Proposal for a Council Regulation (EC) amending Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (96/C 350/08) (Text with EEA relevance) COM(96) 313 final - 96/0224(CNS)

(Submitted by the Commission on 13 September 1996) THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community,

Having regard to Article 1 (3) of Council Regulation (EEC) No 4064/89,

Having regard to the proposal from the Commission,

Whereas Regulation (EEC) No 4064/89 provides that the Council acting by a qualified majority on a proposal from the Commission must review the thresholds establishing the Community dimension of a concentration, in the light of the experience gained from the application of the Regulation;

Whereas, in accordance with the principle of subsidiarity, the thresholds triggering Community merger control should be set at a level at which concentrations are more likely to have significant cross-border effects than a mainly national impact; whereas leaving to Member States the competence to control concentrations having significant cross-border effects would not ensure a 'one-stop-shop` system and would not allow for an appreciation of the competition impact of concentrations on the Community as a whole;

Whereas, concentrations with significant cross-border effects below the thresholds may qualify for examination under a number of national jurisdictions; whereas national merger control systems within the Community are not sufficiently harmonized at present;

Whereas as a general rule, the impact of a concentration subject to multiple national control would go beyond the borders of any one Member State; whereas, in addition, multiple notification of the same transaction increases legal uncertainty, effort and cost for companies and may lead to conflicting assessments; whereas in these cases the exclusive application of Community merger control would increase administrative efficiency and would contribute to the creation of a level playing field across the Community;

Whereas, the thresholds for the application of Community merger control should be adjusted in order to meet the abovementioned objectives; whereas the current levels of the world-wide and Community thresholds should therefore be reduced; whereas, in addition, between these lower levels and certain base levels, the Community merger rules should also apply to concentrations that would otherwise be subject to multiple national control within the Community,

HAS ADOPTED THIS REGULATION:

Article 1 (1)

Regulation (EEC) No 4064/89 is hereby amended as follows.

1. Article 1:

(a) Paragraph 1 is amended as follows:

'Without prejudice to Article 22 this Regulation shall apply to all concentrations with a Community dimension as defined in paragraphs 2 to 4.`;

(b) Paragraph 2 is amended as follows:

'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 3 000 million; and

(b) the aggregate Community-wide turnover of each of at least two of the undertakings concerned is more than ECU 150 million;

unless each of the undertakings concerned achieves more than two thirds of its aggregate Community-wide turnover within one and the same Member State.`;

(c) Paragraph 3 is replaced by the following:

'For the purposes of this Regulation, a concentration within the meaning of Article 3 that does not meet the thresholds laid down in paragraph 2 has a Community dimension, where:

(a) the combined aggregate world-wide turnover of all the undertakings concerned is more than ECU 2 000 million;

(b) the aggregate Community-wide turnover of each of at least two of the undertakings concerned is more than ECU 100 million; and

(c) the concentration is deemed to qualify for examination in at least three Member States of the European Community, according to the thresholds and/or other criteria laid down by the relevant national merger control provisions;

unless each of the undertakings concerned achieves more than two thirds of its aggregate Community-wide turnover within one and the same Member State.`;

(d) A new paragraph 4 is added after paragraph 3 reading:

'For the purposes of paragraph 3 (c):

(a) a concentration is deemed to qualify for examination under national merger control provisions, whether such examination can be initiated on the basis of a notification by the parties, on the Member State's initiative or by other means;

(b) in cases where national merger control provisions contain different thresholds for pre-merger and post-merger control, only the thresholds triggering pre-merger control will be taken into account.`.

2. A new Article 6 (a) entitled 'Procedure for multiple national filings` is inserted after Article 6 reading:

'1. For the purposes of Article 1 (3) (c), the information required to determine the application of national merger control provisions must be contained in the notification pursuant to Article 4. The Commission shall, without delay, transmit such information to the competent authorities of the Member States concerned.

2. Where a Member State referred to in the notification has not opposed the application of its national merger control provisions within two weeks from the date it receives all necessary information, the concentration shall be deemed to qualify for examination in this Member State. Any such opposition must be reasoned and in writing.`.

3. In Article 9, the following text is added at the end of paragraph 2:

'That period shall be increased to five weeks where the Community dimension of a concentration is determined in accordance with Article 1 (3).`.

4. In Article 10, a new subparagraph is inserted at the end of paragraph 1 reading:

'The periods referred to in this paragraph shall be extended by two weeks where the Community dimension of a concentration is determined in accordance with Article 1 (3).` 5. In Article 23, the phrase 'the procedure applicable to cases where the Community dimension of a concentration is determined in accordance with Article 1 (3),` is inserted after the phrase 'and other details of notifications pursuant to Article 4,`.

Article 2

This Regulation shall enter into force on . . . .

Article 3

This Regulation shall 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 apply to any concentration in respect of which proceedings were initiated before that date by a Member State's authority with responsibility for competition.

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

(1) When this proposal makes reference to Articles of Council Regulation (EEC) No 4064/89 of 21 December 1989, it should be read in conjunction not only with the current text of this Regulation, but also with Commission proposal No . . . of . . . .