Tir Tir COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 31.1.1996 
COM(96) 19 final 
COMMUNITY MERGER CONTROL 
GREEN PAPER 
ON THE REVIEW OF THE MERGER REGULATION 
(presented by the Commission) 

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Executive summary 
The Merger Regulation adopted by the Council in 1989 provided the Community for the first time 
with an adequate instrument for the control of cross-border concentrations. European merger 
control has been heralded as a success. Within the EEA, mergers falling within the Regulation 
have all been subject to the same rules and assessed by a single authority, the Commission. This 
was done rapidly and efficiently, on the basis of transparent procedures. 
Since the Regulation entered into force in 1990, more than 350 final decisions have been adopted 
by the Commission. In a large number of cases the notified transactions did not raise competition 
problems and were therefore cleared within one month. Where, however, the merger would create 
or reinforce dominance, measures, were taken to prevent a deterioration in the competitive 
structure of the market. Four operations were thus prohibited and 24 other transactions were 
substantially altered so as to take account of the Commission's competition concerns. 
After nearly five years of European merger control, the Commission is bound, in light of its 1993 
commitment to the Council, to examine the workings of the Merger Regulation. This requirement 
covers mainly the level of the turnover thresholds, above which concentrations are notifiable to 
the Commission, but also the means by which transactions are referred between the Commission 
and the Member States. The Commission is, in addition, taking this opportunity to respond to 
shortcomings of the Regulation and to criticisms of its operation to date. 
The Green Paper which follows details the existing regulatory framework for mergers at both the 
Community and Member State level. It then presents a series of options for discussion. These 
may be summarised as follows: 
- Thresholds: at present the turnover of the companies involved in a concentration must 
exceed ECU 5 billion on a worldwide basis and, for at least two of those companies, 
ECU 250 million in the Community. A considerable number of mergers likely to affect 
market structure in more than one Member State fall below these high levels. The 
information available to the Commission suggests that thresholds of ECU 2 billion and 
ECU 100 million respectively would be more appropriate. 
- Multiple notifications: companies whose turnovers do not reach the present high levels 
of turnover, are faced with 13 different national merger control systems in the EEA. 
Multiple national filings increase uncertainty, effort and cost for business and may lead 
to conflicting decisions. A threshold reduction would solve this problem to a large 
extent. As a "second best solution", it could be provided that cases of multiple 
notification below the current thresholds would only be controlled by the Commission. 
- Joint ventures: two main approaches for improving the treatment of joint ventures 
within the framework of Community competition law are presented. These two 
approaches are detailed by reference to various options for implementation. 
- A number of other, mainly procedural improvements are proposed concerning the 
acceptance of commitments in the first phase of investigation and other aspects of the 
Regulation. 
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- Banking income: proposals to simplify the method of calculating turnover for credit and 
financial institutions and the geographic allocation of this turnover are made. 
The purpose of this Green Paper is to stimulate a far-reaching debate. Its preparation has drawn 
upon the opinions expressed by other Community institutions, the Member States, and the 
industry and legal profession during the Commission survey carried out last year. However, the 
options presented in this Green Paper should not be considered to be either complete or 
exhaustive. 
The Commission believes that the Regulation's scope should be extended to cover a larger 
number of mergers with a Community dimension. Furthermore, current practice can be improved 
in the ways mentioned in the Paper. The opinion of all interested parties is sought to allow a full 
discussion of these issues. 
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GREEN PAPER 
Table of Contents 
I. INTRODUCTION 
II. THE EXISTING REGULATORY FRAMEWORK 
A. MERGER CONTROL AT THE COMMUNITY LEVEL 
B. MERGER CONTROL AT MEMBER STATE LEVEL 
HI. CRITERIA DETERMINING THE COMMISSION'S JURISDICTION 
A. PRESENT SITUATION 
B. PROPOSED OPTIONS 
IV. OTHER ASPECTS OF THE REGULATION 
A. REFERRAL OF CONCENTRATIONS TO AND FROM MEMBER STATES 
(ARTICLES 9 AND 22) 
B. THE TREATMENT OF JOINT VENTURES 
C. COMMITMENTS IN MERGER CASES 
D. DE MINIMIS OPERATIONS 
E. TURNOVER CALCULATION FOR CREDIT AND FINANCIAL INSTITUTIONS 
F. OTHER AMENDMENTS OR CLARIFICATIONS 
Ancillary restrictions in phase 1 
Revocation of Article 6 decisions 
Article 7 
Article 10 (4) 
Calculation of the turnover of joint undertakings 
Third party rights 
"Undertakings concerned" ! 
V. CONCLUSIONS 
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I. INTRODUCTION 
1. Council Regulation 4064/89 on the control of concentrations between undertakings ("the 
Merger Regulation") was adopted on 21 December 1989 and entered into force on 21 
September 1990. The Merger Regulation applies to all concentrations having a 
Community dimension defined on the basis of the annual turnover of the companies 
concerned. 
2. The Commission first examined the functioning of the Merger Regulation in 1993. That 
exercise was prompted by the legal obligation to review the turnover thresholds under 
Article 1 and the case referral rules under Articles 9 and 22. In addition, the Commission 
took the opportunity to examine the operation of the Regulation as a whole, in order to 
identify other areas in which improvements could be made. 
3. The result of the 1993 exercise was a Report from the Commission to the Council1 which 
concluded that there were strong arguments in favour of a threshold reduction. However, 
the Commission considered that it would be prudent to gain further experience of the 
operation of the Merger Regulation and of the impact of national merger control policies 
before making any formal proposal for revision. It therefore invited the Council to 
postpone the review of the thresholds until the end of 1996 at the latest. The Council 
endorsed these conclusions in September 1993. 
4. In the two years that have elapsed since the 1993 exercise, there have been significant 
changes in the legal, political and economic environment. As a result of the enlargement 
of the Union, but also of regulatory developments in the old Member States, there has 
been an increase in the number of national merger control systems in the Community. At 
the Community level, merger control has entered into a phase of consolidation, 
exemplified by the adoption of a new Implementing Regulation2 and a new set of 
guidelines at the end of 19943. In addition, the practical applications of the subsidiarity 
principle were developed in more detail by the Community institutions and the Member 
States. Finally, in the context of an ever-increasing market integration in the Community 
and the recent economic upturn, trans-national merger activity has intensified4. Against 
this background, a review of the Regulation is necessary in order to establish how the 
benefits of the internal market can best be ensured by an effective European merger 
control policy. 
5. In the context of the current merger review, the Commission services conducted a survey 
of Member States, companies, industry associations and advisers to seek their views as 
COM (93) 385 final, 28 July 1993. 
Commission Regulation (EC) No 3384/94 of 21 December 1994, OJ No L 377, 31.12.94, p.l. 
Commission Notices of 21 December 1994, OJ No C 385, 31.12.1994, p. 1, 5, 12 and 21. 
After reaching its peak in 1990, cross-border M& A activity diminished in 1991 to stabilise in the following 
years at about 1350 operations per year. 1994 was, however, characterized by an increase of M & A 
activity, both in terms of the number of operations and in terms of value, European Economy (March 1995), 
Supplement A. 
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to a revision of the Regulation (see Annex 1). The European Parliament and the Economic 
and Social Committee were also invited to express their opinion. 
6. The Green Paper is published as a basis for further discussion of specific changes that 
may be made to the Regulation. It has the following objectives: 
- to provide an analysis of the current situation; 
- to examine, pursuant to the commitment made by the Commission to the Council in 
1993, whether the current thresholds should be revised; 
- to identify other areas where improvements could be made and to present possible 
solutions. 
7. The Commission will consult the Council, the European Parliament, the Economic and 
Social Committee, and the Committee of the Regions on the content of this Green Paper. 
It also invites all interested parties to submit comments. In order to respect the timetable 
of the review exercise, such comments should be communicated to the Commission by 
no later than 31 March 1996 . The Commission then intends to examine the results of the 
consultation process and make a proposal to the Council within 1996. 
n. THE EXISTING REGULATORY FRAMEWORK 
A. MERGER CONTROL AT THE COMMUNITY LEVEL 
1. The Merger Regulation 
8. The Merger Regulation gave the European Commission specific powers for the assessment 
of all concentrations with a Community dimension. These are mergers, acquisitions or 
concentrative joint ventures in which: (i) the world-wide turnover of all the companies 
involved exceeds ECU 5 billion; (ii) the Community turnover of at least two of the 
companies involved exceeds ECU 250 million (this means a minimum of ECU 500 
million combined Community turnover); and (iii) all companies involved do not realize 
more than two-thirds of their Community turnover in one and the same Member State 
(Article 1 of the Regulation). 
9. The Regulation is based on the "one-stop shop" principle. This means that the 
Commission has exclusive competence to assess concentrations with a Community 
.dimension and that, as a result, the companies concerned need only make one notification 
within the European Union. Below the thresholds, concentrations are subject to national 
merger control if that exists. Following the entry intoTorce of the 1994 Agreement on the 
European Economic Area (EEA), the European Commission's exclusive competence for 
concentrations meeting the thresholds has been extended to cover the whole EEA territory. 
Observations can be sent to by fax (fax no. 32-2-296 43 01) or by post to the following address: 
Commission of the European Communities, Directorate- General for Competition (DG IV), Directorate B-
Merger Task Force, Avenue de Cortenberg 150, B-1049, Brussels, Belgium. 
10. The allocation of cases between the Commission and the Member States under Article 1 
is complemented by the provisions of Articles 9, 21, paragraph 3 and 22. Article 9 enables 
the Commission to refer to a Member State cases raising competition issues limited to a 
distinct market within its territory. Article 22, paragraphs 3-5, allows a Member State to 
request the Commission to apply the Merger Regulation to operations below the thresholds 
creating or strengthening dominance within that Member State's territory. Article 21, 
paragraph 3, allows Member States to take appropriate measures to protect legitimate 
interests other than those taken into consideration by the Merger Regulation, including 
public security, plurality of the med:a and prudential rules. Moreover, in the course of its 
investigation and assessment of notified concentrations, the Commission acts in close and 
constant liaison with the competent authorities of the Member States (Article 19 of the 
Merger Regulation) as well as the EFTA Surveillance authority (Article 58 of the EEA 
Agreement). 
11. The Merger Regulation set up a system of mandatory prior notification for all 
concentrations of Community dimension. Notified concentrations are assessed from the 
point of view of their effect on the structure of competition in the common market. The 
basic concept is that of "creation or strengthening of a dominant position". There are two 
phases of examination whose duration is determined by legal deadlines. After an initial 
one-month phase, the Commission must decide whether or not the case raises serious 
doubts as to its compatibility with the common market and, in the affirmative, initiate an 
in-depth investigation. Four months after the initiation of phase 2 proceedings, the 
Commission must take the final decision on the concentration. 
12. As of 30 October 1995, 376 concentrations had been notified to the Commission under 
the Merger Regulation. The Commission has adopted 357 final decisions: 
- 31 decisions under Article 6(l)a of the Regulation (declaring that the operation falls 
outside the scope of the Regulation); 
- 303 decisions under Article 6(l)b of the Regulation (declaring the concentration 
compatible with the common market at the end of the first phase of investigation); 
- 19 decisions under Article 8(2) of the Regulation (declaring the concentration 
compatible with the common market at the end of a phase 2 in-depth investigation); 
- and 4 decisions under Article 8 3) of the Regulation (prohibiting a concentration). 
Twelve cases under Article 6(1 )b and twelve cases under Article 8(2) were cleared subject 
to conditions and/or obligations to ensure compliance with commitments given by the 
parties. Three cases were referred to Member States following a request under Article 9 
and two requests were made by Member States under Article 22 (3). In three cases Article 
21 (3) was applied. 
2. Article 66 of the European Coal and Steel Treaty (ECSC) 
13. The ECSC Treaty provides that all concentrations involving at least one undertaking 
engaged in the production or distribution of coal or steel and established in the 
Community are subject to prior authorization by the Commission. With the assent of the 
Council, the Commission has set minimum levels, based on the companies' volumes of 
production, below which concentrations are exempted from the requirement of prior 
notification. For crude steel or finished products; for example, there is a minimum level 
of 6 million tons per year, which corresponds to approximately ECU 2.5 billion. 
B. MERGER CONTROL AT MEMBER STATE LEVEL 
14. There are currently eleven national merger control systems in the Community6, of which 
eight are mandatory. Out of the remaining four Member States, the Netherlands is in the 
process of adopting a system of mandatory pre-merger control and it is not excluded that 
the other three may also introduce national legislation in the future. A table setting out 
the main features of the existing national systems and the proposed Dutch system is 
included in Annex 2. 
15. A comparative analysis of the different national systems shows that there is a great variety 
in the notification requirements, procedures used and legal standards applied. Formal 
cooperation between the national authorities that may be involved in the same case is 
mainly limited to some bilateral contacts, generally for information purposes. 
16. As regards the authority competent to deal with mergers within each Member State, in 
most countries more than one separate authority plays a role in the decision-making 
process. Out of the eleven countries, in five the final decision is taken by an 
administrative/ministerial body, in four by an independent competition authority, in one 
by a judicial authority, and in one either by a judicial authority (prohibition decision) or 
by a competition authority (clearance). Finally, in two countries the decision of the 
independent competition authority may be overruled by an administrative/ministerial body 
on grounds of public interest. 
17. The thresholds triggering an obligatory or voluntary notification also vary to a large extent 
in terms of the criteria used (i.e. turnover, either in the country concerned or world-wide, 
world-wide assets or market share in the country concerned) and the level at which 
intervention is set (the required world-wide turnover of each of at least two companies 
concerned is, for example, ECU 0,36 million in Austria, ECU 25,2 million in Ireland and 
ECU 520 million in Germany, the total world-wide turnover is, for example, ECU 430 
million in Sweden and ECU 1,04 billion in Germany, and the required total turnover in 
the country concerned is, for example, ECU 125 million in Spain, ECU 180 million in 
Portugal and ECU 300 million in Italy or more than ECU 1 billion in France)7. To the 
extent that the different levels of intervention do not fully correspond to differences in the 
respective sizes of the national economies, they may lead to varying degrees of control 
for companies of comparable size. 
18. As regards the duration of proceedings in the different Member States, the preliminary 
phase of investigation is generally short and does not in any case exceed two and a half 
months. The duration of in-depth investigations is more varied, especially because in some 
cases there are no statutory deadlines, while in others the legal deadlines can be extended, 
for instance for the receipt of additional information. Moreover, a number of systems 
7 There are two additional systems of voluntary notification in the EEA, namely in Iceland and in Norway. 
These thresholds were converted into Ecu on the basis of the average rates for 1994. 
9 -
provide for control after the implementation of a concentration within a period ranging 
from one month to an unlimited period. 
19. In terms of assessment, all Member States use competition criteria in their analysis of 
notified mergers. The possibility to take account of public or general interest criteria is 
also provided in most cases. The precise impact of these other criteria in the final 
assessment of the case is difficult to establish and may differ from one Member State to 
the other. 
20. The number of cases examined under each of the eleven Member State systems varies 
considerably. In the countries that have a system of mandatory notification, the average 
number of cases ranged from 25 per year in the case of Portugal to about 1540 a year in 
the case of Germany8. Of the three countries with a system of voluntary notification, 
France and Spain received on average about 24 cases per year, while the United Kingdom 
received 150-200 cases per year. 
21. There are differences among Member States with regard to the manner of publication of 
their decisions and the amount of information contained therein. In some cases the whole 
text of the decision, including the competitive assessment of the case, is published. In 
other cases only certain decisions (e.g. prohibitions or most important decisions) are 
published, while for the rest an announcement is made. 
in. CRITERIA DETERMINING THE COMMISSION'S JURISDICTION 
A. THE PRESENT SITUATION 
22. This section examines what would be the optimum allocation of merger cases between the 
Commission and Member States in the light of two fundamental community objectives: 
the principle of subsidiarity and the objective of sustaining market integration through a 
rapid and uniform assessment of mergers with significant cross-border effects. It then 
assesses whether, on the basis of the information available, the Regulation thresholds 
should be maintained at their current level. 
L. Basic principles 
Subsidiarity and merger control, 
23. The Merger Regulation was intended to apply to significant structural changes "the impact 
of which on the market goes beyond the national borders of any one Member State" 
(Recital 9). Concentrations with significant cross-border effects were considered to have 
a Community dimension. It was therefore decided that the Commission should have 
exclusive competence to deal with them, while Member State merger laws should apply 
to concentrations with mainly national impact. 
In the remaining countries the average number of notifications per year was: 35 in Belgium, 55 in Ireland, 
132 in Sweden, 238 in Italy and 310 in Austria (informal and formal). These figures represent an average 
of the notifications made in 1993 and 1994. In Greece about 25 notifications were received per year under 
the previous regime of voluntary notification. 
10 -
24. The allocation of cases between the Community and the Member States in the area of 
merger control was thus inspired by the same principles that underpin the notion of 
subsidiarity. According to this notion, action should be taken at the most appropriate level 
of jurisdiction, in view of the objectives to be attained and the means available to the 
Community and the Member States9. 
25. A concentration has significant cross-border effects if its impact on the structure of 
competition extends over a geographic area exceeding the borders of a single Member 
State. This is, for instance, the case when the merging parties have significant activities 
in several Member States or their activities in a single Member State may have significant 
competitive repercussions in other parts of the Community, for example when the 
concentration may impede entry by competitors from other Member States, thus creating 
obstacles to further European integration, or when the entrenchment of a national position 
may have spillover effects in the rest of the Community. 
26. For concentrations with significant cross-border effects, action at Community level is 
justified given the objectives of merger control and the means available to the 
Commission and to Member States. Within the Community, the powers of investigation 
as well as of remedial and enforcement action of the Commission extend beyond national 
boundaries and are therefore wider than those of a single Member State. Moreover, in the 
context of increasingly global or at least inter-dependent economies, control at the 
Community level facilitates the assessment of the effects of these mergers in a uniform 
manner and in their totality. 
Market integration and the "one-stop shop"principle 
27. Cross-border mergers and acquisitions are one of the most important ways in which 
industry can successfully adapt to the new challenges of a European single market. They 
are therefore a positive consequence of market integration, to the extent that they do not 
result in lasting damage to competition (Recitals 3-5 of the Merger Regulation). 
28. It is important that the extent and the manner in which concentrations with significant 
cross-border effects are controlled should be uniform throughout the Community. It is also 
desirable that their assessment under the competition rules does not unduly delay their 
implementation or create legal uncertainty. 
29. Accordingly, the Merger Regulation has two goals: first, to prevent anti-competitive 
transactions and, second, to provide a single framework within which concentrations with 
a Community dimension are assessed within a definite and foreseeable timetable. The 
"one-stop shop" principle, whereby concentrations with a Community dimension are only 
controlled at Community level, facilitates the accomplishment of the second goal. 
30. The application of the "one-stop shop" principle to concentrations with a Community 
dimension is related to the notion of subsidiarity: exclusive control at Community level 
See Commission Report to the European Council on the Adaptation of Community Legislation to the 
Subsidiarity Principle, COM (93) 545 final, 24.11.1993. 
11 
is justified in view of the scale and effects of such transactions. It is also based on 
efficiency considerations. As an alternative to multiple national controls, the single "stop" 
of the Regulation simplifies administrative procedures and enables businesses to minimize 
the costs of restructuring in a single market. It creates a level playing field by ensuring 
that the same notification requirements, procedure and legal standard apply to all 
concentrations with significant cross-border effects. 
T The current thresholds 
31. In accordance with the above, the Community dimension of a concentration should ideally 
be defined on the basis of its effects on the market. For reasons of practicability and legal 
certainty, however, the Merger Regulation uses quantitive criteria to identify operations 
with cross-border effects. These are the aggregate turnover of the undertakings concerned 
world-wide and in the Community. 
32. When the Regulation was adopted, it was generally understood that the level of the 
turnover thresholds had been set by way of political compromise. For this reason the 
Council considered that after an initial phase they should be reviewed in the light of the 
experience gained (Recital 10). The Commission and the Council also declared that they 
would be ready to consider taking other factors into account in addition to turnover when 
the thresholds were revised. 
33. In its above-mentioned 1993 Report, the Commission stated that, with progressive market 
integration in the Community, cross-border merger activity had substantially increased, 
but only a small number of those cases fell within the scope of the Regulation. The 
Report gave specific examples of concentrations that fell outside the Regulation, although 
they were likely to affect competitive conditions throughout the Community. On this 
basis, the Commission concluded that the Regulation thresholds should be reduced. 
34. The results of the present review tend to suggest that the reasons for which a threshold 
reduction appeared to be appropriate in 1993 are still valid today. While, with continuing 
market integration, cross-border merger activity has further increased in size and 
importance10, there are indications that a considerable number of concentrations with 
significant cross-border effects fall below the current thresholds. This is due to the size 
and/or characteristics of sectors where cross-border merger activity takes place, and to the 
size of the companies involved. Moreover, it appears that concentrations with significant 
cross-border effects falling below the thresholds are likely to be subject to multiple 
national filings that increase uncertainty and cost and may lead to conflicting decisions. 
Sectoral coverage of the Regulation 
35. The Commission competence depends on the level of the aggregate turnover that the 
companies concerned realize world-wide and in the Community. The Merger Regulation 
is therefore more likely to apply to concentrations involving companies active in markets 
with very large total turnover and/or conglomerate enterprises. By contrast, concentrations 
10 See ftn. 4. 
12 
in which the acquirer and/or the target are specialized companies, active in smaller but 
still economically important markets, are less likely to meet the thresholds. 
36. The Commission has carried out two separate assessments in order to ascertain the 
sectoral coverage of the Regulation. These are set out below together with an appreciation 
of their results. 
37. The first analysis involves the comparison of the number of notifications under the Merger 
Regulation by economic sector with the number of concentrations listed by AMDATA11 
in the corresponding sector. This has identified a number of sectors whose coverage by 
the Regulation is below or just above 10%12. Examples of such sectors include mechanical 
engineering, electrical and electronic engineering, computer manufacturing, rubber and 
plastic products, textiles, manufacture of food products and beverages, metal products, 
manufacture of wood, manufacture of medical instruments, construction, energy supply, 
printing and publishing, hotels and catering, computer and related services, banking and 
finance. The coverage of some other sectors is also limited. For instance, chemicals, the 
sector where the largest number of notifications are made under the Regulation, has a 
coverage of only some 16%. 
38. The second analysis aims at the identification of specific concentrations with significant 
cross-border effects falling below the current thresholds13. These concentrations cover a 
wide variety of sectors, some of which were also identified under the above exercise. 
Examples of these sectors are: chemical products including base chemicals, specialty 
chemicals and downstream applications; pharmaceuticals; components for the automotive 
industry; mechanical and electrical engineering; biotechnology; construction materials; 
computer software; paper products; publishing; aircraft leasing; tourist services and 
catering. 
39. These concentrations were excluded from the Merger Regulation either because all 
companies involved taken together did not meet the world-wide threshold or because the 
Community-wide threshold was not met by each of at least two of those companies. With 
regard to the Community-wide threshold in particular, it must be noted that even if a very 
large company acquires a smaller company having a high Community market share, the 
fact that the latter company has a Community turnover below 250 million ECU will mean 
that the operation falls outside the scope of the Merger Regulation. Similarly, even 
operations involving two large companies may fail to meet the Community threshold, if 
they concern a swap or acquisition of specific parts or businesses. In such cases, as far 
as the seller is concerned, only the turnover of the acquired part can be taken into 
13 A database providing information on mergers and acquisitions compiled by Acquisitions Monthly. 
By way of comparison, the coverage of certain other sectors such as air transport and télécoms is more than 
50%. The reasons for these differences are due to the characteristics of each sector explained in the present 
section. 
The Commission has compiled two lists of specific examples of such cases, the first covering the period up 
to 1993 and the second covering the period 1993-95. These lists have been communicated to the Member 
States, but are not annexed to this paper for reasons of confidentiality. Most of these cases would have 
come within the scope of the Regulation under lower thresholds of ECU 2 billion (world-wide) and ECU 
100 million (Community-wide). 
13 -
account, and even if this corresponds to a high Community market share, it may still fall 
short of the Regulation threshold. 
40. Restructuring operations in most of the above-mentioned sectors often have a trans­
national dimension, since company activity extends over several Member States. Their 
weak coverage therefore indicates that a considerable number of cross-border operations 
are excluded from the scope of the Regulation. In some other sectors, such as banking and 
finance or energy supply, the market players tend to have a strong national presence. 
However, even in these sectors it appears that operations are increasingly being structured 
on cross-border lines. With the existing thresholds, such concentrations remain outside the 
scope of Community jurisdiction. 
41. There are various reasons why concentrations with a Community dimension within the 
above-mentioned sectors are excluded from the Regulation. These reasons are linked to 
the specific characteristics of each sector. 
42. First, in some sectors such as textiles, printing and publishing or hotels and catering, the 
total turnover achieved by even the largest companies is below the current world-wide 
threshold14. This does not mean that the sector as such is of minor importance. To give 
one example, in 1993, European production in the textiles sector amounted to ECU 106 
billion and consumption to ECU 110 billion. The three largest EU textile companies are 
among the ten largest in the world15. 
43. Second, in a number of diversified sectors, there is company specialization in segments 
of relatively small total turnover. In these sectors, acquisitions of specialized companies 
with significant market presence or transfers of businesses/divisions of larger groups can 
be excluded from the Merger Regulation. For instance, in the vehicle spare parts and 
components sector, despite the presence of some large international companies, there is 
a considerable degree of fragmentation due to a large number of small to medium-sized 
specialized producers. 
44. The sector of mechanical engineering is another interesting example. This important sector 
- in 1992 it occupied the fifth place in the EC industrial production ranking - includes a 
wide range of diversified products. The industry has a polarized structure, with a high 
degree of concentration at the top end of the industry, a limited number of very large 
players and a large number of small and medium-sized enterprises. 
45. In the chemicals and pharmaceuticals sector, about 16% of all concentrations are notified 
to the Commission. For such an industry of transnational dimension, this coverage can be 
regarded as relatively weak.The main explanation for this appears to be the great diversity 
of chemical products and the trend towards specialization via restructuring. This strategy 
results in a number of swaps or acquisitions falling outside the Regulation because of the 
small turnover of the acquired/divested business. 
The data used are included in the 1995 DABLE Synopsis of European Enterprises. 
Panorama of EC Industry, Ch. 14, Office for Official Publications of the European Communities (1994). 
14 
Company coverage of the Regulation 
46. The current thresholds catch only a small percentage of European companies. Out of the 
largest 2200 European companies included in the 1995 DABLE Synopsis of European 
Enterprises16, only 152 companies in the EU and EFTA States (7% of all DABLE 
companies) had in 1993 a world-wide turnover in excess of ECU 5 billion. A total of 293 
companies (13% of all DABLE companies) had a world-wide turnover in excess of ECU 
2.5 billion and would thus come under Community control in a concentration involving 
companies of equal size. 
47. Although these figures do not include all companies covered by the Regulation, notably 
non-European companies, they indicate that the company coverage of the Regulation is 
relatively limited. This is all the more significant, because market globalisation and 
increasing integration within the Community are expected to lead to the involvement of 
a larger number of companies, including medium-sized enterprises, in cross-border merger 
activity in the future. Medium-sized enterprises that do not benefit from the "one-stop 
shop principle" would probably come within the jurisdiction of several Member States and 
thus be subject to multiple national filings. 
The two-thirds rule 
48. Data concerning the extent of the application of the two-thirds rule to European companies 
are not generally available. The Commission is, however, aware of some large European 
groups, such as Siemens, that meet the two-thirds rule and yet have substantial activities 
in the Community outside their home market. Concentrations between two or more such 
groups of the same nationality would fall outside the Regulation, although they could have 
substantial repercussions across the Community. 
Geographic markets affected by concentrations below the thresholds 
49. The Commission has requested the Member States to specify in how many cases notified 
to them in the last two years the relevant geographic market was defined as being larger 
than national or more than one national geographic market was affected. 
50. Based on these replies, the Commission has tried to make an estimate of the number of 
cases with significant cross-border effects below the thresholds. However, the information 
required was in many cases to a greater or lesser extent unavailable. Even in those cases 
where data were available, only some concentrations likely to have significant cross-
border effects could be identified, namely those in which the geographic market was 
defined as being larger than national17. According to these data, at least about 10% of the 
cases notified in Italy, about 20% in France, Spain, Belgium and Portugal, more than 30% 
16 
17 The European Commission's Database on Large Enterprises. 
Concentrations affecting one or several national geographic markets can also have significant effects going 
beyond the borders of a single Member State, but thi? information is not readily available. 
- 15 -
in Austria and more than 50% in Germany18 would appear likely to have significant cross-
border effects. 
Multiple national filings 
51. Concentrations with significant cross-border effects falling below the thresholds are 
subject to national merger laws. Because of their trans-national character, these operations 
are likely to meet the notification requirements of more than one national system. 
52. Multiple national filings are a direct consequence of the high level of the current 
Community thresholds and of the multiplication of national merger control systems in the 
European Union. As a general rule, the existence of multiple national filings is indicative 
of the cross-border effects of an operation. Such concentrations should therefore be dealt 
with at Community level. 
53. According to the survey, the overwhelming majority of companies, industry associations 
and advisers believe that the "single stop" of the Regulation is a benefit to business. When 
a concentration is notified in several Member States, deadlines for decision-making may 
differ and completion of the deal will be dependent on the decision of the last authority. 
Differences in approach between the national systems involved, for instance with regard 
to the application of public interest criteria, may affect the predictability of the final 
outcome. In this respect, the greatest advantages of the "one-stop shop" appear to be legal 
certainty and speed of decision-making. 
54. In practical terms, dealing with a plurality of different authorities requires the coordination 
of information to be provided with regard to timing and argumentation. The facts 
contained in the notification and the manner they are presented needs to be adapted to the 
particularities of each national market and procedure. Moreover, familiarity with different 
legal systems and the ability to work in different languages is required. For most 
companies this necessitates recourse to external local experts. 
55. Multiple notifications imply additional effort and costs, both external and internal. The 
cost savings resulting from the application of the "one-stop shop" are very difficult to 
quantify, because they depend on the size of the company, the complexity of the case and 
the number of national authorities that would be involved should the Commission not have 
jurisdiction. According to the survey, it seems, however, that as a general rule and in 
comparable cases, the application of the Regulation represents a significant cost advantage 
for business. 
56. The "single stop" of the Regulation creates a level playing field for all companies 
restructuring their operations in Europe. According to the survey, the Commission's trans­
national character facilitates the global assessment of cross-border cases and limits the 
technical difficulties associated with the examination of larger than national markets. 
18 The German data relate to operations in which at least one non-German company was involved. Although 
not all cases in which companies of different nationalities are involved have effects going beyond the 
boundaries of a single Member State, these data can be used as. an indication of the number of operations 
with cross-border effects. 
16 
Single control eliminates the risk of conflicting decisions. In addition, it is easier and 
more effective to negotiate remedial action and third parties can intervene more effectively 
when only one authority is involved. 
57. The extent of multiple national filings is only partly related to the mandatory or voluntary 
character of notification under national law. For reasons of legal certainty, companies may 
feel that they should notify even if notification is voluntary, at least when their market 
shares are significant. In any case, the risk involved in non-notification must be assessed, 
especially since the national authorities may take action after the deal is implemented. 
Overall assessment 
58. The information available at the present tends to suggest that the curent thresholds should 
be reduced, in order that the bulk of operations with significant cross-border effects can 
be dealt with at Community level. This would not only enable the Commission to treat 
more cross-border cases where dominance could be created or strengthened, but would 
also speed up and increase consistency in the way such cases are examined, on the basis 
of a "one-stop shop" principle. 
B. PROPOSED OPTIONS 
59. This section states that in order to achieve a better coverage of concentrations with 
significant cross-border effects, it would be more appropriate to have a combined world­
wide threshold of ECU 2 billion and a Community threshold of ECU 100 million for each 
of at least two companies involved. In order to address the problem of multiple national 
filings in particular, another more limited solution could consist in extending the 
Commission competence only to those concentrations below the thresholds that come 
within the jurisdiction of more than one national system of merger control. 
1. Threshold reduction 
Position of Community Institutions 
60. There is support for a threshold reduction both from the European Parliament and from 
the Economic and Social Committee. More specifically, in its Resolution on the Twenty-
third Report on Competition Policy, adopted on 16 March 1995, the European Parliament 
renewed its support for a Commission proposal which would substantially reduce the level 
of turnover at which the Commission was required to act19. Similarly, in its Opinion on 
the Review of the Community Merger Regulation, adopted on 25 October 1995, the 
Economic and Social Committee urged the Commission to propose a world-wide threshold 
of ECU 2 billion and a Community threshold of ECU 100 million. It also recommended 
that the 2/3 rule should be dropped20. 
19 
20 See Point 32 of the Resolution of the European Parliament on XXIIIrd Report on Competition Policy, OJ 
C89/146, 10.4.95. 
Opinionon the Review of the Merger Regulation, ECOSOC 1157/95. 
17 
The position of Member States 
61. According to the preliminary opinions expressed to date, the views of Member States as 
to threshold reduction diverge. A number of Member States are strongly in favour of 
lowering the thresholds, while others wish to maintain the current level. On the other 
hand, there seems to be more or less general agreement that the Commission should 
examine the issue of multiple notifications and seek a practical solution to it. 
Observations of companies, industry associations and advisers 
62. According to the Commission survey, out of all answers received, the majority of 
companies and advisers would be in favour of lowering the world-wide and Community 
thresholds. Views were more divided with regard to the desirability of changing the 2/3 
rule. 
63. Eleven out of the twenty-four associations that replied to the survey were in favour of a 
threshold reduction. Some other associations, including UNICE (Union of Industrial and 
Employers' Confederations of Europe) and ICC (International Chamber of Commerce), 
had mixed views reflecting the divergent positions of their members. For this reason, they 
suggested that companies should have the option to notify concentrations below the 
thresholds either to the Commission or to the national authorities concerned. As to the 2/3 
rule, most associations suggested that it should be maintained, with the notable exception 
of the BDI (Bundesverband der Deutschen Industrie), which recommended its deletion. 
The position of the Commission 
64. At the time of the adoption of the Regulation, the Commission stated that the world-wide 
threshold should be reduced to ECU 2 billion at the end of an initial period of four years. 
It also considered that the Community-wide turnover should be revised in the light of 
experience and the trend of the world-wide threshold, which would imply a corresponding 
reduction to ECU 100 million. 
65. It was explained above the current levels of both the world-wide and the Community 
threshold appear to exclude a considerable number of operations with significant cross-
border effects from the Regulation. The results of the present survey tend therefore to 
suggest that the need for a threshold reduction is at least as compelling today as it was 
in 1993. The precise level of such lower thresholds is difficult to establish. On the basis 
of the information available at present, it seems, however, that ECU 2 billion and ECU 
100 million would allow most cross-border cases to come within the Regulation, in 
accordance with subsidiarity. They would also largely solve the problem of multiple 
national filings to which a number of operations with significant cross-border effects are 
currently subject. Accordingly, the Commission believes at this stage that these levels 
would be appropriate. At the same time, it will naturally consider whether these levels 
should be re-assessed in the light of further information that may be brought to its 
attention during the consultation period. 
66. The Commission accepts that the 2/3 rule can in some cases exclude concentrations with 
significant cross-border effects from the scope of the Regulation. If a 3/4 rule were to be 
introduced, a larger number of such cases would come within the Regulation. On the other 
hand, a substantial number of cases of mainly national impact would likely be caught. 
Consequently, the Commission considers at this stage that on balance the maintenance of 
the 2/3 rule would probably be more consistent with the subsidiarity principle. 
67. It was suggested to the Commission that a threshold reduction could increase the number 
of notifications with mainly national impact and therefore the number of requests for 
referral under Article 9. The implications of a threshold reduction for the application of 
Article 9 are discussed under IV.A. below. 
Inflation and enlargement of the Union 
68. The Commission has examined the impact of inflation and the enlargement of the Union 
on the existing thresholds. It seems that this has been rather limited. In particular: 
(i) On average within the EU, inflation and currency fluctuation (i.e. devaluation or 
appreciation) in the period 1989-94 have led to an erosion of the first threshold 
from ECU 5 billion to ECU 4.3 billion and of the second threshold from ECU 250 
million to ECU 216 million. This decrease cannot be ignored, but in the light of 
the figures mentioned in paragraph 61 above, it is not significant enough to negate 
the need for reducing the current thresholds. 
(ii) It was suggested to the Commission that as a result of the enlargement of the 
Union, more companies would fall within the Regulation, because their Community 
turnover would increase and/or the 2/3 rule would no longer apply. However, 
among the cases notified to the Commission since 1 January 1995 only a limited 
number met the thresholds because of the additional turnover realized in the new 
Member States. 
Estimate of extra cases 
69. The precise number of extra cases resulting from a threshold reduction is difficult to 
predict. An estimate has been made based on information provided by the Member States. 
The data given relate to the number of national merger notifications in 1993 and 1994 that 
would fall within the Merger Regulation, if the world-wide and Community thresholds 
were reduced to ECU 2 billion and ECU 100 million respectively and the 2/3 rule were 
maintained. 
70. On this basis, it is estimated that the Commission workload would increase by an extra 
65-80 cases per year. This is comparable to a DG II forecast21, which was 65 extra cases 
per year, or 90 if an estimate for concentrative joint ventures is also included in the 
calculation. 
Impact on Commission resources 
21 "Competition and Integration: Community Merger Control Policy". 57 European Economy (1994), 2.2.3.4., 
p. 38. 
19 
71. Concern was expressed as to whether the increase in the Commission workload resulting 
from a threshold reduction would endanger the effectiveness of the existing procedures 
and the quality of the competition analysis. A threshold reduction proposal should be 
justified by general policy considerations, but would naturally have to take into account 
the need for any additional resources so as not to reduce quality and efficiency. 
2. Cases of multiple notification 
72. Concentrations subject to multiple notification can generally be considered to have 
significant cross-border effects. In accordance with subsidiarity, they should therefore be 
dealt with at Community level. Moreover, multiple national filings increase uncertainty, 
effort and cost for business and may lead to conflicting decisions contrary to the idea of 
a "level playing field". 
73. There is wide-spread concern among industry about concentrations below the thresholds 
meeting the notification requirements of several national systems. Consequently, 
companies and associations, including those that would not be in favour of a general 
threshold reduction, urged the Commission to make a proposal ensuring that such cases 
are dealt with at Community level. 
Policy options 
74. Merger control systems in the European Union are highly diverse. Their harmonization 
e.g. by means of a Community directive could alleviate the administrative burden of 
multiple national filings. The Commission would encourage any efforts towards 
harmonization, especially with regard to the form of notification and other procedural 
rules. At the same time harmonization would not be the most appropriate solution to the 
problem of multiple notifications for the following reasons. Even putting aside the 
difficulties and time necessary for changing the national laws, companies would still have 
to notify to several national authorities and provide information relating to the specific 
features of each national market. More importantly, operations with significant cross-
border effects would still have to be examined at Member State level,, contrary to the 
subsidiarity principle. 
75. A number of industry associations, including UNICE, ICC, CNPF (Conseil National du 
Patronat Français) and AGREF (Associations des Grandes Entreprises Françaises), have 
proposed that in cases of multiple notification falling between the current thresholds and 
some lower thresholds to be defined - for instance ECU 2 billion and ECU 100 million -
the companies concerned could have the option of notifying either to the Commission or 
to the relevant national authorities. The Commission or the national authorities concerned, 
as the case may be, would have exclusive competence when notified. It is clear that this 
solution is desirable from a business perspective, because it allows the greatest degree of 
flexibility. On the other hand, it would leave the choice of jurisdiction to the discretion 
of the companies concerned. For this reason, it appears at this stage that, in devising a 
solution to the problem, it would be more appropriate to find clear and objective criteria 
for the division of competences between the Commission and the Member States. 
Proposed options 
20 
76. As explained above, it appears that a threshold reduction to ECU 2 billion and ECU 100 
million22 would bring the bulk of cases with significant cross-border effects within the 
Regulation. At the same time this would largely solve the problem of multiple 
notifications, to the extent that otherwise a number of these cases would have been 
notifiable to several national authorities. 
77. In order to address the problem of multiple national filings in particular, another more 
limited solution could consist in extending the Commission's competence only to those 
concentrations below the thresholds that come within the jurisdiction of more than one 
national system. Compared with a threshold reduction, this solution w7ould bring some, but 
not the bulk of concentrations with significant cross-border effects within the Regulation. 
Because of differences in the notification thresholds used by national laws or the lack of 
merger control legislation in some Member States, the existence or not of multiple 
national filings depends on the national markets in which the undertakings concerned 
mainly operate. The Commission therefore considers this more limited solution to be the 
minimum required to achieve a division of competences consistent with subsidiarity. 
78. In accordance with the above, the Commission competence could be extended to cover 
concentrations of multiple notification falling between the current thresholds and lower 
thresholds, for instance ECU 2 billion (world-wide) and 100 million (Community-wide). 
Article 1 of the Merger Regulation could thus be amended to provide that a concentration 
within the meaning of the Regulation that does not meet the thresholds laid down in 
paragraph 2 has, nevertheless, a Community dimension when it comes within the 
jurisdiction of a number of Member States. 
79. A concentration would be considered to come within the jurisdiction of a number of 
Member States if it met the national thresholds triggering an obligation to notify in 
systems of mandatory control or subjecting a concentration to a system of voluntary 
notification. The Commission considers that voluntary systems are relevant in this respect. 
A concentration meeting the threshold of more than one system is likely to have 
significant cross-border effects, regardless of the mandatory or voluntary character of the 
national systems concerned. If one were to exclude voluntary systems in determining the 
number of authorities involved, there would be discrimination among companies 
participating in cross-border transactions, depending on the national markets affected in 
each case. Finally, for reasons of legal certainty, notification also takes place under 
voluntary systems, especially when the market share of the parties is significant. 
80. As to the number of national laws that must be applicable, the following should be taken 
into account. In the Commission's view, a concentration coming within the jurisdiction of 
two national systems is likely to have significant cross-border effects and should in 
principle be able to benefit from the "one-stop shop" of the Regulation. Such 
concentrations should thus be dealt with at Community level. It was suggested to the 
Commission that the Community dimension of a concentration may be more manifest 
when at least three national jurisdictions are involved. Member States also stated that in 
cases where only two national authorities are involved, any problems could be more or 
22 See paragraph 65 above. 
- 21 -
less adequately solved through bilateral coordination. By contrast, coordination would 
become too complicated and thus ineffective when three or more systems come into play. 
The validity of these arguments, which suggest that, at a maximum, the number of 
national systems involved should be three, needs to be explored during the consultation 
period. 
Procedure 
81. The above-mentioned cases will be subject to the same substantive and procedural rules 
that apply to any other concentration within the meaning of the Merger Regulation, with 
the following exception: in addition to the normal requirements establishing the 
Commission's competence, it will be necessary to determine whether the concentration 
meets the notification thresholds of a number of Member States. 
82. Two basic approaches exist: either the Member States concerned confirm the application 
of their national thresholds and the Commission is bound by this assessment; or the 
Commission itself decides thereon. The second approach would mean that the Commission 
would have to interpret the national merger laws. This would be impractical and could 
lead to divergent interpretations of national laws by the Commission and the Member 
States. For these reasons, the Commission considers that the first approach is preferable. 
83. Two possible ways in which the application of the national laws can be determined are 
set out below. 
(i) As part of the formal notification, the parties include in the form CO (in one of the 
official Community languages) all information showing that the operation meets 
the notification thresholds of a number of Member States. A copy of the form CO 
is sent to Member States as usual. The Member States concerned must inform the 
Commission within a set period of time (e.g. within one to two weeks) when the 
concentration does not meet their thresholds. If the Member States concerned do 
not oppose the analysis of the parties within the set period, the competence of the 
Commission will be established. 
(ii) At a stage prior to formal notification, the parties notify the fact of the 
concentration to the Commission. No form CO is required at this stage, only the 
information showing that the operation is a concentration within the meaning of the 
Merger Regulation and meets the Member States' notification thresholds. The same 
procedure as under (i) above is then followed. There are two variations on this 
scenario: 
the parties have an obligation to notify the fact of the concentration within the time 
limits provided in Article 4, but the phase 1 deadline starts only after the 
jurisdictional question has been solved and the full form CO has been submitted; 
or 
the parties notify the fact of the concentration before the final agreement is 
concluded or control is acquired. 
- 2: 
84. In the course of preliminary contacts with interested parties, it was pointed out to the 
Commission that these procedures could raise some practical difficulties. In particular, it 
was argued that it will not always be easy to determine quickly whether a concentration 
meets the national notification thresholds, especially in cases where market-share 
thresholds are used. 
85. To the extent that the application of some national thresholds is difficult in practice, this 
situation is not created by the Commission proposals. Companies are already subject to 
the operation of national laws and must check whether the various notification thresholds 
apply to their deal. During the consultation period following the adoption of the Green 
Book, the Commission will have the opportunity to examine this issue, as well as any 
further practical problems that may be identified. 
86. In any event, it is clear that the smaller the number of Member States' laws required for 
establishing the Commission's competence, the simpler the procedures and the greater the 
degree of legal certainty for the companies concerned. In the Commission's view, the 
simplest procedure is where two Member States are involved, while above three Member 
States the system becomes extremely difficult to manage both from the point of view of 
the companies concerned and from the point of view of the regulatory authorities 
involved. 
Number of multiple notifications 
87. The Commission is currently aware of about one hundred cases of multiple notification 
in the last two and half years. About 35% of these cases were notified to more than two 
and up to ten national authorities. 
88. These figures by no means represent the total number of multiple notifications during that 
period. The Commission does not at this stage have Member State records for 1995, a 
year with intense merger activity. Existing records for 1993-94 are very difficult to 
analyse, because the data are not kept on the same basis in each Member State. 
Moreover, multiple national filings may become more frequent in the future to the extent 
that companies' awareness of newly introduced merger control systems increases, new 
systems come into force in the Community and notification under voluntary systems 
becomes more common. Market integration and the resulting increase in cross-border 
merger activity should also lead to an increase of multiple notifications. For these reasons, 
the additional number of cases to be dealt with by the Commission should be higher than 
the above-mentioned figures. 
IV. OTHER ASPECTS OF THE REGULATION 
89. In addition to thresholds, the Commission survey identified a number of specific areas in 
which improvements could be made to the Regulation. In order to respond to these 
concerns, the Green Paper proposes changes that amend or clarify the existing provisions. 
90. In addition to these changes, the Commission would also consider examining the ECSC 
Treaty provisions relating to concentrations, including thresholds. These issues go beyond 
the scope of the present review and will not be further discussed in this Paper. 
- 23 -
91. The proposed changes are mainly procedural. As to substantive matters, the survey 
identified areas where clarifications would be useful, such as the notion of oligopolistic 
dominance, the "failing firm" defence and the "efficiencies" defence. These matters are 
best dealt with by means of interpretative guidelines. 
A. Referral of concentrations to and from Member States f Articles 9 and T£\ 
Article 9 
92. Concentrations with mainly national impact are better controlled at the national level. It 
is possible that operations of this kind may fall within the current thresholds. In these 
cases, and in line with subsidiarity, Article 9 of the Regulation provides for a corrective 
mechanism of referral to the national authorities. Three concentrations have so far been 
referred to national authorities: Steetley/Tarmac was referred to the UK authorities, 
Holdercim/Cedestto the French and McCormickCPC/RabobankOstmann to the German. 
93. The industry and the large majority of Member States have expressed satisfaction with the 
operation of this Article. At the same time, a number of suggestions aiming at clarifying 
or improving the referral procedure were made to the Commission. It was also pointed out 
that, in the event of a threshold reduction, there might be an increase in the number of 
cases with mainly national impact and, as a result, an increase in requests for referral 
under Article 9. 
94. The Commission considers that, especially if there were not to be a threshold reduction, 
any amendments to Article 9 should be limited so as not to undermine the delicate 
balance struck by the current referral provisions or to negate the advantages of the "one-
stop shop" principle. Too frequent use of Article 9 could reduce the legal certainty 
afforded to companies and should probably be linked to a harmonization of the main 
features of national merger systems. 
95. The Commission therefore proposes that Article 9 be maintained in its current form, with 
the following exception regarding concentrations that affect only a non-substantial part of 
the common market. It could be provided that in such cases the Member State making the 
request for referral must inform the Commission that the concentration affects a distinct 
market within its territory not constituting a substantial part of the common market. By 
contrast, it will not need to demonstrate that the concentration threatens to create or 
strengthen a dominant position on that market. 
96. The Commission also proposes to examine whether its practice with regard to the 
application of Article 9 should be further clarified, for instance by means of an 
interpretative notice. 
Article 22 
- 24 -
97. Use of Article 22(3) has already been made on two occasions23 and it is generally 
regarded as a useful tool, especially for those Member States that do not currently have 
a merger control system. The Commission therefore proposes to maintain it. However, in 
the light of experience, the following amendments could be made: 
- It could be expressly provided that an Article 22 request could also be made by several 
Member States, acting by common agreement. Such a request would, for instance, be 
appropriate in cases where a concentration would create or strengthen a dominant 
position in an area wider than the territory of a single Member State and would enable 
the Commission to examine the effects of the concentration to a fuller extent. 
- It could be stated that the concentration would be suspended from the date of receipt 
of the Article 22 request, provided that it has not been put into effect prior to that date. 
- In order to harmonize the time limits under Article 10 and Article 22, the fourth 
paragraph of Article 22 should be amended as follows: 
"The period within which proceedings may be initiated pursuant to Article 10(1) shall 
begin on the day following that of the receipt of the request by the Member State". 
- The text of Article 23 should also be amended to enable the Commission to adopt 
implementing provisions concerning time limits pursuant to Article 22. 
B. The treatment of joint ventures 
Present situation 
98. A distinction is made under the EC competition rules between concentrative and 
cooperative joint ventures. Concentrative joint ventures fall within the scope of the Merger 
Regulation, while cooperative joint ventures are dealt with under Regulation 17/62 and 
other Regulations implementing Article 85 of the EC Treaty. 
99. According to Article 3 (2) of the Merger Regulation, as interpreted by the 1994 
Commission notice24, concentrative joint ventures are full-function entities25 that do not 
give rise to coordination of the competitive behaviour of undertakings which remain 
independent. In order to be relevant, coordination must be likely to result in a restriction 
of competition within the meaning of Article 85 (1) of the EC Treaty. Joint ventures that 
do not fall within Article 3 (2) are considered to be cooperative. Cooperative joint 
ventures encompass a wide variety of arrangements, ranging from operations of a 
structural nature to cartel-like cooperation. 
100. In the Commission survey, a large part of industry as well as a number of Member States 
expressed considerable concern about the differences in treatment between concentrative 
23 
24 
25 In British Ainvays/Dan Air and RTLA^ronica/Endemol. 
Commission Notice of 21 December 1994 on the Distinction between Cooperative and Concentrative Joint 
Ventures, OJ N* C 385, 31.12.1994, p. 1. 
This means that they perform all the functions normally carried out by other companies operating in the 
same market and have sufficient financial and other resources to carry out their activities on a lasting basis. 
- 25 
joint ventures and cooperative joint ventures of a structural nature. It is said that both 
kinds of operations are similar in terms of their effects on market structure. They are, 
however, currently subject to different regimes. This situation is widely regarded as 
unsatisfactory, especially to the extent that there are differences in the deadlines for 
assessment and the degree of legal certainty afforded to companies. 
101. The Commission has recognised the desirability of harmonization of the regimes 
applicable to joint ventures by introducing a special accelerated procedure in relation to 
structural cooperative joint ventures26. The Commission set itself a two-month internal 
deadline, applicable since 1 January 1993, within which it should take an initial view 
concerning operations of this kind. According to the Commission survey, this procedure 
is a positive development, but still does not guarantee full equality of treatment. 
Is there a need for change? 
102. Cooperative full-function joint ventures involve a significant change in the structure of the 
companies concerned. They may have, in this respect, similar effects on market structure 
to concentrative joint ventures. The main difference between the two types of operations 
is that, in the case of cooperative full-function joint ventures, the independent presence 
of their parent companies in the same market as that of the joint venture or in 
neighbouring markets is regarded as likely to give rise to the coordination of the 
competitive behaviour of their parent companies. For this reason, a different substantive 
test has been applied to cooperative full-function joint ventures. Different procedural rules 
have also been applied, with different treatment in terms of timing and legal certainty. 
Since cooperative full-function joint ventures may imply a transfer of substantial resources 
from the parent companies, it should be considered to what extent differences in treatment 
should be reduced. 
103. Under the current rules, most concentrative joint ventures are assessed within one month 
(phase 1), and the rest within five months (phase 2-in-depth investigation). In all cases the 
procedure is concluded by a formal clearance or prohibition decision which can only be 
revoked in exceptional circumstances (see Article 8 (5) of the Merger Regulation). If no 
decision is taken within these deadlines, the joint ventures is deemed to have been 
authorized. 
104. There are no such legal deadlines for cooperative joint ventures of a structural nature. 
The two-month deadline that applies to certain operations of this kind is only an internal 
one. Moreover, given the current procedural constraints under Regulation 17/62, it is not 
possible to adopt a formal decision within two months, but only to issue an administrative 
letter which does not bind the authorities and the courts of the Member States. There is 
no legal or internal deadline for the conclusion of the in-depth investigation. Finally, 
under Regulation 17/62, in cases where an exemption is granted, this must be given for 
a certain period of time and the decision can be revoked or modified under the 
circumstances mentioned in Article 8 (3) of that Regulation. 
26 These are cooperative full-function joint ventures and certain partial-function joint ventures without access 
to the market, in particular research and development or production joint ventures. 
- 26 -
105. The above-mentioned differences have been caused by the different implementing 
Regulations applicable to cooperative and concentrative joint ventures and on the view 
that there is a basic difference between restrictions of competition, to be assessed under 
Article 85, and concentrations which are not subject to the fundamental prohibition of 
agreements and restrictive practices which distort competition. Reform of the current 
arrangements would have to remain within the bounds of the Community legal system. 
To change the substance of Article 85 (1) would exceed the limits of the powers of the 
Community's institutions. 
106. It remains to be seen to what extent the system has given rise to practical problems. 
Nevertheless, changes may also be justified by general considerations of competition 
policy, particularly the drive to make the system simpler, more transparent and more 
effective. 
Options to be considered 
107. Apart from the option of making pragmatic improvements in internal procedures so as to 
speed up the decision-making process (for instance by reducing existing internal 
deadlines), there are five other options to be considered all of which would require new 
legislation. These five options can be divided into two groups reflecting.two different 
approaches: the first group deals with procedural matters while maintaining the substantive 
tests, while the second group would subject structural cooperative joint ventures to both 
the substantive test and the procedural rules of the Merger Regulation. 
108. I Procedural options 
a. Create new procedures for the treatment of cooperative full-function joint ventures 
by means of a new Regulation, in order to simplify procedures and provide for fast 
decisions and legal certainty. 
b. Make cooperative full-function joint ventures subject to procedures of the Merger 
Regulation, leaving the two substantive tests separate. 
c. Extend the scope of Commission block exemption Regulations dealing with 
horizontal cooperation (and adopt a new one for areas not covered by the existing 
Regulations) to cover cooperative full-function joint ventures, with opposition 
procedures and market share thresholds. 
109. IL Substantive and procedural options 
a. Extend Article 3 (2) of the Merger Regulation to all cooperative full-function joint 
ventures. 
b. Extend Article 3 (2) of the Merger Regulation to aU joint ventures, whether full 
function or not, except shams (cartels dressed up as joint ventures). 
110. All of these options would have a significant impact on priorities and resource allocation 
within the Commission's services. 
- 27 -
Comments on the options 
111. The option of making pragmatic changes to internal procedures would improve the current 
situation without any changes in the law. Since only internal procedures have to be 
adapted, this could be achieved quickly. However, the changes would remain of an 
internal nature and legal certainty would not be provided within a short period of time. 
Procedural options 
112. Legal certainty could be obtained more quickly under option a with a new Council 
procedural regulation which would introduce a procedure for cooperative full-function 
joint ventures along the lines of the Merger Regulation. The emphasis would be on 
streamlining procedures, while the current substantive test would be maintained. 
113. Under option b. cooperative full-function joint ventures would continue to be subject to 
the substantive test of Article 85, paragraphs 1 and 3. At the same time, it would be 
provided that the procedural rules of the Merger Regulation would apply to them, instead 
of those of Regulation 17/62 and the other implementing Regulations that are currently 
applicable. 
114. Cooperative full-function joint ventures would benefit from the timing and other 
procedural advantages of the Merger Regulation. They would also be subject to the same 
notification and other procedural requirements. However, the distinction between 
cooperative and concentrative joint ventures would still govern the substantive test to be 
applied: concentrative joint ventures would be subject to the test of Article 2, while 
cooperative full-function ones would be subject to the test of Article 85, paragraphs 1 and 
3. Exemptions under Article 85 (3) would be limited in time and revocable in accordance 
with current law and practice, which pays particular attention to the competitive 
relationships between the joint venture's parent companies. 
115. Under option c. Article 3 (2) of the Merger Regulation would remain unchanged. The 
Commission would instead use its legislative powers under Council Regulation (EEC) N° 
2821/71 to cover most of the cooperative joint ventures by a group exemption. For this 
purpose, Regulations (EEC) N° 417/85 and N° 418/85, which both expire at the end of 
1997, could be broadened and merged: The advantages of the group exemption would be 
available up to a certain market share. The threshold should be fixed clearly above the 
current figures (which are: 10% for full-function joint ventures, 20% for partial function 
joint ventures). Those not covered by the automatic exemption could be subject to a non-
opposition procedure with two deadlines: a first one of two months within which the 
Commission would take an initial view (corresponding to the existing internal deadline, 
but legally binding), and a second one of five months within which the final outcome, be 
it positive or negative, would have to be reached. 
116. Under this option the differences between the relevant substantive test would continue to 
exist. The rules on individual procedures, although not being harmonized, would be 
brought closer to each other, thereby accelerating procedures. It is true that the application 
of a market share criterion may give rise to practical difficulties. However, the opposition 
procedure would make the Commission responsible in the final analysis for correctly 
- 28 -
defining the relevant market and the market shares of the interested parties. Cases which 
meet the requirements for automatic exemption would not have to be notified. The 
exemption granted under the regulation would last as long as the group exemption. 
Substantive and procedural options 
117. Under option a. Article 3 (2) of the Merger Regulation would be amended to state that 
"the creation of a joint venture performing all the functions of an autonomous economic 
entity shall constitute a concentration with the meaning of paragraph 1 (b)". This would 
mean that, in substantive terms, the dominance test of Article 2 of the Regulation would 
also apply to the creation of cooperative full-function joint ventures. In respect of the 
cooperative aspects of the case that are not ancillary, it would be provided that Article 85, 
paragraphs 1 and 3, would apply to them, either within the same procedure or separately. 
118. This option would ensure legal certainty and rapid procedures. Moreover, it would 
simplify the distinction between cooperative and concentrative joint ventures, because the 
same procedures and substantive test would apply to all full-function joint ventures, except 
for clauses which are not ancillary. This option would imply a reassessment of the scope 
of Article 85 (1) with regard to the Commission's existing and long-standing practice and, 
in any event, would have to remain within the bounds of Article 85 as interpreted by the 
Court of Justice. 
119. As to the division of jurisdiction between the Commission and the Member States, this 
option would extend to all full-function joint ventures the jurisdictional allocation 
provided for in Article 1 of the Merger Regulation. As a result, national law would apply 
to full-function joint ventures below the thresholds. 
120. Finally option b would submit all joint ventures, except hidden cartels, to the Merger 
Regulation through extending Article 3 (2). As a consequence, both the substantive test 
and procedure would be changed for all cooperative joint ventures. Legal certainty and 
rapid procedures would be provided in the same way as currently for concentrative joint 
ventures. This option would also imply a reassessment of the scope of Article 85 (1) with 
regard to current and well-established practice and, in any event, would have to remain 
within the bounds of Article 85 as interpreted by the Court of Justice. It would create the 
problem of identifying those joint ventures to which Article 85 would remain applicable 
(hidden cartels). 
Concluding remarks 
121. As will already be clear, the Commission is interested to know how seriously the 
differences in the treatment of co-operative and concentrative joint ventures, in terms of 
deadlines, procedures, substantive test and legal certainty, are considered. This will clearly 
influence the choice between the various options. The above-mentioned procedural options 
improve procedures, including deadlines, and increase legal certainty. The substantive and 
procedural options appear to offer the most comprehensive and harmonised treatment of 
concentrative and cooperative joint ventures from the point of view of the above criteria. 
The Commission is at this stage open as to the option best suited to address the disparities 
in the treatment of joint ventures and the desire for simplicity, transparency and an 
effective competition policy. 
C. Commitments in merger cases 
122. Pursuant to Article 8 (2) of the Merger Regulation, a Phase 2 authorisation decision may 
be subject to conditions and obligations ensuring that the parties comply with the 
commitments they have entered into vis-à-vis the Commission. Commitments must be 
submitted within three months from the beginning of Phase 2 (Article 18 of Commission 
Regulation 3384/94). It is not proposed that changes be made in the Commission practice 
in this area. 
123. It is the Commission's practice to accept commitments also in Phase 1 in cases where the 
competition concern is clear-cut and limited compared with the whole deal, can easily be 
remedied and where compliance is easily monitored. The authorization of the 
concentration is based on the fulfilment of these commitments. The Commission considers 
that such an approach provides a regulatory response proportionate to the size of the 
competition problem and the remedy already at hand. There is also overall support from 
industry and advisers to accept commitments in Phase 1, because they avoid the cost and 
loss of time involved in entering Phase 2 proceedings. It is the Commission's policy to 
give Member States and interested third parties the opportunity to comment on proposed 
commitments before an Article 6(l)b decision is adopted. 
124. The Commission considers that, under the current regime, it may accept and enforce Phase 
1 commitments. However, legal certainty would increase if an express provision to that 
effect were included in the Regulation. At the same time such commitments must be 
accepted in a manner ensuring transparency and timely consultation of Member States and 
interested third parties. 
Proposed changes 
125. In accordance with the above, Article 6 (1) b of the Merger Regulation could be amended 
in line with Article 8, paragraphs 2 and 5 (b), so as to give the Commission express 
powers for accepting and enforcing Phase 1 commitments. 
126. In order to ensure transparency and to give Member States and interested third parties 
adequate time for comment, it is estimated that a period of at least two weeks from the 
date of the submission of the commitments will be necessary. Consequently, three possible 
procedural solutions could be envisaged: 
- A two-week consultation period from the time of the submission of the commitments 
will be required. This may lead to an extension of Phase 1 by a maximum of two 
weeks. 
- There would be no extension of the current Phase 1. Companies would have to submit 
their commitments in time for a two-week consultation to take place within the one-
month period. In view of the time constraints of Phase 1, this solution would be 
possible in practice only if the competition problem and the remedy were identified at 
- 30 -
a very early stage in the procedure. Otherwise, the parties could withdraw their initial 
notification and make a new notification containing the proposed commitments. In cases 
of withdrawal and re-notification, the Commission could, where appropriate, take a 
decision immediately after the three-week period for an Article 9 request. 
- A mechanism comparable to Article 9 would be introduced: commitments would have 
to be submitted within three weeks from notification and Phase 1 would be extended 
to six weeks. 
D. De minimis operations 
127. For the purposes of this Green Paper, an operation is defined as de minimis if it has no 
or insignificant effects on the structure of competition in the Community. 
128. It is possible that some de minimis operations may fall within the scope of the Merger 
Regulation. For instance, concentrations that do not lead to an overlap between the merged 
activities in the Community may be notifiable because of the parties' Community turnover 
in markets other than those affected by the operation (see the Seagram/MCA and 
JCSAT/SAJAC cases). In the last two years ten concentrations with no or minimum 
overlap were notified to the Commission. 
129. Another example of de minimis operations may be joint ventures of very small turnover 
which may be notifiable because of their parents' turnover. In the last two years there 
were at least 20 joint ventures with a turnover of less than ECU 100 million. However, 
not all of these joint ventures were de minimis operations, since in a number of cases 
market shares exceeded 25%. 
130. A number of the companies and associations surveyed suggested to the Commission that 
the notification of de minimis operations constitutes an unnecessary burden on business. 
Such operations should therefore be excluded from the scope of the Regulation or 
examined under simplified procedures. 
131. The Commission does not consider at this stage that de minimis concentrations should be 
excluded from the Merger Regulation for the following reasons. If de minimis 
concentrations were defined on the basis of turnover thresholds, there would be a risk that 
operations raising competition concerns would also be excluded. Market share thresholds 
would be more appropriate but would reduce legal certainty. Moreover, if de minimis 
concentrations were excluded from the scope of the Merger Regulation, they would no 
longer benefit from the "one-stop shop" principle and could be subject to multiple national 
filings. 
132. Because of the above-mentioned definitional problems, the Commission also considers that 
it would be difficult to lift the suspension under Article 7 of the Merger Regulation for 
all such concentrations. Consequently, to the extent that the notification of de minimis 
operations constitutes an undue burden, the existing procedure should be simplified as 
much as possible. 
- 31 -
133. Under the current rules, the information required for de minimis operations notified to the 
Commission is limited. The new form CO27 provides for short-form notification in cases 
where the turnover of a joint venture and/or the turnover of the contributed activities is 
less than ECU 100 million in the EEA, and the total value of the transferred assets is less 
than ECU 100 million in the EEA. As to operations other than joint ventures, no market 
information is required where the combined market share of the parties does not exceed 
15% in the same product market and any individual or combined market share does not 
exceed 25% in a market upstream or downstream of a product market in which any or 
more of the parties is active. These provisions already reduce the burden of notification 
to a considerable extent. In practice, the information required could be further limited if 
necessary, on the basis of waivers to the form CO. 
134. In addition, the Commission could take a short-form decision in de minimis cases without 
having to await the expiry of the legal deadline. These procedural improvements would 
not require an amendment to the Merger Regulation. 
E. Turnover calculation for credit and financial institutions 
135. In relation to credit and financial institutions, the Merger Regulation, in line with a 
number of Member States' national merger control laws, uses assets instead of turnover 
for the purposes of application of Article 1 (2). In order to determine Community-wide 
turnover and the application of the two-thirds rule, assets are allocated between the 
Community and Member States in accordance with the ratio between loans and advances 
to Community and Member States' residents and their total loans and advances. 
136. Two problems have been identified with the Commission's current approach : 
(i) a notional turnover figure calculated on the basis of assets excludes certain 
transactions (eg. foreign exchange and security dealing revenues) from the notional 
turnover figure; 
(ii) the identification of the residence of a borrower is, in practice, difficult and may 
vary over the life of the loan. Consequently, the geographic allocation of turnover 
is onerous for banks. 
137. In order to alleviate these problems, the Commission is considering changes in its 
approach: 
(i) Turnover 
138. The Commission has studied whether the use of assets or gross banking income would 
significantly change the number or type of banks that would be subject to the Merger 
Regulation. On the footing of this evaluation, it has been concluded that both bases give 
broadly similar results. It is, however, admitted that the use of banking income would 
more properly reflect the economic reality of banks' operations. 
27 Annex to Commission Regulation (EC) No 3384/94, of 21 December 1994, OJ L No 377, 31.12.1995, 1. 
- 32 -
139. Gross banking income comprises, at least, the items set out in Article 28 B (1), (2), (3) 
and (4) of Directive 86/63 5/EEC on the annual accounts and consolidated accounts of 
banks and other financial institutions. Therefore, interest receivable, income from 
securities, commissions receivable and the net profit on financial operations would be 
included in such a definition. 
140. It could be more appropriate to employ gross as opposed to net banking income as a basis 
for calculating turnover. This is because net banking income effectively equates to gross 
profit in, for example, the manufacturing or service industries, and not to sales. 
Consequently, using such a basis for banks would be inconsistent with the Commission's 
general approach for calculating turnover. However, it remains to be examined which of 
the two types of banking income would more accurately reflect the economic reality of 
the whole banking sector. 
(ii) Geographic allocation of turnover 
141. The Commission appreciates that allocating income by reference to the location of the 
borrower may be burdensome on banks. Whilst the Commission's notice concerning the 
calculation of turnover provides that turnover arising from services is, in general, allocated 
to where the customer is located, the notice also makes an exception to this rule, in 
respect of inter-bank lending28. Accordingly, in order to simplify the Commission's 
approach it can be considered that the allocation of banking income should be based on 
the location of the branch of the bank making the loan or providing the service. 
F. Other amendments or clarifications 
Ancillary restrictions in phase 1 
142. In order to have an express legal basis for the acceptance of ancillary restrictions in phase 
1 decisions, the following provision should be added to Article 6 (1) b: 
"The decision declaring the concentration compatible with the common market shall also 
cover restrictions directly related and necessary to the implementation of the 
concentration." 
Revocation of Article 6 decisions 
143. In line with Article 8 decisions, it should be expressly provided in the Regulation that the 
Commission may revoke a decision taken under Article 6 (1) a or 6 (1) b where: 
"the declaration of compatibility is based on incorrect information for which one of the 
undertakings is responsible or where it has been obtained by deceit." 
Article 7 
28 Cf paragraphs 45 and 66 of the above-mentioned Commission notice on the Calculation of Turnover. 
33 -
144. In order to harmonize the duration of suspension of concentrations with the duration of 
Phase 1, the duration of suspension under Article 7 (1) should be extended from three 
weeks to the adoption of a final decision. 
145. It was stated to the Commission that the conditions for granting a derogation from the 
suspension are too strict. In particular, it was suggested that if a concentration does not 
raise competition concerns - in the case of de minimis operations, for instance - the 
Commission should be able to grant a derogation where appropriate, even if there would 
be no serious damage to the undertakings concerned. In order to allow for this possibility, 
Article 7 could be amended accordingly. 
Article 10(4) 
146. Article 10(4) provides for the exceptional suspension of the four-month period for taking 
an Article 8 decision in cases where, owing to circumstances for which one of the 
undertakings involved in the concentration is responsible, the Commission has had to 
request information by decision pursuant to Article 11 or to order an investigation by 
decision pursuant to Article» 13. This provision should be expressly extended to Phase 1 
proceedings. 
Calculation of the turnover of joint undertakings 
147. At the time of the adoption of the Merger Regulation, the Commission and the Council 
considered that the review of the thresholds should be combined with the re-examination 
of the method of calculation of turnover of joint undertakings as referred in Article 5(5). 
This has in the meantime been clarified in the above-mentioned Commission Notice on 
the Calculation of Turnover. It is not considered to be necessary to make any changes in 
this respect. 
Third party rights 
148. Concern was expressed with regard to the short period of time within which third parties 
can comment on phase 1 commitments. This matter was discussed under IV.C. above. 
149. It was also suggested that the rights of third parties that apply in writing to be heard 
pursuant to Article 18 (4) of the Merger Regulation should be extended to all third parties 
that are directly concerned by the Commission's objections. The Commission will examine 
whether the current situation should be changed in this respect. 
"Undertakings concerned" 
150. The Commission will review the text of the Regulation, in order to remove any 
ambiguities or inconsistencies regarding the use of.the term "undertakings concerned". 
- 34 -
Y, CONCLUSIONS 
151. In light of the above, the Green Paper concludes the following: 
- In line with subsidiarity, it appears that the current thresholds for the application of the 
Merger Regulation should be reduced in order to cover a larger number of operations 
with significant cross-border effects. In this respect, a combined world-wide threshold 
of ECU 2 billion and a Community-wide threshold of ECU 100 million for each of at 
least two companies involved would be more appropriate. 
- In order to address the problem of multiple national filings in particular, another more 
limited solution could consist in bringing within the exclusive competence of the 
Commission only cases of multiple notification below the current thresholds. 
- A number of other, mainly procedural, improvements to the Regulation should be 
considered, including inter alia the treatment of joint ventures and the acceptance of 
commitments in the first, phase of investigation. 
152. The Commission welcomes a general debate on the Green Paper and invites all interested 
parties to submit their comments by 31 March 1996. 
ANNEX 1 
Summary of the survey of the Member States, industry and advisers 
The Member States 
All Member States were requested to provide infomation relating to their national merger 
control legislation, the number and identity of cases treated in 1993 and 1994 and their means 
of cooperating with other national authorities. In addition, their views about the definition of 
subsidiarity in merger control, and about amendments to the Regulation, apart from 
thresholds, were sought. All Member States responded. 
Industry 
A total of 289 companies from the EEA, Switzerland, Japan, the USA and Norway were 
contacted whose businesses cover both manufacturing and services. The questionnaires related 
to the companies' experience of national and EC merger control legislation, the benefits of 
the "one-stop shop" principle and whether they wished for any changes in the current 
thresholds. A request for examples of multiple national filings was also made. In addition the 
companies were asked whether any other changes should be made to the Regulation. Total 
responses amounted to 118. 
Industry associations. 
European representative bodies as well as national industry associations were contacted: in 
total 40 questionnaires were despatched. The questions asked were the same as those in the 
questionnaire for companies. Replies were received from 25 associations. 
Advisers 
Questionnaires were sent to a total of 54 advisers, being either law or consulting firms with 
experience of EC and national merger control law. These contained questions relating to their 
attitudes to notification practices, the system of EC merger control, changes in the thresholds 
and other amendments to the Regulation. A request for examples of multiple notifications was 
also made. A total of 24 firms responded. 
Member States 
Industry 
Associations 
Advisers Questionnaires sent 
15 
289 
40 
54 Replies received 
15 
118 
25 
24 Response rate 
100% 
41% 
63% 
44% 
^>" 
ANNEX 2 
National merger control systems 
in the EEA 
IRL 
SWEDEN Competent body 
A : 
administrative/ministerial 
body 
CA : independent or 
autonomous competition 
authority 
JA : judicial body 
A -> final decision 
CA -> opinion 
CA -> clearance 
JA -> prohibit. Procedures : 
a) Compulsory notif. 
b) Pre-merger control 
c) Post merger control 
a)yes 
b)ycs 
c)-
a)yes 
b)yes 
c)-Thrcsholds 
a) Criteria 
b) Level 
a)Gross assets or 
turnover of each of at 
least 2 companies'. 
b)IR£ 10m/IR£ 20m 
(Ecu 12,6m/Ecu 
25,2m)2 
a)Total world-wide 
turnover 
b)SKr 4 b. 
(Ecu 430m) Statutory time limits 
a) Phase 1 
b) Phase 2 
a)30 days from notif. 
or receipt of 
information 
b)3 months from notif. 
or rec. of information 
a)l month 
b)4 months from notif. 
for referral to JA 
No deadline for JA Assessment criteria 
a) Dominance or 
restriction of 
competition 
b) Other 
a)yes 
b)employment + other 
common interest 
criteria 
a)yes 
b)public interest Sectoral regulation 
a) Sectors excluded 
from merger control 
b) Special regulation 
a)-
b)newspapers and 
magazines: 
no thresholds 
The assets and turnover thresholds are not specifically limited to Ireland and may be interpreted as referring to worldwide turnover or assets, provided that 
at least one of the enterprises involved is carrying on business in Ireland. In practice, the Department of Enterprise and Employment operates a "short-form" 
notification procedure leading to a "not notifiable" letter to deal with the uncertainties associated with the Act's apparently wide scope. 
These thresholds were converted into ECU on the basis of the average rates for 1994. 
1 
\A3 
SPAIN 
PORT 
UK Competent body 
A : 
administrative/ministerial 
body 
CA : independent or 
autonomous competition 
authority 
JA : judicial body 
A ->final decision 
CA -> opinion 
(+investigation in 
phase 2) 
A -> final decision 
. CA -> opinion (for 
phase 2) 
A -> final decision 
CA -> opinion Procedures : 
a) Compulsory notif. 
b) Pre-merger control 
c) Post merger control 
a)no 
b)yes 
c)within 5 years from 
implement, of 
concentration 
a)yes 
b)ycs. 
c)-
a)no 
b)yes 
c) referral to the 
MMC (Monopolies 
and Mergers 
Commission) within 6 
months after implcm. 
or receipt of inform. Thresholds 
a) Criteria 
b) Level 
a)Market share in SP 
Total turnover in SP 
b)25%/20 b. pesetas 
(Ecu 125m) 
a)Market share in P 
Total turnover in P 
b)30%/Esc 30b 
(Ecu 180m) 
(pre-merger) 
a)Gross assets world 
wide taken over 
QI 
Market share in UK 
b)£70 in. 
(Ecu 90,9m)/25% Statutory time limits 
a) Phase 1 
b) Phase 2 
a)l month from 
notification 
b)6 months from 
notification 
a)50 work.days from 
notif. 
b)95 work.days 
from notif. 
(for pre-notification) 
a)35 work.days from 
notif. (for MMC rcf) 
b)6 (+3 months) from 
date of reference 
No deadline for Sccr. 
of State Assessment criteria 
a) Dominance or 
restriction of 
competition 
b) Other 
a)yes 
b)international com­
petitiveness, econ. + 
tech. progress, improv. 
in distrib. 
a)yes 
b)Bilan écon. or 
international compe­
titiveness. 
a)yes 
b)public interest Sectoral régulation 
a) Sectors excluded 
from merger control 
b) Special regulation 
a)-
b) credit and financial 
institutions, 
insurance: special 
thresholds 
a)Credit and financial 
institutions, insurance 
a)-
b) newspaper 
transfers, mergers 
between water 
companies, media 
GR 
BELG. Competent body 
A : 
administrative/ministerial 
body 
CA : independent or 
autonomous competition 
authority 
JA : judicial body 
CA 
(A may overrule on 
grounds of public 
interest) 
A -> investigation 
CA -> decision Procedures : 
a) Compulsory notif 
b) Pre-merger control 
c) Post merger control 
a)yes 
b)yes 
c)notif within one 
month from implem. 
of concentration 
a)yes 
b)yes Thresholds 
a) Criteria 
b) Level 
(pre-merger) 
a)Market share in GR 
QI 
Total turnover world-
wide+ Turnover of 
each of at least 2 
companies in GR. 
b)25%/Ecu 50m/Ecu 5 
m. 
a)Market share in 
Belgium and 
Total turnover 
b)25%/BEF 3 b. 
(Ecu 70m) Statutory time limits 
a) Phase 1 
b) Phase 2 
(pre-merger) 
a) 1 month from 
complete notif. 
b) 3 months from 
complete notif. (+ 
possibility for 
extension) 
a)l month from notif. 
b)l month + 75 days 
from notif. 
(suspension possible, 
for receipt of 
additional infor. etc.) Assessment criteria 
a) Dominance or 
restriction of 
competition 
b) Other 
a)yes 
b)general econ. gains 
or public interest 
a)yes 
b)technical and econ. 
progress, general econ. 
importance, 
international compe­
titiveness provided 
that restrictions are 
indispensable+ 
not elimination of 
competition Sectoral regulation 
a) Sectors excluded 
from merger control 
b) Special regulation 
a)-
bl)media 
b2)credit institutions, 
insurance: special 
thresholds 
a)-
b) banks, credit and 
financial institutions, 
insurance: special 
thresholds 
v/0 
FR. 
GER. Compétent body 
A : 
administrative/ministerial 
body 
CA : independent or 
autonomous competition 
authority 
JA : judicial body 
A -> final decision + 
investigation 
CA -> opinion + 
investigation (for 
phase 2) 
CA 
(A: application for 
exceptional ministerial 
authorisation) Procedures : 
a) Compulsory notif. 
b) Pre-merger control 
c) Post merger control 
a)no 
b)yes 
c)any time after 
implementation. 
a) yes 
b) yes 
c) 1 year after 
complete notification 
(post-merger control) Thresholds 
a) Criteria 
b) Level 
a)Total turnover in FR 
+ turnover of at least 
2 comp. or 
market share in 
France 
b)7bFF+2bFF 
(Ecul060m+ 
300m)/25% 
Pre-merger control 
a) World-wide 
turnover of one 
company or World­
wide turnover of each 
of at least 2 comp. 
b) DM 2 b./l b. (Ecu 
1,04 b. /520 m.) 
Post-merger control 
Combined world-wide 
turnover of all parties: 
DM 5Û0 m. (ECU 260 
m) Statutory time limits 
a) Phase 1 
b) Phase 2 
a)2 months after 
notification 
b)6 months after 
notification 
a) 1 month after 
complete notification 
b) + 3 months (can be 
extended by common 
agreement) Assessment criteria 
a) Dominance or 
restriction of 
competition 
b) Other 
a)yes 
b)bilan économique et 
social 
a) yes (CA) 
b) public interest 
(exceptional cases: A) Sectoral regulation 
a) Sectors excluded 
from merger control 
b) Special regulation 
a-b)press and audio­
visual sector 
a)-
b)credit institutions, 
insurance: special 
thresholds 
b2) special rules for 
turnover calculation 
- in the retail sector 
- in newspapers and 
magazines 
IT. 
AUS. 
NED. 
(not yet 
in force) Competent body 
A : 
administrative/ministerial 
body 
CA : independent or 
autonomous competition 
authority 
JA : judicial body 
CA 
(general interest 
criteria can be set by 
A for application by 
CA; no such criteria 
are set at the moment) 
JA 
A Procedures : 
a) Compulsory notif. 
b) Pre-merger control 
c) Post merger control 
a) yes 
b) yes 
c) -
a) yes 
b) yes 
c) yes (for smaller 
concentrations, 
obligation to inform 
JA) 
a) yes 
b) yes 
c)-Thresholds 
a) Criteria 
b) Level 
a)Total turnover in IT 
or turnover of target 
in IT. 
b)L 606 b/60,6 b 
(ECU 300m /30 m) 
(for pre-merger) 
a) Total turnover and 
Turnover of each of at 
least 2 comp. 
worldwide 
b) Sch 3,5b/5m (Ecu 
250m/0,36m) 
a) Total turnover and 
turnover of each of at 
least 2 comp. in NED. 
b) GUIL 250m/30m 
(ECU 116m/14m) Statutory time limits 
a) Phase 1 
b) Phase 2 
a) 30 days from 
receipt of complete 
notification 
b) + 45 days (+30 
days except., for addit. 
inform.) 
a) 4 weeks from 
complete notification 
b) 5 months from 
complete notification 
a) 4 weeks from 
receipt of notification 
b) 13 weeks from 
receipt of notification Assessment criteria 
a) Dominance or 
restriction of 
competition 
b) Other 
a) yes 
b) general interests of 
the national economy 
(see first column) 
a) yes 
b) Bilan concurr. 
intern, compet. 
a) yes 
b) general economic 
interest Sectoral regulation 
a) Sectors excluded 
from merger control 
b) Special regulation 
a)-
b)Film production 
and distribution: 
special thresholds 
a)-
bl) media 
b2) banks, insurance: 
special thresholds 
a) banks, insurance 
^ 
Ù 
Iceland 
Norway Competent body 
A : 
administrative/ministerial 
body 
CA : independent or 
autonomous competition 
authority 
JA : judicial body 
CA-> final decision 
CA-> final decision 
A-> appeal of CA's 
decision Procedures : 
a) Compulsory notif. 
b) Pre-merger control 
c) Post merger control 
a) no 
b) yes 
c) yes 
a) no 
b) yes 
c) yes Thresholds 
a) Criteria 
b) Level 
a) assumption of a 
dominant position or 
reduction of 
competition in Iceland 
b) none 
a) creation or 
strengthening of a 
significant restriction 
of competition 
contrary to the 
achievement of an 
efficient utilization of 
society's resources in 
Norway 
b) none Statutory time limits 
a) Phase 1 
b) Phase 2 
a)-
b) 2 months after 
becoming aware of the 
merger or takeover 
a)-
b) 6 months after the 
agreement to acquire Assessment criteria 
a) Dominance or 
restriction of 
competition 
b) Other 
a) yes 
b) no 
a) yes 
b) no Sectoral reeulation 
a) Sectors excluded 
from merger control 
b) Special regulation 
a)-
b)-
a) none 
b) none 
>r 

ISSN 0254-1475 
COM(96) 19 final 
DOCUMENTS 
EN 08 
Catalogue number : CB-CO-96-050-EN-C 
ISBN 92-78-00181-3 
Office for Official Publications of the European Communities 
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