1997R1310 — EN — 01.03.1998 — 000.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL REGULATION (EC)No 1310/97
of 30 June 1997
amending Regulation (EEC)No 4064/89 on the control of concentrations between undertakings
(OJ L 180, 9.7.1997, p. 1)
Corrected by:
►C1 Corrigendum, OJ L 199, 26.7.1997, p. 69 (1310/97)
►C2 Corrigendum, 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).
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COUNCIL REGULATION (EC)No 1310/97
of 30 June 1997
amending Regulation (EEC)No 4064/89 on the control of concen-
trations between undertakings
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, andin particular Articles 87 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 concentrations with a significant impact in several
Member States that fall below the thresholds referred to inCouncil Regulation (EEC) No 4064/89 of 21 December 1989 onthe control of concentrations between undertakings (
4) may
qualify for examination under a number of national mergercontrol systems; whereas multiple notification of the same trans-action increases legal uncertainty, effort and cost for companiesand may lead to conflicting assessments;
(2) Whereas extending the scope of Community merger control toconcentrations with a significant impact in several Member Stateswill ensure that a ‘one-stop shop' system applies and will allow,in compliance with the subsidiarity principle, for an appreciationof the competition impact of such concentrations in theCommunity as a whole;
(3) Whereas additional criteria should be established for the applica-tion of Community merger control in order to meet the above-mentioned objectives; whereas those criteria should consist ofnew thresholds established in terms of the total turnover of theundertakings concerned achieved world-wide, at Communitylevel and in at least three Member States;
(4) Whereas at the end of the initial phase of application of thisRegulation the Commission should report to the Council on theimplementation of all applicable thresholds and criteria, so thatthe Council is in a position, acting in accordance with Article 145of the Treaty, to change the criteria or adjust the thresholds laiddown in this Regulation;
(5) Whereas it is appropriate to define the concept of concentrationin such a manner as to cover operations bringing about a lastingchange in the structure of the undertakings concerned; whereas inthe specific case of joint ventures it is appropriate to includewithin the scope and procedure of Regulation (EEC) No 4064/89all full-function joint ventures; whereas, in addition to the domi-nance test set out in Article 2 of that Regulation, it should beprovided that the Commission apply the criteria of Article 85 (1)and (3) of the Treaty to such joint ventures, to the extent thattheir creation has as its direct consequence an appreciable restric-tion of competition between undertakings that remain indepen-dent; whereas, if the effects of such joint ventures on the marketare primarily structural, Article 85 (1) does not as a general ruleapply; whereas Article 85 (1) may apply if two or more parentcompanies remain active in the market of the joint venture, or,possibly, if the creation of the joint venture has as its object oreffect the prevention, restriction or distortion of competition
(1) OJ No C 350, 21. 11. 1996, pp. 8 and 10.
(2) OJ No C 362, 2. 12. 1996, p. 130.
(3) OJ No C 56, 24. 2. 1997, p. 71.
(4) OJ No L 395, 30. 12. 1989, p. 1. Regulation rectified by OJ No L 257,
21. 9. 1990, p. 13 and amended by the 1994 Act of Accession.
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between the parent companies in upstream, downstream or neigh-bouring markets; whereas, in this context, the appraisal of allcompetition aspects of the creation of the joint venture must bemade within the same procedure;
(6) Whereas, for the purposes of calculating the turnover of creditand financial institutions, banking income is a better criterionthan a proportion of assets, because it reflects more accurately theeconomic reality of the whole banking sector;
(7) Whereas it should be expressly provided that decisions taken atthe end of the first phase of the procedure cover restrictionsdirectly related and necessary for the implementation of aconcentration;
(8) Whereas the Commission may declare a concentration compat-ible with the common market in the second phase of the proce-dure, following commitments by the parties that are proportionalto and would entirely eliminate the competition problem; whereasit is also appropriate to accept commitments in the first phase ofthe procedure where the competition problem is readily identifi-able and can easily be remedied; whereas it should be expresslyprovided that in these cases the Commission may attach to itsdecision conditions and obligations; whereas transparency andeffective consultation of Member States and interested thirdparties should be ensured in both phases of the procedure;
(9) Whereas, to ensure effective control, concentrations should besuspended until a final decision has been taken; whereas, on theother hand, it should be possible to waive a suspension, whereappropriate; whereas, in deciding whether or not to grant awaiver, the Commission should take account of all pertinentfactors, such as the nature and gravity of damage to the undertak-ings concerned by a concentration or to third parties, and thethreat to competition posed by the concentration;
(10) Whereas the rules governing the referral of concentrationsbetween the Commission and Member States should be reviewedat the same time as the additional criteria for implementation ofCommunity merger control are established; whereas these rulesprotect the competition interests of the Member States in anadequate manner and take due account of legal security and the‘one-stop shop' principle; whereas, however, certain aspects ofthe referral procedures should be improved or clarified;
(11) Whereas, in particular, the Commission can declare a concentra-tion incompatible with the common market only if it impedeseffective competition in a substantial part thereof; whereas theapplication of national competition law is, therefore, particularlyappropriate where a concentration affects competition on adistinct market within a Member State that does not constitute asubstantial part of the common market; whereas in this case itshould not be necessary to demonstrate, in the request forreferral, that the concentration threatens to create or to strengthena dominant position on this distinct market;
(12) Whereas it should be possible to suspend exceptionally the periodwithin which the Commission must take a decision within thefirst phase of the procedure;
(13) Whereas it should be expressly provided that two or moreMember States may make a joint request pursuant to Article 22of Regulation (EEC) No 4064/89; whereas to ensure effectivecontrol, provision should be made for the suspension of concen-trations referred to the Commission by one or more MemberStates;
(14) Whereas the Commission should be given the power to adoptimplementing provisions where necessary,
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HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 4064/89 is hereby amended as follows:
1. in Article 1:
(a) paragraph 1 shall be replaced by the following:
‘1. Without prejudice to Article 22, this Regulation shall
apply to all concentrations with a Community dimension asdefined in paragraphs 2 and 3.';
(b) paragraph 3 shall be replaced by the following:
‘3. For the purposes of this Regulation, a concentration that
does not meet the thresholds laid down in paragraph 2 has aCommunity dimension where:
(a) the combined aggregate worldwide turnover of all the
undertakings concerned is more than ECU 2 500 million;
(b) in each of at least three Member States, the combined
aggregate turnover of all the undertakings concerned ismore than ECU 100 million;
(c) in each of at least three Member States included for the
purpose of point (b), the aggregate turnover of each of atleast two of the undertakings concerned is more than ECU25 million; and
(d) the aggregate Community-wide turnover of each of at least
two of the undertakings concerned is more than ECU 100million;
unless each of the undertakings concerned achieves more
than two-thirds of its aggregate Community-wide turnoverwithin one and the same Member State.';
(c) the following paragraphs shall be added:
‘4. Before 1 July 2000 the Commission shall report to the
Council on the operation of the thresholds and criteria set out inparagraphs 2 and 3.
5. Following the report referred to in paragraph 4 and on a
proposal from the Commission, the Council, acting by a quali-fied majority, may revise the thresholds and criteria mentionedin paragraph 3.';
2. in Article 2, the following paragraph shall be added:
‘4. To the extent that the creation of a joint venture constituting
a concentration pursuant to Article 3 has as its object or effect thecoordination of the competitive behaviour of undertakings thatremain independent, such coordination shall be appraised in accord-ance with the criteria of Article 85 (1) and (3) of the Treaty, with aview to establishing whether or not the operation is compatible withthe common market.
In making this appraisal, the Commission shall take into account in
particular:
— whether two or more parent companies retain to a significant
extent activities in the same market as the joint venture or in amarket which is downstream or upstream from that of the jointventure or in a neighbouring market closely related to thismarket,
— whether the coordination which is the direct consequence of the
creation of the joint venture affords the undertakings concernedthe possibility of eliminating competition in respect of asubstantial part of the products or services in question.' ;
3. in Article 3, paragraph 2 shall be amended as follows:
(a) the first subparagraph shall be deleted;
(b) in the second subparagraph the phrase ‘which does not give rise
to the coordination of the competitive behaviour of the parties
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amongst themselves or between them and the joint venture'
shall be deleted.
4. in Article 5:
— paragraph 3 shall be replaced by the following:
‘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 followingincome items as defined in Council Directive 86/635/EECof 8 December 1986 on the annual accounts and consol-idated accounts of banks and other financial institutions (*),after deduction of value added tax and other taxes directlyrelated to those items, where appropriate:
(i) interest income and similar income;
(ii) income from securities:
— income from shares and other variable yield securi-
ties,
— 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
Community or in a Member State shall comprise theincome items, as defined above, which are received bythe branch or division of that institution established inthe Community or in the Member State in question, asthe case may be;
(b) for insurance undertakings, the value of gross premiums
written which shall comprise all amounts received andreceivable in respect of insurance contracts issued by or onbehalf of the insurance undertakings, including alsooutgoing reinsurance premiums, and after deduction oftaxes and parafiscal contributions or levies charged byreference to the amounts of individual premiums or the totalvolume 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 andfrom residents of one Member State respectively shall betaken into account.' ;
(*) OJ No L 372, 31. 12. 1986, p. 1.
— in paragraph 4, the introductory sentence shall be replaced by
the following:
‘4. Without prejudice to paragraph 2, the aggregate turn-
over of an undertaking concerned within the meaning ofArticle 1 (2) and (3) shall be calculated by adding togetherthe respective turnovers of the following:';
— in paragraph 5, the introductory sentence shall be replaced by
the following:
‘5. Where undertakings concerned by the concentration
jointly have the rights or powers listed in paragraph 4 (b), incalculating the aggregate turnover of the undertakingsconcerned for the purposes of Article 1 (2) and (3):';
5. in Article 6:
(a) in paragraph 1:
— in point (b) the following subparagraph shall be added:
‘The decision declaring the concentration compatible shall
also cover restrictions directly related and necessary tothe implementation of the concentration.';
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— point (c) shall be replaced by the following:
‘►C2(c) Without prejudice to paragraph 2 ◄, where
the Commission finds that the concentrationnotified falls within the scope of this Regula-tion and raises serious doubts as to its compa-tibility with the common market, it shalldecide to initiate proceedings.';
(b) the following paragraphs shall be inserted:
‘►
C22. Where the Commission finds ◄that, following
modification by the undertakings concerned, a notifiedconcentration no longer raises serious doubts within themeaning of paragraph 1 (c), it may decide to declare theconcentration compatible with the common market pursuantto paragraph 1 (b).
The Commission may attach to its decision under paragraph
1 (b) conditions and obligations intended to ensure that theundertakings concerned comply with the commitments theyhave entered into vis-à-vis the Commission with a view to
rendering the concentration compatible with the commonmarket.
►
C23. 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 hasbeen obtained by deceit,
or
(b) the undertakings concerned commit a breach of an obli-
gation attached to the decision.
►
C24. In the cases referred to in paragraph 3, the
Commission ◄may take a decision under paragraph 1,
without being bound by the deadlines referred to in Article10 (1).' ;
▼
C2
(c) Paragraph 2 shall become paragraph 5.
▼B
6. in Article 7:
(a) paragraph 1 shall be replaced by the following:
‘1. A concentration as defined in Article 1 shall not be
put into effect either before its notification or until it as beendeclared compatible with the common market pursuant to adecision under Article 6 (1) (b) or Article 8 (2) or on thebasis of a presumption according to Article 10 (6).';
(b) paragraph 2 shall be deleted;
(c) paragraph 3 shall be amended as follows:
the words ‘paragraphs 1 and 2' at the beginning of the para-
graph shall be replaced by the words ‘paragraph 1';
(d) paragraph 4 shall be replaced by the following:
‘4. The Commission may, on request, grant a derogation
from the obligations imposed in paragraphs 1 or 3. Therequest to grant a derogation must be reasoned. In decidingon the request, the Commission shall take into account interalia the effects of the suspension on one or more undertak-ings concerned by a concentration or on a third party andthe threat to competition posed by the concentration. Thatderogation may be made subject to conditions and obliga-tions in order to ensure conditions of effective competition.A derogation may be applied for and granted at any time,even before notification or after the transaction.';
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(e) paragraph 5 shall be replaced by the following:
‘5. The validity of any transaction carried out in contra-
vention of paragraph 1 shall be dependent on a decisionpursuant to Article 6 (1) (b) or Article 8 (2) or (3) or on apresumption pursuant to Article 10 (6).
This Article shall, however, have no effect on the validity of
transactions in securities including those convertible intoother securities admitted to trading on a market which isregulated and supervised by authorities recognized by publicbodies, operates regularly and is accessible directly or indir-ectly to the public, unless the buyer and seller knew orought to have known that the transaction was carried out incontravention of paragraph 1.';
7. in Article 8:
(a) paragraph 2 shall be replaced by the following:
‘2. Where the Commission finds that, following modifica-
tion by the undertakings concerned if necessary, a notifiedconcentration fulfils the criterion laid down in Article 2 (2)and, in the cases referred to in Article 2 (4), the criteria laiddown in Article 85 (3) of the Treaty, it shall issue a decisiondeclaring the concentration compatible with the commonmarket.
It may attach to its decision conditions and obligations
intended to ensure that the undertakings concerned complywith the commitments they have entered into vis-à-vis theCommission with a view to rendering the concentrationcompatible with the common market. The decision declaringthe concentration compatible with the common market shallalso cover restrictions directly related and necessary to theimplementation of the concentration.';
(b) paragraph 3 shall be replaced by the following:
‘3. Where the Commission finds that a concentration
fulfils the criterion defined in Article 2 (3) or, in the casesreferred to in Article 2 (4), does not fulfil the criteria laiddown in Article 85 (3) of the Treaty, it shall issue a decisiondeclaring that the concentration is incompatible with thecommon market.';
8. in Article 9:
(a) paragraph 2 shall be replaced by the following:
‘2. Within three weeks of the date of receipt of the copy
of the notification a Member State may inform the Commis-sion, which shall inform the undertakings concerned, that:
(a) a concentration threatens to create or to strengthen a
dominant position as a result of which effectivecompetition will be significantly impeded on a marketwithin that Member State, which presents all the charac-teristics of a distinct market, or
(b) a concentration affects competition on a market within
that Member State, which presents all the characteristicsof a distinct market and which does not constitute asubstantial part of the common market.' ;
(b) in paragraph 3:
— point (b) shall be replaced by the following:
‘(b) it shall refer the whole or part of the case to the
competent authorities of the Member State concernedwith a view to the application of that State’snational competition law.',
— the following subparagraph shall be added:
‘In cases where a Member State informs the Commission
that a concentration affects competition in a distinctmarket within its territory that does not form a substan-tial part of the common market, the Commission shall
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refer the whole or part of the case relating to the distinctmarket concerned, if it considers that such a distinctmarket is affected.';
(c) paragraph 10 shall be replaced by the following:
‘10. This Article may be re-examined at the same time as
the thresholds referred to in Article 1.';
9. in Article 10:
(a) in paragraph 1, the following text shall be added at the end
of the second subparagraph:
‘or where, after notification of a concentration, ►
C2the
undertakings concerned submit commitments pursuant toArticle 6(2), which are intended ◄by the parties to form
the basis for a decision pursuant to Article 6 (1) (b).';
(b) at the beginning of paragraph 4 the phrase ‘The period set
by paragraph 3' shall be replaced by the phrase ‘The periodsset by paragraphs 1 and 3';
10. in Article 18:
(a) in paragraph 1 the words: ‘Article 7 (2) and (4)' shall be
replaced by the words ‘Article 7 (4)';
(b) paragraph 2 shall be replaced by the following:
‘2. By way of derogation from paragraph 1, a decision to
grant a derogation from suspension as referred to in Article7 (4) may be taken provisionally, without the persons, under-takings or associations of undertakings concerned being giventhe opportunity to make known their views beforehand,provided that the Commission gives them that opportunity assoon as possible after having taken its decision.';
11. in Article 19, the following text shall be added at the end of
paragraph 1:
‘Such documents shall include commitments which are intended
by the parties to form the basis for a decision pursuant toArticles 6 (1) (b) or 8 (2).';
12. in Article 22:
(a) paragraphs 1 and 2 shall be replaced by the following:
‘1. This Regulation alone shall apply to concentrations as
defined in Article 3, and Regulations No 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 ventures that donot have a Community dimension and which have theirobject or effect the coordination of the competitive behaviourof undertakings that remain independent.';
(b) paragraph 3 shall be amended as follows:
‘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 as defined in Article 3 that has noCommunity dimension within the meaning of Article 1creates or strengthens a dominant position as a result ofwhich effective competition would be significantly impededwithin the territory of the Member State or States makingthe joint request, it may, insofar as that concentration affectstrade between Member States, adopt the decisions providedfor in Article 8 (2), second subparagraph, (3) and (4).';
(c) paragraph 4 shall be replaced by the following:
‘4. Articles 2 (1) (a) and (b), 5, 6, 8 and 10 to 20 shall
apply to a request made pursuant to paragraph 3. Article 7shall apply to the extent that the concentration has not beenput into effect on the date on which the Commission informsthe parties that a request has been made.
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The period within which proceedings may be initiatedpursuant to Article 10 (1) shall begin on the day followingthat of the receipt of the request from the Member State orStates concerned. The request must be made within onemonth at most of the date on which the concentration wasmade known to the Member State or to all Member Statesmaking a joint request or effected. This period shall begin onthe date of the first of those events.';
(d) in paragraph 5 the phrase ‘or States' shall be inserted after
the phrase ‘within the territory of the Member State';
(e) paragraph 6 shall be deleted;
13. in Article 23:
(a) these phrase ‘time limits pursuant to Article 10' shall be
replaced by the phrase ‘time limits pursuant to Articles 7, 9,10 and 22';
(b) the following subparagraph shall be added:
‘The Commission shall have the power to lay down the
procedure ►
C2and time limits for the submission of
commitments pursuant to Articles 6(2) and 8(2). ◄'
Article 2
This Regulation shall not apply to any concentration which was the
subject of an agreement or announcement or where control wasacquired within the meaning of Article 4 (1) of Regulation (EEC)No 4064/89, before 1 March 1998 and it shall not in any circum-stances apply to any concentration in respect of which proceedingswere initiated before 1 March 1998 by a Member State’s authoritywith responsibility for competition.
Article 3
This Regulation shall enter into force on 1 March 1998.
This Regulation shall be binding in its entirety and directly applic-
able in all Member States.