12. 2. 82 Official Journal of the European Communities No C 36/3 
II 
(Preparatory Acts) 
COMMISSION 
Amended proposal for a Council Regulation on the control of concentrations between 
undertakings (merger control Regulation) (') 
(Submitted by the Commission to the Council, pursuant to the second paragraph of Article 
149 of the EEC Treaty, on 16 December 1981) 
I. Background 
On 20 July 1973 the Commission submitted to the 
Council a proposal for a Council Regulation on the 
control of concentrations between undertakings 
(merger control Regulation). 
The European Parliament (2) and the Economic and 
Social Committee (*) were consulted by the Council, 
and both approved the Commission proposal by large 
majorities. 
Discussions in the Council revealed significant 
differences of opinion, relating mainly to the scope of 
the Regulation and to the division of decision-making 
power between the Commission and the Council. 
In its resolution on the ninth report on competition 
policy, Parliament deplored the fact that the Council 
had still not adopted the merger control Regulation, 
which would give the Commission the means to take 
effective action at Community level against any irre­
versible structural evolution which could seriously 
jeopardize competition ("). 
A policy designed to strengthen effective competition 
plays a significant role in achieving more flexible 
structural adjustment and maintaining the 
0) OJ No C 92, 31. 10. 1973, p. 1. 
(2) OJ No C 23, 8. 3. 1974. 
(3) OJ No C 88, 26. 7. 1974. 
(4) OJNoC 144, 15.6. 1981. competitiveness of our industries and, in so doing, 
also contributes to overcoming the current crisis. 
It goes without saying that in applying the merger 
control rules, account must be taken of the 
differences in economic situations (particularly how 
open markets are) and, where appropriate, of 
exigencies stemming from other Community policies. 
The amended proposal attempts to confine the 
control measures to mergers with a Community 
dimension and to involve the Member States more in 
the decision-making process. 
II. Proposals on the assessment criteria 
(Article 1 (1)) 
(a) Taking into account of the international 
competitive situation 
(Second subparagraph of Article 1 (1)) 
This subparagraph has been added in response to 
a request made by Parliament. Its purpose is to 
make it clear that account must be taken of the 
competitive situation and the development of 
trade at international level. 
(b) Reference to the Community dimension of the 
merger 
(Second subparagraph of Article 1 (1)) 
Such reference is intended to make it clearer that, 
as was the intention with the original Commission 
proposal, the Regulation is to apply to mergers 
No C 36/4 Official Journal of the 
which are of a scale that transcend the national 
context and produce effects at Community level. 
(c) Introduction of a market share criterion 
(Third subparagraph of Article 1 (1) — new) 
In its original proposal, the Commission applied a 
market share criterion, in addition to turnover, as 
a quantitative threshold below which Community 
merger control would not apply. It set the 
threshold at 25 % of the relevant market in a 
member country. 
Should it be envisaged, in view of the unity of the 
common market, to relate this criterion to the 
common market as a whole, the Commission 
must underline that it would be difficult to apply 
and be inappropriate for determining the scope of 
the Regulation. 
The reason is that, if it is difficult to determine a 
market share with precision at national level, as is 
shown by experience in the Federal Republic of 
Germany and the United Kingdom, the difficulty 
is even greater at common market level, both for 
the undertakings concerned and for the 
Commission, creating legal uncertainty for under­
takings. 
However, market share, used as an indicator of 
market structure, is without any doubt an 
important element in assessing whether a merger 
threatens to eliminate effective competition. It is 
therefore proposed that the market share criterion 
be retained as an assessment criterion. 
As regards the definition of the geographical 
market to be taken into account, it is proposed 
that, in order to make it clear that the 
Community control applies only to mergers with 
effects on competition at common market level, 
reference be made to the market share in the 
common market as a whole. 
As far as the threshold is concerned, it is 
proposed that this be fixed at 20 %: taking the 
common market as a whole, a market share of 
20 % may represent a critical threshold for the 
working of competition, regardless of the market 
shares held by competitions. This is because, in a 
market with a low level of concentration, 
acquiring a 20 % market share may result in the 
creation of a dominant position. On the other 
hand, if the market already has a high level of 
concentration, there is a danger of strengthening 
an oligopolistic structure. Economic research European Communities 12. 2. 82 
findings have suggested that this is the case. It is 
not possible to envisage a higher market share 
threshold if the creation or strengthening of 
regional monopolies is to be avoided. 
However, market share is only one assessment 
factor among others, though the others cannot be 
quantified (see the second subparagraph of 
Article 1 (1)). 
Market share may nevertheless be used to make it 
clear to undertakings and the appropriate 
national authorities that, except in specific cases, 
the Commission considers that, below the critical 
threshold envisaged, mergers are not normally 
likely to have significant repercussions on the 
maintenance of effective competition. 
However, the Commission will still be able to 
determine that, below the critical threshold, a 
merger does nevertheless have repercussions that 
would be harmful to the maintenance of effective 
competition because of other assessment factors; 
for example, in the event of a conglomerate 
merger, because of the size and the financial 
resources of the undertakings concerned. 
It goes without saying that, even if a merger gives 
the undertakings concerned a market share that is 
equal to or above the critical threshold, it will 
always be up to the Commission, in the light of 
the other assessment criteria (second subpara­
graph of Article 1 (1)), to determine that the 
merger gives the undertaking concerned the 
power to hinder effective competition. 
III. Proposals on the thresholds for determining 
applicability of the Regulation 
(Article 1 (2)) , 
So as to ensure that mergers of lesser significance 
were not subject to Community merger control, the 
Commission's original proposal provided for market 
share and turnover thresholds, to be used on an alter­
native basis. 
(a) Market share 
For the reasons set out at II (c), it is proposed 
that market share should now be used as one of 
the criteria allowing the effects of a merger on 
the working of effective competition to be 
assessed (assessment criterion), and not as a 
12. 2. 82 Official Journal of the European Communities No C 36/5 
criterion indicating the limits below which the 
Regulation would not apply (applicability 
criterion). 
(b) Turnover 
As a criterion for defining the scope of the Regu­
lation, turnover has the advantage of being easier 
to determine and to verify; it also reflects the 
economic and financial strength of the under­
takings concerned, particularly in view of the 
thresholds envisaged. However, the level origi­
nally proposed (200 million ECU) must be raised 
(500 million ECU) to take account of economic 
developments that have taken place. IV. Proposal on decision-making procedures 
The underlying idea is that in the fields where 
common policies do not exist, Member States may be 
concerned by the effects which the prohibition of a 
given merger might have on the implementation of 
their national policies. Account should be taken of 
such circumstances, provided that the attainment of a 
priority objective of the Community is not thereby 
endangered. The proposed solution is based on 
Article 17 of Council Regulation (EEC) No 1017/68 
(') which gives the Member States a right to convene 
the Council. 
0) OJ No L 175, 23. 7. 1968. 
ANNEX 
Amendments to the proposal for a Regulation on the control of concentrations between 
undertakings (merger control Regulation) 
ORIGINAL PROPOSAL NEW PROPOSAL 
Article 1 
Basic provisions 
1. Any transaction which has the direct or indirect 
effect of bringing about a concentration between 
undertakings or groups of undertakings, at least one 
of which is established in the common market, 
whereby they acquire or enhance the power to hinder 
effective competition in the common market or in a 
substantial part thereof, is incompatible with the 
common market in so far as the concentration may 
affect trade between Member States. Article 1 
Basic provisions 
1. First subparagraph unchanged. 
The power to hinder effective competition shall be 
appraised by reference in particular to the extent to 
which suppliers and consumers have a possibility of 
choice, to the economic and financial power of the 
undertakings concerned, to the structure of the 
markets affected, and to supply and demand trends 
for the relevant goods or services. The power to hinder effective competition shall be 
appraised at Community level and by reference in 
particular to the extent to which suppliers and 
consumers have a possibility of choice, to the 
economic and financial power of the undertakings 
concerned, to the structure1 of the markets affected, to 
the effects of international competition, and to supply 
and demand trends for the relevant goods or services. 
A concentration shall be presumed to be compatible 
with the common market where the market share of 
the goods or services concerned accounts in the 
common market for less than 20 °/o of the turnover in 
No C 36/6 Official Journal of the European Communities 12. 2. 82 
ORIGINAL PROPOSAL NEW PROPOSAL 
identical goods or services of in goods or services 
which, by reason of their characteristics, their price 
and their use are regarded as similar by the consumer. 
The presumption of compatibility with the common 
market can be rebutted if the Commission establishes 
that a concentration giving a market share below this 
threshold is nonetheless incompatible with the 
common market. 
2. Paragraph 1 shall not apply where: 
— the aggregate turnover of the undertakings parti­
cipating in the concentration is less than 200 
million units of account and 
— the goods or services concerned by the 
concentration do not account in any Member 
State for more than 25 % of the turnover in 
identical goods or services or in goods or services 
which, by reason of their characteristics, their 
price and the use for which they are intended, 
may be regarded as similar by the consumer. 2. Paragraph 1 shall not apply where the aggregate 
turnover of the undertakings participating in the 
concentration is less than 500 million ECU. 
Deleted. 
3. Paragraph 1 may, however, be declared inappli­
cable to concentrations which are indispensable to the 
attainment of an objective which is given priority 
treatment in the common interest of the Community. 3. Unchanged. 
Article 5 
Detailed rules for calculating turnover and market 
shares Article 5 
Calculation of turnover and market shares 
1. (a) The aggregate turnover specified in Articles 1 
(2) and 4 (1) shall be obtained by adding 
together the turnover for the last financial year 
for all goods and services of: 
(i) the undertakings participating in the 
concentration; 
(ii) the undertakings and groups of under­
takings which control the undertakings 
participating in the concentration within 
the meaning of Article 2; 
(iii) the undertakings or groups of under­
takings controlled within the meaning of 
Article 2 by the undertakings participating 
in the concentration. 
(b) The market shares referred to in Article 1 (2) 
near those held in the last financial year by all 
the undertakings listed in subparagraph (a) 
above. 1. (a) Unchanged. 
(b) The market shares referred to in Article 1 (1) 
shall be those ... (rest unchanged). 
12.2.82 Official Journal of the European Communities No C 36/7 
ORIGINAL PROPOSAL NEW PROPOSAL 
2. In place of turnover as specified in Articles 1 (2) 
and 4 (1) and in paragraph 1 of this Article, the 
following shall be used: 
— for banking and financial institutions: one tenth of 
their assets; 
— for insurance companies: 
premiums received by them. the value of the Unchanged. 
Article 19 
Liaison with the authorities of the Member States 
1. The Commission shall forthwith transmit to the 
competent authorities of the Member States a copy of 
the notifications together with the most important 
documents lodged with the Commission pursuant to 
this Regulation. Article 19 
Liaison with the authorities of the Member States 
1 and 2: Unchanged. 
2. The Commission shall carry out the procedure 
set out in this Regulation in close and constant 
cooperation with the competent authorities of the 
Member States; such authorities shall have the right 
to express their views upon that procedure, and in 
particular to request the Commission to commence 
proceedings under Article 6. 
3. The Advisory Committee on Restrictive 
Practices and Monopolies shall be consulted prior to 
the taking of any decision under Articles 3, 13 and 
14. 3. The Advisory Committee on Restrictive 
Practices and Dominant Positions shall ... (rest 
unchanged). 
4. The Advisory Committee shall consist of 
officials having responsibility for restrictive practices 
and monopolies. Each Member State shall appoint an 
official to represent it; he may be replaced by another 
official where he is unable to act. 4. The Advisory Committee shall consist of officials 
having responsibility for restrictive' practices and 
dominant positions. Each ... (rest unchanged). 
5. Consultation shall take place, at a meeting 
convened at the invitation of the Commission, not 
earlier than fourteen days following dispatch of the 
invitation. A summary of the facts together with the 
most important documents and a preliminary draft of 
the decision to be taken, shall be sent with the 
invitation. 5 and 6: Unchanged. 
6. The Committee may deliver an opinion even if 
certain members are absent and unrepresented. The 
outcome of the consultation shall be annexed to the 
chaft decision. The minutes shall not be published. 
No C 36/8 Official Journal of the European Communities 12.2.82 
ORIGINAL PROPOSAL NEW PROPOSAL 
7. If a majority of the members of the Advisory 
Committee opposes the draft Decision under Article 3 
(1), the Commission shall not adopt a decision until a 
period of 20 days has elapsed from the date on which 
the Advisory Committee was consulted. 
8. If, within the period laid down in the preceding 
paragraph, A Member State raises in the Council an 
objective which in its opinion should be considered as 
having priority, within the meaning of Article 1 (3), 
the Council shall meet within 30 days of the date of 
the request made by the Member State concerned. In 
that case the Commission shall take no decision until 
after the Council meeting, and shall take account of 
the policy guidelines which emerged in the course of 
the Council's deliberations. 
Proposal for a Council Decision on the collection of information concerning the activities 
of road hauliers participating in the carriage of goods to and from certain non-member 
countries 
(Submitted by the Commission to the Council on 15 January 1982) 
THE COUNCIL OF THE EUROPEAN 
COMMUNITIES, 
Having regard to the Treaty establishing the 
European Economic Community, and in particular 
Article 213 thereof,. 
Having regard to the draft Decision submitted by the 
Commission, 
Having regard to the opinion of the European 
Parliament, 
Having regard to the opinion of the Economic and 
Social Committee, 
Whereas the Communities' economic and trading 
interests require an international road haulage 
situation in which efficient Community hauliers can 
compete under normal commercial conditions with 
road hauliers of non-member countries; Whereas this is in the interest of shippers' ability to 
choose and the freedom of international trade; 
Whereas, however, the existence of distortions of 
competitive conditions between hauliers based in the 
Community and those of State-trading countries 
creates disadvantages for the former; 
Whereas in particular State-trading countries apply in 
road haulage trade practices such as prices which do 
not reflect costs as established in accordance with 
normal market rules, control of terms of trade, and 
the imposition of administrative and other barriers; 
Whereas the means of overcoming these difficulties 
should be examined; 
Whereas it is appropriate to establish the exchange of 
information enabling the institutions of the 
Community to be informed of developments in road 
transport relations with State-trading countries,