1989R4064 — EN — 21.09.1990 — 000.001 — 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)
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)
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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 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, for the achievement of the aims of the Treaty estab-
lishing the European Economic Community, Article 3 (f) givesthe Community the objective of instituting ‘a system ensuringthat competition in the common market is not distorted';
(2)Whereas this system is essential for the achievement of theinternal market by 1992 and its further development;
(3)Whereas the dismantling of internal frontiers is resulting and willcontinue 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 linewith the requirements of dynamic competition and capable ofincreasing the competitiveness of European industry, improvingthe conditions of growth and raising the standard of living in theCommunity;
(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)Whereas Articles 85 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 undistortedcompetition envisaged in the Treaty;
(7)Whereas a new legal instrument should therefore be created inthe form of a Regulation to permit effective control of all concen-trations from the point of view of their effect on the structure ofcompetition in the Community and to be the only instrumentapplicable to such concentrations;
(8)Whereas this Regulation should therefore be based not only onArticle 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, includingwith regard to concentrations on the markets for agriculturalproducts listed 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 themarket goes beyond the national borders of any one MemberState;
(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.
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(10)Whereas the scope of application of this Regulation should there-
fore be defined according to the geographical area of activity ofthe undertakings concerned and be limited by quantitative thresh-olds in order to cover those concentrations which have aCommunity dimension; whereas, at the end of an initial phase ofthe application of this Regulation, these thresholds should bereviewed in the light of the experience gained;
(11)Whereas a concentration with a Community dimension existswhere the combined aggregate turnover of the undertakingsconcerned exceeds given levels worldwide and within theCommunity and where at least two of the undertakings concernedhave their sole or main fields of activities in different MemberStates or where, although the undertakings in question act mainlyin one and the same Member State, at least one of them hassubstantial operations in at least one other Member State;whereas that is also the case where the concentrations areeffected by undertakings which do not have their principal fieldsof activities in the Community but which have substantial opera-tions there;
(12)Whereas the arrangements to be introduced for the control ofconcentrations should, 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 aconcentration needs, therefore, to take account of undertakingsmaking up an economic unit with an independent power ofdecision, irrespective of the way in which their capital is held orof the 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, inso doing, the Commission must place its appraisal within thegeneral framework of the achievement of the fundamental objec-tives referred 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 competition inthe common market or in a substantial part of it is significantlyimpeded is to be declared incompatible with the common market;
(15)Whereas concentrations which, by reason of the limited marketshare of the undertakings concerned, are not liable to impedeeffective competition may be presumed to be compatible with thecommon market; whereas, without prejudice to Articles 85 and86 of the Treaty, an indication to this effect exists, in particular,where the market share of the undertakings concerned does notexceed 25 % either in the common market or in a substantial partof 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 commonmarket, as well as decisions designed to restore effectivecompetition;
(17)Whereas to ensure effective control undertakings should beobliged to give prior notification of concentrations with aCommunity dimension and provision should be made for thesuspension 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 necessary;
(18)Whereas a period within which the Commission must initiateproceedings in respect of a notified concentration and periodswithin which it must give a final decision on the compatibility or
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incompatibility with the common market of a notified concentra-
tion should be laid down;
(19)Whereas the undertakings concerned must be afforded the rightto be heard by the Commission when proceedings have beeninitiated; whereas the members of the management and super-visory bodies and the recognized representatives of theemployees of the undertakings concerned, and third partiesshowing a legitimate interest, must also be given the opportunityto be heard;
(20)Whereas the Commission should act in close and constant liaisonwith the competent authorities of the Member States from whichit obtains comments and 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 also beempowered to require information to be given and to carry outthe necessary investigations in order to appraise concentrations;
(22)Whereas compliance with this Regulation must be enforceable bymeans of fines and periodic penalty payments; whereas the Courtof Justice should be given unlimited jurisdiction in that regardpursuant to Article 172 of the Treaty;
(23)Whereas it is appropriate 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 ofthis Regulation those operations which have as their object oreffect the coordination of the competitive behaviour of undertak-ings which remain independent, since such operations fall to beexamined under the appropriate provisions of the Regulationsimplementing Articles 85 and 86 of the Treaty; whereas it isappropriate to make this distinction specifically in the case of thecreation of joint ventures;
(24)Whereas there is no coordination of competitive behaviour withinthe meaning of this Regulation where two or more undertakingsagree to acquire jointly control of one or more other undertakingswith the object and effect of sharing amongst themselves suchundertakings 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 competenceto apply this Regulation, subject to review by the Court ofJustice;
(27)Whereas the Member States may not apply their national legisla-tion on competition to concentrations with a Community dimen-sion, unless this Regulation makes provision therefor; whereasthe relevant powers of national authorities should be limited tocases where, failing intervention by the Commission, effectivecompetition is likely to be significantly impeded within the terri-tory of a Member State and where the competition interests ofthat Member State cannot be sufficiently protected otherwise bythis Regulation; whereas the Member States concerned must actpromptly in such cases; whereas this Regulation cannot, becauseof the diversity of national law, fix a single deadline for theadoption of remedies;
(28)Whereas, furthermore, the exclusive application of this Regula-tion to concentrations with a Community dimension is withoutprejudice to Article 223 of the Treaty, and does not prevent theMember States from taking appropriate measures to protect legit-imate interests other than those pursued by this Regulation,provided that such measures are compatible with the generalprinciples and other provisions of Community law;
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(29)Whereas concentrations not covered by this Regulation 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’s territory;
(30)Whereas the conditions in which concentrations involvingCommunity undertakings are 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)Whereas this Regulation in no way detracts from the collectiverights of employees as recognized in the undertakings concerned,
HAS ADOPTED THIS REGULATION:
Article 1
Scope
1. Without prejudice to Article 22 this Regulation shall apply to all
concentrations with a Community dimension as defined in paragraph 2.
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 is more than ECU 5 000 million; and
(b) the aggregate Community-wide turnover of each of at least two of
the undertakings concerned is more than ECU 250 million,
unless each of the undertakings concerned achieves more than two-
thirds of its aggregate Community-wide turnover within one and thesame Member State.
3. The thresholds laid down in paragraph 2 will be reviewed before
the end of the fourth year following that of the adoption of this Regula-tion by the Council acting by a qualified majority on a proposal fromthe Commission.
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 toestablishing 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 allthe markets concerned and the actual or potential competition fromundertakings located either within or outwith the Community;
(b) the market position of the undertakings concerned and their
economic and financial power, the alternatives available to suppliersand users, their access to supplies or markets, any legal or otherbarriers to entry, supply and demand trends for the relevant goodsand services, the interests of the intermediate and ultimateconsumers, and the development of technical and economicprogress provided that it is to consumers’ advantage and does notform an obstacle to competition.
2. A concentration which does not create or strengthen 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 it shallbe declared compatible with the common market.
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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 bedeclared incompatible with the common market.
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 oneor more other undertakings.
2. An operation, including the creation of a joint venture, which has
as its object or effect the coordination of the competitive behaviour ofundertakings which remain independent shall not constitute a concentra-tion within the meaning of paragraph 1 (b).
The creation of a joint venture performing on a lasting basis all the
functions of an autonomous economic entity, which does not give riseto coordination of the competitive behaviour of the parties amongstthemselves or between them and the joint venture, shall constitute aconcentration 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 is acquired by persons or undertakings which:
(a) are holders of the rights or entitled to rights under the contracts
concerned; or
(b) while not being holders of such rights or entitled to rights under
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 dealingin 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 do notexercise voting rights in respect of those securities with a view todetermining the competitive behaviour of that undertaking orprovided that they exercise such voting rights only with a view topreparing the disposal of all or part of that undertaking or of itsassets or the disposal of those securities and that any such disposaltakes place within one year of the date of acquisition; that periodmay be extended by the Commission on request where such institu-tions or companies can show that the disposal was not reasonablypossible within the period set;
(b) control is acquired by an office-holder according to the law of a
Member State relating to liquidation, winding up, insolvency, cessa-tion of payments, compositions or analogous proceedings;
(c) the operations referred to in paragraph 1 (b) are carried out by the
financial holding companies referred to in Article 5 (3) of theFourth Council Directive 78/660/EEC of 25 July 1978 on theannual accounts of certain types of companies(
1), as last amended
(1) OJ No L 222, 14. 8. 1978, p. 11.
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by Directive 84/569/EEC (1), provided however that the voting
rights in respect of the holding are exercised, in particular in rela-tion to the appointment of members of the management and super-visory bodies of the undertakings in which they have holdings, onlyto maintain the full value of those investments and not to determinedirectly or indirectly the competitive conduct of those undertakings.
Article 4
Prior notification of concentrations
1. Concentrations with a Community dimension defined in this
Regulation shall be notified to the Commission not more than one weekafter the conclusion of the agreement, or the announcement of thepublic bid, or the acquisition of a controlling interest. That week shallbegin 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 the meaningof Article 3 (1) (b) shall be notified jointly by the parties to the mergeror by those acquiring joint control as the case may be. In all other cases,the notification shall be effected by the person or undertaking acquiringcontrol of the whole or parts of 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 thenotification, at the same time indicating the names of the parties, thenature of the concentration and the economic sectors involved. TheCommission shall take account of the legitimate interest of undertakingsin the protection 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 provision ofservices falling within the undertakings’ ordinary activities after deduc-tion of sales rebates and of value added tax and other taxes directlyrelated to turnover. The aggregate turnover of an undertaking concernedshall not include the sale of products or the provision of servicesbetween 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, inthe Community or in that Member State as the case may be.
2. By way of derogation from paragraph 1, where the concentration
consists in the acquisition of parts, whether or not constituted as legalentities, of one or more undertakings, only the turnover relating to theparts which are the subject of the transaction shall be taken into accountwith 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) (a), one-tenth of their total assets.
As regards Article 1 (2) (b) and the final part of Article 1 (2), total
Community-wide turnover shall be replaced by one-tenth of totalassets multiplied by the ratio between loans and advances to creditinstitutions and customers in transactions with Community residentsand the total sum of those loans and advances.
(1) OJ No L 314, 4. 12. 1984, p. 28.
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As regards the final part of Article 1 (2), total turnover within oneMember State shall be replaced by one-tenth of total assets multi-plied by the ratio between loans and advances to credit institutionsand customers in transactions with residents of that Member Stateand the total sum of those loans and advances;
(b) for insurance undertakings, the value of gross premiums written
which shall comprise all amounts received and receivable in respectof insurance contracts issued by or on behalf of the insuranceundertakings, including also outgoing reinsurance premiums, andafter deduction of taxes and parafiscal contributions or leviescharged by reference to the amounts of individual premiums or thetotal volume of premiums; as regards Article 1 (2) (b) and the finalpart of Article 1 (2), gross premiums received from Communityresidents and from residents of one Member State respectively shallbe taken into account.
4. Without prejudice to paragraph 2, the aggregate turnover of an
undertaking concerned within the meaning of Article 1 (2) shall becalculated by adding together the respective turnover 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— has the power to appoint more than half the members of the
supervisory board, the administrative board or bodies legallyrepresenting the undertakings, or
— has the right to manage the undertakings’ affairs;
(c) those undertakings which have in the undertaking concerned the
rights or powers listed in (b);
(d) those undertakings in which an undertaking as referred to in (c) has
the rights or powers listed in (b);
(e) those undertakings in which two or more undertakings as referred to
in (a) to (d) jointly have the rights or powers listed in (b).
5. Where undertakings concerned by the concentration jointly have
the rights or powers listed in paragraph 4(b), in calculating the aggre-gate turnover of the undertakings concerned for the purposes of Article1 (2):
(a) no account shall be taken of the turnover resulting from the sale of
products or the provision of services between the joint undertakingand each of the undertakings concerned or any other undertakingconnected with any one of them, as set 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 undertakingand any third undertakings. This turnover shall be apportionedequally 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 concludes that the concentration notified does not fall
within the scope of this Regulation, it shall record that finding bymeans of a decision.
(b) Where it finds that the concentration notified, although falling
within the scope of this Regulation, does not raise serious doubts asto its compatibility with the common market, it shall decide not tooppose it and shall declare that it is compatible with the commonmarket.
(c) If, on the other hand, it finds that the concentration notified falls
within the scope of this Regulation and raises serious doubts as to
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its compatibility with the common market, it shall decide to initiate
proceedings.
2. The Commission shall notify its decision to the undertakings
concerned and the competent authorities of the Member States withoutdelay.
Article 7
Suspension of concentrations
1. For the purposes of paragraph 2 a concentration as defined in
Article 1 shall not be put into effect either before its notification orwithin the first three weeks following its notification.
2. Where the Commission, following a preliminary examination of
the notification within the period provided for in paragraph 1, finds itnecessary in order to ensure the full effectiveness of any decision takenlater pursuant to Article 8 (3) and (4), it may decide on its own initiativeto continue the suspension of a concentration in whole or in part until ittakes a final decision, or to take other interim measures to that effect.
3. Paragraphs 1 and 2 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 does not exercise thevoting rights attached to the securities in question or does so only tomaintain the full value of those investments and on the basis of aderogation granted by the Commission pursuant to paragraph 4.
4. The Commission may, on request, grant a derogation from the
obligations imposed in paragraphs 1, 2 or 3 in order to prevent seriousdamage to one or more undertakings concerned by a concentration or toa third party. That derogation may be made subject to conditions andobligations in order to ensure conditions of effective competition. Aderogation may be applied for and granted at any time, even beforenotification or after the transaction.
5. The validity of any transaction carried out in contravention of
paragraph 1 or 2 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 securitiesadmitted to trading on a market which is regulated and supervised byauthorities recognized by public bodies, operates regularly and is acces-sible directly or indirectly to the public, unless the buyer and sellerknew or ought to have known that the transaction was carried out incontravention of paragraph 1 or 2.
Article 8
Powers of decision of the Commission
1. Without prejudice to Article 9, all proceedings initiated pursuant
to Article 6 (1) (c) shall be closed by means of a decision as providedfor in paragraphs 2 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), it shall issue a decision declaringthe concentration compatible with the common market.
It may attach to its decision conditions and obligations intended to
ensure that the undertakings concerned comply with the commitmentsthey have entered into vis-à-vis the Commission with a view to modi-
fying the original concentration plan. The decision declaring theconcentration compatible shall also cover restrictions directly relatedand necessary to the implementation of the concentration.
3. Where the Commission finds that a concentration fulfils the
criterion laid down in Article 2 (3), it shall issue a decision declaringthat the concentration is incompatible with the common market.
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4. Where a concentration has already been implemented, theCommission may, in a decision pursuant to paragraph 3 or by a separatedecision, 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 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 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 deadlinereferred 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 undertakings concerned and the competent authorities ofthe other Member States, refer a notified concentration to the competentauthorities of the Member State concerned in the following circum-stances.
2. Within three weeks of the date of receipt of the copy of the
notification a Member State may inform the Commission, which shallinform the undertakings concerned, that a concentration threatens tocreate or to strengthen a dominant position as a result of which effectivecompetition would be significantly impeded on a market, within thatMember State, which ►
C3presents all the characteristics of a distinct
market◄, be it a substantial part of the common market or not.
3. If the Commission considers that, having regard to the market for
the products or services in question and the geographical referencemarket 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 case to the competent authorities of the Member
State concerned with a view to the application of 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 it shalladdress to the Member State concerned.
4. A decision to refer or not to refer pursuant to paragraph 3 shall be
taken:
(a) as a general rule within the six-week period provided for in Article
10 (1), second subparagraph, where the Commission, pursuant toArticle 6 (1) (b), has not initiated proceedings; or
(b) within three months at most of the notification of the concentration
concerned where the Commission has initiated proceedings underArticle 6 (1) (c), without taking the preparatory steps in order toadopt 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 months referred to in paragraph 4(b) the
Commission, despite a reminder from the Member State concerned, hasnot taken a decision on referral in accordance with paragraph 3 nor hastaken the preparatory steps referred to in paragraph 4(b), it shall bedeemed to have taken a decision to refer the case to the Member Stateconcerned in accordance with paragraph 3 (b).
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6. The publication of any report or the announcement of the findings
of the examination of the concentration by the competent authority ofthe 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 undertakings concerned are involved in the supply anddemand of products or services, in which the conditions of competitionare sufficiently homogeneous and which can be distinguished fromneighbouring areas because, in particular, conditions of competition areappreciably different in those areas. This assessment should takeaccount in particular of the nature and characteristics of the products orservices concerned, of ►
C3the existence of entry barriers or of
consumer preferences ◄, of appreciable differences of the underta-
kings’ market shares between the area concerned and neighbouringareas 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 safeguard orrestore 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 will be reviewed before the end of the fourth year
following that of the adoption of this Regulation.
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 that of thereceipt of a notification or, if the information to be supplied with thenotification is incomplete, on the day following that of the receipt of thecomplete 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).
2. Decisions taken pursuant to Article 8 (2) concerning notified
concentrations must be taken as soon as it appears that the seriousdoubts referred to in Article 6 (1) (c) have been removed, particularly asa result of modifications made by the undertakings concerned, and atthe 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 concentrations must be taken withinnot more than four months of the date on which the proceedings areinitiated.
4. The period set by paragraph 3 shall exceptionally be suspended
where, owing to circumstances for which one of the undertakingsinvolved in the concentration is responsible, the Commission has had torequest information by decision pursuant to Article 11 or to order aninvestigation 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, theperiods laid down in this Regulation shall start again from the date ofthe 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.
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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-ments and comptent authorities of the Member States, from the personsreferred to in Article 3 (1) (b), and from undertakings and associationsof undertakings.
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 theMember State within the territory of which the residence of the personor the seat of the undertaking or association of undertakings is situated.
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 of legalpersons, companies or firms, or of associations having no legal person-ality, by the persons authorized to represent them by law or by theirstatutes.
5. Where a person, an undertaking or an association of undertakings
does not provide the information requested 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 periodwithin which it is to be supplied and state the penalties provided for inArticles 14(1) (c) and 15 (1) (a) and the right to have the decisionreviewed by the Court of Justice.
6. The Commission shall at the same time send a copy of its decision
to the competent authority of the Member State within the territory ofwhich the residence of the person or the seat of the undertaking orassociation 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 the Commis-sion considers to be necessary under Article 13 (1), or which it hasordered by decision pursuant to Article 13 (3). The officials of thecompetent authorities of the Member States responsible for conductingthose investigations shall exercise their powers upon production of anauthorization in writing issued by the competent authority of theMember State within the territory of which the investigation is to becarried out. Such authorization shall specify the subject matter andpurpose 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 empow-
ered:
(a) to examine the books and other business records;
(b) to take or demand copies of or extracts from the books and business
records;
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(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 authorization inwriting specifying the subject matter and purpose of the investigationand the penalties provided for in Article 14(1) (d) in cases whereproduction of the required books or other business records is incom-plete. In good time before the investigation, the Commission shallinform, in writing, the competent authority of the Member State withinthe territory of which the investigation is to be carried out of theinvestigation 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, appointthe date on which it shall begin and state the penalties provided for inArticles 14(1) (d) and 15 (1) (b) and the right to have the decisionreviewed 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 whichthe investigation is to be carried out of its intention of taking a decisionpursuant to paragraph 3. It shall hear the competent authority beforetaking its decision.
5. Officials of 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 theCommission 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 ofthis Regulation.
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 theperiod fixed by a decision taken pursuant to Article 11;
(d) they produce the required books or other business records in incom-
plete form during investigations under Article 12 or 13, or refuse tosubmit to an investigation ordered by decision taken pursuant toArticle 13.
2. The Commission may by decision impose fines not exceeding 10
% of the aggregate turnover of the undertakings concerned within themeaning 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 disregard
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 takethe measures ordered by decision pursuant to Article 8 (4).
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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.
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 payments of up to ECU 25 000 for each dayof delay calculated from the date set in the decision, in order to compelthem:
(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 periodicpenalty payments of 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 wasthe purpose of the periodic penalty payment to enforce, the Commissionmay set the total amount of the periodic penalty payments at a lowerfigure 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 as a result of the application of Articles 11,
12, 13 and 18 shall be used only for the purposes of the relevantrequest, investigation or hearing.
2. Without prejudice to Articles 4(3), 18 and 20, the Commission
and the competent authorities of the Member States, their officials andother servants shall not disclose information they have acquired throughthe application of this Regulation of the kind covered by the obligationof professional secrecy.
3. Paragraphs 1 and 2 shall not prevent publication of general infor-
mation or of surveys which do not contain information relating toparticular undertakings or associations of undertakings.
Article 18
Hearing of the parties and of third persons
1. Before taking any decision provided for in Article 7 (2) and (4), 8
(2), second subparagraph, and (3) to (5) and Articles 14and 15, theCommission shall give the persons, undertakings and associations ofundertakings concerned the opportunity, at every stage of the procedureup to the consultation of the Advisory Committee, of making knowntheir views on the objections against them.
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2. By way of derogation from paragraph 1, a decision to continue the
suspension of a concentration or to grant a derogation from suspensionas referred to in Article 7 (2) or (4) may be taken provisionally, withoutthe persons, undertakings or associations of undertakings concernedbeing given the opportunity to make known their views beforehand,provided that the Commission gives them that opportunity as soon aspossible 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. The rightsof the defence shall be fully respected in the proceedings. Access to thefile shall be open at least to the parties directly involved, subject to thelegitimate interest of undertakings in the protection of their businesssecrets.
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 theundertakings concerned or the recognized representatives of theiremployees shall 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 States copies of notifications within three working days and, assoon as possible, copies of the most important documents lodged withor issued by the Commission pursuant to this Regulation.
2. The Commission shall carry out the procedures set out in this
Regulation in close and constant liaison with the competent authoritiesof the Member States, which may express their views upon thoseprocedures. For the purposes of Article 9 it shall obtain informationfrom the competent authority of the Member State as referred to inparagraph 2 of that Article and give it the opportunity to make knownits views at every stage of the procedure up to the adoption of adecision pursuant to paragraph 3 of that Article; to that end it shall giveit 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), 14or 15, orany 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 oneor two representatives; if unable to attend, they may be replaced byother representatives. At least one of the representatives of a MemberState shall be competent in matters of restrictive practices and dominantpositions.
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 14days after the invitation has been sent. The Commission may inexceptional cases shorten that period as appropriate in order to avoidserious harm to one or more of the undertakings concerned by aconcentration.
6. The Advisory Committee shall deliver an opinion on the Commis-
sion’s draft decision, if necessary by taking a vote. The AdvisoryCommittee may deliver an opinion even if some members are absentand unrepresented. The opinion shall be delivered in writing andappended to the draft decision. The Commission shall take the utmostaccount of the opinion delivered by the Committee. It shall inform theCommittee of the manner in which its opinion has been taken intoaccount.
7. The Advisory Committee may recommend publication of the
opinion. The Commission may carry out such publication. The decisionto publish shall take due account of the legitimate interest of undertak-
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ings in the protection of their business secrets and of the interest of the
undertakings concerned in such publication’s taking 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 Journal of the European
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 ofundertakings 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
competition ►
C3to any concentration that has ◄a Community
dimension.
The first subparagraph shall be without prejudice to any Member State’s
power to carry out any enquiries necessary for the application of Article9 (2) or after referral, pursuant to Article 9 (3), first subparagraph,indent (b), or (5), to take the measures strictly necessary for the applica-tion 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 thegeneral principles and other provisions of Community law.
Public security, plurality of the media and prudential rules shall be
regarded as legitimate interests within the meaning of the first subpara-graph.
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 toabove may be taken. The Commission shall inform the Member Stateconcerned of its decision within one month of that communication.
Article 22
Application of the Regulation
1. This Regulation alone shall apply to concentrations as defined in
Article 3.
2. Regulations No 17 (
1), (EEC) No 1017/68 (2), (EEC) No 4056/
86 (3) and (EEC) No 3975/87 (4) shall not apply to concentrations as
defined in Article 3.
3. If the Commission finds, at the request of a Member State, that a
concentration as defined in Article 3 that has no Community dimensionwithin the meaning of Article 1 creates or strengthens a dominantposition as a result of which effective competition would be signifi-cantly impeded within the territory of the Member State concerned itmay, in so far as the concentration affects trade between Member
(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.
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States, adopt the decisions provided for in Article 8 (2), second subpara-
graph, (3) and (4).
4. Articles 2 (1) (a) and (b), 5, 6, 8 and 10 to 20 shall apply. The
period within which proceedings may be initiated pursuant to Article 10(1) shall begin on the date of the receipt of the request from theMember State. The request must be made within one month at most ofthe date on which the concentration was made known to the MemberState or effected. This period shall begin on the date of the first of thoseevents.
5. Pursuant to paragraph 3 the Commission shall take only the meas-
ures strictly necessary ►
C3to maintain or restore effective
competition ◄within the territory of the Member State at the request
of which it intervenes.
6. Paragraphs 3 to 5 shall continue to apply until the thresholds
referred to in Article 1 (2) have been reviewed.
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, time limits pursuant to Article 10, and hearingspursuant to Article 18.
Article 24
Relations with non-member countries
1. The Member States shall inform the Commission of any general
difficulties encountered by their undertakings with concentrations asdefined 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 areport examining the treatment accorded to Community undertakings, inthe terms referred to in paragraphs 3 and 4, as regards concentrations innon-member countries. The Commission shall submit those reports tothe Council, together with any recommendations.
3. Whenever it appears to the Commission, either on the basis of the
reports referred to in paragraph 2 or on the basis of other information,that a non-member country does not grant Community undertakingstreatment comparable to that granted by the Community to undertakingsfrom that non-member country, the Commission may submit proposalsto the Council for an appropriate mandate for negotiation with a view toobtaining comparable treatment for Community undertakings.
4. Measures taken under this Article shall comply with the obliga-
tions of the Community or of the Member States, without prejudice toArticle 234of the Treaty, under international agreements, whetherbilateral or multilateral.
Article 25
Entry into force
1. This Regulation shall enter into force on 21 September 1990.2. 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) before the date of thisRegulation’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.
This Regulation shall be binding in its entirety and directly applicable in
all Member States.