COMMISSION DECISION No 2495/78/ECSC of 20 October 1978 amending Decision No 25-67 of 22 June 1967 laying down in implementation of Article 66 (3) of the Treaty establishing the European Coal and Steel Community a Regulation concerning exemption from prior authorization (1)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Articles 47, 66 and 80 thereof,

Having regard to the Treaty establishing a single Council and a single Commission of the European Communities, and in particular Article 9 thereof,

Having regard to Decision No 25-67 of 22 June 1967 laying down in implementation of Article 66 (3) of the Treaty a Regulation concerning exemption from prior authorization (2),

With the assent of the Council,

Whereas by Decision No 25-67 the High Authority, acting under Article 66 (3) exempted from prior authorization certain classes of transaction which, by reason of the size of the assets or undertakings concerned and of the nature of the resulting concentration, satisfied the tests of Article 66 (2);

Whereas experience has shown that Decision No 25-67 should be adapted to take account of the changes which have meanwhile occurred in the volume of production, in economic structure and in market and competitive conditions, particularly as regards quantitative limits;

Whereas the production of prereduced iron ore is of growing importance and appropriate limits should therefore be set for that category of product;

Whereas, in view of the peculiar characteristics distinguishing them from steelmaking pig irons, ferro-alloys and other forms of pig iron should constitute a distinct product category with an appropriate limit for exemption;

Whereas in the case of concentrations between undertakings engaged in coal or steel production and undertakings which are not within the scope of the Treaty, account must be taken of the privileged position which such concentrations can secure for Community undertakings by providing outlets for their products ; whereas, in concentrations between steel producers and undertakings using little steel as a raw material, the annual pre-concentration consumption of the undertakings in question often exceeds 50 % of their output in categories of product which are not affected by the concentration ; whereas, therefore, exemption from the requirement of prior authorization on the tests in Article 3 of Decision No 25-67 was in most cases unavailable ; whereas the importance of the additional markets to which such producers gain access through the concentration should be appraised by reference to the steel input of the undertakings involved which are not within the scope of the Treaty ; whereas exemption from prior authorization should, however, be allowed wherever a concentration gives the Community undertakings a negligible increase only in their potential outlets which has no influence on competition;

Whereas, in view of the contraction of the household coal market and of the atomistic structure of the wholesale trade in certain Member States, there should be a general exemption for concentrations between a distributor and another, small, distributor ; whereas, however, the number of such exempted concentrations should be limited over a given period of time;

Whereas changes in the structure of the steel distribution business in the Community warrants higher limits for concentrations between distributors;

Whereas in the case of scrap the limits on sales should be raised, while the number of exempted concentrations should be limited over a given period of time,

HAS ADOPTED THIS DECISION:

Article 1

Decision No 25-67 is amended as follows: (1)The text of Decision No 25-67, as amended by this Decision, was published in Official Journal No C 255 of 27 October 1978, page 2. (2)OJ No 154, 14.7.1967, p. 11. 1. The items from (f) to the end of the list in Article 1 (1) are replaced by the following: >PIC FILE= "T0014424">

2. Article 3 is replaced by the following:

"Article 3

1. Transactions referred to in Article 66 (1) shall be exempted from the requirement of prior authorization where they have the direct or indirect effect of bringing about concentration between: (a) undertakings engaged in steel production ; and

(b) undertakings not falling within the scope of Article 80, if: - the annual production of undertakings referred to in (a) does not exceed 20 % of the tonnages set out for the groups of products referred to in (g) to (k) in Article 1 (1), or

- the annual steel consumption of undertakings involved in the concentration does not exceed 50 % of their production of the product categories used by the undertakings referred to in (b). However, in respect of finished rolled steel products and end products only the groups of products listed in the Annex to this Decision shall be taken into account, or

- the undertakings referred to in (b) use no more than 10 000 tonnes of ordinary steel or 1 000 tonnes of special steel, and the resulting expansion in outlets by the undertakings referred to in (a) is no more than 20 000 tonnes of ordinary steel or 2 000 tonnes of special steel in any three-year period.

2. Tonnages used in the production of steel and in the upkeep and renewal of installations of the undertakings in question shall not be considered as steel consumption."

3. Article 4 is replaced by the following:

"Article 4

1. Transactions referred to in Article 66 (1) shall be exempted from the requirement of prior authorization where they have the direct or indirect effect of bringing about concentration between undertakings engaged in coal distribution, other than sales to domestic consumers or to small craft industries (hereinafter called "distribution undertakings") if: (a) either the total volume of business dealt with annually by distribution undertakings involved in the concentration does not exceed 2 500 000 tonnes of coal ; or

(b) the increase in the annual volume of business brought about by the concentration does not exceed 100 000 tonnes of coal.

However, transactions of this type which are repeated or involve several distribution undertakings at the same time shall be exempted from the requirement of authorization only if the consequent total increase in the volume of business does not exceed 300 000 tonnes.

2. "Volume of business" means the quantities sold by the distribution undertakings for their own account and for account of third parties. Sales to domestic consumers and to small craft industries are not to be taken into account."

4. Article 5 is replaced by the following:

"Article 5

1. Transactions referred to in Article 66 (1) shall be exempted from the requirement of prior authorization where they have the direct or indirect effect of bringing about concentration between undertakings engaged in steel distribution, other than sales to domestic consumers or to small craft industries (hereinafter called "distribution undertakings"), if: (a) either the total annual turnover of steel - not including scrap - achieved by the distribution undertakings involved in the concentration does not exceed 100 million EUA ; or

(b) the annual turnover of steel - not including scrap - achieved by the distribution undertaking which represents one of the parties involved in the concentration does not exceed 20 million EUA. However, transactions of this type which are repeated or which involve several distribution undertakings at the same time shall be exempted from the requirement of authorization only if the consequent total increase in turnover does not exceed 40 million EUA.

2. Transactions referred to in Article 66 (1) shall be exempted from the requirement of prior authorization where they have the direct or indirect effect of bringing about concentration between undertakings engaged in scrap distribution, if: (a) either the total annual volume of business of the distribution undertakings involved in the concentration does not exceed 700 000 tonnes of scrap ; or

(b) the annual volume of business of the distribution undertaking which represents one of the parties involved in the concentration does not exceed 100 000 tonnes of scrap. However, transactions of this type which are repeated or which involve several distribution undertakings at the same time shall be exempted from the requirement of authorization only if the consequent total increase in the volume of business does not exceed 200 000 tonnes of scrap in any three-year period.

3. The turnover shall be ascertained by reference to the amount of products sold and invoiced for own account and for account of third parties. "Volume of business" means the amounts sold by the distribution undertakings for their own account and for account of third parties."

5. In Article 10 (1) the reference to the "High Authority" is replaced by a reference to the "Commission".

Article 2

This Decision shall enter into force on 1 November 1978.

This Decision shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 20 October 1978.

For the Commission

Étienne DAVIGNON

Member of the Commission