Commission Regulation (EC) No 447/98 of 1 March 1998 on the notifications, time limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (Text with EEA relevance)
Date: 1998-03-01
Institutions: European Commission
Subjects: administrative procedure, competition law, competition policy, economic concentration, form, merger control

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I

(Acts  whose  publication  is  obligatory)

COMMISSION  REGULATION  (EC)  No  447/98

of  1  March  1998

on  the  notifications,  time  limits  and  hearings  provided  for  in  Council  Regulation  (EEC)  No
4064/89  on  the  control  of  concentrations  between  undertakings

(Text  with  EEA  relevance)

THE  COMMISSION  OF  THE  EUROPEAN  COMMUNITIES,

application  of  Articles  85  and  86  of  the  Treaty  to
maritime  transport (5),  as  amended  by  the  Act  of
Accession  of  Austria,  Finland  and  Sweden,  and  in
particular  Article  26  thereof,

Having  regard  to  the  Treaty  establishing  the  European
Community,

Having  regard  to  the  Agreement  on  the  European
Economic Area,

Having  regard  to  Council  Regulation  (EEC)  No  4064/89
of  21  December  1989  on  the  control  of  concentrations
between  undertakings (1),  as  last  amended  by  Regulation
(EC)  No  1310/97 (2),  and 
in  particular  Article  23
thereof,

Having  regard  to  Council  Regulation  No  17  of  6
February 1962, First Regulation implementing Articles 85
and  86  of  the  Treaty (3),  as  last  amended  by  the  Act  of
Accession  of  Austria,  Finland  and  Sweden,  and  in
particular  Article  24  thereof,

Having  regard  to  Council  Regulation  (EEC)  No  1017/68
of  19  July  1968  applying  rules  of  competition  to
transport  by  rail,  road  and  inland  waterway (4),  as  last
amended by the Act of Accession of Austria, Finland and
Sweden,  and  in  particular  Article  29  thereof,

Having  regard  to  Council  Regulation  (EEC)  No  4056/86
of  22  December  1986  laying  down  detailed  rules  for  the

Having  regard  to  Council  Regulation  (EEC)  No  3975/87
of 14 December 1987 laying down the procedure for the
application of the rules on competition to undertakings in
the air transport sector (6), as last amended by Regulation
(EEC)  No  2410/92 (7),  and  in  particular  Article  19
thereof,

Having 
Concentrations,

consulted 

the  Advisory  Committee  on

(1)  Whereas  Regulation  (EEC)  No  4064/89  and  in
particular  Article  23  thereof  has  been  amended  by
Regulation  (EC)  No  1310/97;

(2)  Whereas  Commission  Regulation 

(EC)  No
3384/94 (8),  implementing  Regulation  (EEC)  No
4064/89,  must  be  modified  in  order  to  take
account  of  those  amendments;  whereas  experience
in  the  application  of  Regulation  (EC)  No  3384/94
has 
improve  certain
procedural aspects thereof; whereas for the sake of
clarity  it  should  therefore  be  replaced  by  a  new
regulation;

the  need 

revealed 

to 

(1)  OJ  L  395,  30.12.1989,  p.  1;  corrected  version,  OJ  L  257,

21.9.1990,  p.  13.

(2)  OJ  L  180,  9.7.1997,  p.  1.
(3)  OJ  13,  21.2.1962,  p.  204/62.
(4)  OJ  L  175,  23.7.1968,  p.  1.

(5)  OJ  L  378,  31.12.1986,  p.  4.
(6)  OJ  L  374,  31.12.1987,  p.  1.
(7)  OJ  L  240,  24.8.1992,  p.  18.
(8)  OJ  L  377,  31.12.1994,  p.  1.

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(3)  Whereas  the  Commission  has  adopted  Decision
94/810/ECSC,  EC  of  12  December  1994  on
reference  of  hearing  officers
the 
in 
the
Commission (1);

terms  of 
competition 

procedures 

before 

(4)  Whereas  Regulation  (EEC)  No  4064/89  is  based
on  the  principle  of  compulsory  notification  of
concentrations  before  they  are  put  into  effect;
whereas,  on  the  one  hand,  a  notification  has
important legal consequences which are favourable
to  the  parties  to  the  concentration  plan,  while,  on
the  other  hand,  failure  to  comply  with  the
obligation  to  notify  renders  the  parties  liable  to  a
fine and may also entail civil law disadvantages for
them;  whereas  it  is  therefore  necessary  in  the
interests  of  legal  certainty  to  define  precisely  the
subject  matter  and  content  of  the  information  to
be  provided  in  the  notification;

(5)  Whereas it  is for  the notifying parties  to make full
and  honest  disclosure  to  the  Commission  of  the
facts  and  circumstances  which  are  relevant  for
taking  a  decision  on  the  notified  concentration;

(6)  Whereas 

in  order 

to  simplify  and  expedite
examination  of  the  notification,  it  is  desirable  to
prescribe  that  a  form  be  used;

(7)  Whereas since notification sets in motion legal time
limits  pursuant  to  Regulation  (EEC)  No  4064/89,
the  conditions  governing  such  time-limits  and  the
time  when  they  become  effective  must  also  be
determined;

(8)  Whereas rules must be laid down in the interests of
legal  certainty  for  calculating  the  time 
limits
provided  for  in  Regulation  (EEC)  No  4064/89;
whereas in particular, the beginning and end of the
period  and  the  circumstances  suspending  the
running  of  the  period  must  be  determined,  with
due  regard  to  the  requirements  resulting  from  the
exceptionally  short  legal  time-limits  referred  to
specific
above;  whereas 
provisions  the  determination  of  rules  applicable  to
periods,  dates  and  time-limits  should  be  based  on
the  principles  of  Council  Regulation 
(EEC,
Euratom)  No  1182/71 (2);

the  absence  of 

in 

(1)  OJ  L  330,  21.12.1994,  p.  67.
(2)  OJ  L  124,  8.6.1971,  p.  1.

(9)  Whereas 

to 

the 

relating 

provisions 

the
Commission’s procedure must be framed in such a
way as to safeguard fully the right to be heard and
the  rights  of  defence;  whereas  for  these  purposes
the  Commission  should  distinguish  between  the
parties  who  notify  the  concentration,  other  parties
involved  in  the  concentration  plan,  third  parties
and  parties  regarding  whom  the  Commission
intends  to  take  a  decision  imposing  a  fine  or
periodic  penalty  payments;

(10)  Whereas the Commission should give the notifying
parties  and  other  parties  involved,  if  they  so
request,  an  opportunity  before  notification  to
discuss  the  intended  concentration  informally  and
in  strict  confidence;  whereas  in  addition  it  should,
after  notification,  maintain  close  contact  with
those  parties  to  the  extent  necessary  to  discuss
with them any practical or legal problems which it
discovers  on  a  first  examination  of  the  case  and  if
possible  to  remove  such  problems  by  mutual
agreement;

(11)  Whereas  in  accordance  with  the  principle  of  the
rights  of  defence,  the  notifying  parties  must  be
given the opportunity to submit their comments on
all  the  objections  which  the  Commission  proposes
to  take  into  account  in  its  decisions;  whereas  the
other  parties  involved  should  also  be  informed  of
the  Commission’s  objections  and  granted  the
opportunity  to  express  their  views;

(12)  Whereas  third  parties  having  sufficient  interest
must  also  be  given  the  opportunity  of  expressing
a  written
their 
application;

views  where 

they  make 

in 

the 

interest  and 

(13)  Whereas  the  various  persons  entitled  to  submit
comments  should  do  so  in  writing,  both  in  their
own 
interest  of  good
administration,  without  prejudice  to  their  right  to
request a formal oral hearing where appropriate to
supplement  the  written  procedure;  whereas  in
urgent  cases,  however,  the  Commission  must  be
able  to  proceed 
immediately  to  formal  oral
hearings  of  the  notifying  parties,  other  parties
involved  or  third  parties;

(14)  Whereas  it  is  necessary  to  define  the  rights  of
persons  who  are  to  be  heard,  to  what  extent  they
should  be  granted  access  to  the  Commission’s  file
and  on  what  conditions  they  may  be  represented
or  assisted;

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(15)  Whereas 

the  Commission  must 

the
legitimate interest of undertakings in the protection
of  their  business  secrets  and  other  confidential
information;

respect 

(16)  Whereas,  in  order  to  enable  the  Commission  to
carry out a proper assessment of commitments that
have  the  purpose  of  rendering  the  concentration
compatible  with  the  common  market,  and  to
ensure  due  consultation  with  other  parties
involved,  third  parties  and  the  authorities  of  the
Member  States  as  provided  for  in  Regulation
(EEC)  No  4064/89,  in  particular  Article  18(1)  and
(4)  thereof,  the  procedure  and  time-limits  for
submitting  such  commitments  as  provided  for  in
Article  6(2)  and  Article  8(2)  of  Regulation  (EEC)
No  4064/89  must  be  laid  down;

(17)  Whereas  it  is  also  necessary  to  define  the  rules  for
fixing  and  calculating  the  time  limits  for  reply
fixed  by  the  Commission;

(18)  Whereas 

the 

Committee 

on
Advisory 
Concentrations  must  deliver  its  opinion  on  the
basis  of  a  preliminary  draft  decision;  whereas  it
must  therefore  be  consulted  on  a  case  after  the
inquiry into that case has been completed; whereas
such  consultation  does  not,  however,  prevent  the
Commission  from  reopening  an  inquiry  if  need
be,

HAS  ADOPTED  THIS  REGULATION:

CHAPTER  I

NOTIFICATIONS

Article  1

Persons  entitled  to  submit  notifications

1. Notifications  shall  be  submitted  by  the  persons  or
undertakings  referred  to  in  Article  4(2)  of  Regulation
(EEC)  No  4064/89.

2. Where  notifications  are  signed  by  representatives  of
persons  or  of  undertakings,  such  representatives  shall
produce  written  proof  that  they  are  authorised  to  act.

Article  2

Submission  of  notifications

1. Notifications  shall  be  submitted 
in  the  manner
prescribed  by  form  CO  as  shown  in  the  Annex.  Joint
notifications  shall  be  submitted  on  a  single  form.

2. One  original  and  23  copies  of  the  form  CO  and  the
supporting  documents 
the
Commission  at  the  address  indicated  in  form  CO.

submitted 

shall  be 

to 

3. The supporting documents shall be either originals or
copies  of  the  originals;  in  the  latter  case  the  notifying
parties  shall  confirm  that  they  are  true  and  complete.

4. Notifications  shall  be  in  one  of  the  official  languages
of  the  Community.  This  language  shall  also  be  the
language  of  the  proceeding  for  the  notifying  parties.
Supporting documents shall be submitted in their original
language.  Where  the  original  language  is  not  one  of  the
official  languages  of  the  Community,  a  translation  into
the  language  of  the  proceeding  shall  be  attached.

5. Where  notifications  are  made  pursuant  to  Article  57
of  the  EEA  Agreement,  they  may  also  be  in  one  of  the
official  languages  of  the  EFTA  States  or  the  working
language  of  the  EFTA  Surveillance  Authority.  If  the
language  chosen  for  the  notifications  is  not  an  official
language  of  the  Community,  the  notifying  parties  shall
simultaneously  supplement  all  documentation  with  a
translation  into  an  official  language  of  the  Community.
The  language  which  is  chosen  for  the  translation  shall
determine  the  language  used  by  the  Commission  as  the
language  of  the  proceedings  for  the  notifying  parties.

Article  3

Information  and  documents  to  be  provided

1. Notifications  shall  contain  the  information,  including
documents, requested by form CO. The information must
be  correct  and  complete.

2. The Commission may dispense with the obligation to
provide any particular information, including documents,
requested  by  form  CO  where  the  Commission  considers
that 
the
information 
examination  of  the  case.

is  not  necessary 

such 

for 

3.
Joint  notifications  should  be  submitted  by  a  joint
representative  who  is  authorised  to  transmit  and  to
receive  documents  on  behalf  of  all  notifying  parties.

3. The  Commission  shall  without  delay  acknowledge  in
writing  to  the  notifying  parties  or  their  representatives

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receipt of the notification and of any reply to a letter sent
by  the  Commission  pursuant  to  Article  4(2)  and  (4).

as  an  application  within  the  meaning  of  Article  12  of
Regulation  (EEC)  No  4056/86  or  as  an  application
within  the  meaning  of  Article  3(2)  or  of  Article  5  of
Regulation  (EEC)  No  3975/87.

Article  4

Effective  date  of  notification

1. Subject  to  paragraphs  2,  3  and  4,  notifications  shall
become  effective  on  the  date  on  which  they  are  received
by  the  Commission.

the 

information, 

including  documents,
2. Where 
contained  in  the  notification  is  incomplete  in  a  material
respect, the Commission shall inform the notifying parties
or their representatives in writing without delay and shall
set  an  appropriate  time-limit  for  the  completion  of  the
information.  In  such  cases,  the  notification  shall  become
effective  on  the  date  on  which  the  complete  information
is  received  by  the  Commission.

in  the  facts  contained 

in  the
3. Material  changes 
notification which the notifying parties know or ought to
have  known  must  be  communicated  to  the  Commission
without delay. In such cases, when these material changes
could  have  a  significant  effect  on  the  appraisal  of  the
concentration,  the  notification  may  be  considered  by  the
Commission  as  becoming  effective  on  the  date  on  which
the information on the material changes is received by the
Commission;  the  Commission  shall  inform  the  notifying
parties  or  their  representatives  of  this  in  writing  and
without  delay.

Incorrect  or  misleading 

4.
considered  to  be  incomplete  information.

information 

shall  be

5. When  the  Commission  publishes  the  fact  of  the
notification  pursuant  to  Article  4(3)  of  Regulation  (EEC)
No  4064/89,  it  shall  specify  the  date  upon  which  the
notification  has  been  received.  Where,  further  to  the
application of paragraphs 2, 3 and 4, the effective date of
notification  is  later  than  the  date  specified  in  this
publication, 
further
issue  a 
publication  in  which  it  will  state  the  later  date.

the  Commission  shall 

Article  5

Conversion  of  notifications

1. Where  the  Commission  finds  that  the  operation
notified  does  not  constitute  a  concentration  within  the
meaning of Article 3 of Regulation (EEC) No 4064/89, it
shall  inform  the  notifying  parties  or  their  representatives
in  writing.  In  such  a  case,  the  Commission  shall,  if
requested  by  the  notifying  parties,  as  appropriate  and
subject  to  paragraph  2  of  this  Article,  treat  the
notification  as  an  application  within  the  meaning  of
Article 2 or a notification within the meaning of Article 4
of  Regulation  No  17,  as  an  application  within  the
meaning  of  Article  12  or  a  notification  within  the
meaning  of  Article  14  of  Regulation  (EEC)  No  1017/68,

2.
In  cases  referred  to  in  paragraph  1,  second  sentence,
the  Commission  may  require  that  the  information  given
in the notification be supplemented within an appropriate
time-limit  fixed  by  it  in  so  far  as  this  is  necessary  for
assessing  the  operation  on  the  basis  of  the  Regulations
referred 
that  sentence.  The  application  or
notification  shall  be  deemed  to  fulfil  the  requirements  of
the  original
such  Regulations 
notification  where  the  additional  information  is  received
by  the  Commission  within  the  time-limit  fixed.

the  date  of 

from 

to 

in 

CHAPTER  II

TIME-LIMITS

Article  6

Beginning  of  periods

1. The  period  referred  to  in  Article  9(2)  of  Regulation
(EEC)  No  4064/89  shall  start  at  the  beginning  of  the
working day following the date of the receipt of the copy
of  the  notification  by  the  Member  State.

2. The period referred to in Article 9(4)(b) of Regulation
(EEC)  No  4064/89  shall  start  at  the  beginning  of  the
working  day 
the
notification,  within  the  meaning  of  Article  4  of  this
Regulation.

the  effective  date  of 

following 

3. The  period  referred  to  in  Article  9(6)  of  Regulation
(EEC)  No  4064/89  shall  start  at  the  beginning  of  the
working  day  following  the  date  of  the  Commission’s
referral.

4. The periods referred to in Article 10(1) of Regulation
(EEC)  No  4064/89  shall  start  at  the  beginning  of  the
working  day 
the
notification,  within  the  meaning  of  Article  4  of  this
Regulation.

the  effective  date  of 

following 

5. The  period  referred  to  in  Article  10(3)  of  Regulation
(EEC)  No  4064/89  shall  start  at  the  beginning  of  the
working  day  following  the  day  on  which  proceedings
were  initiated.

6. The  period  referred  to  in  Article  22(4),  second
subparagraph,  second  sentence,  of  Regulation  (EEC)  No
4064/89  shall  start  at  the  beginning  of  the  working  day
following  the  date  of  the  first  of  the  events  referred  to.

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Article  7

End  of  periods

1. The  period  referred  to  in  Article  9(2)  of  Regulation
(EEC)  No  4064/89  shall  end  with  the  expiry  of  the  day
which  in  the  third  week  following  that  in  which  the
period began is the same day of the week as the day from
which  the  period  runs.

2. The period referred to in Article 9(4)(b) of Regulation
(EEC)  No  4064/89  shall  end  with  the  expiry  of  the  day
which  in  the  third  month  following  that  in  which  the
period  began  falls  on  the  same  date  as  the  day  from
which the period runs. Where such a day does not occur
in that month, the period shall end with the expiry of the
last  day  of  that  month.

3. The  period  referred  to  in  Article  9(6)  of  Regulation
(EEC)  No  4064/89  shall  end  with  the  expiry  of  the  day
which  in  the  fourth  month  following  that  in  which  the
period  began  falls  on  the  same  date  as  the  day  from
which the period runs. Where such a day does not occur
in that month, the period shall end with the expiry of the
last  day  of  that  month.

in  Article  10(1), 

first
to 
4. The  period  referred 
subparagraph, of Regulation (EEC) No 4064/89 shall end
with the expiry of the day which in the month following
that  in  which  the  period  began  falls  on  the  same  date  as
the  day  from  which  the  period  runs.  Where  such  a  day
does  not  occur  in  that  month,  the  period  shall  end  with
the  expiry  of  the  last  day  of  that  month.

5. The  period  referred  to  in  Article  10(1),  second
subparagraph, of Regulation (EEC) No 4064/89 shall end
with  the  expiry  of  the  day  which  in  the  sixth  week
following that in which the period began is the same day
of  the  week  as  the  day  from  which  the  period  runs.

6. The  period  referred  to  in  Article  10(3)  of  Regulation
(EEC)  No  4064/89  shall  end  with  the  expiry  of  the  day
which  in  the  fourth  month  following  that  in  which  the
period  began  falls  on  the  same  date  as  the  day  from
which the period runs. Where such a day does not occur
in that month, the period shall end with the expiry of the
last  day  of  that  month.

7. The  period  referred  to  in  Article  22(4),  second
subparagraph,  second  sentence,  of  Regulation  (EEC)  No
4064/89 shall end with the expiry of the day which in the
month  following  that  in  which  the  period  began  falls  on
the  same  date  as  the  day  from  which  the  period  runs.
Where  such  a  day  does  not  occur  in  that  month,  the

period  shall  end  with  the  expiry  of  the  last  day  of  that
month.

8. Where  the  last  day  of  the  period  is  not  a  working
day, the period shall end with the expiry of the following
working day.

Article  8

Recovery  of  holidays

Once  the  end  of  the  period  has  been  determined  in
accordance  with  Article  7,  if  public  holidays  or  other
holidays  of  the  Commission  referred  to  in  Article  23  fall
within the periods referred to in Articles 9, 10 and 22 of
Regulation  (EEC)  No  4064/89,  a  corresponding  number
of  working  days  shall  be  added  to  those  periods.

Article  9

Suspension  of  time  limit

1. The  periods  referred  to  in  Article  10(1)  and  (3)  of
Regulation  (EEC)  No  4064/89  shall  be  suspended  where
the  Commission,  pursuant  to  Article  11(5)  and  Article
13(3)  of  that  Regulation,  has  to  take  a  decision
because:

(a)  information  which  the  Commission  has  requested
pursuant  to  Article  11(1)  of  Regulation  (EEC)  No
4064/89  from  one  of  the  notifying  parties  or  another
involved  party,  as  defined  in  Article  11  of  this
Regulation,  is  not  provided  or  not  provided  in  full
within  the  time  limit  fixed  by  the  Commission;

(b) information  which  the  Commission  has  requested
pursuant  to  Article  11(1)  of  Regulation  (EEC)  No
4064/89  from  a  third  party,  as  defined  in  Article  11
of this Regulation, is not provided or not provided in
full  within  the  time  limit  fixed  by  the  Commission
owing to circumstances for which one of the notifying
parties or another involved party, as defined in Article
11  of  this  Regulation,  is  responsible;

to  submit 

(c)  one of the notifying parties or another involved party,
as  defined  in  Article  11  of  this  Regulation,  has
investigation  deemed
to  an 
refused 
necessary  by  the  Commission  on  the  basis  of  Article
13(1)  of  Regulation  (EEC)  No  4064/89  or  to
cooperate in the carrying out of such an investigation
in  accordance  with  that  provision;

(d) the  notifying  parties  have  failed  to 
Commission  of  material  changes 
contained  in  the  notification.

in 

inform  the
facts

the 

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2. The  periods  referred  to  in  Article  10(1)  and  (3)  of
Regulation  (EEC)  No  4064/89  shall  be  suspended:

CHAPTER  III

HEARING  OF  THE  PARTIES  AND  OF  THIRD  PARTIES

(a)  in the cases referred to in paragraph 1(a) and (b), for
the  period  between  the  end  of  the  time  limit  fixed  in
the  request  for  information  and  the  receipt  of  the
complete  and  correct 
required  by
decision;

information 

(b) in  the  cases  referred  to  in  paragraph  1(c),  for  the
period  between  the  unsuccessful  attempt  to  carry  out
the 
the
investigation  ordered  by  decision;

the  completion  of 

investigation  and 

(c)  in  the  cases  referred  to  in  paragraph  1(d),  for  the
period  between  the  occurrence  of  the  change  in  the
facts  referred  to  therein  and  the  receipt  of  the
information  requested  by
complete  and  correct 
decision  or  the  completion  of  the 
investigation
ordered  by  decision.

3. The  suspension  of  the  time  limit  shall  begin  on  the
day  following  that  on  which  the  event  causing  the
suspension  occurred.  It  shall  end  with  the  expiry  of  the
day  on  which  the  reason  for  suspension  is  removed.
Where such a day is not a working day, the suspension of
the  time-limit  shall  end  with  the  expiry  of  the  following
working day.

Article  10

Compliance  with  the  time-limits

Article  11

Parties  to  be  heard

For  the  purposes  of  the  rights  to  be  heard  pursuant  to
Article  18  of  Regulation  (EEC)  No  4064/89,  the
following  parties  are  distinguished:

(a)  notifying  parties,  that  is,  persons  or  undertakings
submitting  a  notification  pursuant  to  Article  4(2)  of
Regulation  (EEC)  No  4064/89;

(b) other 

involved  parties, 

the
concentration  plan  other  than  the  notifying  parties,
such  as  the  seller  and  the  undertaking  which  is  the
target  of  the  concentration;

is,  parties 

that 

to 

(c)  third parties, that is, natural or legal persons showing
a  sufficient  interest,  including  customers,  suppliers
and  competitors,  and  especially  members  of  the
the
administration  or  management  organs  of 
undertakings  concerned  or 
recognised  workers’
representatives  of  those  undertakings;

(d) parties  regarding  whom  the  Commission  intends  to
take  a  decision  pursuant  to  Article  14  or  15  of
Regulation  (EEC)  No  4064/89.

1. The time limits referred to in Article 9(4) and (5), and
Article  10(1)  and  (3)  of  Regulation  (EEC)  No  4064/89
shall  be  met  where  the  Commission  has  taken  the
relevant  decision  before  the  end  of  the  period.

Article  12

Decisions  on  the  suspension  of  concentrations

limit  referred  to 

2. The  time 
in  Article  9(2)  of
Regulation  (EEC)  No  4064/89  shall  be  met  where  a
Member State informs the Commission before the end of
the  period  in  writing.

limit  referred  to 

3. The  time 
in  Article  9(6)  of
Regulation  (EEC)  No  4064/89  shall  be  met  where  the
competent  authority  of  the  Member  State  concerned
publishes  any  report  or  announces  the  findings  of  the
examination  of  the  concentration  before  the  end  of  the
period.

4. The  time  limit  referred  to  in  Article  22(4),  second
subparagraph,  second  sentence,  of  Regulation  (EEC)  No
4064/89  shall  be  met  where  the  request  made  by  the
Member  State  or  the  Member  States  is  received  by  the
Commission  before  the  end  of  the  period.

1. Where  the  Commission  intends  to  take  a  decision
pursuant to Article 7(4) of Regulation (EEC) No 4064/89
which  adversely  affects  one  or  more  of  the  parties,  it
shall,  pursuant  to  Article  18(1)  of  that  Regulation,
inform the notifying parties and other involved parties in
writing  of  its  objections  and  shall  fix  a  time  limit  within
which  they  may  make  known  their  views.

2. Where  the  Commission,  pursuant  to  Article  18(2)  of
Regulation  (EEC)  No  4064/89,  has  taken  a  decision
referred  to  in  paragraph  1  of  this  Article  provisionally
without  having  given  the  notifying  parties  and  other
involved  parties  the  opportunity  to  make  known  their
views,  it  shall  without  delay  send  them  the  text  of  the
provisional  decision  and  shall  fix  a  time  limit  within
which  they  may  make  known  their  views.

Once  the  notifying  parties  and  other  involved  parties
have made known their views, the Commission shall take

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a  final  decision  annulling,  amending  or  confirming  the
provisional  decision.  Where  they  have  not  made  known
their  views  within  the  time  limit  fixed,  the  Commission’s
provisional decision shall become final with the expiry of
that  period.

3. The  notifying  parties  and  other  involved  parties  shall
make  known  their  views  in  writing  or  orally  within  the
time  limit  fixed.  They  may  confirm  their  oral  statements
in  writing.

facts.  They  shall  submit  one  original  and  29  copies  of
their response to the Commission at the address indicated
in  form  CO.

5. Where  the  Commission  intends  to  take  a  decision
pursuant  to  Article  14  or  15  of  Regulation  (EEC)  No
4064/89 
the  Advisory
shall,  before  consulting 
Committee  on  Concentrations,  hear  pursuant  to  Article
18(1)  and  (3)  of  that  Regulation  the  parties  regarding
whom  the  Commission  intends  to  take  such  a  decision.

it 

Article  13

Decisions  on  the  substance  of  the  case

The  procedure  provided  for  in  paragraph  2,  first  and
second  subparagraphs,  paragraph  3,  first  subparagraph,
and  paragraph  4  is  applicable,  mutatis  mutandis.

1. Where  the  Commission  intends  to  take  a  decision
pursuant to Article 8(2), second subparagraph, or Article
8(3), (4) or (5) of Regulation (EEC) No 4064/89, it shall,
before 
on
Concentrations, hear the parties pursuant to Article 18(1)
and  (3)  of  that  Regulation.

the  Advisory  Committee 

consulting 

2. The  Commission  shall  address 
writing  to  the  notifying  parties.

its  objections 

in

The  Commission  shall,  when  giving  notice  of  objections,
set  a  time  limit  within  which  the  notifying  parties  may
inform  the  Commission  of  their  views  in  writing.

The  Commission  shall  inform  other  involved  parties  in
writing  of  these  objections.

The  Commission  shall  also  set  a  time  limit  within  which
those  other  involved  parties  may  inform  the  Commission
of  their  views  in  writing.

3. After  having  addressed  its  objections  to  the  notifying
parties,  the  Commission  shall,  upon  request,  give  them
access  to  the  file  for  the  purpose  of  enabling  them  to
exercise  their  rights  of  defence.

The  Commission  shall,  upon  request,  also  give  the  other
involved  parties  who  have  been 
the
objections  access  to  the  file  in  so  far  as  this  is  necessary
for  the  purposes  of  preparing  their  observations.

informed  of 

4. The  parties  to  whom  the  Commission’s  objections
have been addressed or who have been informed of those
objections shall, within the time limit fixed, make known
in  writing  their  views  on  the  objections.  In  their  written
comments,  they  may  set  out  all  matters  relevant  to  the
case  and  may  attach  any  relevant  documents  in  proof  of
the  facts  set  out.  They  may  also  propose  that  the
Commission  hear  persons  who  may  corroborate  those

Article  14

Oral hearings

1. The  Commission  shall  afford  the  notifying  parties
who  have  so  requested  in  their  written  comments  the
opportunity  to  put  forward  their  arguments  orally  in  a
formal hearing if such parties show a sufficient interest. It
may  also 
the
opportunity  of  expressing  their  views  orally.

in  other  cases  afford  such  parties 

2. The  Commission  shall  afford  other  involved  parties
who  have  so  requested  in  their  written  comments  the
opportunity  to  express  their  views  orally  in  a  formal
hearing  if  they  show  a  sufficient  interest.  It  may  also  in
other  cases  afford  such  parties  the  opportunity  of
expressing  their  views  orally.

3. The  Commission  shall  afford  parties  on  whom  it
proposes  to  impose  a  fine  or  periodic  penalty  payment
who  have  so  requested  in  their  written  comments  the
opportunity  to  put  forward  their  arguments  orally  in  a
formal  hearing.  It  may  also  in  other  cases  afford  such
parties  the  opportunity  of  expressing  their  views  orally.

4. The  Commission  shall  invite  the  persons  to  be  heard
to  attend  on  such  date  as  it  shall  appoint.

5. The  Commission 
competent
shall 
authorities  of  the  Member  States,  to  take  part  in  the
hearing.

invite 

the 

Article  15

Conduct  of  formal  oral  hearings

1. Hearings  shall  be  conducted  by  the  Hearing  Officer.

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2. Persons invited to attend shall either appear in person
legal  representatives  or  by
or  be  represented  by 
their  constitution  as
representatives  authorised  by 
appropriate.  Undertakings 
of
associations 
undertakings  may  be  represented  by  a  duly  authorised
agent  appointed  from  among  their  permanent  staff.

and 

2. Any  party  which  makes  known  its  views  under  the
provisions  of  this  Chapter  shall  clearly  identify  any
material  which  it  considers  to  be  confidential,  giving
reasons,  and  provide  a  separate  non-confidential  version
within  the  time  limit  fixed  by  the  Commission.

3. Persons heard by the Commission may be assisted by
their  legal  adviser  or  other  qualified  persons  admitted  by
the  Hearing  Officer.

4. Hearings  shall  not  be  public.  Each  person  shall  be
heard  separately  or  in  the  presence  of  other  persons
invited to attend. In the latter case, regard shall be had to
the 
in  the
protection of their business secrets and other confidential
information.

interest  of  the  undertakings 

legitimate 

5. The  statements  made  by  each  person  heard  shall  be
recorded.

Article  16

Hearing  of  third  parties

1.
If  third  parties  apply  in  writing  to  be  heard  pursuant
to  Article  18(4),  second  sentence,  of  Regulation  (EEC)
No  4064/89,  the  Commission  shall  inform  them  in
writing of the nature and subject matter of the procedure
and  shall  fix  a  time  limit  within  which  they  may  make
known  their  views.

2. The  third  parties  referred  to  in  paragraph  1  shall
make  known  their  views  in  writing  within  the  time  limit
fixed.  The  Commission  may,  where  appropriate,  afford
the  parties  who  have  so  requested  in  their  written
comments  the  opportunity  to  participate  in  a  formal
hearing. It may also in other cases afford such parties the
opportunity  of  expressing  their  views  orally.

3. The  Commission  may  likewise  afford  to  any  other
third  parties  the  opportunity  of  expressing  their  views.

CHAPTER  IV

COMMITMENTS  RENDERING  THE  CONCENTRATION
COMPATIBLE

Article  18

Time  limits  for  commitments

1. Commitments  proposed  to  the  Commission  by  the
undertakings  concerned  pursuant  to  Article  6(2)  of
Regulation (EEC) No 4064/89 which are intended by the
parties  to  form  the  basis  for  a  decision  pursuant  to
Article  6(1)(b)  of  that  Regulation  shall  be  submitted  to
the  Commission  within  not  more  than  three  weeks  from
the  date  of  receipt  of  the  notification.

2. Commitments  proposed  to  the  Commission  by  the
undertakings  concerned  pursuant  to  Article  8(2)  of
Regulation (EEC) No 4064/89 which are intended by the
parties  to  form  the  basis  for  a  decision  pursuant  to  that
Article  shall  be  submitted  to  the  Commission  within  not
more  than  three  months  from  the  date  on  which
proceedings  were  initiated.  The  Commission  may  in
exceptional  circumstances  extend  this  period.

3. Articles  6  to  9  shall  apply  mutatis  mutandis  to
paragraphs  1  and  2  of  this  Article.

Article  19

Procedure  for  commitments

Article  17

Confidential  information

1. One original and 29 copies of commitments proposed
to  the  Commission  by  the  undertakings  concerned
pursuant  to  Article  6(2)  or  Article  8(2)  of  Regulation
(EEC) No 4064/89 shall be submitted to the Commission
at  the  address  indicated  in  form  CO.

Information, 

1.
including  documents,  shall  not  be
communicated or made accessible in so far as it contains
business  secrets  of  any  person  or  undertaking,  including
the  notifying  parties,  other  involved  parties  or  of  third
parties,  or  other  confidential  information  the  disclosure
of  which  is  not  considered  necessary  by  the  Commission
for  the  purpose  of  the  procedure,  or  where  internal
documents  of  the  authorities  are  concerned.

party 

proposing 

commitments 

2. Any 
the
Commission  pursuant  to  Articles  6(2)  or  Article  8(2)  of
Regulation  (EEC)  No  4064/89  shall  clearly  identify  any
material  which  it  considers  to  be  confidential,  giving
reasons,  and  provide  a  separate  non-confidential  version
within  the  time  limit  fixed  by  the  Commission.

to 

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CHAPTER  V

MISCELLANEOUS  PROVISIONS

Article  20

Transmission  of  documents

1. Transmission  of  documents  and  invitations  from  the
Commission  to  the  addressees  may  be  effected  in  any  of
the  following  ways:

(a)  delivery  by  hand  against  receipt;

(b) registered  letter  with  acknowledgement  of  receipt;

(c)  fax  with  a  request  for  acknowledgement  of  receipt;

(d) telex;

(e)  electronic  mail  with  a  request  for  acknowledgement

of  receipt.

2. Unless  otherwise  provided 
paragraph  1  also  applies 
to 
the  notifying  parties, 
from 
documents 
involved  parties  or 
Commission.

in 
the 

from 

this  Regulation,
transmission  of
from  other
the
to 

third  parties 

3. Where  a  document  is  sent  by  telex,  by  fax  or  by
electronic  mail,  it  shall  be  presumed  that  it  has  been
received  by  the  addressee  on  the  day  on  which  it  was
sent.

Article  21

Setting  of  time  limits

In  fixing  the  time  limits  provided  for  pursuant  to  Article
4(2),  Article  5(2),  Article12(1)  and  (2),  Article  13(2)  and
Article  16(1),  the  Commission  shall  have  regard  to  the
time  required  for  preparation  of  statements  and  to  the
urgency of the case. It shall also take account of working
days  as  well  as  public  holidays  in  the  country  of  receipt
of  the  Commission’s  communication.

been  dispatched  by  registered  letter  to  the  address
indicated  in  form  CO  before  the  expiry  of  the  period
referred  to  in  Article  4(1)  of  Regulation  (EEC)  No
4064/89.

requested 

information 

Additional 
complete
notifications  pursuant  to  Article  4(2)  and  (4)  or  to
supplement  notifications  pursuant  to  Article  5(2)  must
reach  the  Commission  at  the  aforesaid  address  or  have
been  dispatched  by  registered  letter  before  the  expiry  of
the  time  limit  fixed  in  each  case.

to 

Written  comments  on  Commission  communications
pursuant  to  Article  12(1)  and  (2),  Article  13(2)  and
Article  16(1)  must  have  reached  the  Commission  at  the
aforesaid address before the expiry of the time limit fixed
in  each  case.

2. Time  limits  referred  to  in  subparagraphs  two  and
three  of  paragraph  1  shall  be  determined  in  accordance
with  Article  21.

3. Should the last day of a time limit fall on a day which
is  not  a  working  day  or  which  is  a  public  holiday  in  the
country  of  dispatch,  the  time  limit  shall  expire  on  the
following  working  day.

Article  23

Definition  of  working  days

The  expression  ‘working  days’  in  this  Regulation  means
all  days  other  than  Saturdays,  Sundays,  public  holidays
and other holidays as determined by the Commission and
published 
in  the  Official  Journal  of  the  European
Communities  before  the  beginning  of  each  year.

Article  24

Repeal

These  time  limits  shall  be  set  in  terms  of  a  precise
calendar date.

Regulation  (EEC)  No  3384/94  is  repealed.

Article  22

Receipt  of  documents  by  the  Commission

Article  25

Entry  into  force

1.
In  accordance  with  the  provisions  of  Article  4(1)  of
this  Regulation,  notifications  must  be  delivered  to  the
Commission at the address indicated in form CO or have

This  Regulation  shall  enter  into  force  on  21  March
1998.

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

Done  at  Brussels,  1  March  1998.

For  the  Commission

Karel  VAN  MIERT

Member  of  the  Commission

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ANNEX

FORM  CO  RELATING  TO  THE  NOTIFICATION  OF  A  CONCENTRATION
PURSUANT  TO  REGULATION  (EEC)  No  4064/89

INTRODUCTION

A.  The  purpose  of  this  form

This  form  specifies  the  information  that  must  be  provided  by  an  undertaking  or  undertakings  when
notifying the Commission of a concentration with a Community dimension. A ‘concentration’ is defined in
Article  3  of  Regulation  (EEC)  No  4064/89  (hereinafter  referred  to  as  ‘the  Merger  Regulation’)  and
‘Community  dimension’  in  Article  1  thereof.

Your attention is drawn to the Merger Regulation and to Regulation (EC) No 447/98 (hereinafter referred
to as ‘the Implementing Regulation’) and to the corresponding provisions of the Agreement on the European
Economic  Area (1).

Experience has shown that prenotification meetings are extremely valuable to both the notifying parties and
the  Commission  in  determining  the  precise  amount  of  information  required  in  a  notification  and,  in  the
large  majority  of  cases,  will  result  in  a  significant  reduction  of  the  information  required.  Accordingly,
notifying parties are encouraged to consult the Commission regarding the possibility of dispensing with the
obligation  to  provide  certain  information  (see  Section  B(g)  on  the  possibility  of  dispensation).

B.  The  need  for  a  correct  and  complete  notification

All  information  required  by  this  form  must  be  correct  and  complete.  The  information  required  must  be
supplied in the appropriate section of this form. Annexes to this form shall only be used to supplement the
information  supplied  in  the  form  itself.

In  particular  you  should  note  that:

(a)  In accordance with Article 10(1) of the Merger Regulation and Article 4(2) and (4) of the Implementing
Regulation, the time limits of the Merger Regulation linked to the notification will not begin to run until
all  the  information  that  has  to  be  supplied  with  the  notification  has  been  received  by  the  Commission.
This requirement is to ensure that the Commission is able to assess the notified concentration within the
strict  time-limits  provided  by  the  Merger  Regulation.

(b) The  notifying  parties  should  check  carefully,  in  the  course  of  preparing  their  notification,  that  contact
names and  numbers, and in particular fax numbers, provided to the Commission are accurate, relevant
and  up-to-date.

(c)  Incorrect  or  misleading  information  in  the  notification  will  be  considered  to  be  incomplete  information

(Article  4(4)  of  the  Implementing  Regulation).

(d) If a notification is incomplete, the Commission will inform the notifying parties or their representatives
of  this  in  writing  and  without  delay.  The  notification  will  only  become  effective  on  the  date  on  which
the  complete  and  accurate  information  is  received  by  the  Commission  (Article  10(1)  of  the  Merger
Regulation,  Article  4(2)  and  (4)  of  the  Implementing  Regulation).

(e)  Article  14(1)(b)  of  the  Merger  Regulation  provides  that  incorrect  or  misleading  information,  where
supplied intentionally or negligently, can make the notifying party or parties liable to fines of up to ECU
50 000.  In  addition,  pursuant  to  Article  6(3)(a)  and  Article  8(5)(a)  of  the  Merger  Regulation  the

(1)  Hereinafter  referred  to  as  ‘the  EEA  Agreement’;  see  in  particular  Article  57  of  the  EEA  Agreement  (point  1  of  Annex
XIV  to  the  EEA  Agreement  and  Protocol  4  to  the  Agreement  between  the  EFTA  States  on  the  establishment  of  a
Surveillance Authority and a Court of Justice), as well as Protocols 21 and 24 to the EEA Agreement and Article 1, and
the Agreed Minutes of the Protocol adjusting the EEA Agreement. In particular, any reference to EFTA States shall be
understood  to  mean  those  EFTA  States  which  are  Contracting  Parties  to  the  EEA  Agreement.

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Commission  may  also  revoke  its  decision  on  the  compatibility  of  a  notified  concentration  where  it  is
based  on  incorrect  information  for  which  one  of  the  undertakings  is  responsible.

(f)  You  may  request  that  the  Commission  accept  that  the  notification  is  complete  notwithstanding  the
failure  to  provide  information  required  by  this  form,  if  such  information  is  not  reasonably  available  to
you in part or in whole (for example, because of the unavailability of information on a target company
during  a  contested  bid).

The  Commission  will  consider  such  a  request,  provided  that  you  give  reasons  for  the  unavailability  of
that  information,  and  provide  your  best  estimates  for  missing  data  together  with  the  sources  for  the
estimates.  Where  possible,  indications  as  to  where  any  of  the  requested  information  that  is  unavailable
to  you  could  be  obtained  by  the  Commission  should  also  be  provided.

(g)  You  may  request  that  the  Commission  accept  that  the  notification  is  complete  notwithstanding  the
failure  to  provide  information  required  by  this  form,  if  you  consider  that  any  particular  information
requested  by  this  form,  in  the  full  or  short  form  version,  may  not  be  necessary  for  the  Commission’s
examination  of  the  case.

The  Commission  will  consider  such  a  request,  provided  that  you  give  reasons  why  that  information  is
not  relevant  and  necessary  to  its  inquiry  into  the  notified  operation.  You  may  explain  this  during  your
pre-notification  contacts  with  the  Commission  and/or  in  your  notification  and  ask  the  Commission  to
dispense  with  the  obligation  to  provide  that  information,  pursuant  to  Article  3(2)  of  the  Implementing
Regulation.

C.  Notification  in  short  form

(a)  In  cases  where  a  joint  venture  has  no,  or  de  minimis,  actual  or  foreseen  activities  within  the  EEA
territory,  the  Commission  intends  to  allow  notification  of  the  operation  by  means  of  short  form.  Such
cases  occur  where  joint  control  is  acquired  by  two  or  more  undertakings,  and  where:

(i)  the  turnover (1)  of  the  joint  venture  and/or  the  turnover  of  the  contributed  activities (2),  is  less  than

ECU  100  million  in  the  EEA  territory;  and

(ii) the total value of assets (3)  transferred  to  the  joint  venture  is  less  than  ECU  100  million  in  the  EEA

territory (4).

(b) If you consider that the operation to be notified meets these qualifications, you may explain this in your
notification  and  ask  the  Commission  to  dispense  with  the  obligation  to  provide  the  full-form
notification,  pursuant  to  Article  3(2)  of  the  Implementing  Regulation,  and  to  allow  you  to  notify  by
means  of  short  form.

(c)  Short-form notification allows the notifying parties to limit the information provided in the notification

to  the  following  sections  and  questions:

(1)  The  turnover  of  the  joint  venture  should  be  determined  according  to  the  most  recent  audited  accounts  of  the  parent
companies, or the joint venture itself, depending upon the availability of separate accounts for the resources combined
in  the  joint  venture.

(2)  The  expression  ‘and/or’  refers  to  the  variety  of  situations  covered  by  the  short  form;  for  example:

—  in  the  case  of  the  joint  acquisition  of  a  target  company,  the  turnover  to  be  taken  into  account  is  the  turnover  of

this  target  (the  joint  venture),

—  in the case of the creation of a joint venture to which the parent companies contribute their activities, the turnover

to  be  taken  into  account  is  that  of  the  contributed  activities,

—  in the case of entry of a new controlling party into an existing joint venture, the turnover of the joint venture and

the  turnover  of  the  activities  contributed  by  the  new  parent  company  (if  any)  must  be  taken  into  account.
(3)  The  total  value  of  assets  of  the  joint  venture  should  be  determined  according  to  the  last  regularly  prepared  and
approved  balance  sheet  of  each  parent  company.  The  term  ‘assets’  includes:  (1)  all  tangible  and  intangible  assets  that
will  be  transferred  to  the  joint  venture  (examples  of  tangible  assets  include  production  plants,  wholesale  or  retail
outlets, and inventory of goods), and (2) any amount of credit or any obligations of the joint venture which any parent
company  of  the  joint  venture  has  agreed  to  extend  or  guarantee.

(4)  Where the assets transferred generate turnover, then neither the value of the assets nor that of the turnover may exceed

ECU  100  million.

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—  Section  1,

—  Section  2,  except  questions  2.1  (a,  b  and  d),  2.3.4,  and  2.3.5,

—  Section  3,  only  questions  3.1  and  3.2  (a),

—  Section  5,  only  questions  5.1  and  5.3,

—  Section  6,

—  Section  10,

—  Section  11  (optional  for  the  convenience  of  the  parties),  and

—  Section  12,

—  the  five  largest  independent  customers,  the  five  largest  independent  suppliers,  and  the  five  largest
competitors  in  the  markets  in  which  the  joint  venture  will  be  active.  Provide  the  name,  address,
telephone  number,  fax  number  and  appropriate  contact  person  of  each  such  customer,  supplier  and
competitor.

(d) In addition, with respect to the affected markets of the joint venture as defined in Section 6, indicate for
the  EEA  territory,  for  the  Community  as  a  whole,  for  each  Member  State  and  EFTA  State,  and  where
different,  in  the  opinion  of  the  notifying  parties,  for  the  relevant  geographic  market,  the  sales  in  value
and  volume,  as  well  as  the  market  shares,  for  the  year  preceding  the  operation.

(e)  The  Commission  may  require  full,  or  where  appropriate  partial,  notification  under  the  form  CO

where:

—  the  notified  operation  does  not  meet  the  short-form  thresholds,  or

—  this  appears  to  be  necessary  for  an  adequate  investigation  with  respect  to  possible  competition

problems.

In  such  cases,  the  notification  may  be  considered  incomplete  in  a  material  respect  pursuant  to  Article
4(2)  of  the  Implementing  Regulation.  The  Commission  will  inform  the  notifying  parties  or  their
representatives  of  this  in  writing  and  without  delay  and  will  fix  a  deadline  for  the  submission  of  a  full
or,  where  appropriate,  partial  notification.  The  notification  will  only  become  effective  on  the  date  on
which  all  information  required  is  received.

D.  Who  must  notify

In the case of a merger within the meaning of Article 3(1)(a) of the Merger Regulation or the acquisition of
joint  control  in  an  undertaking  within  the  meaning  of  Article  3(1)(b)  of  the  Merger  Regulation,  the
notification shall be completed jointly by the parties to the merger or by those acquiring joint control as the
case  may  be.

In  case  of  the  acquisition  of  a  controlling  interest  in  one  undertaking  by  another,  the  acquirer  must
complete  the  notification.

In  the  case  of  a  public  bid  to  acquire  an  undertaking,  the  bidder  must  complete  the  notification.

Each  party  completing  the  notification  is  responsible  for  the  accuracy  of  the  information  which  it
provides.

E.  How  to  notify

The  notification  must  be  completed  in  one  of  the  official  languages  of  the  European  Community.  This
language will thereafter be the language of the proceedings for all notifying parties. Where notifications are
made  in  accordance  with  Article  12  of  Protocol  24  to  the  EEA  Agreement  in  an  official  language  of  an
EFTA  State  which  is  not  an  official  language  of  the  Community,  the  notification  must  simultaneously  be
supplemented  with  a  translation  into  an  official  language  of  the  Community.

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The  information  requested  by  this  form  is  to  be  set  out  using  the  sections  and  paragraph  numbers  of  the
form,  signing  a  declaration  as  provided  in  Section  12,  and  annexing  supporting  documentation.

Supporting documents are to be submitted in their original language; where this is not an official language
of  the  Community,  they  must  be  translated  into  the  language  of  the  proceeding  (Article  2(4)  of  the
Implementing  Regulation).

Supporting documents may be originals or copies of the originals. In the latter case, the notifying party must
confirm  that  they  are  true  and  complete.

One  original  and  23  copies  of  the  form  CO  and  all  supporting  documents  must  be  provided.

The  notification  must  be  delivered  to  the  Commission  on  working  days  as  defined  by  Article  23  of  the
Implementing Regulation. In order to enable it to be registered on the same day, it must be delivered before
17.00  on  Mondays  to  Thursdays  and  before  16.00  on  Fridays,  at  the  following  address:

Commission  of  the  European  Communities

Directorate-General  for  Competition  (DG  IV)

Merger  Task  Force

150  avenue  de  Cortenberg/Kortenberglaan  150

B-1049  Brussels.

F.  Confidentiality

Article  214  of  the  Treaty  and  Article  17(2)  of  the  Merger  Regulation  as  well  as  the  corresponding
provisions  of  the  EEA  Agreement (1)  require  the  Commission,  the  Member  States,  the  EFTA  Surveillance
Authority  and  the  EFTA  States,  their  officials  and  other  servants  not  to  disclose  information  they  have
acquired  through  the  application  of  the  Regulation  of  the  kind  covered  by  the  obligation  of  professional
secrecy.  The  same  principle  must  also  apply  to  protect  confidentiality  between  notifying  parties.

If you believe that your interests would be harmed if any of the information you are asked to supply were
to  be  published  or  otherwise  divulged  to  other  parties,  submit  this  information  separately  with  each  page
clearly marked ‘Business Secrets’. You should also give reasons why this information should not be divulged
or  published.

In  the  case  of  mergers  or  joint  acquisitions,  or  in  other  cases  where  the  notification  is  completed  by  more
than  one  of  the  parties,  business  secrets  may  be  submitted  under  separate  cover,  and  referred  to  in  the
notification as an annex. All such annexes must be included in the submission in order for a notification to
be  considered  complete.

G.  Definitions  and  instructions  for  purposes  of  this  form

Notifying party or parties: in cases where a notification is submitted by only one of the undertakings party
to  an  operation,  ‘notifying  parties’  is  used  to  refer  only  to  the  undertaking  actually  submitting  the
notification.

Party(parties)  to  the  concentration:  these  terms  relate  to  both  the  acquiring  and  acquired  parties,  or  to  the
merging parties, including all undertakings in which a controlling interest is being acquired or which is the
subject  of  a  public  bid.

Except  where  otherwise  specified,  the  terms 
concentration’  include  all  the  undertakings  which  belong  to  the  same  groups  as  those  ‘parties’.

‘notifying  party(parties)’  and 

‘party(parties)  to  the

(1)  See, in particular, Article 122 of the EEA Agreement, Article 9 of Protocol 24 to the EEA Agreement and Article 17(2)
of  Chapter  XIII  of  Protocol  4  to  the  Agreement  between  the  EFTA  States  on  the  establishment  of  a  Surveillance
Authority  and  a  Court  of  Justice  (ESA  Agreement).

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Affected  markets:  Section  6  of  this  form  requires  the  notifying  parties  to  define  the  relevant  product
markets,  and  further  to  identify  which  of  those  relevant  markets  are  likely  to  be  affected  by  the  notified
operation. This definition of affected market is used as the basis for requiring information for a number of
other  questions  contained  in  this  form.  The  definitions  thus  submitted  by  the  notifying  parties  are  referred
to  in  this  form  as  the  affected  market(s).  This  term  can  refer  to  a  relevant  market  made  up  either  of
products  or  of  services.

Year:  all  references  to  the  word  ‘year’  in  this  form  should  be  read  as  meaning  calendar  year,  unless
otherwise  stated.  All  information  requested  in  this  form  must,  unless  otherwise  specified,  relate  to  the  year
preceding  that  of  the  notification.

The financial data requested in Sections 2.3 to 2.5 must be provided in ecus at the average conversion rates
prevailing  for  the  years  or  other  periods  in  question.

All  references  contained  in  this  form  are  to  the  relevant  Articles  and  paragraphs  of  Council  Regulation
(EEC)  No  4064/89,  unless  otherwise  stated.

SECTION  1

Background  information

1.1. 

Information  on  notifying  party  (or  parties)

Give  details  of:

1.1.1.  name  and  address  of  undertaking;

1.1.2.  nature  of  the  undertaking’s  business;

1.1.3.  name, address, telephone number, fax number and/or telex of, and position held by, the appropriate

contact  person.

1.2. 

Information  on  other  parties (1)  to  the  concentration

For  each  party  to  the  concentration  (except  the  notifying  party  or  parties)  give  details  of:

1.2.1.  name  and  address  of  undertaking;

1.2.2.  nature  of  undertaking’s  business;

1.2.3.  name, address, telephone number, fax number and/or telex of, and position held by the appropriate

contact  person.

1.3.  Address  for  service

Give an address (in Brussels if available) to which all communications may be made and documents
delivered.

1.4.  Appointment  of  representatives

Where notifications are signed by representatives of undertakings, such representatives must produce
written  proof  that  they  are  authorised  to  act.

If  a  joint  notification  is  being  submitted,  has  a  joint  representative  been  appointed?

If  yes,  please  give  the  details  requested  in  Sections  1.4.1  to  1.4.4.

If  no,  please  give  details  of  information  of  any  representatives  who  have  been  authorised  to  act  for
each  of  the  parties  to  the  concentration,  indicating  whom  they  represent:

1.4.1.  name  of  representative;

(1)  This includes the target company in the case of a contested bid, in which case the details should be completed as far as

is possible.

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1.4.2.  address  of  representative;

1.4.3.  name  of  person  to  be  contacted  (and  address,  if  different  from  1.4.2);

1.4.4.  telephone  number,  fax  number  and/or  telex.

SECTION  2

Details  of  the  concentration

2.1.  Describe  the  nature  of  the  concentration  being  notified.  In  doing  so  state:

(a)  whether the proposed concentration is a full legal merger, an acquisition of sole or joint control,
a  full-function  joint  venture  within  the  meaning  of  Article  3(2)  of  the  Merger  Regulation  or  a
contract  or  other  means  of  conferring  direct  or  indirect  control  within  the  meaning  of  Article
3(3)  of  the  Merger  Regulation;

(b) whether  the  whole  or  parts  of  parties  are  subject  to  the  concentration;

(c)  a  brief  explanation  of  the  economic  and  financial  structure  of  the  concentration;

(d) whether  any  public  offer  for  the  securities  of  one  party  by  another  party  has  the  support  of  the
former’s  supervisory  boards  of  management  or  other  bodies  legally  representing  that  party;

(e)  the proposed or expected date of any major events designed to bring about the completion of the

concentration;

(f)  the  proposed  structure  of  ownership  and  control  after  the  completion  of  the  concentration;

(g)  any  financial  or  other  support  received  from  whatever  source  (including  public  authorities)  by

any  of  the  parties  and  the  nature  and  amount  of  this  support.

2.2.  List  the  economic  sectors  involved  in  the  concentration

2.3. 

For  each  of  the  undertakings  concerned  by  the  concentration (1)  provide  the  following  data (2)  for
the  last  financial  year:

2.3.1.  worldwide  turnover;

2.3.2.  Community-wide  turnover;

2.3.3.  EFTA-wide  turnover;

2.3.4.  turnover  in  each  Member  State;

2.3.5.  turnover  in  each  EFTA  State;

2.3.6.  the  Member  State,  if  any,  in  which  more  than  two  thirds  of  Community-wide  turnover  is

achieved (3);

2.3.7.  the  EFTA  State,  if  any,  in  which  more  than  two  thirds  of  EFTA-wide  turnover  is  achieved.

(1)  See  Commission  notice  on  the  concept  of  undertakings  concerned.
(2)  See,  generally,  the  Commission  notice  on  calculation  of  turnover.  Turnover  of  the  acquiring  party  or  parties  to  the
concentration should include the aggregated turnover of all undertakings within the meaning of Article 5(4). Turnover
of  the  acquired  party  or  parties  should  include  the  turnover  relating  to  the  parts  subject  to  the  transaction  within  the
meaning  of  Article  5(2).  Special  provisions  are  contained  in  Articles  5(3),  (4)  and  5(5)  for  credit,  insurance,  other
financial  institutions  and  joint  undertakings.

(3)  See  Guidance  Note  III  for  the  calculation  of  turnover  in  one  Member  State  with  respect  to  Community-wide

turnover.

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2.4. 

For  the  purposes  of  Article  1(3)  of  the  Merger  Regulation,  if  the  operation  does  not  meet  the
thresholds  set  out  in  Article  1(2),  provide  the  following  data  for  the  last  financial  year:

2.4.1.  the  Member  States,  if  any,  in  which  the  combined  aggregate  turnover  of  all  the  undertakings

concerned  is  more  than  ECU  100  million;

2.4.2.  the  Member  States,  if  any,  in  which  the  aggregate  turnover  of  each  of  at  least  two  of  the

undertakings  concerned  is  more  than  ECU  25  million.

2.5.  Provide  the  following  information  with  respect  to  the  last  financial  year:

2.5.1.  does the combined turnover of the undertakings concerned in the territory of the EFTA States equal

25 %  or  more  of  their  total  turnover  in  the  EEA  territory?

2.5.2.  does each of at least two undertakings concerned have a turnover exceeding ECU 250 million in the

territory  of  the  EFTA  States?

SECTION  3

Ownership  and  control (1)

For  each  of  the  parties  to  the  concentration  provide  a  list  of  all  undertakings  belonging  to  the  same
group.

This  list  must  include:

3.1. 

all  undertakings  or  persons  controlling  these  parties,  directly  or  indirectly;

3.2. 

all  undertakings  active  on  any  affected  market (2)  that  are  controlled,  directly  or  indirectly:

(a)  by  these  parties;

(b) by  any  other  undertaking  identified  in  3.1.

For  each  entry  listed  above,  the  nature  and  means  of  control  should  be  specified.

The  information  sought  in  this  section  may  be  illustrated  by  the  use  of  organisation  charts  or  diagrams  to
show  the  structure  of  ownership  and  control  of  the  undertakings.

SECTION  4

Personal  and  financial  links  and  previous  acquisitions

With  respect  to  the  parties  to  the  concentration  and  each  undertaking  or  person  identified  in  response  to
Section  3,  provide:

4.1. 

a list of all other undertakings which are active on affected markets (affected markets are defined in
Section 6 in which the undertakings, or persons, of the group hold individually or collectively 10 %
or  more  of  the  voting  rights,  issued  share  capital  or  other  securities;

in  each  case  identify  the  holder  and  state  the  percentage  held;

4.2. 

a list for each undertaking of the members of their boards of management who are also members of
the boards of management or of the supervisory boards of any other undertaking which is active on
affected  markets;  and  (where  applicable)  for  each  undertaking  a  list  of  the  members  of  their
supervisory  boards  who  are  also  members  of  the  boards  of  management  of  any  other  undertaking
which  is  active  on  affected  markets;

(1)  See  Article  3(3),  (4)  and  (5)  and  Article  5(4).
(2)  See  Section  6  for  the  definition  of  affected  markets.

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in  each  case  identify  the  name  of  the  other  undertaking  and  the  positions  held;

4.3. 

details of acquisitions made during the last three years by the groups identified above (Section 3) of
undertakings  active  in  affected  markets  as  defined  in  Section  6.

Information provided here may be illustrated by the use of organisation charts or diagrams to give a
better  understanding.

SECTION  5

Supporting  documentation

Notifying  parties  must  provide  the  following:

5.1. 

copies  of  the  final  or  most  recent  versions  of  all  documents  bringing  about  the  concentration,
whether  by  agreement  between  the  parties  to  the  concentration,  acquisition  of  a  controlling  interest
or  a  public  bid;

5.2. 

in a public bid, a copy of the offer document; if it is unavailable at the time of notification, it should
be  submitted  as  soon  as  possible  and  not  later  than  when  it  is  posted  to  shareholders;

5.3. 

copies  of  the  most  recent  annual  reports  and  accounts  of  all  the  parties  to  the  concentration;

5.4.  where  at  least  one  affected  market  is  identified:

copies  of  analyses,  reports,  studies  and  surveys  submitted  to  or  prepared  for  any  member(s)  of  the
board of directors, the supervisory board, or the shareholders’ meeting, for the purpose of assessing
or  analysing  the  concentration  with  respect  to  competitive  conditions,  competitors  (actual  and
potential),  and  market  conditions.

SECTION  6

Market  definitions

The  relevant  product  and  geographic  markets  determine  the  scope  within  which  the  market  power  of  the
new  entity  resulting  from  the  concentration  must  be  assessed (1).

The  notifying  party  or  parties  must  provide  the  data  requested  having  regard  to  the  following  definitions:

I.  Relevant  product  markets

A  relevant  product  market  comprises  all  those  products  and/or  services  which  are  regarded  as
interchangeable or substitutable by the consumer, by reason of the products’ characteristics, their prices
and  their  intended  use.  A  relevant  product  market  may  in  some  cases  be  composed  of  a  number  of
individual  products  and/or  services  which  present  largely  identical  physical  or  technical  characteristics
and  are  interchangeable.

Factors  relevant  to  the  assessment  of  the  relevant  product  market  include  the  analysis  of  why  the
products  or  services  in  these  markets  are  included  and  why  others  are  excluded  by  using  the  above
definition,  and  having  regard  to,  for  example,  substitutability,  conditions  of  competition,  prices,
cross-price  elasticity  of  demand  or  other  factors  relevant  for  the  definition  of  the  product  markets.

II.  Relevant  geographic  markets

The  relevant  geographic  market  comprises  the  area  in  which  the  undertakings  concerned  are  involved
in the supply and demand of relevant products or services, in which the conditions of competition are
sufficiently homogeneous and which can be distinguished from neighbouring geographic areas because,
in  particular,  conditions  of  competition  are  appreciably  different  in  those  areas.

(1)  See  Commission  notice  on  the  definition  of  the  relevant  market  for  the  purposes  of  Community  competition  law.

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Factors  relevant  to  the  assessment  of  the  relevant  geographic  market  include  the  nature  and
characteristics  of  the  products  or  services  concerned,  the  existence  of  entry  barriers,  consumer
preferences,  appreciable  differences 
in  the  undertakings’  market  shares  between  neighbouring
geographic  areas  or  substantial  price  differences.

III.  Affected  markets

For purposes of information required in this form, affected markets consist of relevant product markets
where,  in  the  EEA  territory,  in  the  Community,  in  the  territory  of  the  EFTA  States,  in  any  Member
State  or  in  any  EFTA  State:

(a)  two  or  more  of  the  parties  to  the  concentration  are  engaged  in  business  activities  in  the  same
product  market  and  where  the  concentration  will  lead  to  a  combined  market  share  of  15 %  or
more.  These  are  horizontal  relationships;

(b) one  or  more  of  the  parties  to  the  concentration  are  engaged  in  business  activities  in  a  product
market,  which  is  upstream  or  downstream  of  a  product  market  in  which  any  other  party  to  the
concentration is engaged, and any of their individual or combined market shares is 25 % or more,
regardless  of  whether  there  is  or  is  not  any  existing  supplier/customer  relationship  between  the
parties  to  the  concentration.  These  are  vertical  relationships.

On  the  basis  of  the  above  definitions  and  market  share  thresholds,  provide  the  following
information:

6.1. 

Identify  each  affected  market  within  the  meaning  of  Section  III,  at:

(a)  the  EEA,  Community  or  EFTA  level;

(b) the  individual  Member  States  or  EFTA  States  level.

IV.  Markets  related  to  affected  markets  within  the  meaning  of  Section  III

6.2.  Describe the relevant product and geographic markets concerned by the notified operation, which
are  closely  related  to  the  affected  market(s)  (in  upstream,  downstream  and  horizontal
neighbouring  markets),  where  any  of  the  parties  to  the  concentration  are  active  and  which  are
not  themselves  affected  markets  within  the  meaning  of  Section  III.

V.  Non-affected  markets

6.3. 

In  case  there  are  no  affected  markets  in  the  meaning  of  Section  6.1,  describe  the  product  and
geographic  scope  of  the  markets  on  which  the  notified  operation  would  have  an  impact.

SECTION  7

Information  on  affected  markets

For  each  affected  relevant  product  market,  for  each  of  the  last  three  financial  years (1):

(a)  for  the  EEA  territory,

(b) for  the  Community  as  a  whole,

(c)  for  the  territory  of  the  EFTA  States  as  a  whole,

(d) individually  for  each  Member  State  and  EFTA  State  where  the  parties  to  the  concentration  do

business,

(e)  and,  where  in  the  opinion  of  the  notifying  parties,  the  relevant  geographic  market  is  different,

provide  the  following:

(1)  Without  prejudice  to  Article  3(2)  of  the  Implementing  Regulation,  the  information  required  under  7.1  and  7.2  below

must  be  provided  with  regard  to  all  the  territories  under  (a),  (b),  (c),  (d)  and  (e).

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7.1. 

an  estimate  of  the  total  size  of  the  market  in  terms  of  sales  value  (in  ecus)  and  volume  (units) (1).
Indicate the basis and sources for the calculations and provide documents where available to confirm
these  calculations;

7.2. 

the sales in value and volume, as well as an estimate of the market shares, of each of the parties to
the  concentration;

7.3. 

an  estimate  of  the  market  share  in  value  (and  where  appropriate  volume)  of  all  competitors
(including  importers)  having  at  least  10 %  of  the  geographic  market  under  consideration.  Provide
documents where available to confirm the calculation of these market shares and provide the name,
address,  telephone  number,  fax  number  and  appropriate  contact  person,  of  these  competitors;

7.4. 

an estimate of the total value and volume and source of imports from outside the EEA territory and
identify:

(a)  the  proportion  of  such  imports  that  are  derived  from  the  groups  to  which  the  parties  to  the

concentration  belong,

(b) an estimate of the extent to which any quotas, tariffs or non-tariff barriers to trade, affect these

imports,  and

(c)  an  estimate  of  the  extent  to  which  transportation  and  other  costs  affect  these  imports,

7.5. 

the  extent  to  which  trade  among  States  within  the  EEA  territory  is  affected  by:

(a)  transportation  and  other  costs,  and

(b) other  non-tariff  barriers  to  trade;

7.6. 

the  manner  in  which  the  parties  to  the  concentration  produce  and  sell  the  products  and/or  services;
for  example,  whether  they  manufacture  locally,  or  sell  through  local  distribution  facilities;

7.7. 

a  comparison  of  price  levels  in  each  Member  State  and  EFTA  State  by  each  party  to  the
concentration and a similar comparison of price levels between the Community, the EFTA States and
other  areas  where  these  products  are  produced  (e.g.  eastern  Europe,  the  United  States  of  America,
Japan,  or  other  relevant  areas);

7.8. 

the  nature  and  extent  of  vertical  integration  of  each  of  the  parties  to  the  concentration  compared
with  their  largest  competitors.

SECTION  8

General  conditions  in  affected  markets

8.1. 

Identify  the  five  largest  independent (2)  suppliers  to  the  parties  and  their  individual  shares  of
purchases  from  each  of  these  suppliers  (of  raw  materials  or  goods  used  for  purposes  of  producing
the  relevant  products).  Provide  the  name,  address,  telephone  number,  fax  number  and  appropriate
contact  person,  of  these  suppliers.

Structure  of  supply  in  affected  markets

8.2.  Explain  the  distribution  channels  and  service  networks  that  exist  on  the  affected  markets.  In  so

doing,  take  account  of  the  following  where  appropriate:

(a)  the  distribution  systems  prevailing  on  the  market  and  their  importance.  To  what  extent  is
distribution  performed  by  third  parties  and/or  undertakings  belonging  to  the  same  group  as  the
parties  identified  in  Section  3?

(1)  The  value  and  volume  of  a  market  should  reflect  output  less  exports  plus  imports  for  the  geographic  areas  under

consideration.

(2)  That is suppliers which are not subsidiaries, agents or undertakings forming part of the group of the party in question.
In  addition  to  those  five  independent  suppliers  the  notifying  parties  can,  if  they  consider  it  necessary  for  a  proper
assessment  of  the  case,  identify  the  intra-group  suppliers.  The  same  will  apply  in  8.5  in  relation  with  customers.

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(b) the  service  networks  (for  example,  maintenance  and  repair)  prevailing  and  their  importance  in
these  markets.  To  what  extent  are  such  services  performed  by  third  parties  and/or  undertakings
belonging  to  the  same  group  as  the  parties  identified  in  Section  3?

8.3.  Where  appropriate,  provide  an  estimate  of  the  total  Community-wide  and  EFTA-wide  capacity  for
the last three years. Over this period what proportion of this capacity is accounted for by each of the
parties  to  the  concentration,  and  what  have  been  their  respective  rates  of  capacity  utilisation.

8.4. 

If  you  consider  any  other  supply-side  considerations  to  be  relevant,  they  should  be  specified.

Structure  of  demand  in  affected  markets

8.5. 

Identify  the  five  largest  independent  customers  of  the  parties  in  each  affected  market  and  their
individual  share  of  total  sales  for  such  products  accounted  for  by  each  of  those  customers.  Provide
the  name,  address,  telephone  number,  fax  number  and  appropriate  contact  person,  of  each  of  these
customers.

8.6.  Explain  the  structure  of  demand  in  terms  of:

(a)  the  phases  of  the  markets  in  terms  of,  for  example,  take-off,  expansion,  maturity  and  decline,

and  a  forecast  of  the  growth  rate  of  demand;

(b) the  importance  of  customer  preferences,  in  terms  of  brand  loyalty,  product  differentiation  and

the  provision  of  a  full  range  of  products;

(c)  the  degree  of  concentration  or  dispersion  of  customers;

(d) segmentation  of  customers  into  different  groups  with  a  description  of  the  ‘typical  customer’  of

each  group;

(e)  the  importance  of  exclusive  distribution  contracts  and  other  types  of  long-term  contracts;

(f)  the  extent  to  which  public  authorities,  government  agencies,  State  enterprises  or  similar  bodies

are  important  participants  as  a  source  of  demand.

Market  entry

8.7.  Over the last five years, has there been any significant entry into any affected markets? If the answer
is ‘yes’, where possible provide their name, address, telephone number, fax number and appropriate
contact  person,  and  an  estimate  of  their  current  market  shares.

8.8. 

In  the  opinion  of  the  notifying  parties  are  there  undertakings  (including  those  at  present  operating
only in extra-Community or extra-EEA markets) that are likely to enter the market? If the answer is
‘yes’, please explain why and identify such entrants by name, address, telephone number, fax number
and  appropriate  contact  person,  and  an  estimate  of  the  time  within  which  such  entry  is  likely  to
occur.

8.9.  Describe  the  various  factors  influencing  entry  into  affected  markets  that  exist  in  the  present  case,
examining  entry  from  both  a  geographical  and  product  viewpoint.  In  so  doing,  take  account  of  the
following  where  appropriate:

(a)  the  total  costs  of  entry  (R  &  D,  establishing  distribution  systems,  promotion,  advertising,
servicing,  etc.)  on  a  scale  equivalent  to  a  significant  viable  competitor,  indicating  the  market
share  of  such  a  competitor;

(b) any legal or regulatory barriers to entry, such as government authorisation or standard setting in

any  form;

(c)  any  restrictions  created  by  the  existence  of  patents,  know-how  and  other  intellectual  property

rights  in  these  markets  and  any  restrictions  created  by  licensing  such  rights;

(d) the extent to which each of the parties to the concentration are licensees or licensors of patents,

know-how  and  other  rights  in  the  relevant  markets;

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(e)  the  importance  of  economies  of  scale  for  the  production  of  products  in  the  affected  markets;

(f)  access  to  sources  of  supply,  such  as  availability  of  raw  materials.

Research  and  development

8.10.  Give an account of the importance of research and development in the ability of a firm operating on
the  relevant  market(s)  to  compete  in  the  long  term.  Explain  the  nature  of  the  research  and
development  in  affected  markets  carried  out  by  the  parties  to  the  concentration.

In  so  doing,  take  account  of  the  following,  where  appropriate:

(a)  trends and intensities of research and development (1) in these markets and for the parties to the

concentration;

(b) the  course  of  technological  development  for  these  markets  over  an  appropriate  time  period
(including  developments  in  products  and/or  services,  production  processes,  distribution  systems,
etc.);

(c)  the major innovations that have been made in these markets and the undertakings responsible for

these  innovations;

(d) the  cycle  of  innovation  in  these  markets  and  where  the  parties  are  in  this  cycle  of  innovation.

Cooperative agreements

8.11.  To  what  extent  do  cooperative  agreements  (horizontal  or  vertical)  exist  in  the  affected  markets?

8.12.  Give  details  of  the  most  important  cooperative  agreements  engaged  in  by  the  parties  to  the
concentration in the affected markets, such as research and development, licensing, joint production,
specialisation,  distribution,  long  term  supply  and  exchange  of  information  agreements.

Trade  associations

8.13.  With  respect  to  the  trade  associations  in  the  affected  markets:

(a)  identify  those  in  which  the  parties  to  the  concentration  are  members;

(b) identify the most important trade associations to which the customers and suppliers of the parties

to  the  concentration  belong.

Provide  the  name,  address,  telephone  number,  fax  number  and  appropriate  contact  person  of  all
trade  associations  listed  above.

SECTION  9

General  market  information

Market  data  on  conglomerate  aspects

Where  any  of  the  parties  to  the  concentration  hold  individually  a  market  share  of  25%  or  more  for  any
product  market  in  which  there  is  no  horizontal  or  vertical  relationship  as  described  above,  provide  the
following  information:

9.1. 

a description of each product market and explain why the products and/or services in these markets
are  included  (and  why  others  are  excluded)  by  reason  of  their  characteristics,  prices  and  their
intended  use;

9.2. 

an  estimate  of  the  value  of  the  market  and  the  market  shares  of  each  of  the  groups  to  which  the
parties  belong  for  each  product  market  identified  in  9.1  for  the  last  financial  year:

(1)  Research  and  development  intensity  is  defined  as  research  development  expenditure  as  a  proportion  of  turnover.

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(a)  for  the  EEA  territory  as  a  whole;

(b) for  the  Community  as  a  whole;

(c)  for  the  territory  of  the  EFTA  States  as  a  whole;

(d) individually for each Member State and EFTA State where the groups to which the parties belong

do  business;

(e)  and,  where  different,  for  the  relevant  geographic  market.

Overview  of  the  markets

9.3.  Describe the worldwide context of the proposed concentration, indicating the position of each of the
parties  to  the  concentration  outside  of  the  EEA  territory  in  terms  of  size  and  competitive  strength.

9.4.  Describe how the proposed concentration is likely to affect the interests of intermediate and ultimate

consumers  and  the  development  of  technical  and  economic  progress.

SECTION  10

Cooperative  effects  of  a  joint  venture

10. 

For  the  purpose  of  Article  2(4)  of  the  Merger  Regulation  please  answer  the  following  questions:

(a)  Do  two  or  more  parents  retain  to  a  significant  extent  activities  in  the  same  market  as  the  joint
venture  or  in  a  market  which  is  downstream  or  upstream  from  that  of  the  joint  venture  or  in  a
neighbouring  market  closely  related  to  this  market (1)?

If  the  answer  is  affirmative,  please  indicate  for  each  of  the  markets  referred  to  here:

—  the  turnover  of  each  parent  company  in  the  preceding  financial  year,

—  the  economic  significance  of  the  activities  of  the  joint  venture  in  relation  to  this  turnover,

—  the  market  share  of  each  parent.

If  the  answer  is  negative,  please  justify  your  answer.

(b) If the answer to (a) is affirmative and in your view the creation of the joint venture does not lead
to coordination between independent undertakings that restricts competition within the meaning
of  Article  85(1)  of  the  EC  Treaty,  give  your  reasons.

(c)  Without  prejudice  to  the  answers  to  (a)  and  (b)  and  in  order  to  ensure  that  a  complete
assessment of the case can be made by the Commission, please explain how the criteria of Article
85(3)  apply.

Under  Article  85(3),  the  provisions  of  Article  85(1)  may  be  declared  inapplicable  if  the
operation:

(i)  contributes to improving the production or distribution of goods, or to promoting technical

or  economic  progress;

(ii)  allows  consumers  a  fair  share  of  the  resulting  benefit;

(iii)  does  not  impose  on  the  undertakings  concerned  restrictions  which  are  not  indispensable  to

the  attainment  of  these  objectives;  and

(iv)  does  not  afford  such  undertakings  the  possibility  of  eliminating  competition  in  respect  of  a

substantial  part  of  the  products  in  question.

For  guidance,  please  refer  to  form  A/B,  and  in  particular  Sections  16  and  17  thereof,  annexed  to
Commission  Regulation  (EC)  No  3385/94 (2).

(1)  For  market  definitions  refer  to  Section  6.
(2)  OJ  L  377,  31.12.1994,  p.  28.

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SECTION  11

General  matters

Ancillary restraints

11.1.  If  the  parties  to  the  concentration,  and/or  other  involved  parties  (including  the  seller  and  minority
shareholders), enter into ancillary restrictions directly related and necessary to the implementation of
the concentration, these restrictions may be assessed in conjunction with the concentration itself (see
Article 6(1)(b) and Article 8(2) of the Merger Regulation, recital 25 to the Merger Regulation, recital
7  to  Regulation  (EC)  No  1310/97  and  the  Commission  notice  on  restrictions  ancillary  to
concentrations) (1).

(a)  Identify each ancillary restriction in the agreements provided with the notification for which you

request  an  assessment  in  conjunction  with  the  concentration;  and

(b) explain  why  these  are  directly  related  and  necessary  to  the 

implementation  of  the

concentration.

Conversion  of  notification

11.2.  In  the  event  that  the  Commission  finds  that  the  operation  notified  does  not  constitute  a
concentration  within  the  meaning  of  Article  3  of  the  Merger  Regulation,  do  you  request  that  it  be
treated as an application for negative clearance from, or a notification to obtain an exemption from
Article  85  of  the  EC  Treaty?

SECTION  12

Declaration

Article  1(2)  of  the  Implementing  Regulation  states  that  where  notifications  are  signed  by  representatives  of
undertakings, such representatives must produce written proof that they are authorised to act. Such written
authorisation  must  accompany  the  notification.

The  notification  must  conclude  with  the  following  declaration  which  is  to  be  signed  by  or  on  behalf  of  all
the  notifying  parties:

The  undersigned  declare  that,  to  the  best  of  their  knowledge  and  belief,  the  information  given  in  this
notification  is  true,  correct,  and  complete,  that  complete  copies  of  documents  required  by  form  CO,  have
been  supplied,  and  that  all  estimates  are  identified  as  such  and  are  their  best  estimates  of  the  underlying
facts  and  that  all  the  opinions  expressed  are  sincere.

They  are  aware  of  the  provisions  of  Article  14(1)(b)  of  the  Merger  Regulation.

Place  and  date:

Signatures:

Name/s:

On  behalf  of:

(1)  OJ  L  180,  9.7.1997,  p.  1.

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GUIDANCE  NOTE  I

Calculation  of  turnover  for  insurance  undertakings

(Article  5(3)(a))

For  the  calculation  of  turnover  for  insurance  undertakings,  we  give  the  following  example  (proposed
concentration  between  insurance  A  and  B):

I.  Consolidated  profit  and  loss  account

Income

Insurance  A

Insurance  B

(million  ECU)

Gross  premiums  written
—  gross  premiums 

received 

residents

from  Community

—  gross  premiums  received  from  residents  of  one

(and  the  same)  Member  State  X

Other  income

(4 500)

(3 600)

500

5 000

300

Total  income

5 500

(300)

(270)

50

350

II.  Calculation  of  turnover

1.  Aggregate  worldwide  turnover  is  replaced  by  the  value  of  gross  premiums  written  worldwide,  the

sum  of  which  is  ECU  5 300  million.

2.  Community-wide  turnover  is  replaced,  for  each  insurance  undertakings,  by  the  value  of  gross
premiums  written  with  Community  residents.  For  each  of  the  insurance  undertakings,  this  amount
is  more  than  ECU  250  million.

3.  Turnover within one (and the same) Member State X is replaced, for insurance undertakings, by the
value  of  gross  premiums  written  with  residents  of  one  (and  the  same)  Member  State  X.  For
insurance  A,  it  achieves  80 %  of  its  gross  premiums  written  with  Community  residents  within
Member  State  X,  whereas  for  insurance  B,  it  achieves  90 %  of  its  gross  premiums  written  with
Community  residents  in  that  Member  State  X.

III.  Conclusion

Since

(a)  the  aggregate  worldwide  turnover  of  insurances  A  and  B,  as  replaced  by  the  value  of  gross

premiums  written  worldwide,  is  more  than  ECU  5 000  million;

(b) for  each  of  the  insurance  undertakings,  the  value  of  gross  premiums  written  with  Community

residents  is  more  than  ECU  250  million;  but

(c)  each  of  the  insurance  undertakings  achieves  more  than  two  thirds  of  its  gross  premiums  written

with  Community  residents  in  one  (and  the  same)  Member  State  X,

the  proposed  concentration  would  not  fall  under  the  scope  of  the  Regulation.

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GUIDANCE  NOTE  II

Calculation  of  turnover  for  joint  undertakings

A. Creation  of  a  joint  undertaking  (Article  3(2))

In  a  case  where  two  (or  more)  undertakings  create  a  joint  undertaking  that  constitutes  a  concentration,
turnover  is  calculated  for  the  undertakings  concerned.

B. Existence  of  a  joint  undertaking  (Article  5(5))

For the calculation of turnover in case of the existence of a joint undertaking C between two undertakings
A  and  B  concerned  in  a  concentration,  we  give  the  following  example:

I.  Profit  and  loss  accounts

Turnover

Undertaking  A

Undertaking  B

(million  ECU)

Sales  revenues  worldwide
—  Community
—  Member  State  Y

10 000

2 000

(8 000)
(4 000)

(1 500)
(900)

Turnover

Joint  undertaking  C

(million  ECU)

Sales  revenues  worldwide
—  with  undertaking  A
—  with  undertaking  B

Turnover  with  third  undertakings
—  Community-wide
—  in  Member  State  Y

100

70

(20)
(10)

(60)
(50)

II.  Consideration  of  the  joint  undertaking

(a)  The undertaking C is jointly controlled (in the meaning of Article 3(3) and (4)) by the undertakings
A and B concerned by the concentration, irrespective of any third undertaking participating in that
undertaking  C.

(b) The  undertaking  C  is  not  consolidated  A  and  B  in  their  profit  and  loss  accounts.

(c)  The  turnover  of  C  resulting  from  operations  with  A  and  B  shall  not  be  taken  into  account.

(d) The  turnover  of  C  resulting  from  operations  with  any  third  undertaking  shall  be  apportioned
equally  amongst  the  undertakings  A  and  B,  irrespective  of  their  individual  shareholdings  in  C.

III.  Calculation  of  turnover

(a)  Undertaking  A’s  aggregate  worldwide  turnover  shall  be  calculated  as  follows:  ECU  10 000  million
and  50 %  of  C’s  worldwide  turnover  with  third  undertakings  (i.e.  ECU  35  million),  the  sum  of
which  is  ECU  10 035  million.

Undertaking  B’s  aggregate  worldwide  turnover  shall  be  calculated  as  follows:  ECU  2 000  million
and  50 %  of  C’s  world-wide  turnover  with  third  undertakings  (i.e.  ECU  35  million),  the  sum  of
which  is  ECU  2 035  million.

(b) The  aggregate  worldwide  turnover  of  the  undertakings  concerned  is  ECU  12 070  million.

(c)  Undertaking  A  achieves  ECU  4 025  million  within  Member  State  Y  (50 %  of  C’s  turnover  in  this
Member  State  taken  into  account),  and  a  Community-wide  turnover  of  ECU  8 030  million
(including  50 %  of  C’s  Community-wide  turnover).

Undertaking  B  achieves  ECU  925  million  within  Member  State  Y  (50 %  of  C’s  turnover  in  this
Member  State  taken  into  account),  and  a  Community-wide  turnover  of  ECU  1 530  million
(including  50 %  of  C’s  Community-wide  turnover).

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IV.  Conclusion

Since

(a)  the  aggregate  worldwide  turnover  of  undertakings  A  and  B  is  more  than  ECU  5 000  million;

(b) each  of  the  undertakings  concerned  by  the  concentration  achieves  more  than  ECU  250  million

within  the  Community;

c)  each  of  the  undertakings  concerned  (undertaking  A  50,1 %  and  undertaking  B  60,5 %)  achieves
less  than  two  thirds  of  its  Community-wide  turnover  in  one  (and  the  same)  Member  State  Y;

the  proposed  concentration  would  fall  under  the  scope  of  the  Regulation.

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GUIDANCE  NOTE  III

Application  of  the  two-thirds  rule

(Article  1)

For  the  application  of  the  two  thirds  rule  for  undertakings,  we  give  the  following  examples  (proposed
concentration  between  undertakings  A  and  B):

I.  Consolidated  profit  and  loss  accounts

Example  1

(million  ECU)

Turnover

Undertaking  A

Undertaking  B

Sales  revenues  worldwide
—  within  the  Community
—  in  Member  State  X

Example  2(a)

10 000

500

(8 000)
(6 000)

(400)
(200)

(million  ECU)

Turnover

Undertaking  A

Undertaking  B

Sale  revenues  worldwide
—  within  the  Community
—  in  Member  State  X

Example  2(b)

4 800

500

(2 400)
(2 100)

(400)
(300)

Same  figures  as  in  example  2(a)  but  undertaking  B  achieves  ECU  300  million  in  Member  State  Y.

II.  Application  of  the  two-thirds  rule

Example  1

1.  Community-wide  turnover  is,  for  undertaking  A,  ECU  8 000  million  and  for  undertaking  B  ECU

400  million.

2.  Turnover in one (and the same) Member State X is, for undertaking A (ECU 6 000 million), 75 %
of  its  Community-wide  turnover  and  is,  for  undertaking  B  (ECU  200  million),  50 %  of  its
Community-wide-turnover.

3.  Conclusion:  In  this  case,  although  undertaking  A  achieves  more  than  two  thirds  of  its
Community-wide  turnover  in  Member  State  X,  the  proposed  concentration  would  fall  under  the
scope  of  the  Regulation  due  to  the  fact  that  undertaking  B  achieves  less  than  two  thirds  of  its
Community-wide  turnover  in  Member  State  X.

Example  2(a)

1.  Community-wide turnover of undertaking A is ECU 2 400 million and of undertaking B, ECU 400

million.

2.  Turnover  in  one  (and  the  same)  Member  State  X  is,  for  undertaking  A,  ECU  2 100  million  (i. e.
87,5 %  of  its  Community-wide  turnover);  and,  for  undertaking  B,  ECU  300  million  (i. e.  75 %  of
its  Community-wide  turnover).

3.  Conclusion:  In  this  case,  each  of  the  undertakings  concerned  achieves  more  than  two  thirds  of  its
Community-wide  turnover  in  one  (and  the  same)  Member  State  X;  the  proposed  concentration
would  not  fall  under  the  scope  of  the  Regulation.

Example  2(b)

Conclusion: In this case, the two thirds rule would not apply due to the fact that undertakings A and B
achieve more than two thirds of their Community-wide turnover in different Member States X and Y.
Therefore,  the  proposed  concentration  would  fall  under  the  scope  of  the  Regulation.