory Committees on Restrictive Practices and Monopolies in the Transport Industry, in Maritime Transport and in Air Transport,
1. Whereas Article 23 of Regulation (EEC) No 4064/89 empowers the Commission to adopt implementing provisions concerning the form, content and other details of notifications pursuant to Article 4, time limits pursuant to Article 10, and hearings pursuant to Article 18;
2. Whereas Regulation (EEC) No 4064/89 is based on the principle of compulsory notification of concentrations before they are put into effect; hereas, on the one hand, a notification has important legal consequences which are favourable to the parties, while, on the other hand, failure to comply with the obligation to notify renders the parties liable to a fine and may also entail civil law disadvantages for them; whereas it is therefore necessary in the interests of legal certainty to define precisely the subject matter and content of the information to be provided in the notification;
3. Whereas it is for the parties concerned to make full and honest disclosure to the Commission of the facts and circumstances which are relevant for taking a decision on the notified concentration;
4. Whereas in order to simplify and expedite examination of the notification it is desirable to prescribe that a form be used;
5. Whereas since notification sets in motion legal time limits for initiating proceedings and for decisions, the conditions governing such time limits and the time when they become effective must also be determined;
6. Whereas rules must be laid down in the interests of legal certainty for calculating the time limits provided for in Regulation (EEC) No 4064/89; whereas in particular the beginning and end of the period and the circumstances suspending the running of the period must be determined; whereas the provisions should be based on the principles of Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits (6), subject to certain adaptations made necessary by the exceptionally short legal time limits referred to above;
7. Whereas the provisions relating to the Commission's procedure must be framed in such way as to safeguard fully the right to be heard and the rights of defence;
8. Whereas the Commission will give the parties concerned, if they so request, an opportunity before notification to discuss the intended concentration informally and in strict confidence; whereas in addition it will, after notification, maintain close contact with the parties concerned to the extent necessary to discuss with them any practical or legal problems which it discovers on a first examination of the case and if possible to remove such problems by mutual agreement;
9. Whereas in accordance with the principle of the right to be heard, the parties concerned must be given the opportunity to submit their comments on all the objections which the Commission proposes to take into account in its decisions;
10. Whereas third parties having sufficient interest must also be given the opportunity of expressing their views where they make a written application;
11. Whereas the various persons entitled to submit comments should do so in writing, both in their own interest and in the interest of good administration, without prejudice to their right to request an oral hearing where appropriate to supplement the written procedure; whereas in urgent cases, however, the Commission must be able to proceed immediately to oral hearings of the parties concerned or third parties; hereas in such cases the persons to be heard must have the right to confirm their oral statements in writing;
12. Whereas it is necessary to define the rights of persons who are to be heard, to what extent they should be granted access to the Commission's file and on what conditions they may be represented or assisted;
13. Whereas it is also necessary to define the rules for fixing and calculating the time limits for reply fixed by the Commission;
14. Whereas the Advisory Committee on Concentrations shall deliver its opinion on the basis of a preliminary draft decision; whereas it must therefore be consulted on a case after the inquiry in to that case has been completed; whereas such consultation does not, however, prevent the Commission from re-opening an inquiry if need be,
HAS ADOPTED THIS REGULATION:
SECTION I
NOTIFICATIONS
Article 1
Persons entitled to submit notifications
1. Notifications shall be submitted by the persons or undertakings referred to in Article 4 (2) of Regulation (EEC) No 4064/89.
2. Where notifications are signed by representatives of persons or of undertakings, such representatives shall produce written proof that they are authorized to act.
3. Joint notifications should be submitted by a joint representative who is authorized to transmit and to receive documents on behalf of all notifying parties.
Article 2
Submission of notifications
1. Notifications shall be submitted in the manner prescribed by form CO as shown in Annex I. Joint notifications shall be submitted on a single form.
2. Twenty copies of each notification and fifteen copies of the supporting documents shall be submitted to the Commission at the address indicated in form CO.
3. The supporting documents shall be either originals or copies of the originals; in the latter case the notifying parties shall confirm that they are true and complete.
4. Notifications shall be in one of the official languages of the Community. This language shall also be the language of the proceeding for the notifying parties. Supporting documents shall be submitted in their original language. Where the original language is not one of the official languages, a translation into the language of the proceeding shall be attached.
Article 3
Information to be provided
1. Notifications shall contain the information requested by form CO. The information must be correct and complete.
2. Material changes in the facts specified in the notification which the notifying parties know or ought to have known must be communicated to the Commission voluntarily and without delay.
3. Incorrect or misleading information shall be deemed to be incomplete information.
Article 4
Effective date of notifications
1. Subject to paragraph 2 notifications shall become effective on the date on which they are received by the Commission.
2. Subject to paragraph 3, where the information contained in the notification is incomplete in a material respect, the Commission shall without delay inform the notifying parties or the joint representative in writing and shall fix an appropriate time limit for the completion of the informaion; in such cases, the notification shall become effective on the date on which the complete information is received by the Commission. 3. The Commission may dispense with the obligation to provide any particular information requested by form CO where the Commission considers that such informatin is not necessary for the examination of the case.
4. The Commission shall without delay acknowledge in writing to the notifying parties or the joint representative receipt of the notification and of any reply to a letter sent by the Commission pursuant to paragraph 2 above.
Article 5
Conversion of notifications
1. Where the Commission finds that the operation notified does not constitute a concentration within the meaning of Article 3 of Regulation (EEC) No 4064/89 it shall inform the notifying parties or the joint representative in writing. In such a case, the Commission may, if requested by the notifying parties, as appropriate and subject to paragraph 2 below, treat the notification as an application within the meaning of Article 2 or a notification within the meaning of Article 4 of Regulation No 17, as an application within the meaning of Article 12 or a notification within the meaning of Article 14 of Regulation (EEC) No 1017/68, as an application within the meaning of Article 12 of Regulation (EEC) No 4056/86 or as an application witin the meaning of Article 3 (2) or of Article 5 of Regulation (EEC) No 3975/87.
2. In cases referred to in paragraph 1, second sentence, the Commission may require that the information given in the notification be supplemented within an appropriate time limit fixed by it in so far as this is necessary for assessing the operation on the basis of the abovementioned Regulations. The application or notification shall be deemed to fulfil the requirements of such Regulations from the date of the original notification where the additional information is received by the Commission within the time limit fixed.
SECTION II
TIME LIMITS FOR INITIATING PROCEEDINGS AND FOR DECISIONS
Article 6
Beginning of the time limit
1. The periods referred to in Article 10 (1) of Regulation (EEC) No 4064/89 shall start at the beginning of the day following the effective date of the notification, within the meaning of Article 4 (1) and (2) of this Regulation.
2. The period referred to in Article 10 (3) of Regulation (EEC) No 4064/89 shall start at the beginning of the day following the day on which proceedings were initiated.
3. Where the first day of a period is not a working day within the meaning of Article 19, the period shall start at the beginning of the following working day.
Article 7
End of the time limit
1. The period referred to in the first subparagraph of Article 10 (1) of Regulation (EEC) No 4064/89 shall end with the expiry of the day which in the month following that in which the period began falls on the same date as the day from which the period runs. Where such a day does not occur in that month, the period shall end with the expiry of the last day of that month.
2. The period referred to in the second sub-paragraph of Article 10 (1) of Regulation (EEC) No 4064/89 shall end with the expiry of the day which in the sixth week following that in which the period began is the same day of the week asthe day from which the period runs.
3. The period referred to in Article 10 (3) of Regulation (EEC) No 4064/89 shall end with the expiry of the day which in the fourth month following that in which the period began falls on the same date as the day from which the period runs. Where such a day does not occur in that month, the period shall end with the expiry of the last day of that month.
4. Where the last day of the period is not a working day within the meaning of Article 19, the period shall end with the expiry of the following working day.
5. Paragraphs 2 to 4 above shall be subject to the provisions of Article 8.
Article 8
Addition of holidays
Where public holidays or other holidays of the Commission as defined in Article 19 fall within the periods referred to in Article 10 (1) and in Article 10 (3) of Regulation (EEC) No 4064/89, these periods shall be extended by a corresponding number of days.
Article 9
Suspension of the time limit
1. The period referred to in Article 10 (3) of Regulation (EEC) No 4064/89 shall be suspended where the Commission, pursuant to Articles 11 (5) or 13 (3) of the same Regulation, has to take a decision because:
(a) Information which the Commission has requested pursuant to Article 11 (2) of Regulation (EEC) No 4064/89 from an undertaking involved in a concentration is not provided or not provided in full within the time limit fixed by the Commission;
(b) an undertaking involved in the concentration has refused to submit to an investigation deemed necessary by the Commission on the basis of Article 13 (1) of Regulation (EEC) No 4064/89 or to cooperate in the carrying out of such an investigation in accordance with the abovementioned provision;
(c) the notifying parties have failed to inform the Commission of material changes in the facts specified in the notification. 2. The period referred to in Article 10 (3) of Regulation (EEC) No 4064/89 shall be suspended:
(a) in the cases referred to in subparagraph 1 (a) above, for the period between the end of the time limit fixed in the request for information and the receipt of the complete and correct information required by decision;
(b) in the cases referred to in subparagraph 1 (b) above, for the period between the unsuccessful attempt to carry out the investigation and the completion of the investigation ordered by decision;
(c) in the cases referred to in subparagraph 1 (c) above, for the period between the occurrence of the change in the facts referred to therein and the receipt of the complete and correct information requested by decision or the completion of the investigation ordered by decision.
3. The suspension of the time limit shall begin on the day following that on which the event causing the suspension occurred. It shall end with the expiry of the day on which the reason for suspension is removed. Where such day is not a working day within the meaning of Article 19, the suspension of the time limit shall end with the expiry of the following working day.
Article 10
Compliance with the time limit
The time limits referred to in Article 10 (1) and (3) of Regulation (EEC) No 4064/89 shall be met where the Commission has taken the relevant decision before the end of the period. Notification of the decision to the undertakings concerned must follow without delay.
SECTION III
HEARING OF THE PARTIES AND OF THIRD PARTIES
Article 11
Decisions on the suspension of concentrations
1. Where the Commission intends to take a decision under Article 7 (2) of Regulation (EEC) No 4064/89 or a decision under Article 7 (4) of that Regulation which adversely affects the parties, it shall, pursuant to Article 18 (1) of that Regulation, inform the parties concerned in writing of its objections and shall fix a time limit within which they may make known their views.
2. Where the Commission pursuant to Article 18 (2) of Regulation (EEC) No 4064/89 has taken a decision referred to in paragraph 1 provisionally without having given the parties concerned the opportunity to make known their views, it shall without delay and in any event before the expiry of the suspension send them the text of the provisional decision and shall fix a time limit within which they may make known their views.
Once the parties concerned have made known their views, the Commission shall take a final decision annulling, amending or confirming the provisional decision. Where the parties concerned have not made known their view within the time limit fixed, the Commission's provisional decision shall become final with the expiry of that period.
3. The parties concerned shall make known their views in writing or orally within the time limit fixed. They may confirm their oral statements in wrting.
Article 12
Decisions on the substance of the case
1. Where the Commission intends to take a decision pursuant to Article 8 (2), second subparagraph, Article 8 (3) (4) and (5), Article 14 or Article 15 of Regulation (EEC) No 4064/89, it shall, before consulting the Advisory Committee on Concentrations, hold a hearing of the parties concerned pursuant to Article 18 of that Regulation.
2. The Commission shall inform the parties concerned in writing of its objections. The communication shall be addressed to the notifying parties or to the joint representative. The Commission shall, when giving notice of objections, fix a time limit within which the parties concerned may inform the Commission of their views.
3. Having informed the parties of its objections, the Commission shall upon request give the parties concerned access to the file for the purposes of preparing their observations. Documents shall not be accessible in so far as they contain business secrets of other parties concerned or of third parties, or other confidential information including sensitive commercial information the disclosure of which would have a significant adverse effect on the supplier of such information or where they are internal documents of the authorities.
4. The parties concerned shall, within the time limit fixed, make known in writing their views on the Commission's objections. The may in their written comments set out all matters relevant to the case and may attach any relevant documents in proof of the facts set out. They may also propose that the Commission hear persons who may corroborate those facts.
Article 13
Oral hearings
1. The Commission shall afford parties concerned who have so requested in their written comments the opportunity to put forward their arguments orally, if those persons show a sufficient interest or if the Commission proposes to impose a fine or periodic penalty payment on them. It may also in other cases afford the parties concerned the opportunity of expressing their views orally.
2. The Commission shall summon the persons to be heard to attend on such date as it shall appoint.
3. It shall forthwith transmit a copy of the summons to the competent authorities of the Member States, who may appoint an official to take part in the hearing. Article 14
Hearings
1. Hearings shall be conducted by persons appointed by the Commission for that purpose.
2. Persons summoned to attend shall either appear in person or be represented by legal representatives or representatives authorized by their constitution. Undertakings and associations of undertakings may be represented by a duly authorized agent appointed from among their permanent staff.
3. Persons heard by the Commission may be assisted by lawyers or university teachers who are entitled to plead before the Court of Justice of the European Communities in accordance with Article 17 of the Protocol on the Statute (EEC) of the Court of Justice, or by other qualified persons.
4. Hearings shall not be public. Persons shall be heard separately or in the presence of other persons summoned to attend. In the latter case, regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets.
5. The statements made by each person heard shall be recorded.
Article 15
Hearing of third parties
1. If natural or legal persons showing a sufficient interest, and especially members of the administrative or management organs of the undertakings concerned or recognized workers' representatives of those undertakings, apply in writing to be heard pursuant to the second sentence of Article 18 (4) of Regulation (EEC) No 4064/89, the Commission shall inform them in writing of the nature and subject matter of the procedure and shall fix a time limit within which they may make known their views.
2. The third parties referred to in paragraph 1 above shall make known their views in writing or orally within the time limit fixed. They may confirm their oral statements in writing.
3. The Commission may likewise afford to any other third parties the opportunity of expressing their views.
SECTION IV
MISCELLANEOUS PROVISIONS
Article 16
Transmission of documents
1. Transmission of documents and summonses from the Commission to the addressees may be effected in any of the following ways:
(a) delivery by hand against receipt;
(b) registered letter with acknowledgement of receipt;
(c) telefax with a request for acknowledgement of receipt;
(d) telex.
2. Subject to Article 18 (1), paragraph 1 above also applies to the transmission of documents from the parties concerned or from third parties to the Commission.
3. Where a document is sent by telex or by telefax, it shall be presumed that it has been received by the addressee on the day on which it was sent.
Article 17
Setting of time limits
1. In fixing the time limits provided for in Articles 4 (2), 5 (2), 11 (1) and (2), 12 (2) and 15 (1), the Commission shall have regard to the time required for preparation of statements and to the urgency of the case. It shall also take account of public holidays in the country of receipt of the Commission's communication.
2. The day on which the addressee received a communication shall not be taken into account for the purpose of fixing time limits
Article 18
Receipt of documents by the Commission
1. Subject to Article 4 (1), notifications must be delivered to the Commission at the address indicated in form CO or have been dispatched by registered letter before expiry of the period referred to in Article 4 (1) of Regulation (EEC) No 4064/89. Additional information requested to complete notifications pursuant to Article 4 (2) or to supplement notifications pursuant to Article 5 (2) of this Regulation must reach the Commission at the aforesaid or have been dispatched by registered letter before the expiry of the time limit fixed in each case. Written comments on Commission communications pursuant to Articles 11 (1) and (2), 12 (2) and 15 (1) must be delivered to the Commission at the aforesaid address before the time limit fixed in each case.
2. Where the last day of a period referred to in paragraph 1 is a day by which documents must be received and that day is not a working day within the meaning of Article 19, the period shall end with the expiry of the following working day.
3. Where the last day of a period referred to in paragraph 1 is a day by which documents must be dispatched and that day is a Saturday, Sunday or public holiday in the country of dispatch, the period shall end with the expiry of the following working day in that country. Article 19
Definition of Commission working days
The term 'working days' in Articles 6 (3), 7 (4), 9 (3) and 18 (2) means all days other than Saturdays, Sundays, public holidays set out in Annex II and other holidays as determined by the Commission and published in the Official Journal of the European Communities before the beginning of each year.
Article 20
Entry into force
This Regulation shall enter into force on 21 September 1990.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 July 1990.