1989R4064 — EN — 01.03.1998 — 002.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B ►C2 COUNCIL REGULATION (EEC) No 4064/89
of 21 December 1989
on the control of concentrations between undertakings ◄
(OJ L 395, 30.12.1989, p. 1)
Amended by:
Official Journal
No page date
►M1Council Regulation (EC) No 1310/97 of 30 June 1997 L 180 1 9.7.1997
Amended by:
►A1Act of Accession of Austria, Sweden and Finland C 241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
Corrected by:►
C1Corrigendum, OJ L 73, 20.3.1990, p. 34 (4064/89)
►C2Corrigendum, OJ L 257, 21.9.1990, p. 13 (4064/89)
►C3Corrigendum, OJ L 3, 7.1.1998, p. 16 (4064/89)
►C4Corrigendum, OJ L 199, 26.7.1997, p. 69 (1310/97)
►C5Corrigendum, OJ L 40, 13.2.1998, p. 17 (1310/97)
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).
▼B
COUNCIL REGULATION (EEC) No 4064/89
of 21 December 1989
on the control of concentrations between undertakings
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Articles87 and 235 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Economic and Social
Committee(3),
(1)Whereas, for the achievement of the aims of the Treaty estab-lishing the European Economic Community, Article 3 (f) gives
the Community the objective of instituting ‘a system ensuring
that competition in the common market isnot dis torted’;
(2)Whereas this system is essential for the achievement of theinternal market by 1992 and itsfurther development;
(3)Whereas the dismantling of internal frontiers is resulting andwill continue to result in major corporate reorganizations in theCommunity, particularly in the form of concentrations;
(4)Whereas such a development must be welcomed as being in line
with the requirementsof dynamic competition and capable of
increasing the competitiveness of European industry, improvingthe conditions of growth and raising the standard of living inthe Community;
(5)Whereas, however, it must be ensured that the process of reorga-
nization does not result in lasting damage to competition;
whereas Community law must therefore include provisionsgoverning those concentrations which may significantly impedeeffective competition in the common market or in a substantialpart of it;
(6)WhereasArticles85 and 86, while applicable, according to thecase-law of the Court of Justice, to certain concentrations, arenot, however, sufficient to control all operations which mayprove to be incompatible with the system of undistorted compe-tition envisaged in the Treaty;
(7)Whereas a new legal instrument should therefore be created inthe form of a Regulation to permit effective control of allconcentrationsfrom the point of view of their effect on the s truc-ture of competition in the Community and to be the only
instrument applicable to such concentrations;
(8)Whereas this Regulation should therefore be based not only on
Article 87 but, principally, on Article 235 of the Treaty, underwhich the Community may give itself the additional powers ofaction necessary for the attainment of its objectives, including
with regard to concentrationson the marketsfor agricultural
productslis ted in Annex II to the Treaty;
(9)Whereas the provisions to be adopted in this Regulation shouldapply to significant structural changes the impact of which on
the market goesbeyond the national bordersof any one Member
State;
(10)Whereas the scope of application of this Regulation shouldtherefore be defined according to the geographical area ofactivity of the undertakingsconcerned and be limited by quanti-1989R4064 — EN — 01.03.1998 — 002.001 — 2
(1) OJ No C 130, 19. 5. 1988, p. 4.
(2) OJ No C 309, 5. 12. 1988, p. 55.
(3) OJ No C 208, 8. 8. 1988, p. 11.▼C2
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tative thresholds in order to cover those concentrations which
have a Community dimension; whereas, at the end of an initialphase of the application of this Regulation, these thresholds
should be reviewed in the light of the experience gained;
(11)Whereas a concentration with a Community dimension exists
where the combined aggregate turnover of the undertakings
concerned exceedsgiven levelsworldwide and within the
Community and where at least two of the undertakingsconcerned have their sole or main fields of activities in differentMember Statesor where, although the undertakingsin ques tionact mainly in one and the same Member State, at least one ofthem has substantial operations in at least one other Member
State; whereas that is also the case where the concentrations are
effected by undertakingswhich do not have their principal fieldsof activities in the Community but which have substantial opera-tionsthere;
(12)Whereasthe arrangementsto be introduced for the control ofconcentrationss hould, without prejudice to Article 90 (2) of theTreaty, respect the principle of non-discrimination between thepublic and the private sectors; whereas, in the public sector,calculation of the turnover of an undertaking concerned in a
concentration needs, therefore, to take account of undertakings
making up an economic unit with an independent power of deci-sion, irrespective of the way in which their capital is held or ofthe rules of administrative supervision applicable to them;
(13)Whereas it is necessary to establish whether concentrations witha Community dimension are compatible or not with the commonmarket from the point of view of the need to maintain anddevelop effective competition in the common market; whereas,in so doing, the Commission must place its appraisal within the
general framework of the achievement of the fundamental objec-
tivesreferred to in Article 2 of the Treaty, including that ofstrengthening the Community's economic and social cohesion,referred to in Article 130a;
(14)Whereas this Regulation should establish the principle that aconcentration with a Community dimension which creates orstrengthens a position as result of which effective competitionin the common market or in a substantial part of it is signifi-cantly impeded isto be declared incompatible with the common
market;
(15)Whereasconcentrationswhich, by reas on of the limited market
share of the undertakings concerned, are not liable to impede
effective competition may be presumed to be compatible with
the common market; whereas, without prejudice to Articles 85and 86 of the Treaty, an indication to this effect exists, in parti-cular, where the market share of the undertakings concerneddoesnot exceed 25 % either in the common market or in asubstantial part of it;
(16)Whereas the Commission should have the task of taking all thedecisions necessary to establish whether or not concentrationswith a Community dimension are compatible with the common
market, as well as decisions designed to restore effective compe-
tition;
(17)Whereas to ensure effective control undertakings should beobliged to give prior notification of concentrationswith a
Community dimension and provision should be made for the
suspension of concentrations for a limited period, and for thepossibility of extending or waiving a suspension where neces-sary; whereas in the interests of legal certainty the validity oftransactions must nevertheless be protected as much as neces-
sary;
(18)Whereas a period within which the Commission must initiate
proceedingsin res pect of a notified concentration and periodswithin which it must give a final decision on the compatibility1989R4064 — EN — 01.03.1998 — 002.001 — 3
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or incompatibility with the common market of a notified concen-
tration should be laid down;
(19)Whereasthe undertakingsconcerned mus t be afforded the rightto be heard by the Commission when proceedings have beeninitiated; whereasthe membersof the management and s upervi-sory bodies and the recognized representatives of the employeesof the undertakingsconcerned, and third partiess howing a legit-
imate interest, must also be given the opportunity to be heard;
(20)Whereas the Commission should act in close and constant liaison
with the competent authoritiesof the Member Statesfrom whichit obtainscommentsand information;
(21)Whereas, for the purposes of this Regulation, and in accordancewith the case-law of the Court of Justice, the Commission mustbe afforded the assistance of the Member States and must alsobe empowered to require information to be given and to carryout the necessary investigations in order to appraise concentra-tions;
(22)Whereascompliance with thisRegulation mus t be enforceableby meansof finesand periodic penalty payments ; whereastheCourt of Justice should be given unlimited jurisdiction in thatregard pursuant to Article 172 of the Treaty;
(23)Whereasit isappropriate to define the concept of concentrationin such a manner as to cover only operations bringing about alasting change in the structure of the undertakings concerned;whereas it is therefore necessary to exclude from the scope ofthisRegulation thos e operationswhich have astheir object oreffect the coordination of the competitive behaviour of undertak-
ings which remain independent, since such operations fall to be
examined under the appropriate provisions of the Regulationsimplementing Articles85 and 86 of the Treaty; whereasit isappropriate to make this distinction specifically in the case ofthe creation of joint ventures;
(24)Whereasthere isno coordination of competitive behaviourwithin the meaning of thisRegulation where two or more under-takingsagree to acquire jointly control of one or more otherundertakings with the object and effect of sharing amongst them-selves such undertakings or their assets;
(25)Whereas this Regulation should still apply where the undertak-ings concerned accept restrictions directly related and necessaryto the implementation of the concentration;
(26)Whereas the Commission should be given exclusive competence
to apply thisRegulation, s ubject to review by the Court of
Justice;
(27)Whereasthe Member Statesmay not apply their national legis la-tion on competition to concentrationswith a Communitydimension, unless this Regulation makes provision therefor;
whereasthe relevant powersof national authoritiess hould be
limited to cases where, failing intervention by the Commission,effective competition islikely to be s ignificantly impeded withinthe territory of a Member State and where the competition inter-ests of that Member State cannot be sufficiently protected
otherwise by this Regulation; whereas the Member States
concerned must act promptly in such cases; whereas this Regula-tion cannot, because of the diversity of national law, fix a singledeadline for the adoption of remedies;
(28)Whereas, furthermore, the exclusive application of this Regula-
tion to concentrationswith a Community dimens ion iswithout
prejudice to Article 223 of the Treaty, and doesnot prevent theMember Statesfrom taking appropriate meas uresto protect legit-imate interests other than those pursued by this Regulation,provided that such measures are compatible with the generalprinciplesand other provis ionsof Community law;1989R4064 — EN — 01.03.1998 — 002.001 — 4
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(29)Whereasconcentrationsnot covered by thisRegulation come, in
principle, within the jurisdiction of the Member States; whereas,
however, the Commission should have the power to act, at therequest of a Member State concerned, in cases where effectivecompetition could be significantly impeded within that MemberState'sterritory;
(30)Whereasthe conditionsin which concentrationsinvolving
Community undertakingsare carried out in non-member coun-
tries should be observed, and provision should be made for thepossibility of the Council giving the Commission an appropriatemandate for negotiation with a view to obtaining non-discrimina-tory treatment for Community undertakings;
(31)WhereasthisRegulation in no way detractsfrom the collective
rightsof employeesasrecognized in the undertakingsconcerned,
HAS ADOPTED THIS REGULATION:
Article 1
Scope
1. Without prejudice to Article 22, thisRegulation s hall apply to all
concentrationswith a Community dimens ion asdefined in paragraphs2
and 3.
2. For the purposes of this Regulation, a concentration has a
Community dimension where:
(a) the combined aggregate worldwide turnover of all the undertakings
concerned ismore than ECU 5 000 million; and
(b) the aggregate Community-wide turnover of each of at least two of
the undertakingsconcerned ismore than ECU 250 million,
unless each of the undertakings concerned achieves more than two-
thirdsof itsaggregate Community-wide turnover within one and thesame Member State.
3. For the purposes of this Regulation, a concentration that does not
meet the thresholds laid down in paragraph 2 has a Community dimen-sion where:
(a) the combined aggregate worldwide turnover of all the undertakings
concerned ismore than ECU 2 500 million;
(b) in each of at least three Member States, the combined aggregate
turnover of all the undertakingsconcerned ismore than ECU 100million;
(c) in each of at least three Member States included for the purpose of
point (b), the aggregate turnover of each of at least two of theundertakingsconcerned ismore than ECU 25 million; and
(d) the aggregate Community-wide turnover of each of at least two of
the undertakingsconcerned ismore than ECU 100 million;
unless each of the undertakings concerned achieves more than two-
thirdsof itsaggregate Community-wide turnover within one and the
same Member State.
4. Before 1 July 2000 the Commission shall report to the Council on
the operation of the thresholds and criteria set out in paragraphs 2 and
3.
5. Following the report referred to in paragraph 4 and on a proposal
from the Commission, the Council, acting by a qualified majority, mayrevise the thresholds and criteria mentioned in paragraph 3.1989R4064 — EN — 01.03.1998 — 002.001 — 5
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Article 2
Appraisal of concentrations
1. Concentrations within the scope of this Regulation shall be
appraised in accordance with the following provisions with a view to
establishing whether or not they are compatible with the commonmarket.
In making this appraisal, the Commission shall take into account:
(a) the need to maintain and develop effective competition within the
common market in view of, among other things, the structure of all
the marketsconcerned and the actual or potential competition fromundertakingslocated either within or outwith the Community;
(b) the market position of the undertakings concerned and their
economic and financial power, the alternativesavailable tosuppliers and users, their access to supplies or markets, any legalor other barriersto entry, s upply and demand trendsfor the rele-
vant goods and services, the interests of the intermediate and
ultimate consumers, and the development of technical andeconomic progress provided that it is to consumers' advantage anddoesnot form an obs tacle to competition.
2. A concentration which doesnot create or s trengthen a dominant
position as a result of which effective competition would be signifi-cantly impeded in the common market or in a substantial part of itshall be declared compatible with the common market.
3. A concentration which creates or strengthens a dominant position
as a result of which effective competition would be significantlyimpeded in the common market or in a substantial part of it shall be
declared incompatible with the common market.
4. To the extent that the creation of a joint venture constituting a
concentration pursuant to Article 3 has as its object or effect the coor-
dination of the competitive behaviour of undertakingsthat remain
independent, such coordination shall be appraised in accordance withthe criteria of Article 85 (1) and (3) of the Treaty, with a view to estab-lishing whether or not the operation is compatible with the commonmarket.
In making this appraisal, the Commission shall take into account in
particular:
— whether two or more parent companiesretain to a s ignificant extent
activitiesin the s ame market asthe joint venture or in a marketwhich is downstream or upstream from that of the joint venture or
in a neighbouring market closely related to this market,
— whether the coordination which isthe direct cons equence of the
creation of the joint venture affordsthe undertakingsconcernedthe possibility of eliminating competition in respect of a substantial
part of the products or services in question.
Article 3
Definition of concentration
1. A concentration shall be deemed to arise where:
(a) two or more previously independent undertakings merge, or
(b) — one or more persons already controlling at least one under-
taking, or
— one or more undertakings
acquire, whether by purchase of securities or assets, by contract or
by any other means, direct or indirect control of the whole or parts
of one or more other undertakings.
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The creation of a joint venture performing on a lasting basis all the
functionsof an autonomouseconomic entity ►M1 ◄
shall constitute a concentration within the meaning of paragraph 1 (b).
3. For the purposes of this Regulation, control shall be constituted
by rights, contracts or any other means which, either separately or incombination and having regard to the considerations of fact or lawinvolved, confer the possibility of exercising decisive influence on anundertaking, in particular by:
(a) ownership or the right to use all or part of the assets of an under-
taking;
(b) rights or contracts which confer decisive influence on the composi-
tion, voting or decisions of the organs of an undertaking.
4. Control isacquired by pers onsor undertakingswhich:
(a) are holdersof the rightsor entitled to rightsunder the contracts
concerned; or
(b) while not being holdersof s uch rightsor entitled to rightsunder
such contracts, have the power to exercise the rights deriving there-from.
5. A concentration shall not be deemed to arise where:
(a) credit institutions or other financial institutions or insurance compa-
nies, the normal activities of which include transactions and dealing
in securities for their own account or for the account of others, holdon a temporary basis securities which they have acquired in anundertaking with a view to reselling them, provided that they donot exercise voting rights in respect of those securities with aview to determining the competitive behaviour of that undertaking
or provided that they exercise such voting rights only with a view
to preparing the disposal of all or part of that undertaking or of itsassets or the disposal of those securities and that any such disposaltakesplace within one year of the date of acquis ition; that periodmay be extended by the Commission on request where such institu-
tions or companies can show that the disposal was not reasonably
possible within the period set;
(b) control isacquired by an office-holder according to the law of a
Member State relating to liquidation, winding up, insolvency,
cessation of payments, compositions or analogous proceedings;
(c) the operationsreferred to in paragraph 1 (b) are carried out by the
financial holding companiesreferred to in Article 5 (3) of theFourth Council Directive 78/660/EEC of 25 July 1978 on the
annual accountsof certain typesof companies (
1), aslas t amended
by Directive 84/569/EEC(2), provided however that the voting
rights in respect of the holding are exercised, in particular in rela-tion to the appointment of membersof the management andsupervisory bodies of the undertakings in which they have hold-ings, only to maintain the full value of those investments and not
to determine directly or indirectly the competitive conduct of those
undertakings.
Article 4
Prior notification of concentrations
1. Concentrationswith a Community dimens ion defined in this
Regulation shall be notified to the Commission not more than oneweek after the conclusion of the agreement, or the announcement ofthe public bid, or the acquisition of a controlling interest. That week
shall begin when the first of those events occurs.
2. A concentration which consists of a merger within the meaning of
Article 3 (1) (a) or in the acquisition of joint control within themeaning of Article 3 (1) (b) shall be notified jointly by the parties to1989R4064 — EN — 01.03.1998 — 002.001 — 7
(1) OJ No L 222, 14. 8. 1978, p. 11.
(2) OJ No L 314, 4. 12. 1984, p. 28.
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the merger or by those acquiring joint control as the case may be. In all
other cases, the notification shall be effected by the person or under-taking acquiring control of the whole or partsof one or more
undertakings.
3. Where the Commission finds that a notified concentration falls
within the scope of this Regulation, it shall publish the fact of the noti-
fication, at the same time indicating the names of the parties, the nature
of the concentration and the economic sectors involved. The Commis-sion shall take account of the legitimate interest of undertakings in theprotection of their business secrets.
Article 5
Calculation of turnover
1. Aggregate turnover within the meaning of Article 1 (2) shall
comprise the amounts derived by the undertakings concerned in thepreceding financial year from the sale of products and the provisionof services falling within the undertakings' ordinary activities afterdeduction of sales rebates and of value added tax and other taxes
directly related to turnover. The aggregate turnover of an undertaking
concerned shall not include the sale of products or the provision ofservices between any of the undertakings referred to in paragraph 4.
Turnover, in the Community or in a Member State, shall comprise
products sold and services provided to undertakings or consumers, in
the Community or in that Member State asthe cas e may be.
2. By way of derogation from paragraph 1, where the concentration
consists in the acquisition of parts, whether or not constituted as legal
entities, of one or more undertakings, only the turnover relating to theparts which are the subject of the transaction shall be taken intoaccount with regard to the seller or sellers.
However, two or more transactions within the meaning of the first
subparagraph which take place within a two-year period between thesame persons or undertakings shall be treated as one and the sameconcentration arising on the date of the last transaction.
3. In place of turnover the following shall be used:
(a) for credit institutions and other financial institutions, as regards
Article 1 (2) and (3), the sum of the following income items asdefined in Council Directive 86/635/EEC of 8 December 1986 on
the annual accountsand cons olidated accountsof banksand other
financial institutions(
1), after deduction of value added tax and
other taxes directly related to those items, where appropriate:
(i) interest income and similar income;
(ii) income from securities:
— income from shares and other variable yield securities,
— income from participating interests,
— income from shares in affiliated undertakings;
(iii) commissions receivable;
(iv) net profit on financial operations;
(v) other operating income.
The turnover of a credit or financial institution in the Commu-
nity or in a Member State shall comprise the income items, as
defined above, which are received by the branch or division of
that institution established in the Community or in theMember State in question, as the case may be;
(b) for insurance undertakings, the value of gross premiums written
which shall comprise all amounts received and receivable inrespect of insurance contracts issued by or on behalf of the insur-ance undertakings, including also outgoing reinsurance premiums,1989R4064 — EN — 01.03.1998 — 002.001 — 8
(1) OJ No L 372, 31. 12. 1986, p. 1.▼M1
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and after deduction of taxesand parafis cal contributionsor levies
charged by reference to the amountsof individual premiumsorthe total volume of premiums; as regards Article 1 (2) (b) and
(3) (b), (c) and (d) and the final part of Article 1 (2) and (3), gross
premiums received from Community residents and from residentsof one Member State respectively shall be taken into account.
4. Without prejudice to paragraph 2, the aggregate turnover of an
undertaking concerned within the meaning of Article 1 (2) and (3) shallbe calculated by adding together the respective turnovers of the
following:
(a) the undertaking concerned;
(b) those undertakings in which the undertaking concerned, directly or
indirectly;
— owns more than half the capital or business assets, or
— has the power to exercise more than half the voting rights, or
— hasthe power to appoint more than half the membersof the
supervisory board, the administrative board or bodies legally
representing the undertakings, or
— has the right to manage the undertakings' affairs;
(c) those undertakings which have in the undertaking concerned the
rightsor powerslis ted in (b);
(d) those undertakings in which an undertaking as referred to in (c) has
the rightsor powerslis ted in (b);
(e) thos e undertakingsin which two or more undertakingsasreferred
to in (a) to (d) jointly have the rightsor powerslis ted in (b).
5. Where undertakingsconcerned by the concentration jointly have
the rightsor powerslis ted in paragraph 4 (b), in calculating the aggre-gate turnover of the undertakingsconcerned for the purpos esof Article1 (2) and (3):
(a) no account shall be taken of the turnover resulting from the sale of
products or the provision of services between the joint undertaking
and each of the undertakingsconcerned or any other undertakingconnected with any one of them, ass et out in paragraph 4 (b) to(e);
(b) account shall be taken of the turnover resulting from the sale of
products and the provision of services between the joint under-taking and any third undertakings. This turnover shall beapportioned equally amongst the undertakings concerned.
Article 6
Examination of the notification and initiation of proceedings
1. The Commission shall examine the notification as soon as it is
received.
(a) Where it concludesthat the concentration notified doesnot fall
within the scope of this Regulation, it shall record that finding by
meansof a decis ion.
(b) Where it findsthat the concentration notified, although falling
within the scope of this Regulation, does not raise serious doubtsasto itscompatibility with the common market, it s hall decide not
to oppose it and shall declare that it is compatible with the
common market.
The decision declaring the concentration compatible shall also
cover restrictions directly related and necessary to the implementa-
tion of the concentration.
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findsthat the concentration notified fallswithin the s cope of this1989R4064 — EN — 01.03.1998 — 002.001 — 9
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Regulation and raises serious doubts as to its compatibility with the
common market, it shall decide to initiate proceedings.
►C52. Where the Commission finds ◄that, following modifica-
tion by the undertakingsconcerned, a notified concentration no longerraises serious doubts within the meaning of paragraph 1 (c), it maydecide to declare the concentration compatible with the commonmarket pursuant to paragraph 1 (b).
The Commission may attach to its decision under paragraph 1 (b)
conditionsand obligationsintended to ens ure that the undertakingsconcerned comply with the commitmentsthey have entered into vis-à-
visthe Commission with a view to rendering the concentration compa-
tible with the common market.
►
C53. The Commission may revoke ◄the decision it has taken
pursuant to paragraph 1 (a) or (b) where:
(a) the decision is based on incorrect information for which one of the
undertakings is responsible or where it has been obtained by deceit,
or
(b) the undertakingsconcerned commit a breach of an obligation
attached to the decision.
►C54. In the cases referred to in paragraph 3, the Commission ◄
may take a decision under paragraph 1, without being bound by thedeadlinesreferred to in Article 10 (1).
►
M1►C55.◄◄ The Commission shall notify its decision to
the undertakingsconcerned and the competent authoritiesof theMember Stateswithout delay.
Article 7
Suspension of concentrations
1. A concentration asdefined in Article 1 s hall not be put into effect
either before itsnotification or until it asbeen declared compatiblewith the common market pursuant to a decision under Article 6 (1)(b) or Article 8 (2) or on the basis of a presumption according toArticle 10 (6).
3.►M1Paragraph 1 ◄shall not prevent the implementation of a
public bid which has been notified to the Commission in accordancewith Article 4 (1), provided that the acquirer doesnot exercis e thevoting rights attached to the securities in question or does so only tomaintain the full value of those investments and on the basis of a dero-
gation granted by the Commission pursuant to paragraph 4.
4. The Commission may, on request, grant a derogation from the
obligations imposed in paragraphs 1 or 3. The request to grant a dero-
gation must be reasoned. In deciding on the request, the Commissionshall take into account inter alia the effects of the suspension on oneor more undertakingsconcerned by a concentration or on a third partyand the threat to competition posed by the concentration. That deroga-tion may be made subject to conditions and obligations in order to
ensure conditions of effective competition. A derogation may be
applied for and granted at any time, even before notification or afterthe transaction.
5. The validity of any transaction carried out in contravention of
paragraph 1 shall be dependent on a decision pursuant to Article 6 (1)
(b) or Article 8 (2) or (3) or on a presumption pursuant to Article 10(6).
This Article shall, however, have no effect on the validity of transac-
tions in securities including those convertible into other securities1989R4064 — EN — 01.03.1998 — 002.001 — 10
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admitted to trading on a market which is regulated and supervised by
authorities recognized by public bodies, operates regularly and is acces-sible directly or indirectly to the public, unless the buyer and seller
knew or ought to have known that the transaction was carried out in
contravention of paragraph 1.
Article 8
Powers of decision of the Commission
1. Without prejudice to Article 9, all proceedingsinitiated purs uant
to Article 6 (1) (c) shall be closed by means of a decision as providedfor in paragraphs2 to 5.
2. Where the Commission finds that, following modification by the
undertakings concerned if necessary, a notified concentration fulfils thecriterion laid down in Article 2 (2) and, in the cases referred to in
Article 2 (4), the criteria laid down in Article 85 (3) of the Treaty, it
shall issue a decision declaring the concentration compatible with thecommon market.
It may attach to itsdecis ion conditionsand obligationsintended to
ensure that the undertakings concerned comply with the commitments
they have entered into vis-à-vis the Commission with a view torendering the concentration compatible with the common market. Thedecision declaring the concentration compatible with the commonmarket shall also cover restrictions directly related and necessary tothe implementation of the concentration.
3. Where the Commission finds that a concentration fulfils the
criterion defined in Article 2 (3) or, in the cases referred to in Article2 (4), doesnot fulfil the criteria laid down in Article 85 (3) of theTreaty, it shall issue a decision declaring that the concentration is
incompatible with the common market.
4. Where a concentration hasalready been implemented, the
Commission may, in a decision pursuant to paragraph 3 or by a sepa-rate decision, require the undertakings or assets brought together to beseparated or the cessation of joint control or any other action that maybe appropriate in order to restore conditions of effective competition.
5. The Commission may revoke the decision it has taken pursuant to
paragraph 2 where:
(a) the declaration of compatibility isbas ed on incorrect information
for which one of the undertakings is responsible or where it has
been obtained by deceit; or
(b) the undertakingsconcerned commit a breach of an obligation
attached to the decision.
6. In the cases referred to in paragraph 5, the Commission may take
a decision under paragraph 3, without being bound by the deadline
referred to in Article 10 (3).
Article 9
Referral to the competent authorities of the Member States
1. The Commission may, by means of a decision notified without
delay to the undertakingsconcerned and the competent authoritiesofthe other Member States, refer a notified concentration to the compe-tent authoritiesof the Member State concerned in the followingcircumstances.1989R4064 — EN — 01.03.1998 — 002.001 — 11
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2. Within three weeksof the date of receipt of the copy of the noti-
fication a Member State may inform the Commission, which shallinform the undertakingsconcerned, that:
(a) a concentration threatensto create or to s trengthen a dominant
position as a result of which effective competition will be signifi-cantly impeded on a market within that Member State, whichpresents all the characteristics of a distinct market, or
(b) a concentration affectscompetition on a market within that
Member State, which presents all the characteristics of a distinctmarket and which does not constitute a substantial part of the
common market.
3. If the Commission considers that, having regard to the market for
the products or services in question and the geographical reference
market within the meaning of paragraph 7, there is such a distinctmarket and that such a threat exists, either:
(a) it shall itself deal with the case in order to maintain or restore
effective competition on the market concerned; or
(b) it shall refer the whole or part of the case to the competent autho-
ritiesof the Member State concerned with a view to the applicationof that State'snational competition law.
If, however, the Commission considers that such a distinct market or
threat does not exist it shall adopt a decision to that effect which itshall address to the Member State concerned.
In cases where a Member State informs the Commission that a concen-
tration affectscompetition in a dis tinct market within itsterritory thatdoes not form a substantial part of the common market, the Commis-sion shall refer the whole or part of the case relating to the distinct
market concerned, if it considers that such a distinct market is affected.
4. A decision to refer or not to refer pursuant to paragraph 3 shall be
taken:
(a) asa general rule within the s ix-week period provided for in Article
10 (1), second subparagraph, where the Commission, pursuant toArticle 6 (1) (b), hasnot initiated proceedings ; or
(b) within three monthsat mos t of the notification of the concentration
concerned where the Commission has initiated proceedings underArticle 6 (1) (c), without taking the preparatory steps in order to
adopt the necessary measures under Article 8 (2), second subpara-
graph, (3) or (4) to maintain or restore effective competition on themarket concerned.
5. If within the three monthsreferred to in paragraph 4 (b) the
Commission, despite a reminder from the Member State concerned,
hasnot taken a decis ion on referral in accordance with paragraph 3
nor hastaken the preparatory s tepsreferred to in paragraph 4 (b), itshall be deemed to have taken a decision to refer the case to theMember State concerned in accordance with paragraph 3 (b).
6. The publication of any report or the announcement of the findings
of the examination of the concentration by the competent authority of
the Member State concerned shall be effected not more than fourmonths after the Commission's referral.
7. The geographical reference market shall consist of the area in
which the undertakingsconcerned are involved in the s upply and
demand of products or services, in which the conditions of competitionare sufficiently homogeneous and which can be distinguished fromneighbouring areasbecaus e, in particular, conditionsof competitionare appreciably different in those areas. This assessment should takeaccount in particular of the nature and characteristics of the products1989R4064 — EN — 01.03.1998 — 002.001 — 12
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or services concerned, of ►C3the existence of entry barriers or of
consumer preferences ◄, of appreciable differencesof the undertak-
ings' market shares between the area concerned and neighbouring
areas or of substantial price differences.
8. In applying the provisions of this Article, the Member State
concerned may take only the measures strictly necessary to safeguardor restore effective competition on the market concerned.
9. In accordance with the relevant provisions of the Treaty, any
Member State may appeal to the Court of Justice, and in particularrequest the application of Article 186, for the purpose of applying itsnational competition law.
10. This Article may be re-examined at the same time as the thresh-
oldsreferred to in Article 1.
Article 10
Time limits for initiating proceedings and for decisions
1. The decisions referred to in Article 6 (1) must be taken within
one month at most. That period shall begin on the day following thatof the receipt of a notification or, if the information to be supplied withthe notification isincomplete, on the day following that of the receiptof the complete information.
That period shall be increased to six weeks if the Commission receives
a request from a Member State in accordance with Article 9 (2)►
M1or where, after notification of a concentration, ►C5the under-
takings concerned submit commitments pursuant to Article 6(2), which
are intended ◄by the parties to form the basis for a decision pursuant
to Article 6 (1) (b) ◄.
2. Decisions taken pursuant to Article 8 (2) concerning notified
concentrations must be taken as soon as it appears that the seriousdoubtsreferred to in Article 6 (1) (c) have been removed, particularlyasa res ult of modificationsmade by the undertakingsconcerned, and at
the latest by the deadline laid down in paragraph 3.
3. Without prejudice to Article 8 (6), decisions taken pursuant to
Article 8 (3) concerning notified concentrationsmus t be taken within
not more than four monthsof the date on which the proceedingsareinitiated.
4.►
M1The periodss et by paragraphs1 and 3 ◄shall exception-
ally be suspended where, owing to circumstances for which one of theundertakings involved in the concentration is responsible, the Commis-sion has had to request information by decision pursuant to Article 11or to order an investigation by decision pursuant to Article 13.
5. Where the Court of Justice gives a Judgement which annuls the
whole or part of a Commission decision taken under this Regulation,
the periods laid down in this Regulation shall start again from the
date of the Judgement.
6. Where the Commission has not taken a decision in accordance
with Article 6 (1) (b) or (c) or Article 8 (2) or (3) within the deadlinesset in paragraphs 1 and 3 respectively, the concentration shall bedeemed to have been declared compatible with the common market,without prejudice to Article 9.
Article 11
Requests for information
1. In carrying out the duties assigned to it by this Regulation, the
Commission may obtain all necessary information from the Govern-mentsand comptent authoritiesof the Member States , from thepersons referred to in Article 3 (1) (b), and from undertakings andassociations of undertakings.1989R4064 — EN — 01.03.1998 — 002.001 — 13
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2. When sending a request for information to a person, an under-
taking or an association of undertakings, the Commission shall at thesame time send a copy of the request to the competent authority of
the Member State within the territory of which the residence of the
person or the seat of the undertaking or association of undertakings issituated.
3. In its request the Commission shall state the legal basis and the
purpose of the request and also the penalties provided for in Article
14 (1) (c) for supplying incorrect information.
4. The information requested shall be provided, in the case of under-
takings, by their owners or their representatives and, in the case oflegal persons, companies or firms, or of associations having no legalpersonality, by the persons authorized to represent them by law or bytheir statutes.
5. Where a person, an undertaking or an association of undertakings
doesnot provide the information reques ted within the period fixed bythe Commission or provides incomplete information, the Commissionshall by decision require the information to be provided. The decisionshall specify what information is required, fix an appropriate period
within which it is to be supplied and state the penalties provided for
in Articles14 (1) (c) and 15 (1) (a) and the right to have the decis ionreviewed by the Court of Justice.
6. The Commission shall at the same time send a copy of its deci-
sion to the competent authority of the Member State within theterritory of which the residence of the person or the seat of the under-
taking or association of undertakings is situated.
Article 12
Investigations by the authorities of the Member States
1. At the request of the Commission, the competent authorities of
the Member States shall undertake the investigations which theCommission considers to be necessary under Article 13 (1), or which
it has ordered by decision pursuant to Article 13 (3). The officials of
the competent authorities of the Member States responsible forconducting those investigations shall exercise their powers uponproduction of an authorization in writing issued by the competentauthority of the Member State within the territory of which the investi-
gation is to be carried out. Such authorization shall specify the subject
matter and purpose of the investigation.
2. If so requested by the Commission or by the competent authority
of the Member State within the territory of which the investigation is tobe carried out, officials of the Commission may assist the officials ofthat authority in carrying out their duties.
Article 13
Investigative powers of the Commission
1. In carrying out the duties assigned to it by this Regulation, the
Commission may undertake all necessary investigations into undertak-ings and associations of undertakings.
To that end the officials authorized by the Commission shall be
empowered:
(a) to examine the books and other business records;
(b) to take or demand copiesof or extractsfrom the booksand bus i-
ness records;
(c) to ask for oral explanations on the spot;
(d) to enter any premises, land and means of transport of undertakings.
2. The officials of the Commission authorized to carry out the inves-
tigations shall exercise their powers on production of an authorizationin writing specifying the subject matter and purpose of the investiga-tion and the penaltiesprovided for in Article 14 (1) (d) in cas es1989R4064 — EN — 01.03.1998 — 002.001 — 14
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where production of the required books or other business records is
incomplete. In good time before the investigation, the Commissionshall inform, in writing, the competent authority of the Member State
within the territory of which the investigation is to be carried out of
the investigation and of the identities of the authorized officials.
3. Undertakings and associations of undertakings shall submit to
investigations ordered by decision of the Commission. The decisionshall specify the subject matter and purpose of the investigation,
appoint the date on which it shall begin and state the penalties provided
for in Articles14 (1) (d) and 15 (1) (b) and the right to have the deci-sion reviewed by the Court of Justice.
4. The Commission shall in good time and in writing inform the
competent authority of the Member State within the territory of which
the investigation is to be carried out of its intention of taking a decision
pursuant to paragraph 3. It shall hear the competent authority beforetaking itsdecis ion.
5. Officialsof the competent authority of the Member State within
the territory of which the investigation is to be carried out may, at therequest of that authority or of the Commission, assist the officials of
the Commission in carrying out their duties.
6. Where an undertaking or association of undertakings opposes an
investigation ordered pursuant to this Article, the Member Stateconcerned shall afford the necessary assistance to the officials author-ized by the Commission to enable them to carry out their investigation.
To this end the Member States shall, after consulting the Commission,
take the necessary measures within one year of the entry into force ofthisRegulation.
Article 14
Fines
1. The Commission may by decision impose on the persons referred
to in Article 3 (1) (b), undertakings or associations of undertakings
finesof from ECU 1 000 to 50 000 where intentionally or negligently:
(a) they fail to notify a concentration in accordance with Article 4;
(b) they supply incorrect or misleading information in a notification
pursuant to Article 4;
(c) they supply incorrect information in response to a request made
pursuant to Article 11 or fail to supply information within the
period fixed by a decision taken pursuant to Article 11;
(d) they produce the required books or other business records in
incomplete form during investigations under Article 12 or 13, or
refuse to submit to an investigation ordered by decision taken
pursuant to Article 13.
2. The Commission may by decision impose fines not exceeding
10 % of the aggregate turnover of the undertakingsconcerned withinthe meaning of Article 5 on the persons or undertakings concerned
where, either intentionally or negligently, they;
(a) fail to comply with an obligation imposed by decision pursuant to
Article 7 (4) or 8 (2), second subparagraph;
(b) put into effect a concentration in breach of Article 7 (1) or disre-
gard a decision taken pursuant to Article 7 (2);
(c) put into effect a concentration declared incompatible with the
common market by decision pursuant to Article 8 (3) or do not
take the measures ordered by decision pursuant to Article 8 (4).
3. In setting the amount of a fine, regard shall be had to the nature
and gravity of the infringement.
4. Decisions taken pursuant to paragraphs 1 and 2 shall not be of a
criminal law nature.1989R4064 — EN — 01.03.1998 — 002.001 — 15
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Article 15
Periodic penalty payments
1. The Commission may by decision impose on the persons referred
to in Article 3 (1) (b), undertakings or associations of undertakingsconcerned periodic penalty paymentsof up to ECU 25 000 for eachday of delay calculated from the date set in the decision, in order to
compel them:
(a) to supply complete and correct information which it has requested
by decision pursuant to Article 11;
(b) to submit to an investigation which it has ordered by decision
pursuant to Article 13.
2.►
C3The Commission may by decision impose ◄on the
persons referred to in Article 3 (1) (b) or on undertakings periodic
penalty paymentsof up to ECU 100 000 for each day of delay calcu-
lated from the date set in the decision, in order to compel them:
(a) to comply with an obligation imposed by decision pursuant to
Article 7 (4) or 8 (2), second subparagraph, or
(b) to apply the measures ordered by decision pursuant to Article 8 (4).
3. Where the persons referred to in Article 3 (1) (b), undertakings or
associations of undertakings have satisfied the obligation which it was
the purpose of the periodic penalty payment to enforce, the Commis-sion may set the total amount of the periodic penalty payments at alower figure than that which would arise under the original decision.
Article 16
Review by the Court of Justice
The Court of Justice shall have unlimited jurisdiction within the
meaning of Article 172 of the Treaty to review decisions whereby theCommission has fixed a fine or periodic penalty payments; it maycancel, reduce or increase the fine or periodic penalty payment
imposed.
Article 17
Professional secrecy
1. Information acquired asa res ult of the application of Articles11,
12, 13 and 18 shall be used only for the purposes of the relevant
request, investigation or hearing.
2. Without prejudice to Articles 4 (3), 18 and 20, the Commission
and the competent authoritiesof the Member States , their officialsandother servants shall not disclose information they have acquired
through the application of thisRegulation of the kind covered by the
obligation of professional secrecy.
3. Paragraphs1 and 2 s hall not prevent publication of general infor-
mation or of surveys which do not contain information relating to
particular undertakings or associations of undertakings.
Article 18
Hearing of the parties and of third persons
1. Before taking any decision provided for in ►
M1Article 7
(4)◄, 8 (2), second subparagraph, and (3) to (5) and Articles 14 and
15, the Commission shall give the persons, undertakings and associa-tionsof undertakingsconcerned the opportunity, at every s tage of theprocedure up to the consultation of the Advisory Committee, of makingknown their viewson the objectionsagains t them.
2. By way of derogation from paragraph 1, a decision to grant a
derogation from suspension as referred to in Article 7 (4) may be takenprovisionally, without the persons, undertakings or associations of1989R4064 — EN — 01.03.1998 — 002.001 — 16
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undertakingsconcerned being given the opportunity to make known
their views beforehand, provided that the Commission gives them thatopportunity as soon as possible after having taken its decision.
3. The Commission shall base its decision only on objections on
which the parties have been able to submit their observations. Therights of the defence shall be fully respected in the proceedings. Accessto the file shall be open at least to the parties directly involved, subject
to the legitimate interest of undertakings in the protection of their busi-
ness secrets.
4. In so far as the Commission or the competent authorities of the
Member States deem it necessary, they may also hear other natural orlegal persons. Natural or legal persons showing a sufficient interest andespecially members of the administrative or management bodies of the
undertakingsconcerned or the recognized repres entativesof their
employeess hall be entitled, upon application, to be heard.
Article 19
Liaison with the authorities of the Member States
1. The Commission shall transmit to the competent authorities of the
Member Statescopiesof notificationswithin three working daysand,as soon as possible, copies of the most important documents lodged
with or issued by the Commission pursuant to this Regulation.
►
M1Such documentss hall include commitmentswhich are intended
by the parties to form the basis for a decision pursuant to Articles 6 (1)(b) or 8 (2). ◄
2. The Commission shall carry out the procedures set out in this
Regulation in close and constant liaison with the competent authorities
of the Member States, which may express their views upon those
procedures. For the purposes of Article 9 it shall obtain informationfrom the competent authority of the Member State asreferred to inparagraph 2 of that Article and give it the opportunity to make knownitsviewsat every s tage of the procedure up to the adoption of a deci-
sion pursuant to paragraph 3 of that Article; to that end it shall give it
access to the file.
3. An Advisory Committee on concentrations shall be consulted
before any decision is taken pursuant to Article 8 (2) to (5), 14 or 15,or any provisions are adopted pursuant to Article 23.
4. The Advisory Committee shall consist of representatives of the
authorities of the Member States. Each Member State shall appoint
one or two representatives; if unable to attend, they may be replaced
by other representatives. At least one of the representatives of aMember State shall be competent in matters of restrictive practicesand dominant positions.
5. Consultation shall take place at a joint meeting convened at the
invitation of and chaired by the Commission. A summary of the case,
together with an indication of the most important documents and apreliminary draft of the decision to be taken for each case considered,shall be sent with the invitation. The meeting shall take place not lessthan 14 days after the invitation has been sent. The Commission may inexceptional cases shorten that period as appropriate in order to avoid
serious harm to one or more of the undertakings concerned by a
concentration.
6. The Advisory Committee shall deliver an opinion on the
Commission's draft decision, if necessary by taking a vote. The Advi-sory Committee may deliver an opinion even if some members areabsent and unrepresented. The opinion shall be delivered in writing
and appended to the draft decision. The Commission shall take the
utmost account of the opinion delivered by the Committee. It shallinform the Committee of the manner in which itsopinion hasbeentaken into account.
7. The Advisory Committee may recommend publication of the
opinion. The Commission may carry out such publication. The decision1989R4064 — EN — 01.03.1998 — 002.001 — 17
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to publish shall take due account of the legitimate interest of undertak-
ings in the protection of their business secrets and of the interest of theundertakingsconcerned in s uch publication'staking place.
Article 20
Publication of decisions
1. The Commission shall publish the decisions which it takes
pursuant to Article 8 (2) to (5) in the Official JournaloftheEuropean
Communities .
2. The publication shall state the names of the parties and the main
content of the decision; it shall have regard to the legitimate interest of
undertakings in the protection of their business secrets.
Article 21
Jurisdiction
1. Subject to review by the Court of Justice, the Commission shall
have sole jurisdiction to take the decisions provided for in this Regula-
tion.
2. No Member State shall apply its national legislation on competi-
tion►
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The first subparagraph shall be without prejudice to any Member
State's power to carry out any enquiries necessary for the application
of Article 9 (2) or after referral, pursuant to Article 9 (3), first subpar-agraph, indent (b), or (5), to take the measures strictly necessary for theapplication of Article 9 (8).
3. Notwithstanding paragraphs 1 and 2, Member States may take
appropriate measures to protect legitimate interests other than thosetaken into consideration by this Regulation and compatible with the
general principlesand other provis ionsof Community law.
Public security, plurality of the media and prudential rules shall be
regarded as legitimate interests within the meaning of the first subpar-agraph.
Any other public interest must be communicated to the Commission by
the Member State concerned and shall be recognized by the Commis-sion after an assessment of its compatibility with the general principlesand other provisions of Community law before the measures referred to
above may be taken. The Commission shall inform the Member State
concerned of itsdecis ion within one month of that communication.
Article 22
Application of the Regulation
1. ThisRegulation alone s hall apply to concentrationsasdefined in
Article 3, and RegulationsNo 17(
1), (EEC) No 1017/68(2), (EEC) No
4056/86(3) and (EEC) No 3975/87(4) shall not apply, except in relation
to joint venturesthat do not have a Community dimens ion and whichhave their object or effect the coordination of the competitive beha-viour of undertakingsthat remain independent.
3. If the Commission finds, at the request of a Member State or at
the joint request of two or more Member States, that a concentration asdefined in Article 3 that hasno Community dimens ion within the
meaning of Article 1 creates or strengthens a dominant position as a
result of which effective competition would be significantly impededwithin the territory of the Member State or Statesmaking the joint1989R4064 — EN — 01.03.1998 — 002.001 — 18
(1) OJ No 13, 21. 2. 1962, p. 204/62.
(2) OJ No L 175, 23. 7. 1968, p. 1.
(3) OJ No L 378, 31. 12. 1986, p. 4.
(4) OJ No L 374, 31. 12. 1987, p. 1.▼M1
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request, it may, insofar as that concentration affects trade between
Member States, adopt the decisions provided for in Article 8 (2),second subparagraph, (3) and (4).
4. Articles2 (1) (a) and (b), 5, 6, 8 and 10 to 20 s hall apply to a
request made pursuant to paragraph 3. Article 7 shall apply to theextent that the concentration hasnot been put into effect on the dateon which the Commission informs the parties that a request has beenmade.
The period within which proceedingsmay be initiated purs uant to
Article 10 (1) shall begin on the day following that of the receipt ofthe request from the Member State or States concerned. The requestmust be made within one month at most of the date on which theconcentration wasmade known to the Member State or to all MemberStates making a joint request or effected. This period shall begin on the
date of the first of those events.
5. Pursuant to paragraph 3 the Commission shall take only the
measures strictly necessary ►
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competition ◄within the territory of the Member State ►M1or
States◄at the request of which it intervenes.
Article 23
Implementing provisions
The Commission shall have the power to adopt implementing provi-
sions concerning the form, content and other details of notificationspursuant to Article 4, ►
M1time limitspurs uant to Articles7, 9, 10
and 22◄, and hearingspurs uant to Article 18.
The Commission shall have the power to lay down the procedure
►C5and time limits for the submission of commitments pursuant to
Articles6(2) and 8(2). ◄
Article 24
Relations with non-member countries
1. The Member States shall inform the Commission of any general
difficultiesencountered by their undertakingswith concentrationsasdefined in Article 3 in a non-member country.
2. Initially not more than one year after the entry into force of this
Regulation and thereafter periodically the Commission shall draw up a
report examining the treatment accorded to Community undertakings,in the termsreferred to in paragraphs3 and 4, asregardsconcentrationsin non-member countries. The Commission shall submit those reportsto the Council, together with any recommendations.
3. Whenever it appears to the Commission, either on the basis of the
reportsreferred to in paragraph 2 or on the bas isof other information,
that a non-member country doesnot grant Community undertakingstreatment comparable to that granted by the Community to undertak-ings from that non-member country, the Commission may submitproposals to the Council for an appropriate mandate for negotiation
with a view to obtaining comparable treatment for Community under-
takings.
4. Measures taken under this Article shall comply with the obliga-
tionsof the Community or of the Member States , without prejudice toArticle 234 of the Treaty, under international agreements, whetherbilateral or multilateral.1989R4064 — EN — 01.03.1998 — 002.001 — 19
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Article 25
Entry into force
1. ThisRegulation s hall enter into force on 21 September 1990.2. ThisRegulation s hall not apply to any concentration which was
the subject of an agreement or announcement or where control was
acquired within the meaning of Article 4 (1) before the date of this
Regulation's entry into force and it shall not in any circumstances applyto any concentration in respect of which proceedings were initiatedbefore that date by a Member State's authority with responsibility forcompetition.
3. Asregardsconcentrationsto which thisRegulation appliesby
virtue of accession, the date of accession shall be substituted for the
date of entry into force of thisRegulation. The provis ion of paragraph2, second alternative, applies in the same way to proceedings initiatedby a competition authority of the new Member Statesor by the EFTASurveillance Authority.
ThisRegulation s hall be binding in itsentirety and directly applicable
in all Member States.1989R4064 — EN — 01.03.1998 — 002.001 — 20
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