8888 Officialjournalof theEuropeanCommumties ^oC^8^11 
Opinion on the amended proposal for a Council Regulation (EEC) on the control of 
concentrations between undertakings^) 
(88BC^08^) 
On eo May 1988 the Council decided to consult the Economic and social Committee, 
under Article 198 of theTreaty estabhshingtheEuropeanEconomic Commumty,on the 
abo^ementioned proposal. 
The section for Industry, Commerce, Crafts and ^er^ices, which was responsible for preparing 
the Committee'swork on the subject, adopted its Opinion on4May!988.The rapporteur 
was Mr Petersen. 
At its ^eo^thplenarysession(meetmgof^]unel988) the Economic and ^ocialCommittee 
adopted the following Opinion ^^^.^o^.,with^abstentions^ 
1. Introduction 
LI. The Committee welcomes the Commission's 
submission in March 1988 of an amended proposal for 
a Council Regulation(EEC) on the control of concen 
trations between undertakings. The Commission put 
forward its first proposal on the introduction of a 
Community system for the control of concentrations 
fifteen years ago. fOespite several amendments to the 
proposal for a Regulation theCouncil'sdecision was 
repeatedly postponed, mainly for political reasons. 
On ^O^io^ember 198^ the Council of Ministers respon 
sible for the internal market finally ga^e up its obstruct 
tnBe attitude. The chances of the introduction of a 
Community system for the control of concentrations 
therefore now lookbetter. The Committee urges the 
Council to expedite discussion of the Commission pro 
posal and to implementaCommunity system of concen 
tration control as soon as possible. 
1B^. Theneedfor Community controlsonconcen 
trations has become still more pressing in recent years. 
Mrstly,because the United states and]apanha^efora 
long time angled their competition policies to trans 
national markets, and e^en world markets, secondly, in 
the Community itself the interdependence of economies 
which has developed makes it necessary at least to 
consider the European dimension of markets in assess^ 
ing planned concentrations. In its Opinion on the Com 
mission'sle^th report on competitionpolicy the Com 
mittee stated that ^The continued existence of national 
economic areas is an anachronism when it comes to 
achieving a sufficient degreeof real competitiveness'. 
The Committee contmued^The smallest possible geo 
graphicalyardstickisnowtheCommumty,ande^en 
then the world dimension cannot be disregarded.' 
1.^.1. In signing the single European Act the Mem 
ber states committed themselves to the phased introduce 
tion by 199^ of a common market guaranteeing free 
mo^ementof goods, persons, ser^icesandcapital. As 
^01eMCMu,t^ t^,D^t far as Community competition policy is concerned, 
this objective means thataCommunity system for the 
control of concentrations is necessary. This is made all 
themoreimportantby the fact that estabhshmentof 
the internal market will necessarily entail considerable 
structural changes in the Community^ concentrations 
are one of the ways of strengthening market forces and 
enabling the Community economy to adapt. 
It should also not beo^erlooked that the world'sbiggest 
internal market with ^0 million consumers will e^ert 
a stronger attraction for multinational firms from third 
countries.There could consequently beawave of con 
centrations in the Commumtymthe coming decade. 
1.^. The need for a Community system for the 
control of concentrations was emphasised by the mdgD 
ment of theEuropean Courtof ]usticem the^hilip 
Morris case of l^c^o^ember!98^.In this judgment the 
Court of ]ustice confirmed that under certain con 
ditions the contractual acquisition of minority holdings 
may becaughtby the antitrust pro^isionsof Article 
8e^oftheEECTreaty 
The judgment of the European Court of ]usticemthe 
Continental Can case has also contributed to legal 
uncertainty. The Committee therefore feels that the 
European Community should as soon as possible gi^e 
firmsaclear legal framework for concentrations. 
1.^. The Committee would point out that it has 
already published a detailed Opinion on theongmal 
Commission proposal foraCouncilRegulation(EEC) 
on the control of concentrations between undertakings, 
and has made some carefully considered comments on 
subsequent amendments to the proposal. It is to be 
regrettedthat the Commission has apparently not yet 
found the time to consider these Opinions in detail. 
No C 208/12 Official Journal of the European Communities 8. 8. 88 
1.3.1. In its first Opinion of February 1974 (*) the 
Committee endorsed in principle the Commission's 
view that certain planned concentrations should be 
monitored in order to keep the Community competition 
system viable. 
1.3.2. In June 1982 (2) the Committee complained 
that the Council had still not given the draft Regulation 
the green light. In this connection the Committee 
referred to its Opinion of April 1981 (3) on Community 
competition policy. In this Opinion the Committee 
stated that: 'The draft Regulation currently being exam­
ined by the Council might be a satisfactory frame of 
reference insofar as it takes realistic account of the 
many and varied aspects of the problem.' 
1.3.3. In its Opinion of the Commission's 15th report 
on competition policy the Committee again urged the 
Council to adopt the Commission proposal speedily, 
with due attention to the Committee's reservations and 
proposed amendments. 
1.3.4. Most recently the Committee, in its Opinion 
on the Commission's 16th report on competition policy, 
reiterated its hope that the question of mergers would 
'be swiftly appraised' once the prolonged stalemate in 
the Council of Ministers (November 1987) had been 
ended. 
2. Controls on concentrations as a necessary com­
ponent of Community policy 
2.1. As already pointed out, the Committee's 
endorsement of the original Commission proposal was 
qualified by numerous reservations and proposals for 
changes. Foremost among these was the requirement 
that the needs of industry and society be taken into 
account in establishing a system of concentration con­
trol. The Committee reiterated this requirement most 
recently in its Opinion on the Commission's 16th report 
on competition policy: 'Mergers (...) must be evaluated 
against the background of a global Community policy 
and in the light of all the other factors influencing the 
international scenario, while ensuring proper respect 
for social values. The need to safeguard employment 
deserves special mention here; Community measures 
and retraining may be required during the transitional 
stages of mergers.' 
2.2. The Committee is of course aware that the 
multifarious economic and social problems created by 
concentrations cannot all be solved by a concentration 
control Regulation based on competition policy. All the 
more urgent therefore is the need for coordination 
of competition legislation with other policies, such as 
(') OJ N0C88, 26. 7. 1974. 
(2) OJ No C 252, 27. 9. 1982. 
(•') OJNoC322, 10. 12. 1981. regional and sectoral structural policy, R&D policy and 
consumer policy. But the Council and the Commission 
are also urged to step up and properly organize their 
overdue action on the company law front. Particular 
attention needs to be paid here to the information and 
consultation needs of employees, affected by concen­
trations and the natural rights of minority shareholders 
and creditors. 
2.2.1. The Committee regrets that the Council has 
still not adopted the draft tenth company law Directive 
on cross-border mergers of public limited companies 
and the draft Directive on a common system of taxation 
applicable to mergers, divisions and contributions of 
assets occurring between companies based in different 
Member States. 
2.2.2. Quite independently of this, it must be ensured 
that in concentrations of undertakings in the Com­
munity, account is taken of established employee rights. 
Thus the Commission should be able to exempt from 
the ban [Art. 7 (4)] concentrations which are designed 
to put operations on a sound financial footing where 
this is essential in order to safeguard jobs. 
3. Community and national law 
3.1. The Single European Act and the resulting com­
mitment to complete the internal market by 1992 have 
given a new dimension to the relationship between 
Community and national law. In its Opinion on the 
16th report on competition policy the Committee again 
stressed the Commission's duty 'to uphold and enforce 
the principle that Community law takes precedence 
over national legislation'. 
3.2. This duty also extends to Community controls 
on concentrations, i.e. the powers conferred on the 
Commission by the proposal for a Regulation must not 
be overridden by national laws. In the Committee's 
view this implies that all concentrations falling within 
the scope of the Regulation should be apraised solely 
with reference to Community law and should not be 
subject to any further scrutiny by the Member States. 
3.3. It is regrettable that the proposal for a Regu­
lation still does not deal adequately with the question 
of the dividing line between Community and national 
law. 
3.3.1. Under the Regulation as currently drafted it 
may be expected that in the case of most notified 
concentrations with a Community dimension the Com-
8. 8. 88 Official Journal of the European Communities No C 208/13 
mission will not commence proceedings, after examin­
ing the plan as the concentration will not give rise to 
'a substantial change of the competitive structure' and 
there will be 'no grounds for action' [Art. 6 (1)]. In the 
Committee's view the planned merger will thus pose 
no problems from the point of view of competition. 
The Commission is merely to 'inform' the undertakings 
and authorities of the Member States concerned of this 
situation. This means that there will be no positive 
decision by the Commission, within the meaning of the 
case law of the European Court of Justice, which would 
override national law. 
3.3.2. The Committee feels that this lack of a positive 
decision runs counter to the goal of completing the 
internal market and fails to uphold the precedence of 
Community law. The Committee therefore suggests 
that the Regulation make it clear that concentrations 
with a Community dimension are not subject to any 
further scrutiny under national law. 
4. Concentration Control Regulation and Article 85 
of the EEC Treaty 
4.1. In the interests of legal certainty the Regulation 
should make it clear that concentrations with a Com­
munity dimension are covered solely by the provisions 
of the Regulation and are not affected by the anti-trust 
ban contained in Article 85 of the EEC Treaty. 
4.2. The Committee recognizes that the Commission 
has tried to solve this problem by specifying the inappli­
cability of Regulation No 17 implementing the compe­
tition rules of the EEC Treaty (Art. 22) and by stating 
that the Commission has sole jurisdiction to take the 
decisions provided for in the Regulation (Art. 21). The 
Committee would urge the Commission however to 
make it absolutely clear that proposed Community-
dimension concentrations in respect of which the Com­
mission does not plan to take action are exempt from 
the anti-trust ban of Article 85 of the EEC Treaty. 
5. Clear criteria for intervention 
5.1. The Commission's original 1973 proposal for 
a Regulation (l) was based on the assumption that 
concentrations are incompatible with the common mar­
ket only if they enable the firms involved, or make it 
easier for them, to hinder effective competition. 
5.2. The Committee now notes that in its new pro­
posal too the Commission declares incompatible with 
the common market concentrations which would give 
rise to or strengthen a dominant position at least in a 
substantial part of the Community [Art. 2 (2)]. In 
(M OJ No C 92, 31. 10 1973. so doing the Commission is however tightening the 
competition policy rules for concentrations, which until 
now have been appraised solely in accordance with 
Article 86 of the EEC Treaty and banned only if a 
dominant position is being abused. The Committee 
emphasizes that giving rise to or strengthening a domi­
nant position does not in itself entail incompatibility 
with the common market. The Commission should 
prohibit such concentrations only if they in no way 
further the general Treaty objectives outlined in Article 
2.4. 
5.3. At the same time the Commission has intro­
duced an additional assessment criterion, namely that 
of a 'substantial change of the competitive structure 
within the Community' [Art. 6 (1) and (2)]. This cri­
terion will in future determine whether the Commission 
commences proceedings to establish whether or not a 
concentration may be authorized. 
5.4. Because of the overwhelming importance of this 
criterion, the Committee considers it essential that the 
definition of 'a substantial change of the competitive 
structure' be spelled out. The Committee considers that 
there will be no substantial change unless the merger 
falls within Article 2 (2) (see point 6.6.5 below). It 
should therefore be made clear in the Regulation that 
mergers with a Community dimension which do not 
give rise to or strengthen a dominant position through 
which effective competition can be considerably restric­
ted are compatible with the common market and will 
be unconditionally approved by the Commission or be 
deemed to have been approved. 
6. Comments on specific provisions of the proposal 
for a Regulation 
6.1. Article 1 (Scope of application) 
6.1.1. The Committee is pleased to note that the 
planned Community system for the control of concen­
trations will apply only to concentrations with a 'Com­
munity dimension' and that concentrations with pre­
dominantly national repercussions will continue to be 
the responsibility of the Member States. The Regulation 
is also to cover Community-wide concentrations which 
come under Treaty Article 85 (1) or 86, which set out 
general competition rules. 
The specific legal basis is not evident from the proposal. 
The recitals are not particularly informative in this 
respect. On the one hand it is stated that 'the existing 
competition rules and in particular Article 87 provide 
a legal basis for the control of certain forms and types 
of concentration' (eleventh recital). But on the other 
No C 208/14 Official Journal of the European Communities 8. 8. 88 
hand reference is made to Article 235 of the Treaty 
which gives {he Community the right to assume 
'additional powers' (thirteenth recital). 
The Committee feels that the legal basis should be made 
clearer, not least because the legal basis is a decisive 
factor in determining the scope of legislative powers. 
6.1.2. The Committee appreciates the difficulty of 
arriving at a definition of 'Community dimension' 
which is satisfactory from the point of view of compe­
tition policy. The Committee agrees with the Com­
mission in principle that concentrations between firms 
from different Member States should be covered, and 
also national concentrations if the firms in question 
conduct a significant volume of cross-border business 
within the Community. In view of the importance of 
determining whether a given concentration falls within 
the scope of the Regulation, it is essential in the interests 
of legal certainty that concepts be defined as clearly as 
possible. It should also be made clear that the Regu­
lation is to cover concentrations involving firms from 
third countries which might impair competition in the 
Community. 
It is also necessary to consider the case for extending 
the scope of the Regulation to include concentrations 
involving only companies which are based outside the 
Community but have subsidiaries in the Community. 
6.1.3. The proposal for a Regulation as currently 
drafted does not meet this requirement. It is for example 
unclear what the words 'their principal field of Com­
munity activities' in Article 1 (2) (a) and (b) refer to. 
The yardstick here could be the companies themselves, 
the Community or the Member States. It is also unclear 
what is meant by 'the undertakings effecting the concen­
tration' [Art. 1 (2) and (3)(c)] and by 'the undertakings 
concerned' [Art. 1 (3) (a) and (b)]. The expression 'their 
principal field of Community activities' should be 
replaced by 'the larger part of their turnover'. And 
finally, it is unclear whether failure to satisfy the cri­
terion set out in Article 1 (3)(c) (i.e. where the undertak­
ings achieve more than a quarter of their aggregate 
Community-wide turnover in different Member States) 
automatically means that the concentration has a 'Com­
munity dimension', or whether further checks are 
necessary to establish whether the 'undertakings effect­
ing the concentration' conduct a substantial volume 
of business in other Member States. The Committee 
suggests that the rules be made more concrete by simpli­
fying Articles 1 (2) and (3). 
6.1.4. The Committee recognizes the need to limit 
the scope of the Regulation but notes that the proposed 
turnover threshold is considerably higher than that provided in the Commission's first proposal of 1973. 
The turnover threshold of 1 000 millions of ECUs stipu­
lated in Article 1 (3) (a) and (b) nevertheless seems 
appropriate. The Committee would also point out that 
adoption of the Regulation will substantially increase 
the Commission's workload. Before the Regulation 
enters into force therefore the Commission should take 
on sufficient qualified staff to ensure that its work is 
carried out with the appropriate speed and efficiency. 
6.1.5. Concentrations should only fall within the 
scope of the Regulation if the firms concerned achieve 
a certain minimum level of turnover in the Community. 
Otherwise there is a danger that foreign concentrations 
which barely affect the Community will be subject to 
scrutiny and run the risk of being prohibited. The 
Committee therefore suggests specification of a mini­
mum level (below which turnover would be too small 
to warrant the concentration being scrutinized). 
6.2. Article 2 (Appraisal of concentrations) 
6.2.1. The Committee feels that the Regulation must 
make it clear that a merger is not incompatible with 
the common market merely because it gives rise to or 
strengthens a dominant position. Rather, it is incompat­
ible with the common market if it causes, or threatens 
to cause, significant and lasting damage to the free 
play of competition and does not contribute to the 
attainment of the basic objectives of the Treaty referred 
to in Article 2 (4). It must be made clear that concen­
trations which are not caught by Article 2 (2) are 
automatically compatible with the common market and 
do not require authorization under the procedure out­
lined in Article 2 (4). The Committee suggests that this 
be spelled out in Article 2. 
6.2.2. The criteria for determining whether a concen­
tration gives rise to (or strengthens) a dominant position 
and impairs the free play of competition are essentially 
qualitative and cannot be quantified in a Council Regu­
lation. This is particularly true of the appraisal of 
international competition, which in many cases nips in 
the bud the development of dominant positions in the 
Community market. The Committee therefore stresses 
that in applying the qualitative criteria laid down in 
paragraph 2 the Commission should avoid narrow con­
centration on specific features and consider in full the 
broader economic implications of the concentration in 
question. In view of the openness of the common mar­
ket any assessment of the competitive position of Com­
munity firms should take account of the competitive 
strength of foreign competitors in the Community 
market. 
8. 8. 88 Official Journal of the European Communities No C 208/15 
6.2.3. The Committee is in basic agreement with the 
Commission's view that introducing a market share 
criterion will help firms to assess for themselves whether 
a given concentration would be compatible with the 
common market. In its Opinion of June 1982 the Com­
mittee approved the inclusion of a market share cri­
terion in the previous proposal for a Regulation. But 
the Committee considers it important that exceeding 
the threshold does not automatically give rise to an 
assumption of incompatibility with the common mar­
ket. The other qualitative criteria laid down in para­
graph 2 greatly dilute the importance of market share 
and militate against such a simplistic approach. Apart 
from international competition, this applies in particu­
lar to the 'legal and factual barriers to entry' criterion. 
6.2.4. The Committee approves the clause in Article 
2 (4) permitting the authorization of concentration 
which restrict competition within the meaning of Article 
2 (2), but also further basic Treaty objectives. The 
Committee is particularly pleased to see the 'promotion 
of technical and economic progress' and 'improvement 
of the competitive structure within the common market, 
taking due account of international competition' 
specifically mentioned as grounds for authorization. 
It is essential that these factors be considered if the 
Community economy is to be able to build up corporate 
structures which enable it to compete with its main 
rivals on world markets. This is also an essential pre­
condition for strengthening the Community economy's 
growth capacity and a contribution to the safeguarding 
and development of employment. 
6.2.5. The Committee has repeatedly urged that con­
centrations be appraised from the point of view of 
overall Community policy, with particular attention 
being paid to securing social values and employment 
(Opinion on the Commission's 16th report on compe­
tition policy). In this context the Committee notes that 
Article 8 (4) of the proposal for a Regulation attaches 
conditions and obligations to authorizations granted 
under Article 2 (4). The Committee is in favour of this 
provision as it can be used for striking agreements with 
firms on safeguarding jobs, e.g. as a way of countering 
long-term structural weaknesses in the Community. 
6.3. Article 3 (Definition of concentration) 
The Committee suggests that the end of Article 3 (5) 
be amended to read as follows: 
'...where, upon formation of an undertaking, or 
increase in the capital of an undertaking, or in 
connection with some other form of commercial 
venture, banks or financial institutions acquire 
shares in another firm with a view to selling them 
on the market, provided that they do not exercice 
voting rights in respect of these shares.' 6.4. Article 4 (Prior notification) 
6.4.1. The Regulation requires all concentrations 
with a Community dimension to be notified to the 
Commission before they are put into effect. The Com­
mittee notes that it can be very difficult to dissolve a 
concentration, once completed. The Committee there­
fore feels that the system of prior notification has much 
to be said for it. 
6.4.2. It must however be ensured that there is suf­
ficient scope for exempting firms from the prohibition 
of a concentration where this is necessary, e.g. where 
there must be a concentration to put operations on a 
healthy footing if jobs are to be safeguarded. 
6.5. Article 5 (Turnover) 
The proposal for a Regulation lays down a special 
method for calculating the turnover of banks, financial 
institutions and insurance companies. This seems to be 
appropriate. The Committee would point out however 
that the inclusion of this type of firm in the Regulation 
could create problems for the new Member States, 
making adaptation and transitional arrangements 
necessary. 
The Committee also feels that there should be a special 
turnover clause for distributive trades given the special 
characteristics of the process of adding value in that 
sector. 
6.6. Article 6 (Proceedings) 
6.6.1. The proposal for a Regulation attaches great 
importance to the criterion of a 'substantial change of 
the competitive structure within the Community'. But 
nowhere in the proposal is this concept even approxi­
mately defined or, for example differentiated from the 
concept of a 'dominant position' in Article 2 (2). Thus 
firms have no way of judging how the Commission will 
reach its decision on a concentration. In the interests 
of legal certainty this criterion should be clearly defined. 
The Committee feels that 'a substantial change of the 
competitive structure' can occur only if a concentration 
falls under Article 2.2. The Commission should there­
fore only initiate proceedings under Article 6.2 if there 
are good reasons to suppose that the criteria of Article 
2.2 have been fulfilled. 
6.6.2. The proposal for a Regulation states that the 
Commission will take no action if a given concentration 
does not give rise to 'a substantial change of the com­
petitive structure'. As explained above, this contradicts 
the principle of the precedence of Community law. 
Concentrations with a Community dimension should 
be investigated by the Commission alone, and not be 
subject to subsequent national scrutiny with the attend­
ant risk of a different decision. 
No C 208/16 Official Journal of the European Communities 8. 8. 88 
6.6.3. Regardless of the legal means used to establish 
the precedence of Community law, the Commission 
should, immediately on receipt of notification, inform 
the firms and authorities in the Member States whether 
the concentration in question falls within the scope of 
the Regulation and whether it fulfils the criterion laid 
down in Article 3 of the Regulation. Such obligatory 
notification is alone justified by the need to ensure 
that the legal process triggered by Article 22 (exclusive 
application of this Regulation) is carried out without 
ambiguity. 
6.6.3.1. The proposed two month deadline for init­
iating proceedings seems appropriate. Instead of vague­
ly stating that this deadline can be extended by agree­
ment between the firms concerned, it would be better to 
state unequivocally that the deadline may in exceptional 
circumstances be extended for a month. 
6.6.4. In all its Opinions on the original proposal for 
a Regulation the Committee attached great importance 
to ensuring that the time taken to appraise a concen­
tration was kept as short as possible. This is essential 
merely to remove uncertainty and to prevent any such 
uncertainty having a detrimental effect on business 
planning and social projects. The Committee is there­
fore pleased to note that the new proposal for a Regu­
lation sets out in principle to keep the timescale as short 
as possible. The Committee also approves of the clause 
permitting the timescale to be extended. Extensions 
should however be granted only in exceptional circum­
stances and should in any case not exceed one month. 
It will only be possible to meet the timescale proposed 
by the Commission if firms giving notification of pro­
posed concentrations know exactly what information 
they are required to provide, thus as far as possible 
avoiding the danger of incomplete submissions. Other­
wise the Commission could initiate proceedings even 
after expiry of the two month deadline on the grounds 
that the notification particulars were incomplete. 
6.6.5. The Committee feels that a new paragraph 1 
should be added to Article 6: 
'Where the Commission considers that a concen­
tration is not covered by the Regulation it shall 
immediately so inform the undertakings concerned 
and the competent authorities of the Member 
States.' 
The Committee also suggests that the existing Articles 
6 (1) and 6 (2) be re-worded as follows: 
'Where the Commission considers that a concen­
tration covered by the Regulation does not give rise 
to a substantial change in the competitive structure 
within the Community, it shall authorize the con­
centration and shall immediately so inform the 
undertakings concerned and the competent authori­
ties of the Member States. 
Where the Commission considers that a concen­
tration gives rise to a substantial change in the competitive structure within the Community, it 
shall immediately commence proceedings with a 
view to establishing: 
a) whether the concentration is not covered by 
Article 2 (2) and should therefore be authorized; 
b) whether, although covered by Article 2 (2), the 
concentration may or may not be authorized 
under Article 2 (4).' 
6.7. Article 9 (Closure of proceedings) 
The Committee feels that this provision is incompatible 
with the principle of precedence of Community law 
as—like Article 6 (1)—it leaves open the possibility of 
subsequent scrutiny by national authorities although 
the concentration has already been investigated by the 
Commission and declared acceptable. 
6.8. Articles 10 to 12 (Information, investigations) 
6.8.1. The Regulation does not spell out the con­
ditions under which the Commission is entitled to exer-
cice its investigatory powers and require the provision 
of information. The references to 'all necessary' infor­
mation and investigations are too vague and grant the 
Commission too much discretion. 
6.8.2. The Commission intends to exercice its new 
powers in close cooperation with the 'competent autho­
rities of the Member States'. This is to be welcomed. 
The proposal for a Regulation does not however make 
it clear what is meant by the competent national autho­
rity. Before the Regulation enters into force the Member 
States should tell the Commission which authority is 
competent in the matter. This ought in each case to be 
a body with expertise in questions of competition. 
6.8.3. The Committee expressed reservations about 
this Article in the original proposal for a Regulation 
and recommended that it be redrafted in order to limit 
the Commission's powers to require third parties, and 
particularly professional associations, to provide infor­
mation. 
6.9. Article 13 (Fines) 
Paragraph 3 provides for the calculation of fines on the 
basis of the 'value of the reorganized assets' of the firm 
concerned. Given the Member States' highly disparate 
methods of calculation, it will be very difficult to arrive 
at an objective, easily applicable and universally recog­
nized basis for calculation. The Committee therefore 
suggests that the ceiling be more clearly defined. 
6.10. Article 16 (Professional secrecy) 
6.10.1. The Committee stresses the need for all infor­
mation acquired by the Commission as a result of 
application of the Regulation to be subject to strict 
8. 8. 88 Official Journal of the European Communities No C 208/17 
professional secrecy. Confidential treatment of infor­
mation covered by the code of professional secrecy must 
be given the highest priority. This applies not only to 
information obtained as a result of application of 
Articles 10, 11 and 12, but also to all other voluntarily 
provided data. 
6.10.2. The Committee suggests that Article 16 be 
amplified accordingly. It also urges the introduction of 
a specific procedure under Community law to ensure 
that the principle of confidentiality is respected by 
national authorities as well. 
6.11. Article 17 (Hearing of parties) 
6.11.1. The Committee regrets that whilst the pro­
posal for a Regulation provides for the hearing of third 
parties it makes no provision for the hearing of the 
employees of companies involved in concentrations. 
Such a hearing is particularly necessary in cases where 
the Commission intends to give its approval under 
Article 2 (4). Otherwise it will not be possible to give 
due consideration to social values and employment, as 
repeatedly advocated by the Committee, in appraising 
a concentration. The Regulation should make it clear 
that the employees of the firms concerned or their 
representatives are among those with a right to be 
heard. 
6.11.2. It must be ensured that professional and com­
mercial secrets are also safeguarded in cases of Article 
17 hearings. 
Done at Brussels, 2 June 1988. 6.12. Article 18 
The Committee is pleased to note that the authorities 
of the Member States—which have still to be designat­
ed—have the right to express their views on the pro­
cedure. Such views may however only be based on the 
provisions of the Regulation and have purely advisory 
force. The main conclusions of the Advisory Committee 
should be made public at the time of the publication 
of the Commission's decision giving an indication—if 
necessary—of any dissenting Member State view. 
6.13. Article 19 (Time limits for decision) 
The proposal for a Regulation allows for the possibility 
of extending the 4-month time limit by agreement with 
the firms concerned. In the interests of speed the Com­
mittee feels that there should be a ceiling on the extent 
to which the time limit may be extended, as in Article 
6. 
6.14. Article 20 (Publication of decisions) 
The Committee notes that where there are no grounds 
for action the Commission is required to inform the 
undertakings concerned 'immediately' (Art. 6 and 9). 
There is however no such requirement in cases where 
the Commission makes a decision under Article 8. In the 
interests of clarity the Regulation should be amended to 
require prompt communication of the decision. 
The Chairman 
of the Economic and Social Committee 
Alfons MARGOT