Keywords

Summary



Keywords

1 Competition - Concentrations between undertakings - Concentration with no Community dimension - Investigation by the Commission at the request of a Member State - Article 22 of Regulation No 4064/89 - Scope

(Council Regulation No 4064/89, Art. 22)

2 Competition - Concentrations between undertakings - Administrative proceedings - Access to the file - Observance of the rights of the defence - Limits

(Council Regulation No 4064/89)

3 Competition - Concentrations between undertakings - Administrative proceedings - Hearings - Whether obligatory to draw up minutes - No such obligation

(Council Regulation No 3384/94, Art. 15(5))

4 Competition - Concentrations between undertakings - Investigation by the Commission - Assessments of an economic nature - Discretion - Judicial review - Limits

(Council Regulation No 4064/89, Art. 2)

5 Competition - Concentrations between undertakings - Creation or strengthening of a dominant position - Evidence - Particularly high market share

(Council Regulation No 4064/89)

Summary

1 Article 22(3) of Regulation No 4064/89, which provides that the Commission may, at the request of a Member State, examine whether a concentration which has no Community dimension is compatible with that Regulation, grants no power to the Member State either to control the Commission's conduct of the investigation once it has referred the concentration in question to it or to define the scope of the Commission's investigation.

2 The procedure for access to the file in competition cases is intended to allow the addressees of a statement of objections to examine evidence in the Commission's files so that they are in a position effectively to express their views on the conclusions reached by it in its statement of objections on the basis of that evidence. The right of access to the file is justified by the need to ensure that the undertakings in question are able properly to defend themselves against the objections raised in that statement.

However, access to certain documents may be refused, in particular in the case of documents or parts thereof containing other undertakings' business secrets, internal Commission documents, information enabling complainants to be identified where they wish to remain anonymous and information disclosed to the Commission subject to an obligation of confidentiality.

Those principles, which govern access to the files in proceedings pursuant to Articles 85 and 86 of the Treaty, apply to access to the files in concentration cases examined under Regulation No 4064/89, even though their application may reasonably be adapted to the need for speed, which characterises the general scheme of that Regulation.

3 It is clear from the wording of Article 15(5) of Regulation No 3384/94 on the notifications, time-limits and hearings provided for in Regulation No 4064/89 that the Commission is required merely to record the statements made by each person heard at a formal hearing. It is not, however, required to draw up minutes of such a hearing, in contrast with the procedure under Article 9(4) of Regulation No 99/63 on the hearings provided for in Article 19(1) and (2) of Regulation No 17, which provides that the essential content of the statements made by each person heard `shall be recorded in minutes which shall be read and approved by him'.

4 The basic provisions of Regulation No 4064/89, in particular Article 2 thereof, confer a discretion on the Commission, especially with respect to assessments of an economic nature. Consequently, review by the Community judicature of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the discretionary margin implicit in the provisions of an economic nature which form part of the rules on concentrations.

5 A particularly high market share may in itself be evidence of the existence of a dominant position, in particular where the other operators on the market hold only much smaller shares.