1998R0447 — EN — 02.03.1998 — 000.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COMMISSIONREGULATION(EC)No447/98
of1March1998
onthe notifications, time limits andhearingsprovided forinCouncilRegulation(EEC)No4064/
89onthecontrolofconcentrationsbetweenundertakings
(TextwithEEArelevance)
(OJ L 61, 2.3.1998, p. 1)
Corrected by:
►C1Corrigendum, OJ L 66, 6.3.1998, p. 25 (447/98)
NB: This consolidated version contains references to the European unit of account and/or the ecu, which from 1 January 1999
should be understood as references to the euro — Council Regulation (EEC) No 3308/80 (OJ L 345, 20.12.1980, p. 1) andCouncil Regulation (EC) No 1103/97 (OJ L 162, 19.6.1997, p. 1).
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COMMISSIONREGULATION(EC)No447/98
of1March1998
on the notifications, time limits and hearings provided for in
Council Regulation (EEC) No 4064/89 onthe control of concentra-
tionsbetweenundertakings
(TextwithEEArelevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
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 undertak-ings (
1), as last amended by Regulation (EC) No 1310/97 (2), 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 (3), as last
amended by the Act of Accession of Austria, Finland and Sweden,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 inlandwaterway (
4), as last amended by the Act of Accession of Austria,
Finland and Sweden, 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 Arti-cles 85 and 86 of the Treaty to maritime transport (
5), as amended by
the Act of Accession of Austria, Finland and Sweden, and in particular
Article 26 thereof,
Having regard to Council Regulation (EEC) No 3975/87 of 14
December 1987 laying down the procedure for the application of therules on competition to undertakings in the air transport sector (
6), as
last amended by Regulation (EEC) No 2410/92 (7), and in particular
Article 19 thereof,
Having consulted the Advisory Committee on Concentrations,
(1)Whereas Regulation(EEC) No 4064/89 an d inparticular Article
23 thereof has beenamen ded by Regulation(EC) No 1310/97;
(2)Whereas CommissionRegulation(EC) No 3384/94 (8), imple-
menting Regulation (EEC) No 4064/89, must be modified inorder to take account of those amendments; whereas experienceinthe applicationof Regulation(EC) No 3384/94 has revealedthe need to improve certain procedural aspects thereof; whereas
for the sake of clarity it should therefore be replaced by a new
regulation;
(3)Whereas the Commissionhas adopted Decision94/810/ECSC,EC of 12 December 1994 on the terms of reference of hearingofficers incompetitionprocedures before the Commission(
9);
(4)Whereas Regulation(EEC) No 4064/89 is based onthe prin cipleof compulsory notification of concentrations before they are putinto effect; whereas, on the one hand, a notification has impor-tant legal consequences which are favourable to the parties to theconcentration plan, while, on the other hand, failure to comply1998R0447 — EN — 02.03.1998 — 000.001 — 2
(1) OJ L 395, 30.12.1989, p. 1; corrected version, OJ L 257, 21.9.1990, p. 13.
(2) OJ L 180, 9.7.1997, p. 1.
(3) OJ 13, 21.2.1962, p. 204/62.
(4) OJ L 175, 23.7.1968, p. 1.
(5) OJ L 378, 31.12.1986, p. 4.
(6) OJ L 374, 31.12.1987, p. 1.
(7) OJ L 240, 24.8.1992, p. 18.
(8) OJ L 377, 31.12.1994, p. 1.
(9) OJ L 330, 21.12.1994, p. 67.
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with the obligation to notify renders the parties liable to a fine
and may also entail civil law disadvantages for them; whereasit is therefore necessary in the interests of legal certainty to
define precisely the subject matter and content of the informa-
tion to be provided in the notification;
(5)Whereas it is for the notifying parties to make full and honestdisclosure to the Commission of the facts and circumstanceswhich are relevant for taking a decision on the notified concen-
tration;
(6)Whereas in order to simplify and expedite examination of the
notification, it is desirable to prescribe that a form be used;
(7)Whereas since notification sets in motion legal time limitspursuant to Regulation (EEC) No 4064/89, the conditionsgoverning such time-limits and the time when they become
effective must also be determined;
(8)Whereas rules must be laid downinthe in terests of legal
certainty for calculating the time limits provided for in Regula-tion (EEC) No 4064/89; whereas in particular, the beginning andend of the period and the circumstances suspending the runningof the period must be determined, with due regard to the require-
ments resulting from the exceptionally short legal time-limits
referred to above; whereas in the absence of specific provisionsthe determination of rules applicable to periods, dates and time-limits should be based on the principles of Council Regulation(EEC, Euratom) No 1182/71 (
1);
(9)Whereas the provisions relating to the Commission's procedure
must be framed insuch a way as to safeguard fully the right to
be heard and the rights of defence; whereas for these purposesthe Commissionshould distin guish betweenthe parties whonotify the concentration, other parties involved in the concentra-tion plan, third parties and parties regarding whom the
Commission intends to take a decision imposing a fine or peri-
odic penalty payments;
(10)Whereas the Commission should give the notifying parties andother parties involved, if they so request, an opportunity beforenotification to discuss the intended concentration informally andin strict confidence; whereas in addition it should, after notifica-
tion, maintain close contact with those parties to the extent
necessary to discuss with them any practical or legal problemswhich it discovers on a first examination of the case and ifpossible to remove such problems by mutual agreement;
(11)Whereas in accordance with the principle of the rights ofdefence, the notifying parties must be given the opportunity to
submit their comments on all the objections which the Commis-
sion proposes to take into account in its decisions; whereas theother parties involved should also be informed of the Commis-sion's objections and granted the opportunity to express theirviews;
(12)Whereas third parties having sufficient interest must also begiven the opportunity of expressing their views where theymake a writtenapplication ;
(13)Whereas the various persons entitled to submit comments shoulddo so in writing, both in their own interest and in the interest ofgood administration, without prejudice to their right to request a
formal oral hearing where appropriate to supplement the written
procedure; whereas inurgen t cases, however, the Commissionmust be able to proceed immediately to formal oral hearings ofthe notifying parties, other parties involved or third parties;
(14)Whereas it is necessary to define the rights of persons who are tobe heard, to what extent they should be granted access to the1998R0447 — EN — 02.03.1998 — 000.001 — 3
(1) OJ L 124, 8.6.1971, p. 1.
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Commission's file and on what conditions they may be repre-
sented or assisted;
(15)Whereas the Commissionmust respect the legitimate in terest ofundertakings in the protection of their business secrets and otherconfidential information;
(16)Whereas, inorder to en able the Commissionto carry out aproper assessment of commitments that have the purpose of
rendering the concentration compatible with the common
market, and to ensure due consultation with other partiesinvolved, third parties and the authorities of the Member Statesas provided for inRegulation(EEC) No 4064/89, inparticularArticle 18(1) and (4) thereof, the procedure and time-limits forsubmitting such commitments as provided for in Article 6(2)
and Article 8(2) of Regulation (EEC) No 4064/89 must be laid
down;
(17)Whereas it is also necessary to define the rules for fixing andcalculating the time limits for reply fixed by the Commission;
(18)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 inquiryinto that case has been completed; whereas such consultationdoes not, however, prevent the Commission from reopening aninquiry if need be,
HAS ADOPTED THIS REGULATION:
CHAPTER I
NOTIFICATIONS
Article 1
Personsentitledtosubmitnotifications
1. Notifications shall be submitted by the persons or undertakings
referred to inArticle 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 theyare authorised to act.
3. Joint notifications should be submitted by a joint representative
who is authorised to transmit and to receive documents on behalf ofall notifying parties.
Article 2
Submissionofnotifications
1. Notifications shall be submitted in the manner prescribed by form
CO as shown in the Annex. Joint notifications shall be submitted on a
single form.
2. One original and 23 copies of the form CO and the supporting
documents shall be submitted to the Commission at the address indi-
cated inform CO.
3. The supporting documents shall be either originals or copies of
the originals; in the latter case the notifying parties shall confirm thatthey 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 proceedingfor the notifying parties. Supporting documents shall be submitted intheir original language. Where the original language is not one of theofficial languages of the Community, 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 the1998R0447 — EN — 02.03.1998 — 000.001 — 4
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EFTA States or the working language of the EFTA Surveillance
Authority. If the language chosen for the notifications is not an officiallanguage 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 thetranslation shall determine the language used by the Commission asthe language of the proceedings for the notifying parties.
Article 3
Informationanddocumentstobeprovided
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 notificationand of any reply to a letter sent by the Commission pursuant to Article4(2) and (4).
Article 4
Effective dateofnotification
1. Subject to paragraphs 2, 3 and 4, notifications shall become effec-
tive onthe date onwhich 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
inform the notifying parties or their representatives in writing withoutdelay and shall set an appropriate time-limit for the completion of theinformation. In such cases, the notification shall become effective onthe date onwhich the complete in formationis 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 communi-cated to the Commissionwithout delay. Insuch cases, whenthesematerial changes could have a significant effect on the appraisal ofthe concentration, the notification may be considered by the Commis-sionas becomin g effective onthe date onwhich the in formationonthe
material changes is received by the Commission; the Commission shall
inform the notifying parties or their representatives of this in writingand without delay.
4. Incorrect or misleading information shall be considered to be
incomplete information.
5. Whenthe Commissionpublishes the fact of the n otification
pursuant to Article 4(3) of Regulation (EEC) No 4064/89, it shall
specify the date uponwhich the n otificationhas beenreceived. Where,
further to the applicationof paragraphs 2, 3 an d 4, the effective date ofnotification is later than the date specified in this publication, theCommissionshall issue a further publicationinwhich it will state thelater date.
Article 5
Conversionofnotifications
1. Where the Commission finds that the operation notified does not
constitute a concentration within the meaning of Article 3 of Regula-
tion (EEC) No 4064/89, it shall inform the notifying parties or their
representatives in writing. In such a case, the Commission shall, ifrequested by the notifying parties, as appropriate and subject to para-graph 2 of this Article, treat the notification as an application withinthe meaning of Article 2 or a notification within the meaning of Article4 of Regulation No 17, as an application within the meaning of Article1998R0447 — EN — 02.03.1998 — 000.001 — 5
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12 or a notification within the meaning of Article 14 of Regulation
(EEC) No 1017/68, as an application within the meaning of Article 12of Regulation(EEC) No 4056/86 or as anapplicationwithinthe
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 Commis-
sion 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 Regula-tions referred to in that sentence. The application or notification shallbe deemed to fulfil the requirements of such Regulations from thedate of the original notification where the additional information is
received by the Commissionwithinthe time-limit fixed.
CHAPTER II
TIME-LIMITS
Article 6
Beginningofperiods
1. The period referred to inArticle 9(2) of Regulation(EEC)
No 4064/89 shall start at the beginning of the working day followingthe date of the receipt of the copy of the notification by the MemberState.
2. The period referred to inArticle 9(4)(b) of Regulation(EEC)
No 4064/89 shall start at the beginning of the working day followingthe effective date of the notification, within the meaning of Article 4of this Regulation.
3. The period referred to inArticle 9(6) of Regulation(EEC)
No 4064/89 shall start at the beginning of the working day followingthe date of the Commission's referral.
4. The periods referred to inArticle 10(1) of Regulation(EEC)
No 4064/89 shall start at the beginning of the working day followingthe effective date of the notification, within the meaning of Article 4of this Regulation.
5. The period referred to inArticle 10(3) of Regulation(EEC)
No 4064/89 shall start at the beginning of the working day followingthe day on which proceedings were initiated.
6. The period referred to inArticle 22(4), secon d subparagraph,
second sentence, of Regulation (EEC) No 4064/89 shall start at the
beginning of the working day following the date of the first of theevents referred to.
Article 7
Endofperiods
1. The period referred to inArticle 9(2) of Regulation(EEC)
No 4064/89 shall end with the expiry of the day which in the third
week following that in which the period began is the same day of the
week as the day from which the period runs.
2. The period referred to inArticle 9(4)(b) of Regulation(EEC)
No 4064/89 shall end with the expiry of the day which in the third
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 notoccur in that month, the period shall end with the expiry of the lastday of that month.
3. The period referred to inArticle 9(6) of Regulation(EEC)
No 4064/89 shall end with the expiry of the day which in the fourthmonth following that in which the period began falls on the same dateas the day from which the period runs. Where such a day does notoccur in that month, the period shall end with the expiry of the lastday of that month.1998R0447 — EN — 02.03.1998 — 000.001 — 6
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4. The period referred to inArticle 10(1), first subparagraph, of
Regulation(EEC) No 4064/89 shall en d with the expiry of the daywhich 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 ofthe last day of that month.
5. The period referred to inArticle 10(1), secon d subparagraph, of
Regulation(EEC) No 4064/89 shall en d with the expiry of the daywhich inthe sixth week followin g that inwhich the period beganis
the same day of the week as the day from which the period runs.
6. The period referred to inArticle 10(3) of Regulation(EEC)
No 4064/89 shall end with the expiry of the day which in the fourthmonth following that in which the period began falls on the same dateas the day from which the period runs. Where such a day does notoccur in that month, the period shall end with the expiry of the lastday of that month.
7. The period referred to inArticle 22(4), secon d subparagraph,
second sentence, of Regulation (EEC) No 4064/89 shall end with the
expiry of the day which in the month following that in which theperiod beganfalls onthe same date as the day from which the periodruns. Where such a day does not occur in that month, the period shallend with the expiry of the last day of that month.
8. Where the last day of the period is not a working day, the period
shall end with the expiry of the following working day.
Article 8
Recovery ofholidays
Once the end of the period has been determined in accordance with
Article 7, if public holidays or other holidays of the Commission
referred to inArticle 23 fall withinthe periods referred to inArticles9, 10 and 22 of Regulation (EEC) No 4064/89, a corresponding numberof working days shall be added to those periods.
Article 9
Suspensionoftimelimit
1. The periods referred to inArticle 10(1) an d (3) of Regulation
(EEC) No 4064/89 shall be suspended where the Commission, pursuantto Article 11(5) and Article 13(3) of that Regulation, has to take a deci-sionbecause:
(a) information which the Commission has requested pursuant to
Article 11(1) of Regulation(EEC) No 4064/89 from on e of the
notifying parties or another involved party, as defined in Article11 of this Regulation, is not provided or not provided in full withinthe time limit fixed by the Commission;
(b) information which the Commission has requested pursuant to
Article 11(1) of Regulation(EEC) No 4064/89 from a third party,as defined in Article 11 of this Regulation, is not provided or notprovided infull withinthe time limit fixed by the Commissionowing to circumstances for which one of the notifying parties oranother involved party, as defined in Article 11 of this Regulation,
is responsible;
(c) one of the notifying parties or another involved party, as defined in
Article 11 of this Regulation, has refused to submit to an investiga-tiondeemed n ecessary by the Commissiononthe basis of Article
13(1) of Regulation(EEC) No 4064/89 or to cooperate inthe
carrying out of such an investigation in accordance with that provi-sion;
(d) the notifying parties have failed to inform the Commission of mate-
rial changes in the facts contained in the notification.1998R0447 — EN — 02.03.1998 — 000.001 — 7
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2. The periods referred to inArticle 10(1) an d (3) of Regulation
(EEC) No 4064/89 shall be suspended:
(a) inthe cases referred to inparagraph 1(a) an d (b), for the period
between the end of the time limit fixed in the request for informa-tion and the receipt of the complete and correct information
required by decision;
(b) inthe cases referred to inparagraph 1(c), for the period between
the unsuccessful attempt to carry out the investigation and thecompletionof the in vestigationordered by decision ;
(c) inthe cases referred to inparagraph 1(d), 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 endwith the expiry of the day onwhich the reasonfor suspen sionisremoved. Where such a day is not a working day, the suspension ofthe time-limit shall end with the expiry of the following working day.
Article 10
Compliancewiththetime-limits
1. The time limits referred to in Article 9(4) and (5), and 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 theperiod.
2. The time limit referred to inArticle 9(2) of Regulation(EEC)
No 4064/89 shall be met where a Member State informs the Commis-sion before the end of the period in writing.
3. The time limit referred to inArticle 9(6) of Regulation(EEC)
No 4064/89 shall be met where the competent authority of the MemberState concerned publishes any report or announces the findings of theexamination of the concentration before the end of the period.
4. The time limit referred to inArticle 22(4), secon d subparagraph,
second sentence, of Regulation (EEC) No 4064/89 shall be met where
the request made by the Member State or the Member States is
received by the Commissionbefore the en d of the period.
CHAPTER III
HEARINGOFTHEPARTIESANDOFTHIRDPARTIES
Article 11
Parties tobeheard
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 noti-
ficationpursuan t 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 under-taking 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 espe-
cially members of the administration or management organs of theundertakings concerned or recognised workers' representatives ofthose undertakings;
(d) parties regarding whom the Commission intends to take a decision
pursuant to Article 14 or 15 of Regulation (EEC) No 4064/89.1998R0447 — EN — 02.03.1998 — 000.001 — 8
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Article 12
Decisionsonthesuspensionofconcentrations
1. Where the Commission intends to take a decision pursuant to
Article 7(4) of Regulation(EEC) No 4064/89 which adversely affectsone or more of the parties, it shall, pursuant to Article 18(1) of thatRegulation, inform the notifying parties and other involved parties inwriting of its objections and shall fix a time limit within which theymay make known their views.
2. Where the Commission, pursuant to Article 18(2) of Regulation
(EEC) No 4064/89, has takena decisionreferred to inparagraph 1 of
this Article provisionally without having given the notifying parties and
other involved parties the opportunity to make known their views, itshall without delay send them the text of the provisional decision andshall fix a time limit withinwhich they may make kn owntheir 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 notmade known their views within the time limit fixed, the Commission'sprovisional 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
Decisionsonthesubstanceofthecase
1. Where the Commission intends to take a decision pursuant to
Article 8(2), second subparagraph, or Article 8(3), (4) or (5) of Regula-tion (EEC) No 4064/89, it shall, before consulting the AdvisoryCommittee on Concentrations, hear the parties pursuant to Article18(1) and (3) of that Regulation.
2. 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 Commissionof their views inwritin g.
The Commission shall inform other involved parties in writing of these
objections.
The Commissionshall also set a time limit withinwhich those other
involved parties may inform the Commission of their views in writing.
3. After having addressed its objections to the notifying parties, the
Commissionshall, uponrequest, give them access to the file for thepurpose of enabling them to exercise their rights of defence.
The Commissionshall, uponrequest, also give the other in volved
parties who have been informed of the objections access to the file inso far as this is necessary for the purposes of preparing their observa-tions.
4. The parties to whom the Commission's objections have been
addressed or who have been informed of those objections shall, withinthe time limit fixed, make known in writing their views on the objec-
tions. In their written comments, they may set out all matters relevant
to the case and may attach any relevant documents in proof of the factsset out. They may also propose that the Commissionhear person s whomay corroborate those facts. They shall submit one original and 29copies of their response to the Commission at the address indicated inform CO.1998R0447 — EN — 02.03.1998 — 000.001 — 9
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5. Where the Commission intends to take a decision pursuant to
Article 14 or 15 of Regulation(EEC) No 4064/89 it shall, beforeconsulting 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 for in paragraph 2, first and second subpara-
graphs, paragraph 3, first subparagraph, and paragraph 4 is applicable,
mutatis mutandis .
Article 14
Oralhearings
1. The Commission shall afford the notifying parties who have so
requested in their written comments the opportunity to put forwardtheir arguments orally in a formal hearing if such parties show a suffi-cient interest. It may also in other cases afford such parties theopportunity of expressing their views orally.
2. The Commissionshall afford other in volved parties who have so
requested in their written comments the opportunity to express theirviews orally in a formal hearing if they show a sufficient interest. Itmay also inother cases afford such parties the opportun ity of expres-sing their views orally.
3. The Commissionshall afford parties onwhom it proposes to
impose a fine or periodic penalty payment who have so requested intheir written comments the opportunity to put forward their argumentsorally ina formal hearin g. It may also inother cases afford such parties
the opportunity of expressing their views orally.
4. The Commission shall invite the persons to be heard to attend on
such date as it shall appoint.
5. The Commission shall invite the competent authorities of the
Member States, to take part inthe hearin g.
Article 15
Conductofformaloralhearings
1. Hearings shall be conducted by the Hearing Officer.
2. Persons invited to attend shall either appear in person or be repre-
sented by legal representatives or by representatives authorised by theirconstitution as appropriate. Undertakings and associations of undertak-
ings may be represented by a duly authorised agent appointed from
among their permanent staff.
3. Persons heard by the Commission may be assisted by their legal
adviser or other qualified persons admitted by the Hearing Officer.
4. Hearings shall not be public. Each person shall be heard sepa-
rately or in the presence of other persons invited to attend. In thelatter case, regard shall be had to the legitimate interest of the under-takings in the protection of their business secrets and other confidentialinformation.
5. The statements made by each person heard shall be recorded.
Article 16
Hearing ofthirdparties
1. If third parties apply in writing to be heard pursuant to Article
18(4), second sentence, of Regulation (EEC) No 4064/89, the Commis-sion shall inform them in writing of the nature and subject matter ofthe procedure and shall fix a time limit within which they may make
known their views.
2. The third parties referred to inparagraph 1 shall make kn own
their views inwritin g withinthe time limit fixed. The Commissionmay, where appropriate, afford the parties who have so requested intheir written comments the opportunity to participate in a formal1998R0447 — EN — 02.03.1998 — 000.001 — 10
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hearing. It may also in other cases afford such parties the opportunity
of expressing their views orally.
3. The Commissionmay likewise afford to an y other third parties
the opportunity of expressing their views.
Article 17
Confidentialinformation
1. Information, including documents, shall not be communicated or
made accessible in so far as it contains business secrets of any personor undertaking, including the notifying parties, other involved parties orof 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 areconcerned.
2. Any party which makes known its views under the provisions of
this Chapter shall clearly identify any material which it considers to beconfidential, giving reasons, and provide a separate non-confidential
versionwithinthe time limit fixed by the Commission .
CHAPTER IV
COMMITMENTS RENDERING THE CONCENTRATION
COMPATIBLE
Article 18
Timelimitsforcommitments
1. Commitments proposed to the Commission by the undertakings
concerned pursuant to Article 6(2) of Regulation (EEC) No 4064/89
which are intended by the parties to form the basis for a decisionpursuant to Article 6(1)(b) of that Regulation shall be submitted to theCommissionwithinn ot more thanthree weeks from the date of receiptof the notification.
2. Commitments proposed to the Commission by the undertakings
concerned pursuant to Article 8(2) of Regulation (EEC) No 4064/89
which are intended by the parties to form the basis for a decisionpursuant to that Article shall be submitted to the Commission withinnot more than three months from the date on which proceedings wereinitiated. The Commission may in exceptional circumstances extend
this period.
3. Articles 6 to 9 shall apply mutatis mutandis to paragraphs 1 and 2
of this Article.
Article 19
Procedure forcommitments
1. One original and 29 copies of commitments proposed to the
Commission by the undertakings concerned pursuant to Article 6(2) orArticle 8(2) of Regulation(EEC) No 4064/89 shall be submitted to the
Commissionat the address in dicated inform CO.
2. Any party proposing commitments to the Commission pursuant to
Articles 6(2) or Article 8(2) of Regulation(EEC) No 4064/89 shallclearly identify any material which it considers to be confidential,giving reasons, and provide a separate non-confidential version withinthe time limit fixed by the Commission.1998R0447 — EN — 02.03.1998 — 000.001 — 11
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CHAPTER V
MISCELLANEOUSPROVISIONS
Article 20
Transmissionofdocuments
1. Transmission of documents and invitations 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) fax with a request for acknowledgement of receipt;
(d) telex;
(e) electronic mail with a request for acknowledgement of receipt.
2. Unless otherwise provided in this Regulation, 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 fax or by electronic mail,
it shall be presumed that it has beenreceived by the addressee ontheday onwhich it was sen t.
Article 21
Settingoftime limits
In fixing the time limits provided for pursuant to Article 4(2), Article
5(2), Article12(1) and (2), Article 13(2) and Article 16(1), the Commis-
sionshall have regard to the time required for preparationof statemen tsand to the urgency of the case. It shall also take account of workingdays as well as public holidays inthe coun try of receipt of theCommission's communication.
These time limits shall be set interms of a precise calen dar date.
Article 22
ReceiptofdocumentsbytheCommission
1. In accordance with the provisions of Article 4(1) of this Regula-
tion, notifications must be delivered to the Commission at the addressindicated in form CO or have been dispatched by registered letter tothe address indicated in form CO before the expiry of the period
referred to inArticle 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 Article5(2) must reach the Commissionat the aforesaid address or have been
dispatched by registered letter before the expiry of the time limit fixed
ineach case.
Written comments on Commission communications pursuant to Article
12(1) and (2), Article 13(2) and Article 16(1) must have reached the
Commissionat the aforesaid address before the expiry of the time limit
fixed ineach case.
2. Time limits referred to insubparagraphs two an d three of para-
graph 1 shall be determined in accordance with Article 21.
3. Should the last day of a time limit fall ona day which is n ot a
working day or which is a public holiday in the country of dispatch,the time limit shall expire on the following working day.
Article 23
Definitionofworkingdays
The expression ‘working days’ in this Regulation means all days other
than Saturdays, Sundays, public holidays and other holidays as deter-1998R0447 — EN — 02.03.1998 — 000.001 — 12
▼B
mined by the Commission and published in the Official Journal of the
European Communities before the beginning of each year.
Article 24
Repeal
Regulation(EEC) No 3384/94 is repealed.
Article 25
Entryintoforce
This Regulation shall enter into force on ►C12 March 1998. ◄
This Regulation shall be binding in its entirety and directly applicable
inall Member States.1998R0447 — EN — 02.03.1998 — 000.001 — 13
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ANNEX
FORM CO RELATING TO THE NOTIFICATION OF A CONCENTRA-
TIONPURSUANTTOREGULATION(EEC)No4064/89
INTRODUCTION
A.Thepurposeofthisform
This form specifies the information that must be provided by an undertaking or
undertakings when notifying the Commission of a concentration with a Commu-
nity dimension. A ‘concentration’ is defined in Article 3 of Regulation (EEC)
No 4064/89 (hereinafter referred to as ‘the Merger Regulation’) and ‘Commu-
nity dimension’ in Article 1 thereof.
Your attention is drawn to the Merger Regulation and to Regulation (EC)
No 447/98 (hereinafter referred to as ‘the Implementing Regulation’) and to
the corresponding provisions of the Agreement on the European Economic
Area (1).
Experience has shown that prenotification meetings are extremely valuable to
both the notifying parties and the Commission in determining the precise
amount of information required in a notification and, in the large majority of
cases, will result in a significant reduction of the information required. Accord-
ingly, notifying parties are encouraged to consult the Commission regarding the
possibility of dispensing with the obligation to provide certain information (see
Section B(g) on the possibility of dispensation).
B.Theneedforacorrect andcompletenotification
All information required by this form must be correct and complete. The infor-
mationrequired must be supplied inthe appropriate sectionof this form.
Annexes to this form shall only be used to supplement the information supplied
inthe form itself.
Inparticular you should n ote that:
(a) In accordance with Article 10(1) of the Merger Regulation and Article 4(2)
and (4) of the Implementing Regulation, the time limits of the Merger Regu-
lation linked to the notification will not begin to run until all the
information that has to be supplied with the notification has been received
by the Commission. This requirement is to ensure that the Commission is
able to assess the notified concentration within the strict time-limits
provided by the Merger Regulation.
(b) The notifying parties should check carefully, in the course of preparing their
notification, that contact names and numbers, and in particular fax numbers,
provided to the Commission are accurate, relevant and up-to-date.
(c) Incorrect or misleading information in the notification will be considered to
be incomplete information (Article 4(4) of the Implementing Regulation).
(d) If a notification is incomplete, the Commission will inform the notifying
parties or their representatives of this in writing and without delay. The noti-
fication will only become effective on the date on which the complete and
accurate information is received by the Commission (Article 10(1) of the
Merger Regulation, Article 4(2) and (4) of the Implementing Regulation).
(e) Article 14(1)(b) of the Merger Regulationprovides that in correct or
misleading information, where supplied intentionally or negligently, can
make the notifying party or parties liable to fines of up to ECU 50000. In
addition, pursuant to Article 6(3)(a) and Article 8(5)(a) of the Merger Regu-
lationtheCommissionmay also revoke its decisiononthe compatibility of a
notified concentration where it is based on incorrect information for which
one of the undertakings is responsible.
(f) You may request that the Commissionaccept that the n otificationis
complete notwithstanding the failure to provide information required by
this form, if such information is not reasonably available to you in part or1998R0447 — EN — 02.03.1998 — 000.001 — 14
(1) Hereinafter referred to as ‘the EEA Agreement’; see in particular Article 57 of the EEA
Agreement (point 1 of Annex XIV to the EEA Agreement and Protocol 4 to the Agree-
ment between the EFTA States on the establishment of a Surveillance Authority and aCourt of Justice), as well as Protocols 21 and 24 to the EEA Agreement and Article 1,and the Agreed Minutes of the Protocol adjusting the EEA Agreement. In particular,any reference to EFTA States shall be understood to mean those EFTA States which
are Contracting Parties to the EEA Agreement.
▼B
in whole (for example, because of the unavailability of information on a
target company during a contested bid).
The Commissionwill con sider such a request, provided that you give
reasons for the unavailability of that information, and provide your best esti-
mates for missing data together with the sources for the estimates. Where
possible, indications as to where any of the requested information that is
unavailable to you could be obtained by the Commission should also be
provided.
(g) You may request that the Commissionaccept that the n otificationis
complete notwithstanding the failure to provide information required by
this form, if you consider that any particular information requested by this
form, in the full or short form version, may not be necessary for the
Commission's examination of the case.
The Commissionwill con sider such a request, provided that you give
reasons why that information is not relevant and necessary to its inquiry
into the notified operation. You may explain this during your pre-notifica-
tion contacts with the Commission and/or in your notification and ask the
Commission to dispense with the obligation to provide that information,
pursuant to Article 3(2) of the Implementing Regulation.
C.Notificationinshortform
(a) In cases where a joint venture has no, or de minimis , actual or foreseen
activities within the EEA territory, the Commission intends to allow notifi-
cationof the operationby mean s of short form. Such cases occur where
joint control is acquired by two or more undertakings, and where:
(i) the turnover (1) of the joint venture and/or the turnover of the contrib-
uted activities (2), is less thanECU 100 millioninthe EEA territory;
and
(ii) the total value of assets (3) transferred to the joint venture is less than
ECU 100 millioninthe EEA territory (4).
(b) If you consider that the operation to be notified meets these qualifications,
you may explain this in your notification and ask the Commission to
dispense with the obligation to provide the full-form notification, pursuant
to Article 3(2) of the Implementing Regulation, and to allow you to notify
by means of short form.
(c) Short-form notification allows the notifying parties to limit the information
provided in the notification to the following sections and questions:
— Section1,
— Section 2, except questions 2.1 (a, b and d), 2.3.4, and 2.3.5,— Section 3, only questions 3.1 and 3.2 (a),— Section 5, only questions 5.1 and 5.3,— Section6,— Section10,
— Section 11 (optional for the convenience of the parties), and
— Section12,— the five largest independent customers, the five largest independent
suppliers, an d the five largest competitors inthe markets inwhich the
joint venture will be active. Provide the name, address, telephone1998R0447 — EN — 02.03.1998 — 000.001 — 15
(1) The turnover of the joint venture should be determined according to the most recent
audited accounts of the parent companies, or the joint venture itself, depending upon
the availability of separate accounts for the resources combined in the joint venture.
(2) The expression ‘and/or’ refers to the variety of situations covered by the short form; for
example:— in the case of the joint acquisition of a target company, the turnover to be taken
into account is the turnover of this target (the joint venture),
— in the case of the creation of a joint venture to which the parent companies contri-
bute their activities, the turnover to be taken into account is that of the contributedactivities,
— in the case of entry of a new controlling party into an existing joint venture, the
turnover of the joint venture and the turnover of the activities contributed by the
new parent company (if any) must be taken into account.
(
3) The total value of assets of the joint venture should be determined according to the last
regularly prepared and approved balance sheet of each parent company. The term‘assets’ includes: (1) all tangible and intangible assets that will be transferred to the
joint venture (examples of tangible assets include production plants, wholesale or retail
outlets, and inventory of goods), and (2) any amount of credit or any obligations of thejoint venture which any parent company of the joint venture has agreed to extend orguarantee.
(
4) Where the assets transferred generate turnover, then neither the value of the assets nor
that of the turnover may exceed ECU 100 million.
▼B
number, fax number and appropriate contact person of each such
customer, supplier and competitor.
(d) In addition, with respect to the affected markets of the joint venture as
defined in Section 6, indicate for the EEA territory, for the Community as
a whole, for each Member State and EFTA State, and where different, in the
opinion of the notifying parties, for the relevant geographic market, the salesin value and volume, as well as the market shares, for the year preceding the
operation.
(e) The Commissionmay require full, or where appropriate partial, n otification
under the form CO where:
— the notified operation does not meet the short-form thresholds, or
— this appears to be necessary for an adequate investigation with respect to
possible competitionproblems.
In such cases, the notification may be considered incomplete in a material
respect pursuant to Article 4(2) of the Implementing Regulation. The
Commission will inform the notifying parties or their representatives of
this in writing and without delay and will fix a deadline for the submission
of a full or, where appropriate, partial notification. The notification will onlybecome effective onthe date onwhich all in formationrequired is received.
D.Whomustnotify
In the case of a merger within the meaning of Article 3(1)(a) of the Merger
Regulation or the acquisition of joint control in an undertaking within the
meaning of Article 3(1)(b) of the Merger Regulation, the notification shall be
completed jointly by the parties to the merger or by those acquiring joint control
as the case may be.
In case of the acquisition of a controlling interest in one undertaking by another,
the acquirer must complete the notification.
In the case of a public bid to acquire an undertaking, the bidder must complete
the notification.
Each party completing the notification is responsible for the accuracy of the
information which it provides.
E.Howtonotify
The notification must be completed in one of the official languages of the
European Community. This language will thereafter be the language of the
proceedings for all notifying parties. Where notifications are made in accor-
dance with Article 12 of Protocol 24 to the EEA Agreement in an official
language of an EFTA State which is not an official language of the Community,
the notification must simultaneously be supplemented with a translation into an
official language of the Community.
The information requested by this form is to be set out using the sections and
paragraph numbers of the form, signing a declaration as provided in Section
12, and annexing supporting documentation.
Supporting documents are to be submitted in their original language; where this
is not an official language of the Community, they must be translated into the
language of the proceeding (Article 2(4) of the Implementing Regulation).
Supporting documents may be originals or copies of the originals. In the latter
case, the notifying party must confirm that they are true and complete.
One original and 23 copies of the form CO and all supporting documents must
be provided.
The notification must be delivered to the Commission on working days as
defined by Article 23 of the Implementing Regulation. In order to enable it to
be registered onthe same day, it must be delivered before 17.00 onMon days to
Thursdays and before 16.00 on Fridays, at the following address:
Commissionof the EuropeanCommun ities
Directorate-General for Competition (DG IV)
Merger Task Force
150 avenue de Cortenberg/Kortenberglaan 150B-1049 Brussels.1998R0447 — EN — 02.03.1998 — 000.001 — 16
▼B
F.Confidentiality
Article 214 of the Treaty and Article 17(2) of the Merger Regulation as well as
the corresponding provisions of the EEA Agreement (1) require the Commission,
the Member States, the EFTA Surveillance Authority and the EFTA States, their
officials and other servants not to disclose information they have acquiredthrough the applicationof the Regulationof the kin d covered by the obligation
of professional secrecy. The same principle must also apply to protect confiden-
tiality between notifying parties.
If you believe that your interests would be harmed if any of the information you
are asked to supply were to be published or otherwise divulged to other parties,
submit this information separately with each page clearly marked ‘Business
Secrets’. You should also give reasons why this information should not be
divulged or published.
In the case of mergers or joint acquisitions, or in other cases where the notifica-
tion is completed by more than one of the parties, business secrets may be
submitted under separate cover, and referred to in the notification as an annex.
All such annexes must be included in the submission in order for a notification
to be considered complete.
G.Definitionsandinstructionsforpurposesofthisform
Notifying party or parties : in cases where a notification is submitted by only one
of the undertakings party to an operation, ‘notifying parties’ is used to refer only
to the undertaking actually submitting the notification.
Party(parties) to the concentration : these terms relate to both the acquiring and
acquired parties, or to the merging parties, including all undertakings in which a
controlling interest is being acquired or which is the subject of a public bid.
Except where otherwise specified, the terms ‘notifying party(parties)’ and
‘party(parties) to the concentration’ include all the undertakings which belong
to the same groups as those ‘parties’.
Affected markets : Section 6 of this form requires the notifying parties to define
the relevant product markets, and further to identify which of those relevant
markets are likely to be affected by the notified operation. This definition of
affected market is used as the basis for requiring information for a number of
other questions contained in this form. The definitions thus submitted by the
notifying parties are referred to in this form as the affected market(s). This
term canrefer to a relevan t market made up either of products or of services.
Year: all references to the word ‘year’ in this form should be read as meaning
calendar year, unless otherwise stated. All information requested in this form
must, unless otherwise specified, relate to the year preceding that of the notifi-
cation.
The financial data requested in Sections 2.3 to 2.5 must be provided in ecus at
the average conversion rates prevailing for the years or other periods in ques-
tion.
All references contained in this form are to the relevant Articles and paragraphs
of Council Regulation (EEC) No 4064/89, unless otherwise stated.
SECTION 1
Backgroundinformation
1.1.Information on notifying party (or parties)
Give details of:
1.1.1. name and address of undertaking;
1.1.2. nature of the undertaking's business;1.1.3. name, address, telephone number, fax number and/or telex of, and posi-
tion held by, the appropriate contact person.
1.2.Information on other parties (
2)to the concentration
For each party to the concentration (except the notifying party or parties)
give details of:1998R0447 — EN — 02.03.1998 — 000.001 — 17
(1) See, inparticular, Article 122 of the EEA Agreemen t, Article 9 of Protocol 24 to the
EEA Agreement and Article 17(2) of Chapter XIII of Protocol 4 to the Agreementbetween the EFTA States on the establishment of a Surveillance Authority and a Courtof Justice (ESA Agreement).
(
2) This includes the target company in the case of a contested bid, in which case the
details should be completed as far as is possible.
▼B
1.2.1. name and address of undertaking;
1.2.2. nature of undertaking's business;1.2.3. name, address, telephone number, fax number and/or telex of, and posi-
tion held by the appropriate contact person.
1.3.Address for service
Give an address (in Brussels if available) to which all communications
may be made and documents delivered.
1.4.Appointment of representatives
Where notifications are signed by representatives of undertakings, such
representatives must produce written proof that they are authorised to act.
If a joint notification is being submitted, has a joint representative been
appointed?
If yes, please give the details requested inSection s 1.4.1 to 1.4.4.If no, please give details of information of any representatives who have
been authorised to act for each of the parties to the concentration, indi-
cating whom they represent:
1.4.1. name of representative;
1.4.2. address of representative;
1.4.3. name of person to be contacted (and address, if different from 1.4.2);1.4.4. telephone number, fax number and/or telex.
SECTION 2
Detailsoftheconcentration
2.1.Describe the nature of the concentration being notified. In doing so state:
(a) whether the proposed concentration is a full legal merger, an acquisi-
tion of sole or joint control, a full-function joint venture within the
meaning of Article 3(2) of the Merger Regulation or a contract or
other means of conferring direct or indirect control within the
meaning of Article 3(3) of the Merger Regulation;
(b) whether the whole or parts of parties are subject to the concentration;
(c) a brief explanation of the economic and financial structure of the
concentration;
(d) whether any public offer for the securities of one party by another
party has the support of the former's supervisory boards of manage-
ment or other bodies legally representing that party;
(e) the proposed or expected date of any major events designed to bring
about the completion of the concentration;
(f) the proposed structure of ownership and control after the completion
of the concentration;
(g) any financial or other support received from whatever source
(including public authorities) by any of the parties and the nature
and amount of this support.
2.2.List the economic sectors involved in the concentration
2.3.For each of the undertakings concerned by the concentration (
1)provide
the following data (2)for the last financial year:
2.3.1. worldwide turnover;2.3.2. Community-wide turnover;2.3.3. EFTA-wide turnover;2.3.4. turnover in each Member State;
2.3.5. turnover in each EFTA State;1998R0447 — EN — 02.03.1998 — 000.001 — 18
(1) See Commission notice on the concept of undertakings concerned.
(2) See, generally, the Commission notice on calculation of turnover. Turnover of the
acquiring party or parties to the concentration should include the aggregated turnoverof all undertakings within the meaning of Article 5(4). Turnover of the acquired partyor parties should include the turnover relating to the parts subject to the transactionwithin the meaning of Article 5(2). Special provisions are contained in Articles 5(3),
(4) and 5(5) for credit, insurance, other financial institutions and joint undertakings.
▼B
2.3.6. the Member State, if any, in which more than two thirds of Community-
wide turnover is achieved (1);
2.3.7. the EFTA State, if any, in which more than two thirds of EFTA-wide
turnover is achieved.
2.4.For the purposes of Article 1(3) of the Merger Regulation, if the opera-
tion does not meet the thresholds set out in Article 1(2), provide the
following data for the last financial year:
2.4.1. the Member States, if any, in which the combined aggregate turnover of
all the undertakings concerned is more than ECU 100 million;
2.4.2. the Member States, if any, in which the aggregate turnover of each of at
least two of the undertakings concerned is more than ECU 25 million.
2.5.Provide the following information with respect to the last financial year:
2.5.1. does the combined turnover of the undertakings concerned in the territory
of the EFTA States equal 25 % or more of their total turnover in the EEA
territory?
2.5.2. does each of at least two undertakings concerned have a turnover
exceeding ECU 250 million in the territory of the EFTA States?
SECTION 3
Ownershipandcontrol (2)
For each of the parties to the concentration provide a list of all undertakings
belonging to the same group.
This list must include:
3.1. all undertakings or persons controlling these parties, directly or indirectly;
3.2. all undertakings active on any affected market (3) that are controlled,
directly or indirectly:
(a) by these parties;
(b) by any other undertaking identified in 3.1.
For each entry listed above, the nature and means of control should be specified.
The information sought in this section may be illustrated by the use of organisa-
tion charts or diagrams to show the structure of ownership and control of the
undertakings.
SECTION 4
Personalandfinanciallinksandpreviousacquisitions
With respect to the parties to the concentration and each undertaking or person
identified in response to Section 3, provide:
4.1. a list of all other undertakings which are active on affected markets
(affected markets are defined in Section 6 in which the undertakings, or
persons, of the group hold individually or collectively 10 % or more of
the voting rights, issued share capital or other securities;
in each case identify the holder and state the percentage held;
4.2. a list for each undertaking of the members of their boards of management
who are also members of the boards of management or of the supervisory
boards of any other undertaking which is active on affected markets; and
(where applicable) for each undertaking a list of the members of their
supervisory boards who are also members of the boards of management
of any other undertaking which is active on affected markets;
in each case identify the name of the other undertaking and the positions
held;
4.3. details of acquisitions made during the last three years by the groups
identified above (Section 3) of undertakings active in affected markets
as defined in Section 6.
Information provided here may be illustrated by the use of organisation
charts or diagrams to give a better understanding.1998R0447 — EN — 02.03.1998 — 000.001 — 19
(1) See Guidance Note III for the calculation of turnover in one Member State with respect
to Community-wide turnover.
(2) See Article 3(3), (4) and (5) and Article 5(4).
(3) See Section6 for the defin itionof affected markets.
▼B
SECTION 5
Supportingdocumentation
Notifying parties must provide the following:5.1. copies of the final or most recent versions of all documents bringing
about the concentration, whether by agreement between the parties to
the concentration, acquisition of a controlling interest or a public bid;
5.2. in a public bid, a copy of the offer document; if it is unavailable at the
time of notification, it should be submitted as soon as possible and not
later thanwhenit is posted to shareholders;
5.3. copies of the most recent annual reports and accounts of all the parties to
the concentration;
5.4. where at least one affected market is identified:
copies of analyses, reports, studies and surveys submitted to or prepared
for any member(s) of the board of directors, the supervisory board, or the
shareholders' meeting, for the purpose of assessing or analysing the
concentration with respect to competitive conditions, competitors (actual
and potential), and market conditions.
SECTION 6
Marketdefinitions
The relevant product and geographic markets determine the scope within which
the market power of the new entity resulting from the concentration must be
assessed(
1).
The notifying party or parties must provide the data requested having regard to
the following definitions:
I.Relevant product markets
A relevant product market comprises all those products and/or services
which are regarded as interchangeable or substitutable by the consumer,
by reason of the products' characteristics, their prices and their intended
use. A relevant product market may in some cases be composed of a
number of individual products and/or services which present largely iden-
tical physical or technical characteristics and are interchangeable.
Factors relevant to the assessment of the relevant product market include
the analysis of why the products or services in these markets are included
and why others are excluded by using the above definition, and having
regard to, for example, substitutability, conditions of competition, prices,
cross-price elasticity of demand or other factors relevant for the definition
of the product markets.
II.Relevant geographic markets
The relevant geographic market comprises the area in which the under-
takings concerned are involved in the supply and demand of relevant
products or services, in which the conditions of competition are suffi-
ciently homogeneous and which can be distinguished from neighbouring
geographic areas because, in particular, conditions of competition are
appreciably different in those areas.
Factors relevant to the assessment of the relevant geographic market
include the nature and characteristics of the products or services
concerned, the existence of entry barriers, consumer preferences, appreci-
able differences in the undertakings' market shares between neighbouring
geographic areas or substantial price differences.
III.Affected markets
For purposes of information required in this form, affected markets
consist of relevant product markets where, in the EEA territory, in the
Community, in the territory of the EFTA States, in any Member State or
inan y EFTA State:
(a) two or more of the parties to the concentration are engaged in busi-
ness activities in the same product market and where the
concentration will lead to a combined market share of 15 % or
more. These are horizontal relationships;1998R0447 — EN — 02.03.1998 — 000.001 — 20
(1) See Commission notice on the definition of the relevant market for the purposes of
Community competition law.
▼B
(b) one or more of the parties to the concentration are engaged in busi-
ness activities in a product market, which is upstream or downstream
of a product market in which any other party to the concentration is
engaged, and any of their individual or combined market shares is
25 % or more, regardless of whether there is or is not any existing
supplier/customer relationship between the parties to the concentra-
tion. These are vertical relationships.
On the basis of the above definitions and market share thresholds,
provide the following information:
6.1. Identify each affected market within the meaning of Section III, at:
(a) the EEA, Community or EFTA level;
(b) the individual Member States or EFTA States level.
IV.Markets related to affected markets within the meaning of Section III
6.2. Describe the relevant product and geographic markets concerned by
the notified operation, which are closely related to the affected
market(s) (in upstream, downstream and horizontal neighbouring
markets), where any of the parties to the concentration are active
and which are not themselves affected markets within the meaning
of SectionIII.
V.Non-affected markets
6.3. In case there are no affected markets in the meaning of Section 6.1,
describe the product and geographic scope of the markets on which
the notified operation would have an impact.
SECTION 7
Informationonaffectedmarkets
For each affected relevant product market, for each of the last three financial
years (1):
(a) for the EEA territory,
(b) for the Community as a whole,
(c) for the territory of the EFTA States as a whole,
(d) individually for each Member State and EFTA State where the parties to the
concentration do business,
(e) and, where in the opinion of the notifying parties, the relevant geographic
market is different,
provide the following:7.1. anestimate of the total size of the market interms of sales value (in
ecus) and volume (units)(
2). Indicate the basis and sources for the calcu-
lations and provide documents where available to confirm these
calculations;
7.2. the sales invalue an d volume, as well as anestimate of the market
shares, of each of the parties to the concentration;
7.3. anestimate of the market share invalue (an d where appropriate volume)
of all competitors (including importers) having at least 10 % of the
geographic market under consideration. Provide documents where avail-
able to confirm the calculation of these market shares and provide the
name, address, telephone number, fax number and appropriate contact
person, of these competitors;
7.4. an estimate of the total value and volume and source of imports from
outside the EEA territory and identify:
(a) the proportionof such imports that are derived from the groups to
which the parties to the concentration belong,
(b) an estimate of the extent to which any quotas, tariffs or non-tariff
barriers to trade, affect these imports, and
(c) an estimate of the extent to which transportation and other costs
affect these imports,1998R0447 — EN — 02.03.1998 — 000.001 — 21
(1) Without prejudice to Article 3(2) of the Implementing Regulation, the information
required under 7.1 and 7.2 below must be provided with regard to all the territoriesunder (a), (b), (c), (d) and (e).
(
2) The value and volume of a market should reflect output less exports plus imports for
the geographic areas under consideration.
▼B
7.5. the extent to which trade among States within the EEA territory is
affected by:
(a) transportation and other costs, and
(b) other non-tariff barriers to trade;
7.6. the manner in which the parties to the concentration produce and sell the
products and/or services; for example, whether they manufacture locally,
or sell through local distributionfacilities;
7.7. a comparisonof price levels ineach Member State an d EFTA State by
each party to the concentration and a similar comparison of price levels
between the Community, the EFTA States and other areas where these
products are produced (e.g. easternEurope, the Un ited States of America,
Japan, or other relevant areas);
7.8. the nature and extent of vertical integration of each of the parties to the
concentration compared with their largest competitors.
SECTION 8
Generalconditionsinaffectedmarkets
8.1. Identify the five largest independent (1) suppliers to the parties and their
individual shares of purchases from each of these suppliers (of raw mate-
rials or goods used for purposes of producing the relevant products).
Provide the name, address, telephone number, fax number and appro-
priate contact person, of these suppliers.
Structureofsupplyinaffectedmarkets
8.2. Explain the distribution channels and service networks that exist on the
affected markets. In so doing, take account of the following where appro-
priate:
(a) the distribution systems prevailing on the market and their impor-
tance. To what extent is distribution performed by third parties and/
or undertakings belonging to the same group as the parties identified
inSection3?
(b) the service networks (for example, maintenance and repair) prevailing
and their importance in these markets. To what extent are such
services performed by third parties and/or undertakings belonging to
the same group as the parties identified in Section 3?
8.3. Where appropriate, provide an estimate of the total Community-wide and
EFTA-wide capacity for the last three years. Over this period what
proportionof this capacity is accoun ted for by each of the parties to the
concentration, and what have been their respective rates of capacity utili-
sation.
8.4. If you consider any other supply-side considerations to be relevant, they
should be specified.
Structureofdemandinaffected markets
8.5. Identify the five largest independent customers of the parties in each
affected market and their individual share of total sales for such products
accounted for by each of those customers. Provide the name, address,
telephone number, fax number and appropriate contact person, of each
of these customers.
8.6. Explainthe structure of deman d interms of:
(a) the phases of the markets interms of, for example, take-off, expan -
sion, maturity and decline, and a forecast of the growth rate of
demand;
(b) the importance of customer preferences, in terms of brand loyalty,
product differentiation and the provision of a full range of products;
(c) the degree of concentration or dispersion of customers;
(d) segmentation of customers into different groups with a description of
the ‘typical customer’ of each group;1998R0447 — EN — 02.03.1998 — 000.001 — 22
(1) That is suppliers which are not subsidiaries, agents or undertakings forming part of the
group of the party in question. In addition to those five independent suppliers the noti-fying parties can, if they consider it necessary for a proper assessment of the case,iden tify the in tra-group suppliers. The same will apply in8.5 inrelationwith custo-
mers.
▼B
(e) the importance of exclusive distribution contracts and other types of
long-term contracts;
(f) the extent to which public authorities, government agencies, State
enterprises or similar bodies are important participants as a source
of demand.
Marketentry
8.7. Over the last five years, has there been any significant entry into any
affected markets? If the answer is ‘yes’, where possible provide their
name, address, telephone number, fax number and appropriate contact
person, and an estimate of their current market shares.
8.8. In the opinion of the notifying parties are there undertakings (including
those at present operating only in extra-Community or extra-EEA
markets) that are likely to enter the market? If the answer is ‘yes’, please
explain why and identify such entrants by name, address, telephone
number, fax number and appropriate contact person, and an estimate of
the time withinwhich such en try is likely to occur.
8.9. Describe the various factors influencing entry into affected markets that
exist in the present case, examining entry from both a geographical and
product viewpoint. In so doing, take account of the following where
appropriate:
(a) the total costs of entry (R & D, establishing distribution systems,
promotion, advertising, servicing, etc.) on a scale equivalent to a
significant viable competitor, indicating the market share of such a
competitor;
(b) any legal or regulatory barriers to entry, such as government author-
isation or standard setting in any form;
(c) any restrictions created by the existence of patents, know-how and
other intellectual property rights in these markets and any restrictions
created by licensing such rights;
(d) the extent to which each of the parties to the concentration are licen-
sees or licensors of patents, know-how and other rights in the
relevant markets;
(e) the importance of economies of scale for the production of products
inthe affected markets;
(f) access to sources of supply, such as availability of raw materials.
Researchanddevelopment
8.10. Give an account of the importance of research and development in the
ability of a firm operating on the relevant market(s) to compete in the
long term. Explain the nature of the research and development in affected
markets carried out by the parties to the concentration.
In so doing, take account of the following, where appropriate:
(a) trends and intensities of research and development (1) inthese
markets and for the parties to the concentration;
(b) the course of technological development for these markets over an
appropriate time period (including developments in products and/or
services, productionprocesses, distributionsystems, etc.);
(c) the major innovations that have been made in these markets and the
undertakings responsible for these innovations;
(d) the cycle of innovation in these markets and where the parties are in
this cycle of innovation.
Cooperativeagreements
8.11. To what extent do cooperative agreements (horizontal or vertical) exist in
the affected markets?
8.12. Give details of the most important cooperative agreements engaged in by
the parties to the concentration in the affected markets, such as research
and development, licensing, joint production, specialisation, distribution,
long term supply and exchange of information agreements.1998R0447 — EN — 02.03.1998 — 000.001 — 23
(1) Research and development intensity is defined as research development expenditure as
a proportionof turn over.
▼B
Tradeassociations
8.13. With respect to the trade associations in the affected markets:
(a) identify those in which the parties to the concentration are members;
(b) identify the most important trade associations to which the customers
and suppliers of the parties to the concentration belong.
Provide the name, address, telephone number, fax number and appro-
priate contact person of all trade associations listed above.
SECTION 9
General marketinformation
Market data on conglomerate aspects
Where any of the parties to the concentration hold individually a market share
of 25% or more for any product market in which there is no horizontal or
vertical relationship as described above, provide the following information:
9.1. a description of each product market and explain why the products and/or
services in these markets are included (and why others are excluded) by
reason of their characteristics, prices and their intended use;
9.2. anestimate of the value of the market an d the market shares of each of
the groups to which the parties belong for each product market identified
in 9.1 for the last financial year:
(a) for the EEA territory as a whole;
(b) for the Community as a whole;
(c) for the territory of the EFTA States as a whole;
(d) individually for each Member State and EFTA State where the
groups to which the parties belong do business;
(e) and, where different, for the relevant geographic market.
Overview of the markets
9.3. Describe the worldwide context of the proposed concentration, indicating
the position of each of the parties to the concentration outside of the EEA
territory in terms of size and competitive strength.
9.4. Describe how the proposed concentration is likely to affect the interests
of intermediate and ultimate consumers and the development of technical
and economic progress.
SECTION 10
Cooperativeeffectsofajointventure
10. For the purpose of Article 2(4) of the Merger Regulationplease an swer
the following questions:
(a) Do two or more parents retain to a significant extent activities in the
same market as the joint venture or in a market which is downstream
or upstream from that of the joint venture or in a neighbouring
market closely related to this market (1)?
If the answer is affirmative, please indicate for each of the markets
referred to here:
— the turnover of each parent company in the preceding financial
year,
— the economic significance of the activities of the joint venture in
relationto this turn over,
— the market share of each parent.
If the answer is negative, please justify your answer.
(b) If the answer to (a) is affirmative and in your view the creation of the
joint venture does not lead to coordination between independent
undertakings that restricts competition within the meaning of Article
85(1) of the EC Treaty, give your reasons.
(c) Without prejudice to the answers to (a) and (b) and in order to ensure
that a complete assessment of the case can be made by the Commis-
sion, please explain how the criteria of Article 85(3) apply.1998R0447 — EN — 02.03.1998 — 000.001 — 24
(1) For market definitions refer to Section 6.
▼B
Under Article 85(3), the provisions of Article 85(1) may be declared
inapplicable if the operation:
(i) contributes to improving the production or distribution of goods,
or to promoting technical or economic progress;
(ii) allows consumers a fair share of the resulting benefit;
(iii) does not impose on the undertakings concerned restrictions
which are not indispensable to the attainment of these objec-
tives; and
(iv) does not afford such undertakings the possibility of eliminating
competitioninrespect of a substan tial part of the products in
question.
For guidance, please refer to form A/B, and in particular Sections 16 and
17 thereof, annexed to Commission Regulation (EC) No 3385/94 (1).
SECTION 11
Generalmatters
Ancillary restraints
11.1. If the parties to the concentration, and/or other involved parties (including
the seller and minority shareholders), enter into ancillary restrictions
directly related and necessary to the implementation of the concentration,
these restrictions may be assessed in conjunction with the concentration
itself (see Article 6(1)(b) and Article 8(2) of the Merger Regulation,
recital 25 to the Merger Regulation, recital 7 to Regulation (EC)
No 1310/97 and the Commission notice on restrictions ancillary to
concentrations) (2).
(a) Identify each ancillary restriction in the agreements provided with the
notification for which you request an assessment in conjunction with
the concentration; and
(b) explain why these are directly related and necessary to the implemen-
tation of the concentration.
Conversion of notification
11.2. In the event that the Commission finds that the operation notified does
not constitute a concentration within the meaning of Article 3 of the
Merger Regulation, do you request that it be treated as an application
for negative clearance from, or a notification to obtain an exemption
from Article 85 of the EC Treaty?
SECTION 12
Declaration
Article 1(2) of the Implementing Regulation states that where notifications are
signed by representatives of undertakings, such representatives must produce
writtenproof that they are authorised to act. Such writtenauthorisationmust
accompany the notification.
The notification must conclude with the following declaration which is to be
signed by or on behalf of all the notifying parties:
The undersigned declare that, to the best of their knowledge and belief, the
information given in this notification is true, correct, and complete, that
complete copies of documents required by form CO, have been supplied, and
that all estimates are identified as such and are their best estimates of the under-
lying facts and that all the opinions expressed are sincere.
They are aware of the provisions of Article 14(1)(b) of the Merger Regulation.
Place and date:
Signatures:
Name/s:
Onbehalf of:1998R0447 — EN — 02.03.1998 — 000.001 — 25
(1) OJ L 377, 31.12.1994, p. 28.
(2) OJ L 180, 9.7.1997, p. 1.
▼B
GUIDANCE NOTE I
Calculationofturnoverforinsuranceundertakings
(Article 5(3)(a))
For the calculation of turnover for insurance undertakings, we give the
following example (proposed concentration between insurance A and B):
I.Consolidated profit and loss account
(million ECU)
Income Insurance A Insurance B
Gross premiums written5 000 300
— gross premiums received from Community
residents(4 500) (300)
— gross premiums received from residents of
one (and the same) Member State X(3 600) (270)
Other income 500 50
Total income 5 500 350
II.Calculation of turnover
1. Aggregate worldwide turnover is replaced by the value of gross
premiums writtenworldwide, the sum of which is ECU 5 300 million .
2. Community-wide turnover is replaced, for each insurance undertak-
ings, by the value of gross premiums written with Community
residents. For each of the insurance undertakings, this amount is
more thanECU 250 million .
3. Turnover within one (and the same) Member State X is replaced, for
insurance undertakings, by the value of gross premiums written with
residents of one (and the same) Member State X. For insurance A, it
achieves 80 % of its gross premiums writtenwith Commun ity resi-
dents within Member State X, whereas for insurance B, it achieves
90 % of its gross premiums written with Community residents in that
Member State X.
III.Conclusion
Since
(a) the aggregate worldwide turnover of insurances A and B, as replaced
by the value of gross premiums writtenworldwide, is more than
ECU 5 000 million;
(b) for each of the insurance undertakings, the value of gross premiums
written with Community residents is more than ECU 250 million; but
(c) each of the insurance undertakings achieves more than two thirds of
its gross premiums written with Community residents in one (and the
same) Member State X,
the proposed concentration would not fall under the scope of the Regula-
tion.1998R0447 — EN — 02.03.1998 — 000.001 — 26
▼B
GUIDANCE NOTE II
Calculationofturnoverforjointundertakings
A.Creationofajointundertaking (Article 3(2))
In a case where two (or more) undertakings create a joint undertaking that
constitutes a concentration, turnover is calculated for the undertakings
concerned.
B.Existenceofajointundertaking (Article 5(5))
For the calculation of turnover in case of the existence of a joint undertaking C
between two undertakings A and B concerned in a concentration, we give the
following example:
I.Profit and loss accounts
(million ECU)
Turnover Undertaking A Undertaking B
Sales revenues worldwide 10000 2 000
— Community (8 000) (1 500)
— Member State Y (4 000) (900)
(million ECU)
Turnover Joint undertaking C
Sales revenues worldwide 100
— with undertaking A (20)
— with undertaking B (10)
Turnover with third undertakings 70
— Community-wide (60)
— inMember State Y (50)
II.Consideration of the joint undertaking
(a) The undertaking C is jointly controlled (in the meaning of Article
3(3) and (4)) by the undertakings A and B concerned by the concen-
tration, irrespective of any third undertaking participating in that
undertaking C.
(b) The undertaking C is not consolidated A and B in their profit and
loss accounts.
(c) The turnover of C resulting from operations with A and B shall not
be taken into account.
(d) The turnover of C resulting from operations with any third under-
taking shall be apportioned equally amongst the undertakings A and
B, irrespective of their individual shareholdings in C.
III.Calculation of turnover
(a) Undertaking A's aggregate worldwide turnover shall be calculated as
follows: ECU 10000 million and 50 % of C's worldwide turnover
with third undertakings (i.e. ECU 35 million), the sum of which is
ECU 10035 million.
Undertaking B's aggregate worldwide turnover shall be calculated as
follows: ECU 2 000 million and 50 % of C's world-wide turnover
with third undertakings (i.e. ECU 35 million), the sum of which is
ECU 2 035 million.
(b) The aggregate worldwide turnover of the undertakings concerned is
ECU 12070 million.
(c) Undertaking A achieves ECU 4 025 million within Member State Y
(50 % of C's turnover in this Member State taken into account), and a
Community-wide turnover of ECU 8030 million (including 50 % of
C's Community-wide turnover).1998R0447 — EN — 02.03.1998 — 000.001 — 27
▼B
Undertaking B achieves ECU 925 million within Member State Y
(50 % of C's turnover in this Member State taken into account), and
a Community-wide turnover of ECU 1 530 million (including 50 %
of C's Community-wide turnover).
IV.Conclusion
Since
(a) the aggregate worldwide turnover of undertakings A and B is more
thanECU 5000 million ;
(b) each of the undertakings concerned by the concentration achieves
more thanECU 250 millionwithinthe Commun ity;
c) each of the undertakings concerned (undertaking A 50,1 % and
undertaking B 60,5 %) achieves less than two thirds of its Commu-
nity-wide turnover in one (and the same) Member State Y;
the proposed concentration would fall under the scope of the Regulation.1998R0447 — EN — 02.03.1998 — 000.001 — 28
▼B
GUIDANCE NOTE III
Applicationofthetwo-thirdsrule
(Article 1)
For the application of the two thirds rule for undertakings, we give the following
examples (proposed concentration between undertakings A and B):
I.Consolidated profit and loss accounts
Example 1
(million ECU)
Turnover Undertaking A Undertaking B
Sales revenues worldwide 10000 500
— withinthe Commun ity (8 000) (400)
— inMember State X (6 000) (200)
Example 2(a)
(million ECU)
Turnover Undertaking A Undertaking B
Sale revenues worldwide 4 800 500
— withinthe Commun ity (2 400) (400)
— inMember State X (2 100) (300)
Example 2(b)
Same figures as in example 2(a) but undertaking B achieves ECU 300
millioninMember State Y.
II.Application of the two-thirds rule
Example 1
1. Community-wide turnover is, for undertaking A, ECU 8 000 million
and for undertaking B ECU 400 million.
2. Turnover in one (and the same) Member State X is, for undertaking A
(ECU 6 000 million), 75 % of its Community-wide turnover and is, for
undertaking B (ECU 200 million), 50 % of its Community-wide-turn-
over.
3. Conclusion: In this case, although undertaking A achieves more than
two thirds of its Community-wide turnover in Member State X, the
proposed concentration would fall under the scope of the Regulation
due to the fact that undertaking B achieves less than two thirds of its
Community-wide turnover in Member State X.
Example 2(a)1. Community-wide turnover of undertaking A is ECU 2 400 million and
of undertaking B, ECU 400 million.
2. Turnover in one (and the same) Member State X is, for undertaking A,
ECU 2100 million (i. e. 87,5 % of its Community-wide turnover);
and, for undertaking B, ECU 300 million (i. e. 75 % of its Commu-
nity-wide turnover).
3. Conclusion: In this case, each of the undertakings concerned achieves
more than two thirds of its Community-wide turnover in one (and the
same) Member State X; the proposed concentration would not fall
under the scope of the Regulation.
Example 2(b)Conclusion: In this case, the two thirds rule would not apply due to the
fact that undertakings A and B achieve more than two thirds of their
Community-wide turnover in different Member States X and Y. There-
fore, the proposed concentration would fall under the scope of the
Regulation.1998R0447 — EN — 02.03.1998 — 000.001 — 29