COMMISSION REGULATION (EC) No 3384/94 of 21 December 1994 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 Community and the Agreements on the European Economic Area,
Having regard to the Agreement on the European Economic Area,
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 Greece, 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), as last amended by Regulation (EEC) No 2410/92 (6), and in particular
Article 19
thereof,
Having consulted the Advisory Committee on Concentrations,
(1) Whereas experience in the application of Commission Regulation (EEC) No 2367/90 (7), as amended by Regulation (EC) No 3666/93 (8) which implements Regulation (EEC) No 4064/89, has shown the need to improve certain procedural aspects thereof, whereas it should therefore be replaced by a new regulation;
(2) Whereas Regulation (EEC) No 4064/89 is based on the principle of compulsory notification of concentrations before they are put into effect; whereas, on the one hand, a notification has important legal consequences which are favourable to the parties to the concentration plan, 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 notifying parties 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, and whereas in particular, the beginning and end of the period and the circumstances suspending the running of the period must be determined, with due regard to the requirements resulting from the exceptionally short legal time limits referred to above; whereas in the absence of specific provisions the determination of rules applicable to periods, dates and time limits should be based on the principles of Council Regulation (EEC, Euratom) No 1182/71 (9);
(7) Whereas the provisions relating to the Commission's procedure must be framed in such a way as to safeguard fully the right to be heard and the rights of defence; whereas for these purposes the Commission should distinguish between the parties who notify the concentration, other parties involved in the concentration plan, third parties and parties regarding whom the Commission intends to take a decision imposing a fine or periodic penalty payments;
(8) Whereas the Commission will give the notifying parties and other parties involved, 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 those parties 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 rights of defence, the notifying parties must be given the opportunity to submit their comments on all the objections which the Commission proposes to take into account in its decisions; whereas other parties involved should also be informed of the Commission's objections and granted the opportunity to express their views;
(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 a formal oral hearing where appropriate to supplement the written procedure; whereas in urgent cases, however, the Commission must be able to proceed immediately to formal oral hearings of the notifying parties, other parties involved or third parties;
(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 Commissions's file and on what conditions they may be represented or assisted;
(13) Whereas the Commission must respect the legitimate interest of undertakings in the protection of their business secrets;
(14) Whereas, in order to enable the Commission to carry out a proper assessment of modifications to the original concentration plan, and to ensure due consultation with other parties involved, third parties and the authorities of the Member States as provided for in Regulation (EEC) No 4064/89, in particular Article 18 (1) and (4) thereof, a time limit for submitting modifications to the concentration plan as provided for in Article 10 (2) of Regulation (EEC) No 4064/89 must be laid down;
(15) Whereas it is also necessary to define the rules for fixing and calculating the time limits for reply fixed by the Commission;
(16) Whereas the Advisory Committee on Concentrations must 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 reopening 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-four copies of each notification and 19 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.
5. Where notifications are made pursuant to Article 57 of the EEA Agreement, they may also be in one of the official languages of the EFTA States or the working language of the EFTA Surveillance Authority. If the language chosen for the notifications is not an official language of the Community, the notifying parties shall simultaneously supplement all documentation with a translation into an official language of the Community. The language which is chosen for the translation shall determine the language used by the Commission as the language of the proceedings for the notifying parties.
Article 3
Information and documents to be provided
1. Notifications shall contain the information, including documents, requested by Form CO. The information must be correct and complete.
2. The Commission may dispense with the obligation to provide any particular information, including documents, requested by Form CO where the Commission considers that such information is not necessary for the examination of the case.
3. The Commission shall without delay acknowledge in writing to the notifying parties or their representatives receipt of the notification and of any reply to a letter sent by the Commission pursuant to Article 4 (2) and 4 (4).
Article 4
Effective date of notification
1. Subject to paragraphs 2, 3 and 4, notifications shall become effective on the date on which they are received by the Commission.
2. Where the information, including documents, contained in the notification is incomplete in a material respect, the Commission shall without delay inform the notifying parties or their representatives in writing and shall set an appropriate time limit for the completion of the information. In such cases, the notification shall become effective on the date on which the complete information is received by the Commission.
3. Material changes in the facts contained in the notification which the notifying parties know or ought to have known must be communicated to the Commission voluntarily and without delay. In such cases, when these material changes could have a significant effect on the appraisal of the concentration, the notification may be considered by the Commission as becoming effective on the date on which the information on the material changes is received by the Commission; the Commission shall inform the notifying parties or their representatives of this in writing and without delay.
4. Incorrect or misleading information shall be considered to be incomplete information.
5. When the Commission publishes the fact of the notification pursuant to Article 4 (3) of Regulation (EEC) No 4064/89, it shall specify the date upon which the notification has been received. Where, further to the application of paragraphs 2, 3 and 4, the effective date of notification is later than the date specified in this publication, the Commission shall issue a further publication in which it will state the later date.
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 their representatives in writing. In such a case, the Commission shall, if requested by the notifying parties, as appropriate and subject to paragraph 2, 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 within 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 period
1. The periods referred to in Article 10 (1) of Regulation (EEC) No 4064/89 shall start at the beginning of the working day (as defined under Article 22) following the effective date of the notification, within the meaning of Article 4 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 working day (as defined under Article 22) following the day on which proceedings were initiated.
Article 7
End of the time period
1. The time period referred to in Article 10 (1) first subparagraph of Regulation (EEC) No 4064/89 shall end with the expiry of the day which in the month following that in which the time 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 time period referred to in Article 10 (1) second subparagraph 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 as the day from which the period runs.
3. The time 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 22, the period shall end with the expiry of the following working day.
Article 8
Recovery of holidays
Once the end of the time period has been determined in accordance with Article 7, if public holidays or other holidays of the Commission as defined in Article 22 fall within the periods referred to in Article 10 (1) and in Article 10 (3) of Regulation (EEC) No 4064/89, a corresponding number of working days shall be added to those periods.
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) and 13 (3) of the same Regulation, has to take a decision because:
(a) information which the Commission has requested pursuant to Article 11 (1) of Regulation (EEC) No 4064/89 from one of the notifying parties or another involved party (as defined in Article 11 of this Regulation) is not provided or not provided in full within the time limit fixed by the Commission;
(b) one of the notifying parties or another involved party (as defined in Article 11 of this Regulation) 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 contained 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), 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), 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), 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 a day is not a working day within the meaning of Article 22, 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 notifying parties must follow without delay.
SECTION III HEARING OF THE PARTIES AND OF THIRD PARTIES
Article 11
Parties to be heard
For the purposes of the rights to be heard pursuant to Article 18 of Regulation (EEC) No 4064/89, the following parties are distinguished:
(a) notifying parties, that is, persons or undertakings submitting a notification pursuant to Article 4 (2) of Regulation (EEC) No 4064/89;
(b) other involved parties, that is, parties to the concentration plan other than the notifying parties, such as the seller and the undertaking which is the target of the concentration;
(c) third parties, that is, natural or legal persons showing a sufficient interest, including customers, suppliers and competitors, and especially members of the administration or management organs of the undertakings concerned or recognised workers' representatives of those undertakings;
(d) parties regarding whom the Commission intends to take a decision pursuant to Article 14 or Article 15 of Regulation (EEC) No 4064/89.
Article 12
Decisions on the suspension of concentrations
1. Where the Commission intends to take a decision pursuant to Article 7 (2) of Regulation (EEC) No 4064/89 or a decision pursuant to Article 7 (4) of that Regulation which adversely affects the parties, it shall, pursuant to Article 18 (1) of that Regulation, inform the notifying parties and other involved parties 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 notifying parties and other involved parties 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 notifying parties and other involved parties have made known their views, the Commission shall take a final decision annulling, amending or confirming the provisional decision. Where they have not made known their views within the time limit fixed, the Commission's provisional decision shall become final with the expiry of that period.
3. The notifying parties and other involved parties shall make known their views in writing or orally within the time limit fixed. They may confirm their oral statements in writing.
Article 13
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) or (5) of Regulation (EEC) No 4064/89 it shall, before consulting the Advisory Committee on Concentrations, hear the parties pursuant to Article 18 (1) and (3) of that Regulation.
2. (a) The Commission shall address its objections in writing to the notifying parties.
The Commission shall, when giving notice of objections, set a time limit within which the notifying parties may inform the Commission of their views in writing.
(b) The Commission shall inform other involved parties in writing of these objections.
The Commission shall also set a time limit within which these other involved parties may inform the Commission of their views in writing.
3. (a) After having addressed its objections to the notifying parties, the Commission shall, upon request, give them access to the file for the purpose of enabling them to exercise their rights of defence.
(b) The Commission shall, upon request, also give the other involved parties who have been informed of the objections access to the file in so far as this is necessary for the purposes of preparing their observations.
4. The parties to whom the Commission's objections have been addressed or who have been informed of these objections shall, within the time limit fixed, make known in writing their views on the objections. In their written comments, they may 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.
5. Where the Commission intends to take a decision pursuant to Article 14 or Article 15 of Regulation (EEC) No 4064/89 it shall, before consulting the Advisory Committee on Concentrations, hear (pursuant to Article 18 (1) and (3) of that Regulation) the parties regarding whom the Commission intends to take such a decision.
The procedure provided pursuant to subparagraphs 2 (a), 3 (a), and paragraph 4 is applicable, mutatis mutandis.
Article 14
Oral hearings
1. The Commission shall afford the notifying parties who have so requested in the written comments the opportunity to put forward their arguments orally in a formal hearing if such parties show a sufficient interest. It may also in other cases afford such parties the opportunity of expressing their views orally.
2. The Commission shall afford other involved parties who have so requested in their written comments the opportunity to express their views orally in a formal hearing if they show a sufficient interest. It may also in other cases afford such parties the opportunity of expressing their views orally.
3. The Commission shall afford parties in relation to whom it proposes to impose a fine or periodic penalty payment who have so requested in their written comments the opportunity to put forward their arguments orally in a formal hearing. It may also in other cases afford such parties the opportunity of expressing their views orally.
4. The Commission shall summon the persons to be heard to attend on such date as it shall appoint.
5. The Commission shall immediately 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 15
Conduct of formal oral 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 by 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 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 16
Hearing of third parties
1. If third parties apply in writing to be heard pursuant to 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 shall make known their views in writing within the time limit fixed. The Commission may, where appropriate, afford the parties who have so requested in their written comments, the opportunity to participate in a formal hearing. It may also in other cases afford such parties the opportunity of expressing their views orally.
3. The Commission may likewise afford to any other third parties the opportunity of expressing their views.
Article 17
Confidential information
Information, including documents, shall not be communicated or made accessible in so far as it contains business secrets of any person or undertaking, including the notifying parties, other involved parties or of third parties, or other confidential information the disclosure of which is not considered necessary by the Commission for the purpose of the procedure, or where internal documents of the authorities are concerned.
SECTION IV MODIFICATIONS OF THE CONCENTRATION PLAN
Article 18
Time limit for modifications to the concentration plan
1. The modifications to the original concentration plan made by the undertakings concerned as provided for pursuant to Article 10 (2) of Regulation (EEC) No 4064/89 which are intended by the parties to form the basis for a decision pursuant to Article 8 (2) shall be submitted to the Commission within not more than three months of the date on which proceedings were initiated. The Commission may in exceptional circumstances extend this period.
2. The time period referred to in paragraph 1 shall be determined according to the same rules as those contained in Articles 6 to 9 of this Regulation.
SECTION V MISCELLANEOUS PROVISIONS
Article 19
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 acknowledgment of receipt;
(c) telefax with a request for acknowledgment of receipt;
(d) telex;
(e) electronic mail with a request for acknowledgment of receipt.
2. Subject to Article 21 (1), paragraph 1 also applies to the transmission of documents from the notifying parties, from other involved parties or from third parties to the Commission.
3. Where a document is sent by telex, by telefax or by electronic mail, it shall be presumed that it has been received by the addressee on the day on which it was sent.
Article 20
Setting of time limits
1. In fixing the time limits provided for pursuant to Article 4 (2), 5 (2), 12 (1) and (2), 13 (2) and 16 (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 working days as defined under Article 22 as well as public holidays in the country of receipt of the Commission's communication.
2. These time limits shall be set in terms of a precise calendar date.
Article 21
Receipt of documents by the Commission
1. Subject to the provisions of Article 4 (1) of this Regulation, notifications must be delivered to the Commission at the address indicated in Form CO or have been dispatched by registered letter to the address indicated in Form CO before the 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) and (4) or to supplement notifications pursuant to Article 5 (2) of this Regulation must reach the Commission at the aforesaid address 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 12 (1) and (2), 13 (2) and 16 (1) must be delivered to the Commission or must have reached the Commission at the aforesaid address before the expiry of the time limit fixed in each case.
2. Time limits referred to in subparagraphs two and three of paragraph 1 shall be determined in accordance with Article 20.
3. Should the last day of a time limit fall on a day which is not a working day (as defined under Article 22), or which is a public holiday in the country of dispatch, the time limit expires on the following working day.
Article 22
Definition of working days
The expression 'working days' in this Regulation means all days other than Saturdays, Sundays, public holidays 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 23
Repeal
Regulation (EEC) No 2367/90 is repealed.
Article 24
Entry into force
This Regulation shall enter into force on 1 March 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 December 1994
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