Commission Notice on restrictions directly related and necessary to concentrations (Text with EEA relevance)
Date: 2001-07-04
Institutions: European Commission
Subjects: economic concentration, restriction on competition

4.7.2001

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COMMISSION NOTICE

on restrictions directly related and necessary to concentrations

(2001/C 188/03)

(Text with EEA relevance)

I. INTRODUCTION

the

that

(hereinafter:

second sentence,

second subparagraph,

1. Council Regulation (EEC) No 4064/89 of 21 December
1989 on the control of concentrations between under-
takings (1)
(cid:145)the Merger Regulation(cid:146)) provides
in Article 6(1)(b), second subparagraph, and in Article
a
8(2),
decision declaring a concentration compatible with the
Common Market shall also cover (cid:145)restrictions which are
directly related and necessary to the implementation of
the concentration(cid:146). This concept is also referred to in the
the Merger Regulation. The decision
25th recital of
declaring
the
concentration
Common Market shall also cover this type of restrictions.
According to Article 22(1) of the Merger Regulation, that
Regulation alone applies, to the exclusion of Council Regu-
lation No 17 (2) as well as Council Regulations (EEC) No
1017/68 of 19 July 1968 applying rules of competition to
transport by rail, road and inland waterway (3), (EEC) No
4056/86 of 22 December 1986 laying down detailed rules
for the application of Articles 81 and 82 of the Treaty to
maritime transport (4) and (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 (5).

compatible with

assess

address

formally

2. This legal framework does not impose an obligation on the
such
and
Commission to
restrictions. Any such assessment is only of a declaratory
nature, as all restrictions meeting the criteria set by the
Merger Regulation are already covered by Article 6(1)(b),
second
second
and
subparagraph, second sentence, and are therefore cleared
by operation of law, whether or not explicitly addressed in
the Commission’s decision. The Commission does not
intend to make
in its merger
such an assessment
decisions any more. This approach is consistent with the
Commission’s administrative practice introduced for cases

subparagraph,

Article

8(2),

(1) OJ L 395, 30.12.1989, p. 1; Corrigendum: OJ L 257, 21.9.1990, p.
13. Regulation as amended by Council Regulation (EC) No 1310/97
(OJ L 180, 9.7.1997, p. 1, Corrigendum: OJ L 40, 13.2.1998, p. 17,
and OJ L 199, 26.7.1997, p. 69).

(2) First Regulation implementing Articles 81 and 82 of the Treaty (OJ
13, 21.2.1962, p. 204/62; Regulation as last amended by Council
Regulation (EC) No 1216/1999 (OJ L 148, 15.6.1999, p. 5).

(3) OJ L 175, 23.7.1968, p. 1; Regulation as last amended by the Act of

Accession of Austria, Finland and Sweden.

(4) OJ L 378, 31.12.1986, p. 4; Regulation as last amended by the Act

of Accession of Austria, Finland and Sweden.

(5) OJ L 374, 31.12.1987, p. 1; Regulation as last amended by Council

Regulation (EEC) No 2410/92 (OJ L 240, 24.8.1992, p. 18).

qualifying for
2000 (6).

simplified treatment

since 1 September

3. Disputes between the parties to a concentration as to
whether restrictions are directly related and necessary to
its implementation and thus automatically covered by the
Commission’s clearance decision fall under the jurisdiction
of national courts.

4. This Notice outlines the Commission’s interpretation of the
notion of (cid:145)restrictions directly related and necessary to the
implementation of the concentration(cid:146). The guidance given
in the
reflects past Commission
following sections
experience and practice in this field.

This Notice replaces the Commission Notice regarding
restrictions ancillary to concentrations (7).

5. The Commission’s interpretation of Article 6(1)(b), second
second subparagraph,
subparagraph, and Article 8(2),
second sentence, of
the Merger Regulation is without
prejudice to the interpretation which may be given by
the Court of Justice or the Court of First Instance of the
European Communities.

II. GENERAL PRINCIPLES

6. A concentration may consist of contractual arrangements
and agreements establishing control within the meaning of
Article 3(3) of
the Merger Regulation. All agreements
related to assets necessary to carry out the main object
of the concentration are also integral parts of the concen-
tration. In addition to these arrangements and agreements,
the parties to the concentration may enter into other
agreements which do not form an integral part of the
concentration and limit the parties’ freedom of action in

(6) See paragraph 14 of

the Commission Notice on a simplified
procedure for treatment of certain concentrations under Council
Regulation (EEC) No 4064/89 (OJ C 217, 29.7.2000, p. 32).

(7) OJ C 203, 14.8.1990, p. 5.

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the market. If such agreements contain restrictions directly
related and necessary to the implementation of
the
concentration itself,
these are covered by the decision
declaring the concentration compatible with the common
if not, their restrictive effects may need to be
market;
assessed under Articles 81 and 82 of the EC Treaty.

7. For restrictions to be considered (cid:145)directly related to the
implementation of the concentration(cid:146), it is not sufficient
that an agreement has been entered into at the same time
or in the same context as the concentration.

8. Agreements must be (cid:145)necessary to the implementation of
the concentration(cid:146), which means that in the absence of
those agreements, the concentration could not be imple-
mented or could only be implemented under more
uncertain conditions, at substantially higher cost, over an
appreciably longer period or with considerably higher
difficulty (8) agreements aimed at protecting the value
transferred (9), maintaining the continuity of supply after
the break-up of a former economic entity (10), or enabling
the start-up of a new entity (11) usually meet these criteria.

9. In determining whether a restriction is necessary,

it is
appropriate not only to take account of its nature, but
also to ensure that
subject matter and
its duration,
geographical field of application do not exceed what the
implementation of the concentration reasonably requires.
If equally effective alternatives are available for attaining
the legitimate aim pursued, the undertakings must choose
the one which is objectively the least
restrictive of
competition.

10. For concentrations which are carried out in stages, the
contractual arrangements relating to the stages before the
establishment of control within the meaning of Article
3(1) and (3) of
the Merger Regulation cannot be
considered directly related and necessary to the implemen-
tation of the concentration. For these agreements, Articles
81 and 82 of the EC Treaty remain applicable. However,

(8) Commission Decision of 18 December 2000 (COMP/M.1863 (cid:151)

Vodafone/BT/Airtel JV, recital 20).

(9) Commission Decision of 30 July 1998 (IV/M.1245 (cid:151) Valeo/ITT
Industries, recital 59); Commission Decision of 3 March 1999
(IV/M.1442 (cid:151) MMP/AFP, recital 17); Commission Decision of 9
March 2001 (COMP/M.2330 (cid:151) Cargill/Banks,
recital 30);
Commission Decision of 20 March 2001 (COMP/M.2227 (cid:151)
Goldman Sachs/Messer Griesheim, recital 11).

(10) Commission Decision of 25 February 2000 (COMP/M.1841 (cid:151)

Celestica/IBM).

(11) Commission Decision of 30 March 1999 (IV/JV.15 (cid:151) BT/AT & T,
recitals 207 to 214); Commission Decision of 22 December 2000
(COMP/M.2243 (cid:151) Stora Enso/AssiDom(cid:228)n/JV, recitals 49, 56 and
57).

agreements which serve to facilitate the acquisition of
control can be considered directly related and necessary.

11. The criteria of direct relation and necessity are objective in
nature. Restrictions are not directly related and necessary
to the implementation of a concentration simply because
the parties regard them as such.

III. PRINCIPLES APPLICABLE TO COMMON CLAUSES IN CASES OF

ACQUISITION OF AN UNDERTAKING

12. Restrictions agreed between the parties in the context of a
transfer of an undertaking may be to the benefit of the
acquirer or of the vendor. In general terms, the need for
the acquirer to benefit from certain protection is more
compelling than the corresponding need for the vendor.
It is the acquirer who needs to be assured that she/he will
be able to acquire the full value of the acquired business.
the
Thus, as a general rule, restrictions which benefit
vendor are either not directly related and necessary to
the implementation of the concentration at all, or their
scope and/or duration need to be more limited than that
of clauses which benefit the acquirer.

A. Non-competition clauses

able

to benefit

13. Non-competition obligations which are imposed on the
vendor in the context of the transfer of an undertaking
or of part of it can be directly related and necessary to the
implementation of the concentration. In order to obtain
the full value of the assets transferred, the acquirer must
from some protection against
be
competition from the vendor in order to gain the loyalty
of customers and to assimilate and exploit the know-how.
Such non-competition clauses guarantee the transfer to the
acquirer of the full value of the assets transferred, which in
general include both physical assets and intangible assets,
such as the goodwill accumulated by the vendor or the
know-how (12) she/he has developed (13). These are not
only directly related to the concentration, but are also
necessary to its implementation because, without them,
there would be reasonable grounds to expect
the
sale of
it could not be
the undertaking or of part of
accomplished.

that

(12) As defined in Article 10 of Commission Regulation (EC) No
240/96 of 31 January 1996 on the application of Article 81(3)
of
technology transfer
agreements (OJ L 31, 9.2.1996, p. 2.

the Treaty to certain categories of

(13) Commission Decision of 2 March 2001 (COMP/M.2305 (cid:151)

Vodafone Group plc/Eircell, recital 22).

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their geographical

14. However, such non-competition clauses are only justified
by the legitimate objective of implementing the concen-
tration when their duration,
field of
application, their subject matter and the persons subject
to them do not exceed what is reasonably necessary to
achieve that end. Such protection cannot generally be
considered necessary when the transfer is in fact limited
to physical assets (such as land, buildings or machinery) or
to exclusive industrial and commercial property rights (the
holders of which could immediately take action against
infringements by the transferor of such rights).

does not need to be protected against competition from
the vendor in territories not previously penetrated by the
vendor, unless it can be shown that such protection is
required by particular circumstances of the case, e.g. for
territories the vendor was planning to enter at the time of
the transaction, provided that she/he had already invested
in preparing this move.

17. Similarly, non-competition clauses must remain limited to
(including improved versions or updates of
products
products as well as
successor models) and services
forming the economic activity of the undertaking trans-
ferred. This can include products and services at an
advanced stage of development at the time of the trans-
action, or products which are fully developed but not yet
marketed. The acquirer does not need to be protected
against competition from the vendor
in product or
service markets in which the transferred undertaking was
not active before the transfer (18).

18. The vendor may bind herself/himself, her/his subsidiaries
and commercial agents. However, an obligation to impose
similar restrictions on others would not be regarded as
directly related and necessary to the implementation of
the concentration. This applies,
in particular, to clauses
which would restrict the freedom of resellers or users to
import or export.

19. Clauses which limit the vendor’s right to purchase or hold
shares in a company competing with the business trans-
ferred shall be considered directly related and necessary to
the implementation of the concentration under the same
conditions as outlined above for non-competition clauses,
unless they prevent the vendor from purchasing or holding
shares for investment purposes, without granting him/her,
directly or indirectly, management functions or a material
influence in the competing company (19).

(18) Commission Decision of 14 December 1997 (IV/M.884 (cid:151) KNP
BT/Bunzl/Wilhelm Seiler, recital 17); Commission Decision of 2
March 2001 (COMP/M.2305 (cid:151) Vodafone Group plc/Eircell,
recital 22); Commission Decision of 6 April 2001 (COMP/M.2355
(cid:151) Dow/Enichem Polyurethane, recital 28); Commission Decision
of 4 August 2000 (COMP/M.1979 (cid:151) CDC/Banco Urquijo/JV,
recital 18).

(19) Commission Decision of 4 February 1993 (IV/M.304 (cid:151) Tesco/
Catteau, recital 14); Commission Decision of 14 December 1997
(IV/M.884 (cid:151) KNP
19);
Commission Decision of 12 April 1999 (IV/M.1482 (cid:151) Kingfisher/
Gro(cid:223)labor, recital 27); Commission Decision of 6 April 2000
(COMP/M.1832 (cid:151) Ahold/ICA F(cid:246)rbundet/Canica,
recital 26);
Commission Decision of 22 June 2000 (COMP/JV.40 (cid:151)
Canal+/LagardŁre/Canalsatellite, recital 61).

BT/Bunzl/Wilhelm Seiler,

recital

15. Past Commission experience and practice have shown that
the undertaking includes both
when the transfer of
elements of goodwill and know-how, non-competition
clauses are generally justified for periods of up to three
years (14); when only goodwill
they are
generally justified for periods of up to two years (15).
Longer durations can only be justified in a limited range
of circumstances, for example where it can be shown that
customer loyalty to the seller will persist for more than
two years, or for more than three years where the scope or
nature of the know-how transferred justifies an additional
period of protection (16).

included,

is

16. The geographical

scope of a non-competition clause
should normally be limited to the area in which the
vendor offered the relevant products or services before
the transfer (17). The presumption is that
the acquirer

(14) Commission Decision of 2 April 1998 (IV/M.1127 (cid:151) NestlØ/
Dalgety, recital 33); Commission Decision of 1 September 2000
(COMP/M. 2077 (cid:151) Clayton Dubilier & Rice/Iteltel,
recital 15);
Commission Decision of 2 March 2001 (COMP/M.2305 (cid:151)
Vodafone Group plc/Eircell, recitals 21 and 22).

(15) Commission Decision of 12 April 1999 (IV/M.1482 (cid:151) Kingfisher/
Gro(cid:223)labor, recital 26); Commission Decision of 14 December 1997
(IV/M.884 (cid:151) KNP BT/Bunzl/Wilhelm Seiler, recital 17).

(16) Commission Decision of 1 September 2000 (COMP/M.1980 (cid:151)

Volvo/Renault VI, recital 56).

(17) Commission Decision of 14 December 1997 (IV/M.884 (cid:151) KNP
BT/Bunzl/Wilhelm Seiler, recital 17); Commission Decision of 12
April 1999 (IV/M.1482 (cid:151) Kingfisher/Gro(cid:223)labor,
recital 27);
Commission Decision of 6 April 2001 (COMP/M.2355 (cid:151)
Dow/Enichem Polyurethane, recital 28); Commission Decision of
4 August 2000 (COMP/M.1979 (cid:151) CDC/Banco Urquijo/JV, recital
18).

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20. Non-solicitation and confidentiality clauses

that

should be
evaluated the same way as non-competition clauses, to
the extent
their restrictive effect does not exceed
that of a non-competition clause. However, since the
these clauses may be narrower than that of
scope of
non-competition clauses,
they are more likely to be
found to be directly related and necessary to the
implementation of
concentration. Confidentiality
clauses can, if justified by particular circumstances of the
case, be accepted for periods of longer than three years,
taking into account companies’
interests in protecting
valuable business secrets (20).

the

B. Licence agreements

the assets

transferred, of

21. The transfer of an undertaking or of part of it generally
includes the transfer to the acquirer, with a view to the full
intellectual
exploitation of
property rights or know-how. However, the vendor may
remain the owner of the rights in order to exploit them
for activities other than those transferred. In these cases,
the usual means for ensuring that the acquirer will have
to conclude
the full use of
licensing agreements in his/her favour. Likewise, where
the vendor has transferred intellectual property rights
with the business, she/he may still want
to continue
using some or all of these rights for activities other than
those transferred; in such a case the acquirer will grant a
licence to the vendor.

transferred is

the assets

the

22. Licences of patents (21), of similar rights, or of know-
how (22), can be considered necessary to the implemen-
tation of
concentration. They may equally be
considered an integral part of the concentration and, in
any event, need not be limited in time. These licences can
be simple or exclusive and may be limited to certain fields
of use, to the extent that they correspond to the activities
of the undertaking transferred. However, territorial
limi-
tations on manufacture reflecting the territory of the trans-
ferred activity
to the
implementation of the operation. Restrictions in licence

are normally not necessary

(20) Commission Decision of 12 April 1999 (IV/M.1482 (cid:151) Kingfisher/
Gro(cid:223)labor, recital 28); Commission Decision of 1 September 2000
(COMP/M.1980 (cid:151) Volvo/Renault VI,
recital 56); Commission
Decision of 6 April 2001 (COMP/M.2355 (cid:151) Dow/Enichem Poly-
urethane, recital 28).

(21) Including patent applications, utility models, topographies of semi-
conductor products, certificats d’utilitØ and certificats d’addition under
French law and applications for these, supplementary protection
certificates for medicinal products or other products for which
supplementary protection certificates may be obtained, and plant
breeder’s certificates (as referred to in Article 8 of Commission
Regulation (EC) No 240/96).

agreements going beyond the above provisions, such as
those which protect the licensor rather than the licensee,
are not usually necessary to the implementation of the
concentration. Instead, they may be assessed in accordance
the EC Treaty. Agreements which
with Article 81 of
contain restrictions on competition may nevertheless fall
under Commission Regulation (EC) No 240/96. In the case
of a licence granted by the seller of a business to the buyer,
the seller can be made subject to a territorial restriction in
the licence agreement under the same conditions as are
laid down for non-competition clauses in the context of
the sale of a business.

23. Similarly, in the case of licences of trademarks, business
names, design rights, copyrights or similar rights, there
may be situations in which the vendor wishes to remain
the owner of such rights in relation to activities retained,
but the acquirer needs those rights in order to market the
goods or services produced by the undertaking or part of
the undertaking transferred. Here, the same considerations
as above apply (23).

24. Agreements relating to the use of business names or
trademarks should normally be analysed in the context
of the corresponding licence of the relevant intellectual
property right.

C. Purchase and supply obligations

reasonable conditions,

25. In many cases, the transfer of an undertaking or of part of
it can entail the disruption of traditional lines of purchase
and supply which existed as a result of the previous inte-
gration of activities within the economic unity of
the
vendor. In order to enable the break-up of the economic
unity of the vendor and the partial transfer of the assets to
the acquirer under
is often
necessary to maintain, at least for a transitional period,
the existing or similar links between the vendor and the
acquirer. This objective is normally attained by purchase
and supply obligations for the vendor and/or the acquirer
of the undertaking or of part of it. Taking into account the
the
particular situation resulting from the break-up of
economic unity of
the vendor, such obligations, which
may lead to restrictions of competition, can be recognised
as directly related and necessary to the implementation of
the concentration. They may be in favour of the vendor as
well as the acquirer, depending on the particular circum-
stances of the case.

it

(22) As defined in Article 10 of Commission Regulation (EC) No

(23) Commission Decision of 1 September 2000 (COMP/M.1980 (cid:151)

240/96.

Volvo/Renault VI, recital 54).

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26. The aim of

such obligations may be to ensure the
continuity of supply to either of the parties of products
necessary for carrying out the activities retained by the
vendor or taken over by the acquirer (24). Thus, there are
grounds for recognising, for a transitional period (25), the
need for supply obligations aimed at guaranteeing the
quantities previously supplied within the vendor’s inte-
grated business,
including, where appropriate, the possi-
bility for their adjustment to foreseeable demand forecasts.

for
The duration of purchase and supply contracts
complex industrial products is normally justified for a
transitional period of three years and must, in any event,
be justified by particular circumstances of the case, taking
into account the goods or services in question (28).

27. Likewise, the aim may also be to provide continuity of
sales, as they were previously assured within the single
economic entity. Purchase obligations which benefit the
supplier of a product will
require particularly careful
justification, depending on the circumstances of the case.

28. Both supply and purchase obligations providing for fixed
quantities, possibly with a variation clause, may be
recognised as directly related and necessary to the
implementation of the concentration. However, obligations
providing for unlimited quantities, or conferring preferred
supplier or purchaser status, are presumed not
to be
necessary to the implementation of
the concentration.
Any such obligations would need to be justified by
particular circumstances of the case.

29. Likewise,

there is no general

justification for exclusive
purchase or supply obligations (26). Save under exceptional
circumstances, for example resulting from the absence of a
market or the specificity of the products in question, such
exclusivity is not necessary to the implementation of a
concentration.

31. Service agreements can be equivalent in their effect to
supply arrangements; in this case, the same considerations
as above shall apply. As for distribution arrangements,
they may also be regarded as restrictions directly related
and necessary to the implementation of
the concen-
tration (29). If this is not the case, agreements containing
restrictions on competition may fall within the scope of
Commission Regulation (EC) No 2790/1999 of 22
December 1999 on the application of Article 81(3) of
the Treaty to categories of vertical agreements and
concerted practices (30).

IV. PRINCIPLES APPLICABLE TO COMMON CLAUSES IN CASES OF

JOINT ACQUISITION

32. The Merger Regulation is applicable when two or more
undertakings agree to acquire jointly the control of one or
in particular by means of a
more other undertakings,
public tender offer, where the object or effect
is the
division among themselves of the undertakings or their
assets. This
is a concentration implemented in two
successive stages. The common strategy is limited to the
acquisition of control. For this purpose, in the context of a
joint bid, an agreement by the joint acquirers of an under-
taking to abstain from making separate competing offers
for the same undertaking, or otherwise acquiring control,
may be considered directly related and necessary to the
implementation of the concentration.

30. Past Commission experience and practice have shown that
the duration of purchase and supply obligations must be
limited to a period necessary for the replacement of the
relationship of dependency by autonomy in the market (27).

(24) Commission Decision of 6 April 2001 (COMP/M.2355 (cid:151)

Dow/Enichem Polyurethane, recital 31).

(25) Commission Decision of 30 July 1998 (IV/M.1245 (cid:151) Valeo/ITT
Industries, recitals 63 and 64); Commission Decision of 30 March
1999 (IV/JV.15 (cid:151) BT/AT & T,
recitals 209, 210 and 212);
Commission Decision of 1 September 2000 (COMP/M.1980 (cid:151)
Volvo/Renault VI, recital 55); Commission Decision of 6 April
2001 (COMP/M.2355 (cid:151) Dow/Enichem Polyurethane, recital 28).
(26) Commission Decision of 30 July 1998 (IV/M.1245 (cid:151) Valeo/ITT

Industries, recital 64).

(27) Commission Decision of 30 March 1999 (IV/JV.15 (cid:151) BT/AT & T,

recital 209).

33. Furthermore,

restrictions aimed at

implementing the
division of assets are to be considered directly related
and necessary to the implementation of the concentration.
This will apply to arrangements made between the parties
for the joint acquisition of control
in order to divide
among themselves the production facilities or distribution
the
networks, together with the existing trademarks of
undertaking acquired jointly.

(28) Commission Decision of 2 February 1997 (IV/M. 984 (cid:151)
Dupont/ICI, recital 55); Commission Decision of 30 July 1998
recital 64); Commission
(IV/M.1245 (cid:151) Valeo/ITT Industries,
Decision of 6 April 2001 (COMP/M.2355 (cid:151) Dow/Enichem Poly-
urethane, recital 31).

(29) Commission Decision of 30 March 1999 (IV/JV.15 (cid:151) BT/AT & T,

recitals 207 and 211).

(30) OJ L 336, 29.12.1999, p. 21.

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34. To the extent that such a division involves the break-up of
a pre-existing economic entity, arrangements that make the
break-up possible under
reasonable conditions can be
considered directly related and necessary to the implemen-
tation of the concentration. In this regard, the principles
explained above in relation to purchase and supply
arrangements
transitional period in cases of
transfer of undertakings should be applied by analogy.

for

a

relevant products or services before establishing the joint
venture (33). That geographical scope can be extended to
territories which the parent companies were planning to
enter at the time of the transaction, provided that they had
already invested in preparing this move.

V. PRINCIPLES APPLICABLE TO COMMON CLAUSES IN CASES OF
JOINT VENTURES WITHIN THE MEANING OF ARTICLE 3(2) OF
THE MERGER REGULATION

A. Non-competition obligations

35. A non-competition obligation between the parent under-
takings and a joint venture may be considered directly
the
related and necessary to the implementation of
concentration. Non-competition clauses may reflect,
inter
alia, the need to ensure good faith during negotiations;
they may also reflect the need to fully utilise the joint
venture’s assets or to enable the joint venture to assimilate
know-how and goodwill provided by its parents; or the
need to protect the parents’ interests in the joint venture
against competitive acts
inter alia, by the
parents’ privileged access to the know-how and goodwill
transferred to or developed by the joint venture.

facilitated,

38. Similarly, non-competition clauses must be limited to
products and services constituting the economic activity
the joint venture. This may include products and
of
services at an advanced stage of development at the time
of the transaction, as well as products and services which
are fully developed but not yet marketed.

39. If

the joint venture is set up to enter a new market,
reference will be made to the products, services and terri-
tories in which it is to operate under the joint venture
that one
agreement or by-laws. The presumption is
parent’s interest in the joint venture does not need to be
protected against competition from the other parent in
markets other than those in which the joint venture will
be active at its outset.

36. As a general rule, such clauses can,

in case of

joint-
ventures, be justified for periods of up to five years.
However, the Commission considers that non-competition
clauses whose duration exceeds three years need to be duly
the case (31).
justified by particular circumstances of
the
obligations
Moreover,
between
non-competition
parent undertakings
extending
joint venture
beyond the lifetime of the joint venture may never be
regarded as directly related and necessary to the implemen-
tation of the concentration (32).

and a

40. Additionally,

it will be presumed as a general rule that
non-competition
non-controlling
between
parents and a joint venture are not directly related and
necessary to the implementation of the concentration.

obligations

37. The geographical scope of a non-competition clause must
be limited to the area in which the parents offered the

(31) Commission Decision of 16 October 2000 (COMP/M.2137 (cid:151)
SLDE/NTL/MSCP/Noos,
recital 41); Commission Decision of 4
August 2000 (COMP/M.1979 (cid:151) CDC/Banco Urquijo/JV, recitals
18 and 19); Commission Decision of 22 December 2000
(COMP/M.2243 (cid:151) Stora Enso/AssiDom(cid:228)n/JV, recital 49).

(32) Commission Decision of 10 July 2000 (COMP/M.1964 (cid:151) Planet
Internet/Fortis Bank/Mine JV, recital 16); Commission Decision of
29 August 2000 (COMP/M.1913 (cid:151) Lufthansa Menzies/LGS/JV;
recital 18).

41. The same principles apply to non-solicitation and confi-
dentiality clauses, to the extent that their restrictive effect
exceed that of a non-competition clause.
does not
However,
these clauses may be
since the scope of
narrower than that of non-competition clauses, they may
be considered directly related and necessary to the
implementation of the concentration in a larger number
of circumstances. Moreover, the duration of confidentiality
clauses may exceed five years, depending on the particular
circumstances of the case, taking into account companies’
interests in protecting valuable business secrets.

(33) Commission Decision of 29 August 2000 (COMP/M.1913 (cid:151)
Lufthansa Menzies/LGS/JV; recital 18); Commission Decision of
22 December 2000 (COMP/M.2243 (cid:151) Stora Enso/AssiDom(cid:228)n/JV,
recital 49).

4.7.2001

EN

Official Journal of the European Communities

C 188/11

B. Licence agreements

42. A licence granted by the parents to the joint venture may
be considered directly related and necessary to the
implementation
applies
regardless of whether or not the licence is an exclusive
one and whether or not it is limited in time. The licence
may be restricted to a particular
field of use which
corresponds to the activities of the joint venture.

concentration. This

the

of

43. Licences granted by the joint venture to one of its parents,
or cross-licence agreements, can be regarded as directly
related and necessary to the implementation of
the
concentration under the same conditions as in the case
of
the sale of a business. Licence agreements between
the parents, however, are not considered directly related
and necessary to the implementation of a joint venture.

44. Licence

agreements which contain a

restriction on
competition but are not considered directly related and
necessary to the implementation of
the concentration
may nevertheless fall under Commission Regulation (EC)
No 240/96.

C. Purchase and supply obligations

45. If

the parent undertakings remain present

in a market
the joint venture,
upstream or downstream of
including
any
and
to the principles
distribution agreements, are subject
applicable in the case of the transfer of an undertaking.

agreements,

purchase

that of

supply

Notice of initiation of an interim review of the anti-dumping and anti-subsidy measures applicable
to imports of farmed Atlantic salmon originating in Norway

(2001/C 188/04)

The Commission has received a request for a partial interim
review pursuant to Article 11(3) of Council Regulation (EC) No
384/96 (1),
(EC) No
as
last
2238/2000 (2),
(the (cid:145)Basic Anti-dumping Regulation(cid:146)) and
Article 19(1) of Council Regulation (EC) No 2026/97 (3) (the
(cid:145)Basic Anti-subsidy Regulation(cid:146)) of the measures imposed on
imports of farmed Atlantic salmon originating in Norway.

by Regulation

amended

0304 10 13 29), ex 0304 20 13 (Taric codes 0304 20 13 21 and
0304 20 13 29).

3. Existing measures

1. Request for review

The request was made by the Norwegian company Gje-Vi AS
((cid:145)the Applicant(cid:146)) and is limited in scope to an examination of
the form of the anti-dumping and anti-subsidy measures, in so
far as they relate to that company.

2. Product

currently

The product concerned is farmed Atlantic salmon originating
in Norway
CN codes
ex 0302 12 00 (Taric-codes 0302 12 00 21, 0302 12 00 22,
0302 12 00 23 and 0302 12 00 29),
ex 0303 22 00 (Taric
codes 0303 22 00 21, 0303 22 00 22, 0303 22 00 23 and
0303 22 00 29), ex 0304 10 13 (Taric codes 0304 10 13 21 en

classifiable within

(1) OJ L 56, 6.3.1996, p. 1.
(2) OJ L 257, 11.10.2000, p. 2.
(3) OJ L 288, 21.10.1997, p. 1.

and

anti-dumping

countervailing

duties were
Definitive
imposed on the product concerned by Council Regulations
(EC) No 1890/97 (4) and (EC) No 1891/97 (5). The form of
the duties set out
in these two Regulations was, however,
reviewed, with both Regulations being replaced by
later
Council Regulation (EC) No 772/1999 (6).

also

accepted

At the same time as definitive duties were imposed, price
undertakings were
from 19 Norwegian
exporters (of which the Applicant was one), by Commission
the
Decision
companies agreed to respect certain minimum import prices
for the product concerned and to provide the Commission,
within due deadlines, periodic reports of their sales to the
Community.

97/634/EC (7).

undertakings,

offering

By

(4) OJ L 267, 30.9.1997, p. 1.
(5) OJ L 267, 30.9.1997, p. 19.
(6) OJ L 101, 16.4.1999, p. 1, as last amended by Regulation (EC) No

2606/2000 (OJ L 301, 30.11.2000, p. 61).

(7) OJ L 267, 30.9.1997, p. 81. Decision as last amended by Decision

2000/744/EC (OJ L 301, 30.11.2000, p. 82).