Commission Notice concerning alignment of procedures for processing mergers under the ECSC and EC Treaties
Date: 1998-03-02
Institutions: European Commission
Subjects: ECSC Treaty, European treaties, competition law, economic concentration, merger control

C  66/36

EN

Official  Journal  of  the  European  Communities

2.3.98

concerning  alignment  of  procedures  for  processing  mergers  under  the  ECSC  and  EC  Treaties

COMMISSION  NOTICE

(98/C  66/05)

(Text  with  EEA  relevance)

I. INTRODUCTION

legitimate  interest  of  undertakings  in  not  having
their  business  secrets  divulged.

1. 

2. 

relate 

following  provisions 

The 
to  mergers
governed  by  the  ECSC  Treaty.  They  are  designed
to  increase  transparency  and  improve  compliance
with  the  rights  of  the  defence  in  connection  with
the  examination  of  such  mergers  and  to  expedite
decisions  making.  To  this  end,  they  are  based  on
an  alignment  of  certain  rules  with  those  governing
mergers  covered  by  Council  Regulation  (EEC)  No
4064/89  of  21  December  1989  on  the  control  of
concentrations  between  undertakings (1).

The  Commission  hopes,  in  this  context,  to  meet
the  expectations  of  undertakings,  in  particular  as
regards  merger  operations  which  are  covered  by
the  ECSC  and  EC  Treaties  at  the  same  time.  This
notice  should  also  be  seen  as  an  attempt  at
simplification,  albeit  within  the  limits  imposed  by
having  two  separate  treaties.  The  rules  thus
introduced  should  make  it  possible  for  ECSC
undertakings  to  familiarise  themselves  with  the
procedures  of  law  against  the  background  of  the
forthcoming  expiry  of  the  ECSC  Treaty.

II. MAIN  PROCEDURAL  CHANGES  ENVISAGED
WITH  REGARD  TO  MERGER  CONTROL  PURSUANT
TO  THE  ECSC  TREATY

Publication  of  the  fact  of  notification

3. 

The  Comission  will  from  now  on  publish  in  the
Official  Journal  of  the  European  Communties  the
fact  of  notification  in  the  case  of  mergers  covered
by  the  ECSC  Treaty.  It  will  state  in  particular  the
names  of  the  interested  parties,  the  nature  of  the
merger  operation  and 
sectors
concerned.  Publication  will  take  account  of  the

the  economic 

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

21.9.1990,  p.  14.

4. 

5. 

Statement  of  objections  where  the  Commission
plans  to  subject  the  authorisation  of  a  merger  to
conditions  or  even  to  prohibit  an  operation

The  sending  of  a  statement  of  objections  prior  to
the  conditional  authorisation  or  prohibition  of  a
merger  does  not  appear  explicitly  in  Article  66  of
the  ECSC  Treaty.  It  is  provided  for  only  in  the
event  of  a  pecuniary  sanction  (Article  36  of  the
ECSC  Treaty)  or  of  a  decision  requiring  a
demerger  or  other  measures  designed  to  restore
effective  competition  where  a  merger  has  already
been  carried  out  (second  paragraph  of  Article
66(5)  of  the  ECSC  Treaty).  The  Commission
believes,  however,  that  it  can  commit  itself  to
sending  such  a  statement  in  pursuance  of  the
general  principle  of  the  protection  of  the  rights  of
the  defence,  which  is  recognised  by  the  Court  as  a
law.  It  will
general  principle  of  Community 
therefore  base 
those
objections  on  which  the  interested  parties  have
been  able  to  express  their  views.

its  decisions  only  on 

Of  course,  this  does  not  prevent  the  Commission
from  allowing  undertakings  to  alter  their  merger
proposals  on  their  own  initiative,  thus  making  it
unnecessary  to  send  a  statement  of  objections,  in
particular  where 
competition  problem
perceived is easily identifiable, limited in scope and
easy  to  resolve,  as  currently  happens 
in  the
Community  field.

the 

Access  to  the  file  and  possibility  of  making  oral
observations  (hearing)

The  possibility  of  access  to  the  Commission  file
and  making  oral  observations  (at  a  hearing)  when
a  statement  of  objections  has  been  sent  is  the
statement.
logical 

consequence  of 

such 

a 

2.3.98

EN

Official  Journal  of  the  European  Communities

C  66/37

8. 

notification.  Where  the  Commission  considers  it
unnecessary  to  send  a  statement  of  objections,  it
will  endeavour  to  adopt  its  decision  within  one
month  of  notification.

As  regards  the  effective  date  of  notification,  the
Commission  will  apply  by  analogy  the  provisions
of  Article  4  of  the  abovementioned  Regulation
(EC)  No  3384/94.  As  far  as  the  application  of
paragraph 5 of that Article is concerned, the terms
‘pursuant  to  Article  4(3)  of  Regulation  (EEC)  No
4064/89’  are  to  be  read  as  ‘pursuant  to  point  3  of
this notice’. As regards the time-limits of ten weeks
and five months mentioned at point 7 above, these
will start to run on the working day following that
on  which  the  notification  becomes  effective.  The
time-limit  of  ten  weeks  will  end  on  the  same
weekday  as  that  on  which  it  commenced.  The
time-limit  of  five  months  will  end  on  the  same
numerical date as that of its commencement: where
no  such  date  occurs  in  that  month,  the  time-limit
will  end  with  the  expiry  of  the  last  day  of  the
month.  Where  the  last  day  is  not  a  working  day,
the  time-limit  will  end  with  the  expiry  of  the  first
working  day  which  follows.  Working  days  are
taken into account in the time-limits, in accordance
with  the  rules  laid  down  in  Article  8  of  the
abovementioned  Regulation  (EC)  No  3384/94  and
are defined in the same way as in Article 22 of that
Regulation.

9. 

The Commission will give favourable consideration
to requests for dispensation from supplying certain
information  required  in  the  form  CO  where  those
requests  are  submitted  to  it  in  a  prenotification,
limiting  the  information  required  to  that  which  is
strictly  necessary  for  examining  the  cases.

III. IMPLEMENTATION

10.  The Commission will apply the above rules, where
they  are  not  already  in  force,  to  notified  mergers
from  1  March  1998.

undertakings (2), 

Accordingly,  the  Commission  confirms  that  it  will
give  such  an  opportunity  to  interested  natural  or
legal  persons.  It  will  apply  in  this  context,  and  by
analogy,  the  rules 
in  Articles  14  to  16  of
Commission  Regulation  (EC)  No  3384/94  of  21
December 1994 on the notification, time-limits and
hearings provided for in Council Regulation (EEC)
No  4064/89  on  the  control  of  concentrations
between 
an
implementing  regulation,  and  in  accordance  with
Commission  Decision  94/810/ECSC,  EC  of  12
December  1994  on  the  terms  of  reference  of
hearing  officers  in  competition  procedures  before
the  Commission (3)  and  the  Commission  notice  on
the  internal  rules  of  procedure  for  processing
requests  for  access  to  the  file  in  cases  pursuant  to
Articles  85  and  86  of  the  EC  Treaty,  Articles  65
and  66  of 
the  ECSC  Treaty  and  Council
Regulation  (EEC)  No  4064/89 (4).

which 

is 

6. 

7. 

Publication in the Official Journal of the European
Communities  of  the  final  decisions  adopted  after
communication  of  the  objections,  and  the  public
nature  of  all  authorisation  decisions

communicated  will  be 

Final  decisions  adopted  after  the  objections  have
systematically
been 
published  in  the  Official  Journal  of  the  European
Communities.  Similarly,  all  authorisation  decisions
will  be  made  public.  Publication  will  respect
business  secrecy  in  accordance  with  Article  47  of
the  ECSC  Treaty.

Time-limits

A  statement  of  objections  will  be  sent  at  the  latest
within  ten  weeks  of  notification  of  the  merger
operation. The final decision, where a statement of
objections has been sent, will be taken at the latest
within 
five  months  of  notification.  These
time-limits  presuppose  that  undertakings  use  form
CO  annexed  to  Regulation  (EC)  No  3384/94  and
supply  the  Commission  with  five  copies  of  the

(2)  OJ  L  377,  31.12.1994,  p.  1
(3)  OJ  L  330,  21.12.1994,  p.  67
(4)  OJ  C  23,  23.1.1997,  p.  3.