Staff working paper accompanying the Communication from the Commission to the Council Report on the functioning of Regulation No 139/2004 {COM(2009) 281 final}
Date: 2009-06-18
Institutions: European Commission
Subjects: disclosure of information, economic concentration, exchange of information, harmonisation of standards, merger control, turnover

EN 

EN 

  EN 

 
COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.6.2009 
SEC(2009) 808 final/2 

CORRIGENDUM: 
Annule et remplace le document SEC(2009)808 du 18 juin 2009 
(modifications apportées dans l'annexe 3) 

STAFF WORKING PAPER 

accompanying the 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL 

Report on the functioning of Regulation No 139/2004 

{COM(2009) 281 final} 

EN 

  EN 

 
 
 
  
 
 
 
 
TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

1.3. 

Introduction .................................................................................................................. 3 

Background .................................................................................................................. 3 

Objective of the analysis .............................................................................................. 4 

Methodology and structure .......................................................................................... 5 

Part I - Jurisdictional Thresholds ............................................................................................... 6 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

2.5. 

2.6. 

2.7. 

The thresholds under Article 1..................................................................................... 6 

Introduction .................................................................................................................. 6 

Views expressed by the NCAs..................................................................................... 7 

Views expressed by the stakeholders........................................................................... 8 

Commission assessment of the thresholds under Article 1(2) ..................................... 9 

Commission assessment of the thresholds under Article 1(3) ................................... 10 

The application of the two-thirds rule........................................................................ 15 

Conclusion on the operation of the thresholds........................................................... 22 

Part II - Referral Mechanisms .................................................................................................. 23 

3. 

3.1. 

3.2. 

3.3. 

4. 

4.1. 

4.2. 

Pre-notification referrals ............................................................................................ 23 

Referrals under Article 4(4) ....................................................................................... 23 

Referrals under Article 4(5) ....................................................................................... 29 

Conclusion on the operation of the pre-notification referral system.......................... 35 

Post-Notification Referrals ........................................................................................ 38 

Referrals under Article 22.......................................................................................... 38 

Referrals under Article 9............................................................................................ 42 

Part III – General Conclusion................................................................................................... 44 

ANNEX 1 Questionnaire for the consultation of NCAs 
ANNEX 2 Questionnaire for the public consultation  
ANNEX 3 Overview of two-thirds rule cases between 2001 and 2007

EN 

  EN 

 
 
 
 
1. 

INTRODUCTION 

1.1. 

Background 

1. 

2. 

3. 

4. 

1 

2 

Council  Regulation  (EEC)  No  4064/89,  the  "EC  Merger  Regulation",  entered  into 
force  on  21  September  1990.  One  of  the  main  principles  of  the  EC  Merger 
Regulation is the exclusive jurisdiction of the Commission to review concentrations 
which  fall  within  its  scope.  According  to  its  Article  1,  the  EC  Merger  Regulation 
thus  applies  to  operations  that  satisfy  two  conditions.  First,  there  must  be  a 
concentration of two or more undertakings within the meaning of Article 3 of the EC 
Merger Regulation. Secondly, the turnover of the undertakings concerned, calculated 
in  accordance  with  Article  5,  must  satisfy  the  thresholds  set  out  in  Article  1  and 
which thus have a Community dimension in the sense of the EC Merger Regulation. 

The  concept  that  the  Commission  should  have  sole  competence  to  review  mergers 
with  a  Community  dimension  follows  from  the  principle  of  subsidiarity.  From  the 
viewpoint  of  the  European  business  community,  the  Commission's  exclusive 
jurisdiction also provides a "one-stop-shop" advantage, which is widely regarded as 
an  essential  part  of  keeping  the  regulatory  costs  associated  with  cross-border 
transactions  at  a  reasonable  level.  In  addition,  the  Commission's  exclusive 
jurisdiction to vet such mergers is an important element in providing a "level playing 
field"  for  the  concentrations  that  were  bound  to  result  from  the  completion  of  the 
internal  market.  This  principle  is  widely  accepted  as  the  most  efficient  way  of 
ensuring that all mergers with a significant cross-border impact would be subject to a 
uniform set of rules. 

In 1998, after a careful review of the experience gained, the EC Merger Regulation 
was amended through Council Regulation No 1310/97. The amendments concerned a 
large number of areas. In relation to Article 1, a new sub-paragraph - Article 1(3) - 
was  introduced.  The  intention  was  to  provide  a  solution  to  the  problem  whereby  a 
significant number of cases failed to meet the turnover requirements of Article 1(2) 
and therefore had to be notified in several Member States ("multiple filings"). Many 
such  concentrations  had  a  significant  cross-border  impact  but  did  not  benefit  from 
the "one-stop-shop" principle and therefore, the EC Merger Regulation had not fully 
succeeded in creating a level playing field and the application of coherent rules for 
this category of cases. Council Regulation No 1310/97 therefore introduced a new set 
of  lower  turnover  thresholds  in  Article  1(3)  with  a  view  to  capturing  transactions 
which were of a Community dimension. 

The adoption of the recast EC Merger Regulation on 20 January 20041 (also referred 
to  as  the  "EC  Merger  Regulation")  was  the  result  of  a  far-reaching  review  and  a 
broad  debate  with  all  concerned  parties  which  was  launched  in  2001  with  the 
Commission  Green  Paper.2  The  discussion  covered  a  wide  range  of  jurisdictional, 
procedural  and  substantive  aspects  of  the  Regulation.  The  new  EC  Merger 
Regulation  introduced  a  number  of  substantive  and  procedural  changes.  While  the 
turnover  thresholds  set  out  in  Articles  1(2)  and  1(3)  were  left  unchanged,  a  set  of 
voluntary  pre-notification  referral  mechanisms  was  introduced  in  order  to  "further 

Council  Regulation  (EC)  No  139/2004  of  20  January  2004  on  the  control  of  concentrations  between 
undertakings Official Journal L 24, 29.01.2004, p. 1-22. 
COM(2001) 745/6 – 11.12.2001. 

3 

                                                 
5. 

6. 

improve  the  efficiency  of  the  system  for  the  control  of  concentrations  within  the 
Community."3 

The Commission Notice on Case Referral in respect of concentrations4 sets out the 
guiding principles of the referral system. It specifies that decisions taken with regard 
to the referral of cases should take due account of all aspects of the application of the 
principle of subsidiarity, "in particular which is the authority more appropriate for 
carrying out the investigation, the benefits inherent in a 'one-stop-shop' system, and 
the importance of legal certainty with regard to jurisdiction. It also emphasises that 
"these  factors  are  inter-linked  and  the  respective  weight  placed  upon  each  of  them 
will  depend  upon  the  specificities  of  a  particular  case.  Above  all,  in  considering 
whether  or  not  to  exercise  their  discretion  to  make  or  accede  to  a  referral,  the 
Commission  and  Member  States  should  bear  in  mind  the  need  to  ensure  effective 
protection of competition in all markets affected by the transaction."5 

On 10 July 2007, the Commission adopted a Commission Consolidated Jurisdictional 
Notice under Council Regulation (EC) No 139/2004 on the control of concentrations 
between undertakings.6 The Consolidated Jurisdictional Notice replaces the previous 
four  jurisdictional  Notices,  all  adopted  by  the  Commission  in  1998  under  the 
previous EC Merger Regulation.7 The Consolidated Jurisdictional Notice covers all 
issues  of  jurisdiction  relevant  for  establishing  the  Commission’s  competence  under 
the  new  EC  Merger  Regulation,  including  in  particular,  the  concept  of  a 
concentration,  the  notion  of  control,  the  concept  of  full-function  joint  ventures  and 
the calculation of turnover.8 

7. 

It is in the context of the above instruments that the notification thresholds and the 
referral mechanisms are analysed and discussed in this staff working paper. 

1.2. 

Objective of the analysis 

8. 

3 
4 

5 
6 

7 

8 
9 

Article 1(4) of the EC Merger Regulation requires the Commission to report to the 
Council on the operation of the thresholds and criteria set out in paragraph 1(2) and 
1(3)  by  1  July  2009.9  Article  4(6)  of  the  EC  Merger  Regulation  stipulates  that  the 
Commission  shall  report  to  the  Council  on  the  operation  of  the  pre-notification 
referral mechanisms under Article 4 by 1 July 2009. 

Recital 16 of the EC Merger Regulation. 
Commission Notice on Case Referral in respect of concentrations, Official Journal C 56, 05.03.2005, p. 
2-23. 
Ibid, at para. 8. 
Corrected French and German versions of the Commission Consolidated Jurisdictional Notice and the 
remaining languages versions of the Notice were adopted by the Commission on 17/03/2008. 
These are: (i) the Notice on the concept of concentration (OJ C 66, 02.03.1998, p. 5), (ii) the Notice on 
the concept of full-function joint ventures (OJ C 66, 02.03.1998, p.1), (iii) the Notice on the concept of 
undertakings concerned (OJ C 66, 02.03.1998, p.14) and (iv) the Notice on calculation of turnover (OJ 
C 66, 02.03.1998, p.25). 
Referrals are only dealt with in the Commission Notice on Case Referrals mentioned before. 
Article 1(4) of the EC Merger Regulation stipulates that "[o]n the basis of statistical data that may be 
regularly provided by the Member States, the Commission shall report to the Council on the operation 
of the thresholds and criteria set out in paragraphs 2 and 3 by 1 July 2009 and may present proposals 
pursuant to paragraph 5." 

EN 

4 

  EN 

 
                                                 
9. 

10. 

11. 

12. 

13. 

The main purpose of the report is therefore, firstly, to discuss the operation of these 
thresholds  in  allocating  cases  between  the  Community  level  and  the  national  level 
pursuant to the objectives of a "one-stop-shop", the "more appropriate authority", and 
ultimately  the  need  to  achieve  a  "level  playing  field".  Secondly,  to  report  on  the 
operation  of  the  pre-  and  post-notification  referral  mechanisms  provided  for  by 
Articles 4, 9 and 22. 

The division of competence between the Commission and the competition authorities 
of the Member States ("NCAs"), which is based on the concept of "concentration" in 
the EC Merger Regulation and the mechanical application of the turnover thresholds, 
includes three corrective mechanisms. The first corrective mechanism is the so-called 
"two-thirds rule" which applies to both Articles 1(2) and 1(3). The objective of this 
rule is to exclude from the Commission's jurisdiction certain cases which contain a 
clear national nexus to one Member State. 

The  second  corrective  mechanism  is  the  pre-notification  referral  system  introduced 
under the new EC Merger Regulation in May 2004. This allows for the re-allocation 
of  jurisdiction  at  the  initiative  of  the  parties  prior  to  notification  and  subject  to 
approval by the Member States and/or the Commission. 

The third corrective mechanism is the post-notification referral system whereby one 
or more  Member  States can  request that the Commission assesses mergers that  fall 
below the thresholds of the EC Merger Regulation under certain conditions (Article 
22). Conversely, a Member State may, in cases that have been notified under the EC 
Merger  Regulation,  request  the  transfer  of  competence  to  its  NCA  if  certain 
conditions are fulfilled (Article 9). 

The  analysis  of  this  Staff  Working  Paper  covers  the  turnover  thresholds  in 
conjunction  with  these  corrective  mechanisms  with  the  aim  of  developing  a 
comprehensive  overview  of  the  system  of  allocation  and  re-allocation  of  merger 
cases between the Commission and the Member States. 

1.3.  Methodology and structure 

14. 

15. 

On  26  June  2008,  DG  COMP  launched  a  consultation  with  the  Member  States' 
national  competition  authorities  ("NCAs").  All  NCAs  replied  and  the  Commission 
received a substantial amount of statistical data which was necessary for the analysis 
of the quantitative aspects of the report. Data were compiled on multiple filings, the 
operation  of  the  two-thirds  rule  and  the  pre-  and  post-notification  referral 
mechanisms.  The  NCAs  were  also  invited  to  offer  their  views  and  share  their 
experience in respect of the operation of the thresholds and the referral mechanisms 
as well as with regard to the operation of the EC Merger Regulation more generally. 
The questionnaire for NCA consultation is attached as Annex 1. 

On  28  October  2008,  DG  COMP  also  launched  a  public  consultation.  This 
consultation  was  primarily  designed  to  collect  further  information  concerning  the 
application  of  the  thresholds  in  Article  1  and  the  referral  mechanisms  set  out  in 
Article  4.  Furthermore,  the  respondents  were  invited  to  forward  any  comments  or 
suggestions  in  relation  to  the  functioning  of  the  EC  Merger  Regulation  more 
generally.  Of  the  30  replies  received,  16  were  from  major  law  firms  frequently 
involved  in  EU  merger  notifications.  In  addition,  13  commercial  entities  including 

EN 

5 

  EN 

 
16. 

17. 

companies and industry organisations replied, as well as a think tank. The replies are 
published on DG COMP's website.10 The questionnaire for the public consultation is 
attached as Annex 2. 

In addition to these consultations, DG COMP reviewed its own experience with the 
application  of  the  jurisdictional  thresholds  and  the  referral  mechanisms  since  the 
entry  into  force  of  the  new  EC  Merger  Regulation  and  the  adoption  of  the 
Commission Notices on case Referrals and Jurisdictional issues. 

PART I of this staff working paper will first analyse the functioning of the turnover 
thresholds  set  out  in  Article  1  of  the  EC  Merger  Regulation  in  the  light  of  the 
comments received from NCAs and the respondents to the public consultation. The 
operation  of  the  two-thirds  rule  will  also  be  discussed  in  the  light  of  the  statistical 
data received from the NCAs and the experience of the Commission. PART II will 
examine the operation of the pre-notification referral system pursuant to Article 4 EC 
Merger  Regulation.  It  also  includes  an  examination  of  the  operation  of  the  post-
notification referral mechanisms of Articles 9 and 22. PART III then presents some 
general conclusions. 

PART I - JURISDICTIONAL THRESHOLDS 

2. 

THE THRESHOLDS UNDER ARTICLE 1 

2.1. 

Introduction 

18. 

Article 1(2) of the EC Merger Regulation stipulates: 

For  the  purposes  of  this  Regulation,  a  concentration  has  a  Community 
dimension where: 

(a)  the  combined  aggregate  worldwide  turnover  of  all  the  undertakings 
concerned is more than ECU 5000 million; and 

(b)  the  aggregate  Community-wide  turnover  of  each  of  at  least  two  of  the 
undertakings  concerned  is  more  than  ECU  250  million,  unless  each  of  the 
undertakings  concerned  achieves  more  than  two-thirds  of  its  aggregate 
Community-wide turnover within one and the same Member State. 

19. 

Article  1(3),  which  entered  into  force  in  1998,  extends  the  Commission's  sole 
competence  to  assess  certain  transactions  where  the  parties  have  less  turnover  but 
requiring  notification  in  three  or  more  Member  States  ("multiple  filings").  Article 
1(3) stipulates:  

For  the  purposes  of  this  Regulation,  a  concentration  that  does  not  meet  the 
thresholds laid down in paragraph 2 has a Community dimension where:  

(a)  the  combined  aggregate  worldwide  turnover  of  all  the  undertakings 
concerned is more than ECU 2500 million; 

10  http://ec.europa.eu/competition/consultations/2008_merger_regulation/index.html 

EN 

6 

  EN 

 
                                                 
(b) in each of at least three Member States, the combined aggregate turnover of 
all the undertakings concerned is more than ECU 100 million; 

(c)  in  each  of  at  least  three  Member  States  included  for  the  purpose  of 
point (b),  the  aggregate  turnover  of  each  of  at  least  two  of  the  undertakings 
concerned is more than ECU 25 million; and 

(d)  the  aggregate  Community-wide  turnover  of  each  of  at  least  two  of  the 
undertakings concerned is more than ECU 100 million;  

unless each of the undertakings concerned achieves more than two-thirds of its 
aggregate Community-wide turnover within one and the same Member State. 

20. 

Article 1(3) tests whether significant turnover is achieved in three or more Member 
States. In principle, this means that the Article applies a test of cross-border effects. 
In  this  respect  the  intention  of  Article  1(3)  could  be  interpreted  as  providing 
companies recourse to the "one-stop-shop" principle in situations where the cost of 
multiple notifications would otherwise be too high. In the discussions that led to the 
adoption  of  this  amendment  it  was  felt  that  the  Community  dimension  would  be 
more manifest in cases involving three or more Member States and that, as long as 
only two Member States were involved, potential conflicts could be avoided through 
bilateral contacts.  

21. 

The  turnover  thresholds  provided  in  Article  1(2)  and  1(3)  of  the  EC  Merger 
Regulation  have  not  been  altered  since  their  entry  into  force  in  1990  and  in  1998 
respectively.  

2.2. 

Views expressed by the NCAs 

22. 

23. 

24. 

25. 

NCAs have consistently expressed the view that, as a whole, the system of both the 
turnover  thresholds  and  the  referral  provisions  functions  well  and  appropriately 
assign jurisdiction. It is also the general perception that the pre-notification referral 
system has enhanced the jurisdictional flexibility of merger  control in the EU, thus 
fine-tuning possible any shortcomings of the thresholds. 

One  respondent  pointed  out  that  while  the  system  of  thresholds  and  corrective 
mechanisms  works  well  overall,  the  level  of  the  thresholds  should  be  adjusted  for 
price  inflation  and  should  take  into  account  the  EU  enlargement.  One  NCA  also 
suggested  that  the  need  for  such  adjustments  might  be  further  explored.  One  NCA 
considered  that  such  adjustment  is  not  appropriate  at  this  stage  but  should  be 
considered in the future. 

As regards specifically the operation of the thresholds of Article 1(3) the NCAs have 
made  only  a  few  comments.  One  NCA  wondered  whether  these  thresholds  would 
contribute  to  a  more  effective  enforcement  of  merger  control  in  the  EU  and 
suggested  abolishing  Article  1(3)  in  the  interest  of  simplification  and  transparency. 
One NCA pointed out that the threshold under Article 1(3) is quite complicated. 

With regard to specific markets or economic sectors, most NCAs took the view that 
the thresholds of Article 1(2) and (3) function well as an effective means of properly 
identifying mergers of a Community dimension. However, one NCA noted that more 
guidance  as  to  how  the  relevant  turnover  of  the  parties  concerned  should  be 

EN 

7 

  EN 

 
calculated for the purposes of the jurisdictional assessment might be appropriate for 
some economic sectors. Another NCA remarked that the current rules could lead to 
an ineffective allocation of cases in the retail trade sector as such cases would be of a 
national  or  of  a  local  dimension  and  therefore  the  NCAs  would  be  the  appropriate 
authorities for considering cases of this kind. Several Member States pointed out that 
in  any  event,  the  referral  mechanism  allows  for  effective  fine  tuning  wherever 
appropriate. 

2.3. 

Views expressed by the stakeholders 

26. 

The public consultation raised the following questions: 

A.  Functioning  of  the  turnover  thresholds  in  Article  1(2)  and  (3)  EC  Merger 
Regulation 

Question  1:  Do  you  believe  that  Article  1(2)  and  (3)  of  the  EC  Merger 
Regulation  is  functioning  as  an  effective  means  of  distinguishing  between 
those transactions which are most appropriately the subject to merger control at 
the Community level from those which are not? […] 

Question 2: Are there any specific sectors or markets where, in your view, the 
turnover  thresholds  in  Article  1(2)  and  (3)  are  not  functioning  in  the  manner 
intended, namely in identifying those transactions which are most appropriately 
the subject to merger control at the Community level? 

27. 

Table 1 below gives a quantitative overview of the number of replies given on these 
questions. 

Table 1: Overview of replies to the public consultation on the issue of thresholds 

Questions 

Total* 

Commercial 
entities 

Law firms 

Association 

Yes  No 

Yes 

No 

Yes 

No 

Yes 

No 

Question 1: 
Is Art 1(2) 
and (3) 
appropriate 
instruments 
to 
determine 
Community 
dimension? 
Question 2: 
Should 
there be 
special 
rules for 
specific 
economic 
sectors? 

12 

3 

4 

2 

8 

1 

- 

7 

5 

5 

2 

3 

3 

- 

- 

- 

  *All data refer to number of replies. 

28. 

With regard to the system of jurisdictional thresholds under Article 1 generally, most 
respondents took the view that they provide a reasonably good proxy for which cases 
have  a  Community  dimension.  Considering  that  the  turnover  thresholds  provide  a 
simple  and  objective  mechanism  that  can  be  handled  directly  by  the  companies 
involved  in  a  merger  in  order  to  determine  if  their  transaction  has  a  Community 

EN 

8 

  EN 

 
 
 
 
 
29. 

30. 

31. 

32. 

33. 

dimension,  respondents  saw  no  need  to  change  the  turnover  threshold  system. 
However,  many  respondents  underlined  the  importance  of  efficient  referral 
mechanisms  in  order  to  be  able  to  request  the  re-allocation  of  cases  where 
appropriate.11 

As  regards  the  level  of  the  thresholds  in  Article  1,  whilst  most  respondents 
considered  the  thresholds  appropriate,  some  suggested  lowering  them.  A  few 
respondents  instead  suggested  that  the  thresholds  should  be  raised  to  adjust  for 
inflation. 

Regarding  the  criteria  in  Article  1(3),  a  few  respondents  considered  that  this 
threshold  is  somewhat  complex  and  captures  few  cases.  Therefore,  they  question 
whether it is still necessary in its present form. In the same vein, some respondents 
went further and proposed to abolish Article 1(3) altogether while others welcomed a 
reopening  of  the  debate  regarding  the  introduction  of  a  simpler  "3+"  rule.  Various 
options  of  a  "3+"  rule  have  been  proposed.  Such  suggestions  could  mean  that  a 
notification  to  the  Commission  would  be  compulsory  or  voluntary  where  a 
concentration  is  notifiable  in  at  least  three  Member  States,  with  more  or  less  far-
reaching Member States' powers to retain cases.  

Several law firms and commercial entities pointed out that from their perspective the 
pre-notification referral mechanism under Article 4(5)12 would obviate the need for 
the turnover threshold under Article 1(3). 

Concerning particular rules for specific sectors, some respondents mentioned one or 
several  possible  sectors  where  this  could  be  beneficial,  including  banking  and 
financial services, investment funds, insurance, reinsurance, travel, airlines, energy, 
and defence. A few respondents merely proposed clarifications of the rules while a 
few  respondents  saw  no  need  for  sector-specific  rules  and  advised  against,  arguing 
that such rules would make the thresholds too complicated. 

Finally,  most  respondents  consider  that  the  current  regime  imposes  excessive 
notification  requirements  with  regard  to  JVs  with  limited  or  no  activities  and 
therefore little or no effect within the EU.13 The review of such JVs is considered to 
be unjustified due to their limited nexus within the EU or somewhat disproportionate 
to their potential effects. Various proposals have been made as to how to address this 
perceived  problem,  ranging  from  explicitly  excluding  such  JVs  from  review  under 
the  EC  Merger  Regulation  to  at  least  further  simplifying  the  review  process  as 
regards scope, timing and stand-still obligation.  

2.4. 

Commission assessment of the thresholds under Article 1(2) 

34. 

Article 1(2) constitutes the legal basis for the great majority of all notifications under 
the  EC  Merger  Regulation  and  has  in  the  Commission's  view  operated  in  the  way 

11 

12 
13 

In  particular  the  length  of  the  referral  procedures  and  the  reporting  requirements  were  the  subject  of 
many observations from industry representatives, as will be discussed in more detail in PART II. 
See discussion in PART II. 
Under  Article  1,  a  concentration  can  only  have  a  Community  dimension  where  at  least  two  of  the 
undertakings concerned have turnover in the EU. However, as regards JVs, this can have the result that 
Community dimension is at hand where both parents to the JV meet the threshold but the actual JV has 
limited or no activities within the EU. 

EN 

9 

  EN 

 
                                                 
intended.  This  conclusion  is  generally  shared  by  the  NCAs  and  stakeholders  alike. 
Furthermore, as will be discussed in more detail in the following sections, the limited 
use  of  referral  mechanisms  in  the  direction  of  the  Member  States  supports  this 
conclusion. In fact, these mechanisms provide for the possibility to refer for review 
by  the  NCAs  concentrations  which  significantly  affect  competition  in  a  market 
within a Member State, which presents all the characteristics of a distinct market.14 
The  limited  use  of  these  mechanisms  indicates  that  there  are  few  concentrations 
where referral is deemed necessary. 15 

35. 

However, Article 1(2) does not catch a significant number of cases, which, in spite of 
their  cross-border  impact,  are  still  dealt  with  by  the  Member  States  NCAs.  This  is 
particularly  true  in  some  industries  where  transactions  involving  companies  with 
limited turnover may nevertheless affect the Common Market or a significant part of 
it.  In  fact,  this  was  acknowledged  already  in  the  reform  process  leading  up  to  the 
adoption of the additional thresholds under Article 1(3).  

2.5. 

Commission assessment of the thresholds under Article 1(3) 

36. 

The objectives of the adoption of Article 1(3) were first to address the problem that a 
significant number of cases failed to meet the turnover requirements of Article 1(2) 
and  which  therefore  had  to  be  notified  in  several  Member  States.  Secondly,  many 
such  concentrations  had  a  significant  cross-border  impact  but  did  not  benefit  from 
the "one-stop-shop" principle and therefore, the EC Merger Regulation had not fully 
succeeded in creating a level playing field and the application of coherent rules for 
this category of cases. A discussion follows below as to what extent these objectives 
have been achieved by first examining cases that fell within this threshold and then 
those that fell outside Community jurisdiction.  

2.5.1.  Cases falling under Article 1(3)  

37. 

38. 

14 
15 

16 

In  recent  years,  the  number  of  notifications  received  under  Article  1(3)  was  in  the 
order  of  20  to  50  per  year,  representing  5-15%  of  the  total  number  of  all 
notifications.16  By  their  very  nature,  these  cases  would  in  most  cases  have  been 
subject  to  multiple  notifications  in  view  of  the  way  the  threshold  in  Article  1(3)  is 
designed. Thus, the threshold in Article 1(3) has decreased the number of potential 
multiple filings and has thus significantly decreased unnecessary parallel reviews of 
transactions with a potential impact within or across several Member States. 

With a view to assessing the cross-border effects and impact on competition of cases 
notified under Article 1(3), a statistical comparison with cases notified under Article 
1(2) was carried out. First, it was compared whether cases notified under Article 1(3) 
are  more  likely  to  be  of  national  character  with  respect  to  their  geographic  impact. 

See Articles 4(4) and 9.  
It is instructive that only 43 pre-notification referral requests and 25 post-notification referral requests 
were made between 2004 and 2008 compared to the total number of about 1,530 own jurisdiction cases 
dealt with by the Commission over the same reference period.  
For  2007,  the  total  number  of  notifications  is  402,  of  which  7  were  subsequently  withdrawn.  Out  of 
these we identified 48 decisions where the notification was based on Article 1(3) = 12%. In 2008 out of 
a  total  of  347  notifications  (minus  13  withdrawals)  only  24  decisions  were  identified  to  have  been 
notified on the base of Article 1(3) = 7%. 

EN 

10 

  EN 

 
                                                 
 
39. 

40. 

41. 

42. 

43. 

17 

18 

19 

Secondly,  it  was  assessed  whether  cases  notified  under  Articles  1(2)  and  1(3)  may 
present differences as to their likelihood of raising competition concerns. 

First, as far as the geographic impact of cases under Article 1(3) is concerned, this 
element  can  be  said  to  provide  one  indication  as  to  which  competition  authority  is 
well placed to assess any given merger and to take remedial action when necessary. 
One element among others to consider when assessing their geographic impact is to 
look  at  the  geographic  market(s)  affected  by  these  mergers.  In  this  exercise  it  first 
has to be stressed that this is only an approximation to be used in the absence of other 
readily available indicators. Furthermore, the Commission often leaves the question 
of  geographic  definition  open  if  the  merger  in  question  does  not  raise  any 
competition concern under any conceivable alternative market definitions.  

Nevertheless, it is instructive that in about a third of cases notified under Article 1(3) 
the proposed concentration clearly affected a relevant geographic market which was 
EU wide or wider than the EU (albeit the definition of the geographic scope was left 
open  in  most  of  these  cases).  More  specifically,  in  17  of  72  cases  notified  under 
Article  1(3)  in  2007  and  2008  the  affected  geographic  markets  were  EU  wide  or 
wider, and in 5 cases the geographic market was possibly world-wide.17 A number of 
cases with national markets affected more than one national market.18 

Consequently,  based  on  the  Commission's  experience  there  are  no  indications  that 
cases notified under Article 1(3) generally affect only a limited geographic area. On 
the  contrary,  these  cases  generally  tend  to  affect  markets  broader  than  national  or 
more than one national market.  

Second, from a substantive viewpoint, for the years 2007 and 2008 it should be noted 
that competition concerns were found in four of the cases notified under Article 1(3). 
Three  of  these  cases  were  cleared  in  the  first  phase  by  way  of  a  decision  under 
Article  6(2).  One  case  was  cleared  by  way  of  an  Article  8(2)  decision  with 
commitments after a full second-phase investigation. Consequently, over the period 
in  question,  about  5 %  of  the  transactions  notified  under  Article  1(3)  raised 
competition concerns. This is comparable to cases which were notified under Article 
1(2), where competition concerns were also found in some 5 % of the cases.19 

In  conclusion,  based  on  the  available  information,  Article  1(3)  has  significantly 
contributed to a proper allocation of cases which are better dealt with at the European 
level. This is first due to the fact that it avoids multiple filings in a large number of 
cases  which  had  a  potential  impact  within  or  across  several  Member  States.  In 
addition, it appears that many mergers notified under Article 1(3) affect markets that 
are  wider  than  national,  which  makes  it  even  more  likely  that  they  have  a 

In 48 of the 72 cases notified under Article 1(3) in the two years 2007 and 2008 the Commission took a 
simplified decision which makes no reference to the geographic scope of the market. 
The fact that a concentration affects markets in more than one Member State is an indication that a case 
may benefit from a "one-stop-shop" treatment. However, this must be balanced against the advantages 
of allowing the most appropriate authority dealing with the case taking into account factors such as the 
NCAs knowledge of particular sectors and geographic proximity.  
Out  of  about  650  cases  notified  under  Article  1(2),  more  than  31  cases  were  closed  with  conditional 
clearances or were withdrawn/ aborted following a finding by DG COMP that there were competition 
problems  (22  after  Phase  1,  4  after  phase  2,  and  between  5  to  10  cases  aborted  for  reasons  of 
competition concerns). 

EN 

11 

  EN 

 
                                                 
Community dimension. Statistics also show that cases notified under Article 1(3) are 
as likely to raise competition concerns as those notified under Article 1(2).  

2.5.2.  Cases falling outside the scope of the EC Merger Regulation 

44. 

As noted, one important aspect of analysing the operation of the turnover thresholds 
is to analyse cases that remain outside the scope of the EC Merger Regulation. The 
following  section  will  examine  the  cases  which  are  still  notified  in  more  than  one 
Member State.  

2.5.2.1.  General statistics on multiple filings 

45. 

NCAs were asked to indicate how many of the concentrations which were reviewed 
under  their  relevant  national  merger  control  laws  during  the  year  2007  were  also 
reviewed in at least one other EU jurisdiction. Information received from the NCAs 
shows that at least 241 transactions were reviewed by more than one NCA.20 Filings 
were  made  in  three  or  more  Member  States  with  regard  to  102  (42%)  of  these 
transactions whilst the remaining transactions were reviewed in two Member States. 
The exact breakdown is shown in the chart below. 

Chart 1: Breakdown of multiple filing transactions by the number of Member States   

multiple filings

7 MS; 2; 1%

6 MS; 2; 1%

5 MS; 12; 5%

4 MS; 22; 9%

3 MS; 64; 27%

2 MS; 139; 57%

46. 

When  comparing  the  numbers  of  multiple  filings  to  the  total  number  of  cases 
reviewed by NCAs it appears that only 5% of all cases were reviewed by more than 
one NCA.21  

20 

21 

Member States reported a total of 935 cases that in their view were reviewed in at least one other EU 
jurisdiction. However, only for 663 of them was it possible to find a corresponding matching case in at 
least one other MS. These 663 cases formed part of a total of 241 transactions filed in more than one 
MS  (multiple  filings).  The  remaining  272  reported  cases  could  not  be  matched  with  any  case  from 
another  Member  State  and  therefore  were  not  considered  as  part  of  a  transaction  involving  multiple 
filings. More than half of these unrelated cases (149) were reported by Austria. 
For  the  year  2007,  NCAs  reported  a  total  of  5,129  cases  notified  or  reviewed  by  their  authority. 
Considering that 663 of them formed part of 241 multiple filing transaction, we calculated on the basis 
of: 5,129-663+241=4,707 cases. The original data of 5129 cases is heterogeneous in the sense that data 
for  Belgium  and  for  the  Slovak  Republic  refer  to  the  number  of  decisions,  while  data  for  Austria, 
Cyprus, and Ireland refer to the number of notifications. The numbers for the Czech Republic were not 
reported for 2007 and are assumed at equivalent levels of the earlier three years that were reported. 

EN 

12 

  EN 

 
 
 
                                                 
2.5.2.2.  Geographic scope of multiple filings 

47. 

As  regards  the  geographic  scope  of  multiple  filing  cases,  the  following  statistics 
(based on data provided by the NCAs) are indicative only, as the geographic scope of 
markets  was  often  not  reported  or  was  left  undefined.  Of  the  102  identified 
transactions  reviewed  by  three  or  more  NCAs,  as  many  as  54  transactions  (53%) 
involved markets which were wider than national or European-wide markets and 22 
transactions (22%) involved worldwide markets.22 By contrast, only 26 transactions 
were limited in their geographic scope to national markets (25%).  

2.5.2.3.  Substantive issues 

48. 

The  NCAs  reported  few  competition  problems  with  regard  to  multiple  filing 
transactions.  Indeed,  of  the  241  transactions  (which  gave  rise  to  a  total  of  663 
national cases) 10 transactions gave rise to competition concerns:  

•  One  transaction  was  prohibited  in  one  Member  State  after  an  in-depth 

investigation (a case reviewed by three NCAs); 

•  Three  transactions  led  to  a  clearance  conditional  on  remedies  after  phase  1 
investigations (two of these cases were reviewed by three NCAs and one reviewed 
by two NCAs);  

•  Two transactions were abandoned; 

•  Four cases underwent an in-depth investigation leading to a clearance decision. 

49. 

Of  the  in-depth  cases,  one  involved  five  NCAs,  one  involved  four  NCAs,  and  the 
other  two  involved  three  NCAs.  Hence,  overall  six  out  of  the  102  transactions 
involving the review by three or more NCAs seemed to have presented competition 
concerns. 

2.5.2.4.  Views expressed by stakeholders regarding multiple filings 

50. 

In the public consultation, interested parties were asked to indicate any concerns with 
respect  to  multiple  filings.  Many  respondents  pointed  out  that  the  issue of  multiple 
filings  must  be  assessed  against  the  background  of  diverging  jurisdictional, 
procedural and sometimes substantive rules in different Member States. In their view 
these divergences cause significant additional legal uncertainty, cost and delay when 
multiple filings are required. Some respondents also consider that there is not always 
a  harmonious  coexistence  of  national  rules  and  EC  rules.  They  would  therefore 
welcome further measures to reduce the number of multiple filings and, to the very 
least,  further  initiatives  by  the  Commission  to  foster  harmonisation  or  further  "soft 
law  convergence"  of  national  merger  control  laws  to  alleviate  the  negative 
consequences  of  parallel  proceedings.  Some  pointed  to  the  successful  initiatives 
towards further convergence in the area of the application of Article 81 and 82 which 

22 

The respective numbers for all 241 multiple filing transactions are: 69 transactions were limited in their 
geographic  scope  to  national  markets  (29%).  104  transactions  (43%)  involved  wider  than  national 
and/or  European-wide  markets,  and 42  transactions  (17%)  involved  even  worldwide  markets.  For  the 
remaining 26 transactions (11%) the geographic scope of the markets was not defined or not indicated. 

EN 

13 

  EN 

 
                                                 
resulted in the adoption of Regulation 1/2003 and the Commission's leniency model 
program as good role models.23  

2.5.2.5.  Commission assessment of multiple filings 

51. 

52. 

53. 

54. 

23 

24 

While NCAs may be the "more appropriately" placed authorities to assess individual 
national markets, this is not necessarily the case where multiple filings are required. 
In  fact,  cases  where  the  markets  are  national  in  scope  may  nevertheless  have  a 
Community relevance in view of the fact that the Commission may be well placed to 
make  a  comprehensive  assessment  of  competition  problems  within  several  markets 
and,  where  necessary,  take  remedial  action.  Also,  where  the  geographic  scope  of 
affected markets is wider than national, the likelihood of a case having a Community 
relevance is even greater. 

In  the  year  2007,  there  were  241  concentrations  that  were  reviewed  under  the 
competition laws of more than one Member State. 102 of these concentrations were 
reviewed by three or more NCAs (giving rise to about 360 parallel proceedings). The 
number  of  multiple  filings  clearly  exceeded  the  number  of  cases  notified  to  the 
Commission under Article 1(3) during the same period (i.e. 49 cases). This begs the 
question  whether  some  of  these  transactions  would  have  been  better  assessed 
exclusively by the Commission because of their potential competition impact within 
or across several Member States or simply because of the advantages of a "one-stop-
shop".  For  the  business  community,  the  costs  of  engaging  in  diverging  parallel 
proceedings  (with  their  different  procedural  frameworks,  different  time  schedules 
and  multiple  languages,  and,  at  times,  potentially  diverging  substantive  rules)  must 
be a consideration. 

Indeed, the vast majority of these cases included at least one market that was wider 
than national and often markets which were EEA-wide or worldwide in geographic 
scope.  If  only  25%  of  the  102  transactions  that  were  reviewed  in  three  or  more 
Member States were limited to national markets, then clearly a significant number of 
transactions  with  cross-border  effects  remain  outside  the  scope  of  the  EC  Merger 
Regulation.  

Furthermore,  about  5-6%  of  transactions  notified  in  more  than  one  Member  State 
presented  competition  problems  (10  out  of  241  concentrations,  or  6  out  of  102 
concentrations).  The  need  for  to  avoid  parallel  procedures  and  to  take  a  common 
approach  in  enforcement  is  even  more  compelling  in  such  cases,  especially  if 
remedies are required.24  

Many  stakeholders  consider  divergences  with  regard  to  the  following  parameters  to  be  particularly 
problematic  and  potential  sources  of  legal  uncertainty:  jurisdictional  thresholds  (turnover  vs.  market 
share),  the  definition  of  concentration  (e.g.  control  vs.  minority  shareholdings),  hold-separate 
obligation, derogations from hold-separate obligation, appeal, filing fees and review periods. 
While this is comparable to the percentage of cases with competition concerns that were notified under 
the EC Merger Regulation, which is in the order of 7%, no firm conclusions can be drawn from such 
comparison  in  light  of  the  fact  that  some  national  merger  control  regimes  have  very  low  notification 
thresholds  and  a  definition  of  concentration  which  is  wider  than  the  one  used  in  the  EC  Merger 
Regulation. For reference, in 2007, 402 notifications resulted in 1 prohibition, 4 conditional clearances 
after phase 2, 18 conditional clearances after phase 1, and 7 withdrawals. Furthermore, there were 5 full 
referrals to a MS under Article 4(4), 1 under Article 9, and 50 referrals to the Commission under Article 
4(5) and 2 full referrals under Article 22. 

EN 

14 

  EN 

 
                                                 
55. 

In conclusion, in its current form, Article 1(3) has not entirely removed the need for 
multiple filings. 

2.6. 

The application of the two-thirds rule 

2.6.1. 

Introduction 

56. 

Article 1 provides that transactions that fulfil the general turnover thresholds set out 
in paragraphs 2 and 3, are notifiable under the EC Merger Regulation unless each of 
at  least  two  of  the  parties  to  the  transaction  achieve  more  than  two  thirds  of  their 
aggregate Community wide turnover within one and the same Member State. Below 
is an analysis of to what extent this provision has distinguished between cases of a 
Community relevance and those with a clear national nexus only. 

2.6.2.  General statistics 

57. 

The number of cases that fell under the two-thirds rule for the period between 2001 
and 2007 are provided in the table below.25  
Table 2 Merger cases by Member State during the reference period 2001-200726 

Merger Cases Reviewed by NCAs 

2001 
- 
2005 
1,500 
285 

Na 

14 

274
15

2006  2007 
341
19
79
29

25

Na 

104 
70 
68 
406 
708 

61
6
34
39
142
6,250  1,829
13
43
98
717
27
61
Na 
12
135
265
67

76 
351 
212 
3,053 
22 
97 

13 
300 
574 
325 

Na 

60
13
34
35
160
2,240
17
46
72
864
78
78
Na 
5
108
263
91

Austria 
Belgium 
Bulgaria*** 
Cyprus* 
Czech 
Republic**** 
Denmark 
Estonia* 
Finland 
France 
Germany 
Greece 
Hungary* 
Ireland 
Italy 
Latvia* 
Lithuania* 
Luxemburg***** 
Malta* 
Netherland** 
Poland* 
Portugal 

Total No. of 
Cases 
Reviewed 

No. of 2/3 
Rule 
Cases 

2/3 Rule 
Cases 
as % of 
Total 

2,115
319
79
68

225
89
136
480
1,010
10,319
106
440
382
4,634
127
236

Na 

Na 

30
543
1,102
483

2 
1 
0 
0 

0 
0 
0 
5 
27 
17 
2 
0 
0 
34 
0 
0 

0 
11 
2 
0 

0.1
0.3
0.0
0.0

0.0
0.0
0.0
1.0
2.7
0.2
1.9
0.0
0.0
0.7
0.0
0.0

0.0
2.0
0.2
0.0

Na 

25 

26 

The  reference  period  for  this  assessment  has  been  extended  back  to  2001  in  order  to  have  a 
comprehensive view on the operation of this threshold. 
This table contains the number of concentrations reviewed, except for Belgium and the Slovak Republic 
where data refer to the number of decisions taken, while data for Austria, Cyprus, and Ireland refer to 
the number of notifications received. 

EN 

15 

  EN 

 
 
 
                                                 
Merger Cases Reviewed by NCAs 

2001 
- 
2005 
280 

2006  2007 
45

106

107 
252 
464 
385 

42
47
132
113

49
50
127
110

116
Total  16,916  4,458 5,129

1,000 

155

Romania*** 
Slovak 
Republic* 
Slovenia* 
Spain 
Sweden 
United 
Kingdom 

Total No. of 
Cases 
Reviewed 

No. of 2/3 
Rule 
Cases 

2/3 Rule 
Cases 
as % of 
Total 

431

198
349
723
608

0 

0 
0 
14 
4 

0.0

0.0
0.0
1.9
0.7

1,271
26,503

7 
126 

0.6
0.5%

01.05.2004 – 31.12.2007 
01.01.2002 – 31.12.2007 

* 
** 
***  year 2007 only 
****  number of cases in 2007 based on extrapolation of previous years 
*****no merger control regime 

58. 

As  can  be  seen  from  the  above  table,  there  were  at  least  126  cases  that  qualified 
under the two-thirds rule threshold during the reference period. These cases therefore 
represent a very small proportion (at least around 0.5%) of the total case load at the 
Member  State  level  of  about  26,500  cases.  These  statistics  should  be  viewed  with 
some  caution.  In  fact,  many  Member  States  did  not  keep  record  of  the  number  of 
two-thirds  rule  cases  prior  to  2004.  Given  the  incomplete  data  available  prior  to 
2004,27 it is difficult to be precise about the exact number of cases falling into this 
category.  If  anything,  the  data  underestimates  the  total  number  of  two-thirds  rule 
cases. For the same reason, it is difficult to draw any firm conclusions as to trends 
over  time  with  respect  to  the  number  of  two-thirds  rule  cases.  Nevertheless,  since 
2005  more  than  20  cases  per  annum  have  been  reported.  An  overview  of  all  two-
thirds rule cases reported between 2001 and 2007 is provided in Annex 3.  

27 

Prior to 2005, data with regard to the number of two-thirds rule cases are incomplete or non-existent for 
Austria,  the  Czech  Republic,  Ireland,  Italy,  Germany,  Poland  and  the  UK.  Several  Member  States, 
Czech  Republic,  Cyprus,  Denmark,  Estonia,  Greece,  Hungary,  Ireland,  Lithuania,  Malta,  Poland, 
Slovakia and Slovenia, had no two-thirds cases prior to 2005. Latvia, did not provide information. As 
from 2005 all Member States notification forms request all information necessary for the assessment as 
to whether the two-thirds rule is fulfilled. 

EN 

16 

  EN 

 
 
 
 
                                                 
Chart 2: Annual overview two-thirds rule cases per Member State              

12

10

8

6

4

2

0

Austria

Belgium

Finland

France

Germany

Greece

Italy

Netherlands

Poland

Spain

Sw eden

United
Kingdom

2001

2002

2003

2004

2005

2006

2007

59. 

60. 

As  can  be  seen  from  the  above  chart,  the  number  of  two-thirds  rule  cases  varies 
significantly  by  year  and  by  Member  State.  Nevertheless,  these  data  clearly  show 
that  as  a  whole,  and  with  few  exceptions,  the  two-thirds  rule  is  mainly  applicable 
with  regard  to  the  larger  Member  States.  In  fact,  over  the  six  year  period,  France, 
Germany,  Italy  and  Spain  are  the  Member  States  with  the  largest  number  of  such 
cases.28  This  is  a  result  of  the  design  of  this  threshold.  It  is  generally  unlikely  that 
two of the parties to the transaction would meet the general thresholds provided for 
by Article 1 while still having two thirds of their turnover in a small Member State. 
As  regards  the  economic  sectors  where  this  rule  applied,  the  most  important  are 
financial services (33 %), followed by energy (10 %) and telecommunications (6 %).  

Concerning  the  geographic  scope  of  the  markets  analysed,  as  seen  from  the  chart 
below,  in  most  of  the  126  cases  the  relevant  market  was  defined  as  national  or 
narrower.  In  only  12  cases  (i.e.  10%),  the  geographic  market  was  defined  as  wider 
than  national  or  EEA-wide.  Five  of  these  cases  involved  mergers  in  the  financial 
services  sector  and  three  concerned  mergers  in  the  energy  sector.  The  other  cases 
concerned  mergers  in  various  sectors  such  as  e-commerce,  the  air-transport 
supporting services sector, chemicals and automotive. 

28 

Data with regard to the UK prior to 2006 is not available. 

EN 

17 

  EN 

 
 
 
 
 
                                                 
Chart 3: Geographic scope of two-thirds rule cases 

scope of geographic 
market not defined; 
21; 17%

at least one market 
wider than national; 
12; 10%

market national or 
narrower; 90; 73%

61. 

Out  of  total  reported  two-thirds  rule  cases,  only  13  (around  10  %)  are  reported  to 
have involved filings in one or more additional Member States.29 Half of these cases 
related to the financial services sector while the remaining cases were evenly spread 
across different sectors.  

2.6.3.  Procedure and outcome  

62. 

As  regards  procedures  and  outcome  of  the  review,  the  table  below  shows  that  17 
cases (about 13%) were subject to in-depth investigation between 2001 and 2007. As 
regards  regulatory  intervention,  one  concentration  was  prohibited  and  11  were 
conditionally cleared (about 10% of total cases).  

Table 4: Two-thirds rule cases: Procedures and outcome  

Investigation 
first 
phase 
109 
83% 

in-
depth 
17 
13% 

Outcome 

clearance 

clearance with
remedies 

prohibition withdrawal  other

107
82%

11
8%

1
1%

3 
2% 

4
3%

2.6.4.  Comments by the NCAs 

63. 

Most  NCAs  express  satisfaction  with  the  way  the  two-thirds  rule  has  operated. 
However,  a  few  respondents  consider  that  the  two-thirds  rule  may  not  always 
appropriately  allocate  cases  between  the  EU  level  and  the  Member  State  level.  In 
particular,  one  respondent  acknowledged  that  the  current  regime  of  case  allocation 
could  (in  particular  circumstances  and  in  certain  sectors)  prevent  the  Commission 
from  accomplishing  its  obligations  in  the  construction  of  the  single  market. 
Therefore, it would not oppose the adoption of additional jurisdictional safeguards to 
ensure  that  the  internal  market  is  not  compromised,  in  particular  in  relation  to 

29 

In some case, the number of total filings could not be confirmed given that data was not on record.  

EN 

18 

  EN 

 
 
 
 
                                                 
mergers  within  recently  liberalised  sectors  (e.g.  the  energy  sector),  some  of  where 
favouring of national champions has been an issue.  

2.6.5.  Comments by the stakeholders 

64. 

65. 

66. 

The  majority  of  respondents  did  not  express  concerns  about  the  two-thirds  rule.  A 
few respondents consider it to be a useful tool to single out transactions that do not 
have a Community relevance.30  

Nevertheless,  some  respondents  consider  that  as  a  result  of  increased  market 
integration  this  provision  is  outdated.  In  fact,  it  is  seen  as  capturing  cases  which, 
although  having  a  focus  in  a  particular  Member  State,  have  potentially  important 
effects  within  the  Common  Market.  For  example  in  the  energy  sector  (which  they 
note is becoming increasingly integrated and liberalised) there could be an important 
risk  of  foreclosure  of  markets  if  two  major  energy  providers  in  already  highly 
concentrated  markets  are  allowed  to  merge.  In  the  view  of  some  respondents,  the 
Commission  would  therefore  be  better  placed  to  review  such  cases.  A  few 
respondents also expressed the concern that, in some circumstances, national merger 
control laws have been applied in potential conflict with competition law objectives 
with regard to mergers of strategic importance that fell under this threshold.  

Some respondents would therefore be in favour of abolishing this provision. Many of 
them pointed to the availability of referral mechanisms, which in their view provide a 
more suitable mechanism for adjusting the allocation of cases when it is clear that a 
case  has  a  purely  national  nexus.  Finally,  a  few  respondents  consider  that  the  two-
thirds provision serves its purpose but that it could be modified to allow for a better 
calibration in the selection of cases that do not have a Community relevance.31 

2.6.6.  Assessment of the operation of the two-thirds rule 

67. 

68. 

30 

31 

Having regard to the small number of cases involving multiple filings and their likely 
impact  based  on  geographic  scope,  one  can  conclude  that,  in  most  cases  the  two-
thirds rule appears to have served as a reasonably effective proxy for identifying the 
"more appropriate" jurisdiction.  

However,  there  is  a  small  number  of  important  merger  cases  having  a  potentially 
significant cross-border impact (even in some cases where the market was defined as 
national in scope) which, as a consequence of the application of the two-thirds rule 
were examined by the NCAs. In addition, the jurisdictional aspects of the two-thirds 
rule,  i.e.  the  way  it  has  allocated  cases  between  the  Community  level  and  the 
Member  State  level,  cannot  be  assessed  in  isolation  from  how  the  cases  that  fall 
under this threshold are liable to be handled in a substantive respect.  

One  respondent  noted  that,  absent  the  two-thirds  rule,  many  cases  with  their  centre  of  gravity  in  one 
Member State would anyway be referred back to that Member State and took the view that, as referral 
processes can be time-consuming and cumbersome it is preferable for the jurisdiction to be established 
at the outset. 
For example, it has been suggested that an additional threshold should be added to pre-empt cases with 
effects  outside  the  territory  to  be  reviewed  at  the  national  level.  Thus  in  addition  to  the  existing 
thresholds,  it  should  also  be  required  that  neither  party  to  the  transaction  achieves  more  than  250 
million Euros elsewhere in the EU. 

EN 

19 

  EN 

 
                                                 
69. 

70. 

It is unavoidable that some of the transactions between large firms falling under the 
two-thirds rule are capable of having a significant impact on market structures and on 
competition  beyond  the  confines  of  a  single  Member  State.  In  fact,  mergers 
involving national markets but which, due in particular to high concentration levels 
as  well  as  entry  barriers,  may  result  in  increased foreclosure  effects, clearly  have a 
cross-border  impact.  Cases  with  cross-border  effects  are  of  particular  importance 
from a Community perspective if they concern markets which are in the process of 
Community-driven  liberalisation  or  where  intra-EU  barriers  are  being  eroded.  The 
geographic  scope  of  such  markets  may  be  in  the  process  of  evolving  towards  a 
dimension which is wider than national, or Community-wide, in scope. Furthermore, 
mergers  giving  rise  to  possible  competition  concerns  in  a  series  of  national  or 
regional  markets  or  being  subject  to  multiple  filings  may  also  be  considered  cross-
border in their impact. 

These  considerations  are  well  illustrated  by  some  recent  cases  in  the  energy  sector 
(which represents the second largest portion of two-thirds rule cases). In cases such 
as  Eon/Ruhrgas,32  Gas  Natural/Endesa,33  Gas  Natural/Iberdrola34  and  a  recent 
transaction involving around 10 electricity producers and distributors in Poland,35 the 
competition  structure  of  the  whole  national  market  was  substantially  affected.  In 
these types of cases potential effects on cross-border trade cannot be excluded. These 
examples also indicate that the two-thirds rule has sometimes functioned in a way to 
allocate  jurisdiction  to  the  NCAs  in  cases  of  domestic  energy  mergers  within  the 
larger  Member  States.  In  fact,  it  appears  somewhat  paradoxical  that  in  the  same 
sector  and  over  the  same  time  period,  similar  operations  (but  taking  place  in  other 
parts  of  the  EU)  did  not  fall  under  the  two-thirds  rule  and  were  assessed  by  the 
the  EDP/ENI/GDP,36  EON/MOL,37 
Commission.  Significant  examples  are 
DONG/Elsam/Energi E2,38 and the GDF/Suez cases.39  

71. 

It  goes  beyond  the  scope  and  purpose  of  the  report  to  examine  the  merits  of  these 
cases or whether it would be necessary, appropriate or possible to take measures at 
Community  level.  In  any  case,  for  future  reference  it  may  be  a  useful  exercise  to 
analyse the need for and the possibilities of introducing more  efficient  and  flexible 
mechanisms for the re-allocation of certain two-thirds rule cases than those currently 
provided by the EC Merger Regulation. 

2.6.7. 

Some  recent  developments with regard to  cases  falling or  potentially  falling within 
the scope of the two-thirds rule  

72. 

32 
33 
34 
35 
36 
37 
38 
39 

Some  recent  developments  at  the  national  level  deserve  particular  attention.  For 
instance, it appears that in the above-mentioned Polish energy case, the NCA found 
that the transaction would lead to dominance in several markets (both with regard to 
the  supply  and  wholesale  of  electricity).  However,  for  reasons  notably  of  ensuring 
security of supply of energy, the transaction was eventually approved. While mostly 

Case B8 - 109/01. 
N-05082 GAS NATURAL / ENDESA. 
N-03012 GAS NATURAL / IBERDROLA.  
Case DOK-163/2006 dated 22.12.2007.  
Case M.3440, Commission decision of 9 December 2004. 
Case M.3696, Commission decision of 21 December 2005. 
Case M.3868, Commission decision of 14 March 2006. 
Case M.4180 Commission decision of 14 November 2006 

EN 

20 

  EN 

 
                                                 
involving national or narrower markets, the impact of such mergers would appear to 
have  effects  beyond  the  territory  of  that  Member  State  as  a  result  of  maintained  or 
reinforced entry barriers in the energy sector across national borders. 

Similar  considerations  applied  in  the  Lloyds  TSB/HBOS-case,40  where  the  OFT 
reviewed  the  transaction  and  recommended  its  referral  to  the  UK  Competition 
Commission in view of the potential competition concerns raised. This concentration 
appeared to have its main effects in the UK retail banking sector, but there may be a 
risk of foreclosure effects in the supply of retail banking services generally because 
of  the  very  significant  concentration  level  that  resulted  from  the  transaction  along 
with  the  potential  increase  of  entry  barriers.  However,  the  UK  Secretary  of  State 
exercised  statutory  powers41  to  intervene  and  decided,  on  the  basis  of  financial 
the  Competition 
stability  considerations,  not 
Commission.  

the  concentration 

to  refer 

to 

There have also been situations where the NCA may not have been in a position to 
carry  out  an  effective  review.  In  the  CAI/Alitalia/AirOne-case,  which  concerned  a 
proposed  restructuring  of  Alitalia's  and  AirOne's  air  transportation  activities,  the 
Italian NCA was barred by decree from carrying out a review of the case under the 
normal procedure provided for by the relevant legislation. The only remedial powers 
left  with  the  NCA  were  those  of  imposing  behavioural  commitments  in  case 
competition concern should arise.42 

Finally,  in  some  Member  States,  specific  legislation  introduced  to  deal  with  the 
financial  crisis  has  excluded  certain  State  rescue  measures  within  the  financial 
services industry from the scope of application of national merger regimes. In certain 
instances  the  applicability  of  antitrust  law  has  also  been  limited.  The  following 
examples bear mention. 

In Germany, national merger control is suspended for operations within the scope of 
the  Financial  Market  Stabilisation  Act43  which  covers  financial  institutions. 
However,  this  does  not  exclude  merger  control  being  applied  to  operations  by  the 
Federal states and by foreign states, as those measures do not fall under this Act.  

Similar initiatives were reported in Ireland, under the Anglo Irish Bank Corporation 
Act.44 Also in Portugal, national merger control has been rendered inapplicable on a 
temporary  basis  in  respect  of  nationalisations  of  financial  institutions,  and  onward 

Decision by the Secretary of State for Business, not to refer to the Competition Commission the merger 
between Lloyds TSB Group plc and HBOS plc under Section 45 of the Enterprise Act 2002 dated 31 
October 2008.  
Changes  were  introduced  in  the  Competition  Act  to  allow  the  Secretary  of  State  to  overrule  any 
recommendation  to  refer  a  case  to  the  Competition  Commission  on  financial  stability  grounds,  thus 
effectively giving the Government the final say on any merger matter in this area. 
Only if the entity would still enjoy a "monopoly" position by 2011, the NCA will be in a position to 
impose structural remedies. 
Gesetz  zur  Umsetzung  eines  Maßnahmenpaketes  zur  Stabilisierung  des  Finanzmarktes 
(Finanzmarktstabilisierungsgesetz – "FMStG"), Bundesgesetzblatt Jahrgang 2008 Teil I Nr. 46 vom 17. 
Oktober  2008;  The  application  of  national  merger  control  to  operations  within  the  scope  of  the 
Financial Market Stabilisation Act is excluded by Art. 2 § 17 FMStG.  
Section 15, §1 explicitly disapplies Parts 2 and 3 of the Competition Act 2002 to the acquisition by the 
Minister, or the transfer by the Minister to the Minister’s nominee, of shares in Anglo Irish Bank under 
the Act.  

73. 

74. 

75. 

76. 

77. 

40 

41 

42 

43 

44 

EN 

21 

  EN 

 
                                                 
sale  by  the  State  of  the  same  undertakings  is  also  exempt  from  the  standstill 
obligation under national merger control law.45 

78. 

It is desirable that, independently of which authority is the reviewing agency, merger 
control across the EU ensures the protection of undistorted competition.  

2.7. 

Conclusion on the operation of the thresholds 

79. 

80. 

81. 

82. 

83. 

45 

In conclusion, it appears that the threshold criteria in Article 1(2) and 1(3), seen in 
conjunction  with  the  various  referral  mechanisms,  operate  in  a  satisfactory  way  in 
allocating  jurisdiction.  In  fact,  based  on  the  Commission's  own  experience  and  the 
views expressed by NCAs and stakeholders there appears to be a consensus that the 
right cases are generally being reviewed at the Community level. The low degree of 
referrals in the direction of the Member States also supports this conclusion.  

However,  the  analysis  of  data  on  multiple  filings  provided  by  the  NCAs  indicates 
that  in  the  year  2007,  some  102  multiple  filing  cases  had  to  be  notified  in  three  or 
more Member States. The analysis of the geographic scope of these cases indicates 
that a large majority of them include markets which are wider than national. 

One  can  therefore  conclude  that  a  number  of  transactions  with  significant  cross-
border effects (and therefore having Community relevance) would appear to remain 
outside the scope of the EC Merger Regulation. As has been pointed out in numerous 
ways by the respondents to the public consultation, any perceived need to change or 
amend  the  current  turnover  thresholds  must  be  assessed  in  the  context  of  the 
corrective  mechanisms  provided  for  by  the  EC  Merger  Regulation.  As  will  be 
discussed in Part II, in many stakeholders view, although the turnover thresholds do 
not always distinguish cases that have Community relevance from those that do not, 
this  could  be  alleviated  by  the  existence  of  efficient  pre-notification  referral 
mechanisms between the national level and the Community level.  

The  two-thirds  rule  has,  in  most  cases  appropriately  distinguished  between 
concentrations  having  Community  relevance  and  those  that  do  not.  However,  there 
are  a  small  number  of  cases  with  potential  cross-border  effects  in  the  Community. 
More generally, it is desirable that, independently of which authority is the reviewing 
agency,  merger  control  across  the  EU  ensures  the  protection  of  undistorted 
competition. 

Finally,  the  majority  of  stakeholders  have  indicated  that,  generally,  increased 
convergence of merger control rules at the national level and between the EU level 
and the national level of the like achieved in the antitrust field would be an important 
way to improve the effectiveness of the merger control system across the EU. 

Lei nº 63-A/2008 of 24 of November published in DR 1ª série-Nº228-24 de Novembro de 2008. Article 
20 (1) renders merger control inapplicable to nationalizations of the type defined in Article 2.1, which is 
applicable  only  until  31st  December  2009.  Article  20  (3)  provides  that  the  sell  on  by  the  State  of 
financial  institutions  nationalized  in  order  to  ensure  that  the  legal  requirements  on  solvability  and 
liquidity are met is not subject to the stand still obligation provided for in national merger legislation. 

EN 

22 

  EN 

 
                                                 
3. 

84. 

PART II - REFERRAL MECHANISMS 

PRE-NOTIFICATION REFERRALS 

With the adoption of the revised EC Merger Regulation in 2004, a set of voluntary 
pre-notification referral mechanisms were introduced in order to "further improve the 
efficiency  of  the  system  for  the  control  of  concentrations  within  the  Community."46 
The principles guiding the system where those that decisions taken with regard to the 
referral of cases should take due account "in particular which is the authority more 
appropriate for carrying out the investigation, the benefits inherent in a "one-stop-
shop" system, and the importance of legal certainty with regard to jurisdiction."47 In 
the  following,  the  operation  of  the  pre-notification  referral  mechanisms  after  five 
years of application will be examined considering these guiding principles.  

3.1. 

Referrals under Article 4(4) 

85. 

Article  4(4)  of  the  EC  Merger  Regulation  provides  a  mechanism  allowing 
concentrations that are notifiable under the EC Merger Regulation to be referred to 
the  Member  States  at  the  request  of  the  parties  if  certain  conditions  are  fulfilled. 
Namely, unless the Member State disagrees, the Commission, when it considers that 
the concentration may significantly affect competition in a market within a Member 
State which presents all the characteristics of a distinct market, may decide to refer 
the whole or part of the case to the competent authorities of that Member State with a 
view  to  the  application  of  that  State's  national  competition  law.  The  application  of 
this  provision  is  examined  in  the  following  on  the  basis  of  quantitative  and 
qualitative elements.  

3.1.1. 

Statistics of a general nature 

3.1.1.1.  Cases referred – geographic and sectorial scope 

86. 

The  number  of  referrals  on  the  basis  of  this  provision  is  illustrated  by  the  chart 
below. 

46 
47 

Recital 16 of the EC Merger Regulation. 
Commission Notice on Case Referral in respect of concentrations, Official Journal C 56, 05.03.2005, p. 
2-23, paragraph 8. 

EN 

23 

  EN 

 
 
                                                 
Chart 4: Article 4(4) referrals per year (2004-2008) 

Number of referrals per year

4(4)

16

14

12

10

8

6

4

2

0

2004

2005

2006

2007

2008

87. 

The  above  chart  serves  to  illustrate  that  between  2004  and  2008,  43  Article  4(4) 
referrals  were  requested  of  which  one  was  refused  and  two  were  withdrawn.  Apart 
from of one partial referral, in all the 40 cases the entire case was referred to one or 
exceptionally  two  Member  States.  The  flow  of  referrals  over  the  period  has  been 
volatile,  with  only  two  referrals  in  2004  while  reaching  a  peak  in  2006  with  13 
referrals. The major recipients of Article 4(4) referrals cases were the UK, followed 
by Germany and France. An overview of referrals by country is provided in the chart 
below. 

Chart 5: Article 4(4) referrals per Member State (2004-2008) 

Distribution of referrals per MS
4(4)

Other
4

ES
3

IT
3

DK
3

NL
3

FR
5

UK
11

DE
8

88. 

With  respect  to  the  geographic  scope,  the  overwhelming  majority  of  referral  cases 
involve markets that are clearly national in scope. In fact, between 2004 and 2007, all 
cases involved at least one or more local or national markets. Conversely, only three 
cases (or less than 10%) involved at least one market broader than national or EEA-

EN 

24 

  EN 

 
 
 
 
 
wide.  These  statistics  provide  a  good  indication  that  from  the  point  of  view  of 
geographic  scope  of  the  markets  involved,  the  appropriate  kind  of  cases  are  being 
referred to the Member States.48 In fact, it is clear from these cases that their locus 
was essentially within individual Member States.  

89. 

As  regards  the  sectors  involved,  no  particular  sector  can  be  singled  out  as  being 
particularly prone to referral cases. There is a wide spectrum of industries where the 
parties have chosen this mechanism, notably in relation to consumer goods, food and 
drink and pharmaceuticals. 

3.1.1.2.  Procedure, outcome and review periods 

90. 

Over  the  period  between  2004  and  2007,  about  a  third  of  the  decisions  were  taken 
after an in-depth procedure and the remaining decisions where adopted in phase I. As 
illustrated  by  the  chart  below,  only  one  case  led  to  a  prohibition  decision,  whereas 
about a third of the cases led to conditional clearances. 

Chart 6: Outcome of Article 4(4) referral decisions (2004-2008) 

Distribution of outcome
4(4)

Prohibition
3%

Conditional 
clearance
34%

Clearance
63%

91. 

Statistics with regard to the duration of review periods is set out in the chart below. 
Based  on  a  study  of  cases  between  2004  and  2007,  the  median  review  period  for 
referral cases subject to first phase proceedings was 61 to 70 working days from the 
submission  of  the  Form  RS  to  the  adoption  of  a  decision.  For  in-depth  cases,  the 
equivalent time period was 101 to 110 days. These statistics do not take into account 
pre-notification  discussions  prior  to  submission  of  the  Form  RS.  Many  factors  will 
influence the total length of the review period, for example the time it takes between 
receipt  of  the  submission  by  the  Member  States  and  the  moment  when  referral  is 
decided upon as well as when a complete filing is submitted before the NCA. 

48 

Geographic scope of market being one among other factors in assessing the competitive impact within 
any given jurisdiction of any given concentration, and the competition authority's ability to assess such 
impact and, where necessary, impose remedies. 

EN 

25 

  EN 

 
 
 
                                                 
Chart 7: Case duration of Article 4(4) referrals (2004-2007) 

Distribution of case duration
4(4)

30%

20%

10%

0%

indepth

not-indepth

<= 30  31 to

40

 41 to
50

 51 to
60

 61 to
70

 71 to
80

 81 to
90

 91 to
100

 101 to
110

 111 to
120

 121 to
130

 131 to
140

 141 to
150

>= 151

Working days

3.1.2.  Assessment of the functioning of the referral system under Article 4(4) 

92. 

The  NCAs  of  the  Member  States  and  stake  holders  were  invited  to  express  their 
views generally on the functioning of Article 4(4) (see questionnaires in Annexes 1-
2). Their answers and general comments are summarised in the following.  

3.1.3.  Views expressed by the NCAs  

93. 

94. 

Among the NCAs, there appears to be a consensus that the referral system provided 
by Article 4(4) generally functions effectively as a means of re-allocating "original" 
jurisdiction from the Community level to the national level on the basis that a case is 
more appropriately dealt with in the national jurisdiction. The objection was however 
raised by one respondent that the conditions for when referral is available could be 
clarified  by  reference  to  their  impact  on  any  given  market.  No  respondent  rejected 
the proposition that the right kind of cases are being referred to the Member States in 
terms  of  their  likely  impact  on  competition  and  in  terms  of  the  likely  geographic 
scope of any such impact.  

Most NCAs consider that the current referral system under Article 4(4) is functioning 
as  effectively  as  it  could  in  a  procedural  respect.  A  few  respondents  however 
expressed the view that there is scope for shortening the deadlines at least as regards 
the  Commission  while  one  respondent  would  not  oppose  such  shortening. 
Nevertheless,  the  general  view  is  that  the  time  periods  attributed  to  the  member 
States  are  necessary  for  an  examination  of  the  submission  and  an  internal 
consultation within the competent competition agency and government bodies.  

EN 

26 

  EN 

 
 
 
3.1.4.  Views expressed by the stakeholders 

95. 

96. 

97. 

98. 

99. 

Virtually all respondents consider that the introduction of a pre-notification referral 
system,  both  as  regards  referrals  to  and  from  the  Commission,  is  a  welcome 
mechanism  that  has  considerably  enhanced  the  flexibility  of  merger  control  within 
the Community. 

Nevertheless, there are a number of issues which are cause for concern. According to 
some respondents, the wording of the condition that a referral to the Member States 
is  available  when  a  transaction  is  likely  to  "significantly  affect  competition"  within 
one Member State provided for by Article 4(4) acts as a disincentive to making such 
a request. Notwithstanding the fact that the effect on competition must not be adverse 
as  clarified  in  the  referral  notice,  it  may  be  perceived  as  somewhat  "self 
incriminating" giving rise, therefore, to a presumption that a transaction is harmful to 
competition.  It  has  been  suggested  that  this  may  be  a  factor  contributing  to  the 
limited  flow  of  cases  to  the  Member  States  compared  to  the  opposite  direction. 
Therefore, some would welcome that this part of the test is abolished or that at least a 
more neutral language is used. For example, some propose that it should be sufficient 
to establish that the concentration "has effects" in a distinct market within a Member 
State. 

Many  respondents  would  also  welcome  more  guidance  as  regards  the  motives  for 
either the Member States or the Commission accepting or refusing a referral. In fact, 
the set of indicative factors for when a referral is appropriate as set out in the referral 
notice are in many respondents' view not put into practice. Also, since the Member 
State's  decision  whether  to  accept  or  to  refuse  a  referral  are  neither  reasoned  nor 
published there is a perceived lack of transparency which makes it difficult to predict 
whether  a  referral  will  take  place  or  not.  This  uncertainty  surrounding  whether  a 
referral will eventually be accepted is therefore a source of legal uncertainty. 

As regards the procedure, most respondents expressed the view that the length of the 
process and the amount of information requested in the Form RS, are an important 
disincentive  for  the  parties  to  request  referrals.  Many  respondents  consider  it 
unfortunate  and  unjustified  that  it  takes  the  same  time  to  decide  on  a  referral  as  it 
takes to decide on the substance in first phase case with the Commission. Therefore, 
it  has  been  suggested  that  the  parties  often  chose  to  remain  with  the  Commission 
even  though  the  concentration  would  be  more  appropriately  reviewed  at  a  national 
level. Thus virtually all respondents would welcome a shortening of the 15 working 
days  available  to  the  Member  States  and  the  10  working  days  available  to  the 
Commission. 

Furthermore, many respondents consider that the starting date of the 25 working days 
period within which a referral decision must be taken is unclear. In starts only from 
the moment when the Member States receive the referral request. However, there is 
no clearly defined timeframe within which the Commission must transfer the request 
to the Member States (the Commission must do so "without delay"). As a result, the 
overall timing of the review process is unpredictable. It has therefore been proposed 
that  this  provision  be  modified  to  specify  the  time  limit  within  which  the 
Commission  must  send  the  referral  request  to  the  Member  States,  or  alternatively, 
that the time period should start running from the moment the Commission receives 
the Form RS.  

EN 

27 

  EN 

 
100. 

An additional cause for concern relates to the scope of the information requested for 
the  referral  assessment.  Virtually  all  respondents  consider  that  the  amount  of 
information  requested  in  the  Form  RS  (according  to  some  respondents,  fully 
comparable  to  the  volume  of  information  requested  in  a  full  Form  CO)  is 
disproportionate for the purpose of the jurisdictional assessment. Various proposals 
have been presented in order to address this. Some respondents would be in favour of 
decreasing  the  amount  of  information  requested  in  the  Form  RS.  Others  have 
proposed that the Form RS should be considered sufficient to comply with national 
notification  requirements,  in  order  to  avoid  losing  time  when  converting  it  into  a 
national filing.  

101. 

It  has  been  suggested  that  such  measures  would  make  referrals  a  more  attractive 
option  and  that  the  principle  of  "more  appropriate  authority"  would  be  better 
fulfilled. 

EN 

28 

  EN 

 
3.2. 

Referrals under Article 4(5) 

102. 

Article  4(5)  of  the  EC  Merger  Regulation  provides  a  voluntary  mechanism  in  the 
hands  of  the  parties  which  allows  for  concentrations  which  do  not  meet  the 
thresholds  under  Article  1  and  which  are  capable  of  being  reviewed  under  the 
national  competition  laws  of  at  least  three  Member  States  to  be  referred  to  the 
Commission unless any Member State competent to examine the concentration under 
its  national  competition  law  expresses  its  disagreement.  In  the  absence  of  such 
disagreement  the  concentration  is  deemed  to  have  a  Community  relevance  and  is 
thus referred to the Commission. The application of this provision is examined in the 
following on the basis of quantitative and qualitative elements.  

3.2.1. 

Statistics of a general nature 

3.2.1.1.  Cases referred – geographic and sectorial scope  

103. 

The number of referrals made on the basis of this provision is illustrated by the chart 
below. 

Chart 8: Article 4(5) referrals per year (2004-2008) 

Number of  referrals per year
4(5)

60

50

40

30

20

10

0

2004

2005

2006

2007

2008

104. 

The  chart  below  serves  to  illustrate  that  between  2004  and  2008,  160  Article  4(5) 
referrals  were  requested  of  which  151  were  granted,  five  were  withdrawn  and  four 
were  refused.  The  trend  over  the  reference  period  has  also  been  towards  the 
increasing  use  of  this  mechanism  in  line  with  increased  merger  activity  in  general: 
from only 24 referrals in 2005 to 39 in 2006 and 50 in 2007. However, there has been 
an important decrease in 2008 with only 22 referrals (again in line with the general 
decrease of merger activity). Overall,  Article 4(5)  cases represented almost 10% of 
the Commission's total merger case load over the reference period. 

EN 

29 

  EN 

 
 
 
Chart 9: Article 4(5) referrals: Notification requirements per Member State (2004- 

%  of cases notifiable to each MS

4(5)

2008)

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

AT BE BU CY CZ DE DK EL ES ES FI FR HU IE IT LT LU LV MT NL PL PT RO SE SK SL UK

105. 

As  can  be  seen  from  the  figure  above,  the  countries  which  is  the  largest  source  of 
referrals  under  Article  4(5)  is  Germany  which  between  2004  and  2008  was  among 
the  referring  jurisdictions in 94% of  the cases followed by Austria (66%) and Italy 
(51%). As regards the number of jurisdictions in which the thresholds were met, the 
median  transaction  was  notifiable  in  five  countries.  There  is  however  a  large 
variation  between  transactions.  Notification  was  required  in  five  Member  States  in 
25% of cases and in 10 or more Member States in 10% of the cases as illustrated by 
the below chart. 

EN 

30 

  EN 

 
 
Chart 10: Article 4(5) referrals: Notification requirements per transaction (2004-

Distribution of notifiable Member States
4(5)

2008) 

30%

20%

10%

0%

 3

 4

 5

 6

 7

 8

 9

 10

 11

 12

 13

 14

 16 >= 17

Number of Member States

106. 

107. 

108. 

As  noted,  only  four  referrals  were  refused  during  the  reference  period.  The 
significance  of  the  low  number  of  refusals  should  be  treated  with  some  caution.  In 
fact, it may be the case that the parties to a transaction whose centre of gravity is in a 
certain  Member  State  may  choose  not  to  use  the  Article  4(5)  route  unless  they  are 
sure  that  the  competent  authorities  of  that  Member  State  would  not  oppose  the 
referral.  Also,  anecdotal  evidence  suggests  that  there  are  cases  were  the  Member 
States  manifested  their  disapproval  on  an  informal  basis  in  pre-notification 
discussions. Therefore, it is likely that the total number of effective refusals exceeds 
those  arising  formally  under  Article  4(5).  The  precise  extent  of  this  practice  is 
unknown. 

As  regards  the  geographic  scope,  the  overwhelming  majority  of  referral  cases 
involve markets which are broader than national. In 2007, 30 cases involved markets 
that were broader than national (i.e. possibly EEA-wide or Global). Conversely, only 
4%  of  the  cases  involved  markets  that  are  national  or  narrower  in  scope  (the 
remaining cases being national or broader in scope). These statistics provide a good 
indication that from the point of view of the geographic scope of markets involved, 
the appropriate kind of cases have been referred to the Commission.49 

As  regards  sectors  involved,  no  particular  economic  sector  can  be  singled  out  as 
being  particularly  prone  to  referral  cases.  There  is  a  wide  spectrum  of  industries 
where  the  parties  have  often  chosen  this  mechanism  most  notably  in  area  such  as 
telecommunications,  chemicals,  consumer  electronics,  financial  services  and 
packaging.  

49 

Geographic scope of market being one among other factors in assessing the competitive impact within 
any given jurisdiction of any given concentration, and the competition authority's ability to assess such 
impact and, where necessary, impose remedies. 

EN 

31 

  EN 

 
 
                                                 
3.2.1.2.  Procedure, review periods and outcome 

109. 

110. 

111. 

Based on available statistics with regard to the 151 cases referred to the Commission 
under Article 4(5) between  2004  and 2008, around 7% were subject to an in-depth 
assessment,  about  50%  were  reviewed  under  a  first  phase  procedure  and  a  third 
qualified for the simplified procedure (the remaining cases were withdrawn). While a 
large number of cases are simplified under Article 4(5) it is still lower than for the 
Commission case load as a whole (which is about 60% of cases). Furthermore, the 
proportion of in-depth cases is much higher for cases referred under 4(5) compared 
to  the  Commission  caseload  as  a  whole  where  the  corresponding  number  for  the 
same period was about 3%. Out of 14 Article 8 decisions adopted in 2008, six were 
referred  under  Article  4(5).  For  2007,  the  corresponding  number  was  four  out  of  a 
total of nine decisions.  

Indeed, among the most prominent examples of complex cases referred under Article 
4(5) during 2008 were: Google/DoubleClick, Tomtom/TeleAtlas and IBM/Telelogic. 
These Phase II cases each involved high tech markets, most of which have not been 
assessed by the Commission before.50 In these cases, extensive market investigations 
were conducted in in-depth proceedings leading to unconditional clearance.51  

The  chart  below  (which  covers  the  period  between  2004  and  2008)  shows  the 
outcome  of  cases  referred  under  Article  4(5).  Four  percent  of  the  cases  led  to 
conditional clearance decisions and almost 85% to unconditional clearance decisions 
(whether  in  Phase  I  or  in  Phase  II).  The  remaining  cases  were  withdrawn  or  were 
pending. So far no Article 4(5) case has led to a prohibition decision. 

50 

51 

Case  M.4731  Google/DoubleClick  concerned  the  markets  for  advertising  space  and  ad  serving 
technology; Case M.4854 Tomtom/TeleAtlas concerned markets for digital navigeable maps as well as 
the  corresponding  hardware,  namely  PNDs;  Case  M.4747  IBM/Telelogic  concerned  overlaps  which 
occurred in the markets for modelling and requirements management tools which is software used for 
the development of software. 
The  remaining  cases  are  M.4187  Metso/Aker  Kvaerner  Commission  decision  of  12  December  2006, 
M.4647  AEE/Lentjes,  Commission  decision  of  3  August  2007,  M.4523  Travelsport/Worldspan, 
Commission  decision  of  21  August  2007,  M.4525  Kronospan/Constania,  Commission  decision  of  19 
September  2007,  M.4662  Syniverse/BSG  (wireless  business),  Commission  decision  of  4  December 
2007,  M.4513  Arjowiggins/M-Real  Zanders  Reflex,  Commission  decision  of  13  June  2008,  M.4942 
Nokia/Navteq,  Commission  decision  of  2  July  2008,  M.4874  Itema  Holding/Barcovision  Division, 
Commission decision of 4 August 2008.  

EN 

32 

  EN 

 
                                                 
Chart 11: Outcome of Article 4(5) referrals (2004-2008) 

clearance-PH1
79%

Outcome
4(5)

clearance-PH2
5%

conditional 
clearance - PH1
4%

conditional 
clearance - PH2
2%

prohibition
0%

closed/withdrawn
10%

112. 

As  can  be  seen  from  the  chart  below  the  median  review  period  for  referral  cases 
subject to first phase proceedings in 2007 was 46 to 60 working days between date of 
submission  of  the  Form  RS  to issuance of the decision. For in-depth (i.e. Phase  II) 
cases the equivalent time period was 81 to 100 days. These statistics do not take into 
account pre-notification discussions prior to submission of the Form RS. 

Chart 12: Duration of Article 4(5) referral cases (2007) 

Distribution of case duration (only 2007)
4(5)

indepth

not-indepth

70%

60%

50%

40%

30%

20%

10%

0%

<= 15  16 to

30

 31 to
45

 46 to
60

 61 to
80

 81 to
100

 101
to 120

 121
to 140

 141
to 170

 171
to 200

 201
to 230

 231
to 260

 261
to 290

>=
291

Working days

EN 

33 

  EN 

 
 
 
 
 
3.2.2.  Assessment of the functioning of the referral system under Article 4(5) 

113. 

The Member State's competition authorities and stakeholders were invited to express 
their  views  on  the  functioning  of  Article  4(5)  generally  (see  the  questionnaires  in 
Annexes  1-2).  Their  answers  and  their  general  comments  are  summarised  in  the 
following sections. 

3.2.2.1.  Views expressed by the NCAs  

114. 

115. 

Among  the  NCAs  of  the  Member  States,  there  appears  to  be  a  consensus  that  the 
referral  system  provided  by  Article  4(5)  is  in  general  functioning  effectively  as  a 
means of re-allocating jurisdiction from the national level to the Community level on 
the basis that a case is more appropriately dealt with by the Commission. Two NCAs 
however  regretted  that  there  are  still  a  significant  number  of  multiple  filing  cases 
despite the availability of this mechanism. Virtually all the respondents agreed that 
the  right  kind  of  cases  are  being  referred  to  the  Commission  bearing  in  mind  their 
likely impact on competition and the likely geographic scope involved. 

As regards procedural aspects, most NCAs consider that the current referral system 
under  Article  4(5)  is  functioning  as  effectively  as  it  could.  A  few  respondents 
expressed the view that there is scope for shortening the deadline of 15 working days 
in  Article  4(5).  However,  the  general  view  appears  to  be  that  such  duration  is 
necessary  in  order  to  carry  out  the  thorough  examination  and  internal  consultation 
which, at times, also involves discussions with competent government bodies. 

3.2.2.2.  Views expressed by the stakeholders 

116. 

Similar to the opinions expressed with regard to referrals under Article 4(4), virtually 
all respondents take issue with what they consider to be lengthy review periods and 
cumbersome  information  requirements  for  referrals  under  Article  4(5).  Some 
respondents  also  consider  that  the  scope  of  the  information  requested  is  even  more 
disproportionate  given  that  the  test  for  when  referral  is  possible  is  simply  that  the 
transaction  is  notifiable  in  at  least  three  Member  States.  Thus,  some  of  the 
information  requested  in  the  Form  RS  (for  example  with  regard  to  the  affected 
markets) appears to be of little relevance for establishing jurisdiction. Therefore, they 
conclude  that  the  Form  RS  should  be  reduced.  Only  the  minimum  amount  of 
information  of  a  substantive  nature  should  be  required  and  should  also  be  limited 
only  to  those  Member  States  where  a  filing  is  required.  At  the  very  least,  a  "short 
form"  RS  should  be  introduced  for  cases  which  clearly  do  not  raise  competition 
issues and whose notification is therefore, more of an administrative matter. 

117. 

Some  respondents  expressed  concerns  (apart  from  the  general  length  of  the  formal 
procedure)  that  a  practice  has  arisen  which  entails  what  is  referred  to  as  a  "double 
consultation".  In  other  words,  the  Commission  often  engages  the  parties  in  pre-
notification discussions regarding the completeness and scope of both the Form RS 
and the Form CO with the risk of duplication and an unnecessarily long time lag. 

118.  Many respondents also consider that the discretionary refusal powers in the hands of 
the Member States are not exercised in a clear way. In fact, since the Member State's 
decision  whether  to  accept  or  refuse  a  referral  is  neither  reasoned  nor  published, 
there is a lack of transparency which makes it difficult to predict whether a referral 

EN 

34 

  EN 

 
119. 

120. 

121. 

will take place. The uncertainty surrounding whether or not a referral will eventually 
be accepted is therefore a source of legal uncertainty. Together with the timing issue, 
this unpredictable risk is an additional disincentive to refer. Although the possibility 
of refusal is not high for most cases, the significant amount of time that would be lost 
if indeed it were to be exercised dissuades the parties from using this mechanism. 

A  recurrent  view  is  therefore  that,  having  regard  to  these  factors,  the  parties  often 
prefer to file in multiple jurisdictions unless a very significant number of filings are 
required. A few respondents even provided examples where as much as eight or even 
ten national filings were the preferred option. 

Some respondents therefore proposed that the existence of or at least the scope of the 
Member States' refusal right should be revisited. Some consider that due to the small 
number  of  refusal  rights  exercised  during  the  reference  period,  one  could  question 
whether the refusal process is indeed warranted. Some respondents would welcome 
the  complete  abolition  of  the  referral  system  and  introduce  an  outright  "3+" 
jurisdictional  threshold  providing  for  a  mandatory  or  voluntary  notification  when  a 
transaction is notifiable in at least three Member States (with or without a Member 
State right to have a case referred back to it). Various intermediate suggestions have 
also been made by a few respondents. For example, a system whereby referral would 
be  automatically  available  unless  one  or  a  majority  of  Member  States  oppose  it  or 
making  the  referral  automatic  in  case  the  transaction  is  reviewable  in  five  or  more 
Member States. 

A  few  respondents  also  pointed  out  that  the  diverging  national  merger  control 
regimes  is  a  source  of  legal  uncertainty  in  the  context  of  the  referral  process.  In 
particular,  it  is  argued  that  the  very  low  notification  thresholds  in  some  Member 
States  -  which  catch  a  large  number  of  transactions  -  give  these  countries  a 
disproportionate influence on the referral process. These respondents argue that, as a 
result, the relative influence of some Member States on the referral process may not 
necessarily  be  a  reflection  of  the  effects  of  the  transaction  in  their  jurisdiction.  A 
solution proposed to this problem would be to limit the refusal right not only to those 
Member  States  that  are  competent  to  review  the  case  but  also  require  that  the 
transaction gives rise to affected markets in those Member States. 

3.3. 

Conclusion on the operation of the pre-notification referral system 

122. 

In  conclusion,  the  available  statistics,  the  Commission's  own  experience  as  well  as 
the  reactions  from  the  NCAs  and  stakeholders  clearly  support  the  view  that  the 
referral  mechanisms  introduced  in  2004  have  considerably  enhanced  the  efficiency 
and  jurisdictional  flexibility  of  merger  control  in  the  EU.  They  have  substantially 
improved  the  allocation  of  cases  between  the  Commission  and  the  Member  States 
taking  into  account  the  principles  of  "one-stop-shop"  and  "more  appropriate 
authority".  In  fact,  available  information  clearly  supports  the  view  that  these 
mechanisms  have  allowed  the  appropriate  authority  to  handle  cases  whilst  also 
avoiding  unnecessary  parallel  procedures  and  inconsistent  enforcement  efforts.  In 
fact,  it  is  estimated  that  the  mechanism  under  Article  4(5)  has  allowed  for  the 
reduction  of  the  number  of  proceedings  to  around  150  from  around  970  parallel 
proceedings  in  the  period  between  2004  and  2008.  Furthermore,  the  mechanism 
under Article 4(4) has allowed for the re-allocation of 40 cases from the Commission 

EN 

35 

  EN 

 
123. 

124. 

to the Member States over the same period. Referrals were refused only in four cases 
under Article 4(5) and in one case under Article 4(4). 

Nevertheless, some problems have been highlighted, in particular with regard to the 
procedure.  Stakeholders  have  expressed  concerns  with  regard  to  the  overall  timing 
and  cumbersomeness  of  the  referral  process.  These  factors  have  been  identified  as 
the  main  cause  of  the  parties'  decision  not  to  request  referral  in  a  large  number  of 
cases. 

In this regard and in order to quantify to what extent this mechanism is effectively 
used,  it  is  necessary  to  measure  the  number  of  effective  referrals  against  the  total 
number  of  cases  that  meet  the  conditions  under  Articles  4(4)  and  4(5).  As  regards 
referrals  to  the  Member  States,  data  with  regard  to  concentrations  which  meet  the 
conditions  in  Article  4(4)  are  not  readily  available.  Concerning  referrals  to  the 
Commission, as noted in part I, available data for 2007 indicate that there were about 
102  transactions  which  were  notifiable  in  at  least  three  Member  States.  It  can  be 
estimated  that  these  concentrations  together  required  more  than  360  parallel 
investigations  by  the  NCAs  in  one  year.  Available  data  also  suggest  that  a  large 
number of these cases would be appropriate for referral. Among the 102 transactions 
which  meet  the  three  Member  State  notification  test,  the  majority  involve  markets 
with a geographic scope that is broader than national and as many as 20% involved 
global markets.  

125.  While the geographic scope of the case is only one relevant factor amongst others for 
the  referral  assessment,52  this  is  an  indication  that  a  large  number  of  additional 
concentrations  are  appropriate  candidates  for  referral  to  the  Commission  not  only 
from the point of view of a "one-stop-shop" but also when considering the principle 
of  the  "more  appropriate  authority".  This  is  particularly  relevant  for  those  cases 
which  raise  substantive  competition  issues.  In  fact,  the  negative  consequences  of 
duplication and the potential of a contradictory outcome in different Member States 
is particularly important in such cases. As noted in Part I, available data suggest that 
around  6%  of  the  cases  notifiable  in  at  least  three  Member  States  gave  rise  to 
competition concerns. Against this background, one can conclude that there is further 
scope  for  a  "one-stop-shop"  review  of  cases  that  fulfil  the  three  Member  State 
condition.  

126. 

As noted, data is not readily available as regards further potential use of the referral 
mechanism under 4(4). One cannot, however, exclude that there is further potential 
to also use this mechanism and therefore further scope for reinforcing the principle of 
the  “more  appropriate  authority,”  considering  for  example  several  stakeholders' 
concern  that  the  criteria  for  referrals  under  this  provision  may  in  fact  be  a 
disincentive for referral. Indeed, it may be useful to further examine more generally 
what  measures  could  be  envisaged  to  ensure  an  improved  case  re-allocation  to  the 
Member States. 

127. 

Against this background, the appropriateness of measures to improve the current pre-
notification  referral  system  would  merit  further  examination.  While  such  analysis 

52 

Key factors to take into account are necessarily the competitive impact within any given jurisdiction of 
any  given  concentration,  and  the  competition  authority's  ability  to  assess  such  impact  and,  where 
necessary, impose remedies. 

EN 

36 

  EN 

 
                                                 
128. 

129. 

130. 

131. 

53 

goes  beyond  the  scope  of  the  report,  a  few  preliminary  remarks  bear  mention  and 
should be considered for future reference.  

In the context of assessing the need or possibilities for improvements of the system 
in order to further reduce multiple filings one could also envisage to examine to what 
extent any perceived problem linked to multiple filings could be partially addressed 
by  Member  States  reviewing  the  applicable  jurisdictional  thresholds  under  their 
national laws53 rather than by simply increasing the number of cases reviewed by the 
Commission.  

Furthermore, it must be recalled that the Member States' refusal powers under article 
4(5)  have  been  rarely  used  whilst  stakeholders  have  pointed  to  cumbersome,  time 
consuming  and  therefore  costly  referral  processes.  Many  stakeholders  therefore 
consider, having regard to the experience they acquired over the past years, that one 
should re-examine the possibilities of shifting to a system of automatic notification 
under  the  EC  Merger  Regulation  when  the  three  Member  State  criterion  is  met  (or 
other  intermediary  solutions)  as  was  initially  proposed  in  the  process  leading  up  to 
the  current  system.  This  would,  in  their  view,  significantly  increase  transparency 
while lowering the cost and time of the review.  

As  regards  timing,  available  data  confirm  that  more  than  twice  as  much  time  is 
needed for cases involving referrals compared to own jurisdiction cases. However, it 
may be difficult to shorten the time periods for the referral process provided for by 
the EC Merger Regulation as has been suggested by stakeholders. Virtually all of the 
NCAs  of  the  Member  States  have  indicated  that  the  15  working  days  mentioned 
under both Article 4(4) and 4(5) is necessary for their assessment. The same applies 
in the Commission’s view with regard to the 10 working days period within which 
the Commission must decide on referral under Article 4(4). It should also be recalled 
that the referral system is voluntary and the parties have the option of choosing the 
referral  mechanism  where  suitable,  taking  into  account  the  overall  timing  of  the 
transaction  and  other  factors  specific  to  the  case.  In  this  respect,  the  reporting 
requirements  and  additional  time  needed  for  a  referral  process  must  be  weighed 
against the additional benefits of achieving a "one-stop-shop" or of having the "more 
appropriate  authority"  reviewing  any  given  case.  As  regards 
information 
requirements,  the  purpose  of  the  data  requested  in  the  Form  RS  is  to  allow  the 
Member States (and in case of Article 4(4), the Commission) to determine whether 
the  referral  should  be  made  or  not.  Therefore,  any  efforts  to  reduce  the  scope  of 
information  requested  in  the  Form  RS  must  not  undermine  the  NCAs  and  the 
Commission's ability to make such assessments.  

Finally,  the  issue  of  legal  uncertainty  raised  by  a  large  number  of  respondents  - 
essentially  as  regards  the  scope  of  and  the  exercise  of  a  Member  State  power  of 
refusal - must be assessed against the actual number of refusals in the past five years. 
Although  the  number  of  formal  refusals  (one  under  Article  4(4)  and  four  under 
Article 4(5)) probably underestimates the total number of actual refusals, it still gives 
some  indication  that,  overall,  there  is  a  low  probability  of  refusal  in  the  great 

It  is  noted  that  such  a  measure  was  recently  taken  by  Germany  by  amending  the  applicable 
jurisdictional  thresholds.  Mandatory  notification  is  now  required  if  the  parties'  combined  worldwide 
turnover exceeds 500 million euros, one party's turnover exceeds 25 million euros and the other party's 
turnover  exceeds  5  million  euros.  The  stated  objective  of  the  reform  which  took  effect  on  25  March 
2009 is to reduce the number of notifications for transactions with insufficient local nexus.  

EN 

37 

  EN 

 
                                                 
majority  of  cases,  at  least  for  unproblematic  cases  involving  notifications  of  an 
“administrative”  nature.  Also,  for  the  more  problematic  cases,  there  is  always  the 
possibility of seeking informal guidance from the concerned Member State(s) at an 
early  stage  in  the  process.  Furthermore,  the  refusal  power  is  limited  to  the 
jurisdictions in which the transaction is reviewable. Therefore, any concern raised by 
stakeholders in relation to the lack of impact with regard to any given transaction in a 
particular Member State having refusal power is in essence a criticism of the design 
of the jurisdictional thresholds in that Member State as such rather than of the scope 
of the refusal power provided by the EC Merger Regulation.  

4. 

POST-NOTIFICATION REFERRALS 

132.  Whilst the EC Merger Regulation does not require the Commission to report on the 
operation  of  the  post-notification  referral  mechanism,  it  is  appropriate  to  also 
evaluate these mechanisms in order to have a comprehensive view of the operation of 
the thresholds and their corrective mechanisms generally.  

4.1. 

Referrals under Article 22 

4.1.1. 

Introduction 

133. 

Article  22  is  a  referral  provision  of  the  EC  Merger  Regulation  which  is  at  the 
disposal of the Member States, post notification. The historical background to Article 
22 is that it was intended to allow Member States without merger control legislation 
to refer a case to the Commission (the "Dutch clause"). The new version of Article 
22 makes provision for the referral of cases where a concentration affects more than 
one Member State. It allows other Member States to join a referral request already 
made.  It  also  describes  the  deadlines  within  which  such  referrals  may  be  made  or 
joined by Member States as well as acceded to by the Commission. A Member State 
joining a referral will now automatically relinquish its jurisdiction. The EC Merger 
Regulation  does  not  distinguish  between  Member  States  that  have  jurisdiction  to 
assess  the  transaction  and  those  that  do  not.  Article  22(2)  states  that  any  other 
Member State shall have the right to join the initial referral and, unlike Article 4(5) 
there  is  no  minimum  number  of  jurisdictions  necessary  in  order  to  complete  the 
referral  process.54  Finally,  the  scope  of  a  referral  is  also  different  since  the 
Commission  can  only  take  jurisdiction  for  the  part  of  a  transaction  which  was 
referred  by  one  or  several  Member  States,  the  non-referred  parts  remaining  with 
other Member States.  

134. 

In  order  for  a  Member  State's  request  for  referral  to  be  admissible,  two  legal  pre-
conditions  must  be  fulfilled.  The  concentration  must:  (i)  affect  trade  between 
Member States; and (ii) it must threaten to significantly affect competition within the 
territory  of  the  Member  State(s)  making  the  request.55  This  is  in  contrast  to  the 
procedure  that  the  parties  use  to  refer  cases  to  the  Commission  under  Article  4(5) 
where  the  case  must  be  capable  of  being  reviewed  under  the  national  competition 
laws  of  at  least  three  Member  States  and  where  they  must  also  inform  the 
Commission by means of a reasoned submission before notifying in any competent 

54 

55 

In Article 4(5), the referral of a case is to the Commission but by the parties concerned; in Article 22 a 
Member State makes the referral request to the Commission. 
See Commission Notice on Case Referral, Official Journal C 56, 05.03.2005, para. 42. 

EN 

38 

  EN 

 
                                                 
Member  State.56  Article  22,  is  also  used  by  Member  States  to  curtail  parallel 
procedures: when a Member State joins a referral, it thereby elects to no longer apply 
its own national competition laws to the concentration. 

135. 

Since  the  EC  Merger  Regulation  was  recast  with  effect  from  1  May  2004,57  there 
have been only 14 referrals under the new Article 22. Of the 14 requests for referral, 
the following data was gathered: 

Table 5: Article 22 Referrals 2004-2008  

Total No. 
of Referral 
Requests  

Ensuing 
Procedure 

Relevant 
Markets 

14 

Phase II 
(6); 
Phase I 
(5);  
Refused 
(2); 
Withdrawn 
(1); 

Chemicals 
(8); 
Satellite 
Equipment 
(2); 
Energy (1);
Paper (1); 
Explosives 
(1); 
Soft Drinks 
(1); 

Geog. 
Scope of 
Markets 

Greater 
than 
National 
(12); 
National 
(2); 

Referring 
Countri-es 

Joining 
Countries 

UK (4); 
DE (3); 
E (2); 
FR (1); 
FI (1); 
PT (1); 
CY (1); 
S (1); 

DE (4); 
FR (3); 
UK (2); 
S (2); 
PL (1); 
NO (1); 
AU (1); 
IT (1); 
PT (1); 

Cases 
with 3 or 
more 
Countries 
involved 
5 

Cases 
with less 
than 3 
Countries 
involved 
9 

136. 

The  fact  that  6  of  the  14  cases  referred  under  Article  22  entered  into  Phase  II 
proceedings  clearly  indicates  that  Article  22  is  mainly  used  for  cases  which  are 
critical  and  which  have  a  Community  relevance  (most  of  the  relevant  geographic 
markets were greater than national in scope). One should bear in mind that of all the 
cases  notified  to  the  Commission,  those  entering  Phase  II  would  normally  only 
account  for  only  about  5%  of  the  total.  A  corollary  to  this  is  the  fact  that  no 
simplified  cases  have  ever  been  referred  to  the  Commission  under  this  provision. 
This  contrasts  sharply  with  the  number  of  standard  notifications  that  are  made 
directly  to  the  Commission,  of  which,  during  the  last  five  years,  about  60% 
consistently qualify for treatment by the simplified procedure. There are more cases 
referred to the Commission under Article 22 involving less than three Member States 
than  there  are  involving  three  Member  States  or  more  and  this  statistic  serves  to 
underline the complementary nature of Article 22 to Article 4(5). 

4.1.2.  Views expressed by the NCAs 

137. 

The  NCAs  generally  regard  Article  22  as  functioning  effectively  and  that  the 
appropriate cases are being referred to the Commission58. Table 5 above shows that 
since 1 May 2004 as many as eight different Member States have requested a referral 
and that nine have joined a referral request at least once. Several of the responding 
NCAs  (who  have  been  actively  involved  in  at  least  one  referral  process)  made  the 

56 

57 

58 

This involves filing a Form RS to establish jurisdiction see Annex II of Commission Regulation (EC) 
No  802/2004  of  7  April  2004  implementing  Council  Regulation  (EC)  No  139/2004  on  the  control  of 
concentrations between undertakings. 
Council  Regulation  (EC)  No.  139/2004  of  20  January  2004  on  the  control  of  concentrations  between 
undertakings (OJ  L 24,  29.1.2004) (the  "EC  Merger  Regulation")  which  entered  into force  on 1  May 
2004. 
Source: Replies by the National Competition Authorities to a questionnaire sent by the Commission. 

EN 

39 

  EN 

 
 
                                                 
point that they felt that there was no scope for shortening the deadlines mentioned in 
Article 22. 

138. 

139. 

On  the  issue  of  whether  or  not  a  Member  State  should  be  able  to  make  or  join  a 
referral without having jurisdiction in the case, five thought that it should be allowed 
while nine thought that it should not. This does raise the question of whether or not a 
Member State should be able to refer a case when its jurisdiction is not triggered but 
where the activity of the parties does have an effect in that Member State. 

All of the respondents who addressed the issue of whether or not "lone referrals"59 
by  a  single  Member  State  should  be  permitted  agreed  that  this  practice  should 
continue.  On  the  subject  of  whether  or  not  it  should  still  be  possible  to  refer  an 
already  implemented  (or  partially  implemented)  transaction  under  Article  22,  a 
majority of respondents thought that it should be. 

4.1.3.  Views expressed by the stakeholders 

140. 

141. 

The issue of referring with or without jurisdiction was mentioned often in the public 
consultation  where  some  of  the  respondents  proposed  that  a  Member  State  without 
jurisdiction  should  not  be  able  to  refer  or  to  join  a  referral  under  Article  22.  Some 
respondents  referred  to  what  they  described  as  the  unpredictability  (or  the  "legal 
uncertainty")  of  the  Article  22  procedure  and  others  questioned  the  need  for  it 
altogether,  citing  in  support  of  their  argument,  the  greater  number  of  Article  4(5) 
referrals compared to those under Article 22. However, such suggestions must make 
the  assumption  that  the  scope,  objectives  and  function  of  both  provisions  are 
identical,  which  is  clearly  not  the  case.  Firstly,  Article  4(5)  referrals  are  at  the 
instigation of the parties, whereas Article 22 referrals are initiated by Member States: 
two  completely  different  starting  points.  Secondly,  as  mentioned  above,  an  Article 
4(5)  referral  requires  that  a  concentration  be  capable  of  being  reviewed  under  the 
competition  laws  of  at  least  three  Member  States.  This  is  not  a  requirement  of  an 
Article 22 referral. 

Respondents  also  pointed  out  that  as  all  but  one  Member  State  now  has  a  merger 
control  regime,  the  original  rationale  for  having  an  Article  22  has  largely 
disappeared.  There  were  repeated  proposals  for  harmonising  the  procedural 
differences between Article 22 and Article 4(5) referrals with respect to the number 
of Member States where filing was necessary. Some suggested that, as with Article 
4(5)  referrals,  the  Commission  should  only  be  able  to  accept  Article  22  referrals 
when  they  are  notifiable  in  three  or  more  Member  States.  Whereas  the  present 
arrangement may give the Member States under Article 22 a broader discretion when 
referring  to  the  Commission  than  the  parties  enjoy  when  referring  under  Article 
4(5),60 the outcome of the questionnaire sent to NCAs clearly values the need to be 
able to refer cases which have only been notified in one Member State but which also 
have a Community relevance. Some respondents also raised the point that a case with 
cross-border characteristics which is notified to Member States might not be able to 
benefit  from  a  cross-border  remedies  package.  Nor  indeed  would  there  be  the 
essential  central  influence  necessary  to  obtain  and  collate  from  all  jurisdictions  the 

59 
60 

I.e. referrals not joined by any other Member State. There have been four such lone referrals. 
I.e. as seen from the perspective of the parties. 

EN 

40 

  EN 

 
                                                 
required market information upon which to make a proper assessment of the effects 
of the transaction. 

142. 

But by far the most popular Article 22 topic raised was the difficulty that notifying 
parties have with the length of time a referral can take.61 There is a trend of opinion 
that considers that the aggregate of all the time periods for assessment in Article 22 
(added  to  another  likely  six  weeks  devoted  to  pre-notification  discussions  and  the 
preparation of a Form CO) delays the implementation of a transaction for an unduly 
long  period  of  time.  And  delays  also  mean  increased  costs  for  business.  Therefore, 
the  public  consultations  responses  contain  suggestions  for  reducing  all  assessment 
periods. This is clearly at odds  with the position  expressed  by  NCAs  who  feel  that 
there is no scope for shortening deadlines (see above). 

4.1.4.  Conclusion on the operation of the referral mechanism under Article 22  

143. 

144. 

Clearly  Article  22  is  used  by  Member  States  where  cases  are  complex  and  not 
simplified.  Even  though  the  original  reason  for  the  existence  of  Article  22  has 
become almost obsolete,62 it clearly serves a purpose where a Member State, after a 
period of assessment of a transaction, forms the opinion that a case would be better 
assessed by the Commission. This may be based upon factors such as the nature of 
the  relevant  markets  -  which  may  turn  out  to  have  a  Community  relevance  and 
consequently require a corresponding market investigation - as well as the possibility 
of  an  appropriate  cross-border  remedies  package  which  the  Commission  would  be 
better placed to negotiate. 

On  the  matter  of  whether  or  not  a  Member State  should  be  able  to  make  a  referral 
request  without  having  jurisdiction  in  the  case,  there  are  two  issues  deserving 
mention.  Firstly,  Article  22(1)  of  the  EC  Merger  Regulation  clearly  states  that  in 
order  to  be  able  to  refer  a  case,  the  concentration  must  threaten  to  "significantly 
affect  competition  within  the  territory  of  the  Member  State  making  the  request."63 
The  requirement  here  is  unambiguous:  there  should  be  some  significant  effect  on 
competition within the Member State making the referral. And this brings us to the 
second issue: it is possible that a Member State may still have cause to refer a case 
which has a significant effect within its borders but which was not caught by its own 
jurisdictional thresholds. Under such circumstances, a request for referral would not 
be automatically excluded by the EC Merger Regulation.  

145.  When a referral is joined, no distinction is made between Member States who have 
and  who  do  not  have  jurisdiction.  Joined  referrals  under  Article  22  also  reduce 
parallel procedures in that the jurisdiction of joining Member States is surrendered. 
Equally,  with  respect  to  lone  referrals,  the  EC  Merger  Regulation  is  silent  on  the 
issue of whether or not a referral must be joined. 

146. 

On balance, although the original purpose of this referral process has been overtaken 
by events, the benefits of being able to re-allocate to a more appropriate jurisdiction 
are significant and this mechanism continues to serve an important purpose. 

61 
62 
63 

One respondent described an Article 22 referral as "…the most disruptive of all referrals". 
All but one Member state now has a merger control regime. 
This new formulation of Article 22 is a lower legal standard than that contained in the old Regulation 
which  required  the  creation  or  strengthening  "of  a  dominant  position  as  a  result  of  which  effective 
competition would be significantly impeded within the territory of the Member State concerned". 

EN 

41 

  EN 

 
                                                 
4.2. 

Referrals under Article 9  

4.2.1. 

Introduction 

147. 

Article 9 of the EC Merger Regulation provides a mechanism for referring cases to 
Member  States  (which  have  already  been  notified  to  the  Commission)  in 
circumstances where it is felt that the Member State is better positioned to carry out 
the  investigation.64  A  referral  may  be  made  of  the  whole  case  or  of  portions  of  it, 
depending on the effect of the concentration in the relevant markets. A Member State 
may request (at its own initiative or after an invitation to do so by the Commission) 
that  a  case  be  referred  to  it  in  either  of  the  following  circumstances:  (i)  the 
concentration must "threaten to affect significantly competition in a market" and the 
market in question must be within the requesting Member State and "present all the 
characteristics  of  a  distinct  market",65  or  (ii)  the  concentration  must  "affect 
competition  in  a  market"  and  the  market  in  question  must  be  within  the  requesting 
Member State and "present all the characteristics of a distinct market" and "does not 
the  common  market".66  Sometimes  both 
constitute  a  substantial  part  of 
circumstances are argued. 

Table 6: Article 9 Referrals 2004-2008 

Country 

Germany 

United Kingdom 

Poland 

Italy 

Spain 

Bulgaria 

Ireland 

Czech Republic 

Belgium 

France 

Slovakia 

No. of Referral Requests 

Comments 

1 request not renewed; 
1 notification withdrawn 

1 withdrawn 

2 withdrawn 

1 withdrawn 

1 request rejected 

1 withdrawn 

8 

4 

3 

2 

2 

1 

1 

1 

1 

1 

1 

Total 25 

148. 

The table above shows that between 2004 and 2008, there were a total of 25 Article 9 
referral  requests  by  Member  states  of  which  six  were  withdrawn  and  one  not 
renewed  following  the  opening  of  Phase  II  proceedings.  In  only  one  case  was  a 
referral  rejected  by  the  Commission.  In  ten  cases,  the  new  article  9(2)(b)  was 
argued.67 Requests were made for 13 full and 12 partial referrals. 

64 

65 
66 
67 

The Commission Notice of Case Referral in respect of concentrations (2005/C 56/02) elaborates on this 
(paragraph  9):  "…having  regard  to  the  specific  characteristics  of  the  case  as  well  as  the  tools  and 
expertise available to the authority". 
Article 9(2)(a) EC Merger Regulation. 
Article 9(2)(b) EC Merger Regulation. 
Article 9(2)(b) can be argued in the alternative to Article 9(2)(a). 

EN 

42 

  EN 

 
 
 
 
 
 
 
 
 
                                                 
149. 

The  assortment  of  relevant  product  markets  was  diverse  with  14  different  relevant 
product  markets  concerned  ranging  from  scrap  metal  to  casinos.68  The  Member 
States most active in requesting referrals were Germany and the UK. 

4.2.2.  Views expressed by the NCAs 

150. 

151. 

The  NCAs  generally  regard  Article  9  as  functioning  effectively  and  that  original 
jurisdiction  is  being  re-allocated  from  the  European  Community  to  the  appropriate 
Member States. Two NCAs expressed reservations about the length of time it takes 
and one proposed a reduction in the assessment periods. However this is a minority 
view  and  the  greater  trend  of  opinion  is  that  there  is  no  scope  for  shortening 
assessment periods. It is also the opinion generally of the NCAs that the appropriate 
kind of cases are being referred to Member States. 

Statistically,  there  has  been  a  small  reduction  in  the  number  of  Article  9  referrals 
since the introduction of Article 4(4). The average of about eight per year in the five 
years preceding the new EC Merger Regulation has gone down to roughly five per 
year since then. However, the clear view of the NCAs is that this trend is not because 
these two provisions are mutually exclusive: they are viewed as two complementary 
instruments  and  in  many  cases  Article  9  is  regarded  as  a  safeguard  (or  even  a 
"corrective" mechanism) for appropriately re-allocating jurisdiction. 

4.2.3.  Views expressed by the stakeholders 

152. 

On balance the response to the public consultation indicates that the Article 9 referral 
mechanism  is  a  functional  vehicle  for  re-allocating  jurisdiction  to  a  Member  State. 
However,  there  are  many  instances  where  shortcomings  are  highlighted.  The  most 
prevalent  of  these  concerns  the  time  a  referral  request  can  take  and  the  ensuing 
disruption it can have on the transaction's timetable. Clearly, from the point of view 
of  the  notifying  parties,  an  Article  9  referral  is  not  part  of  their  objective  as 
otherwise, they would have already used the Article 4(4) provision. And this is where 
the debate centres: between the advantage of a "one-stop-shop" that a central filing 
provides  and  the  principle  of  assessment  by  the  "more  appropriate  authority"  that 
underpins  a  referral  to  a  Member  State.  Regardless  of  the  inconvenience  of  the  re-
allocation of a case to another jurisdiction (including the need to re-notify under the 
national  laws  of  that  Member  State)  there  are  many  responses  which  describe  the 
Article 9 assessment periods as too long. This, allied to the legal uncertainty resulting 
from a change of jurisdiction, the lack of precision in paragraphs 9(6)69 and 9(8),70 

68 

69 

70 

The  list  of  relevant  product  markets  included:  Cable  TV;  Casinos;  Printing;  Airport  Services; 
Construction;  Daily  Retail  Markets;  IT;  Press;  Bottling;  Gases;  Chemicals;  Scrap  Iron;  Beer;  Water 
Services. 
Paragraph 9(6) states that: The competent authority of the Member State concerned shall decide upon 
the  case  without  undue  delay."  Furthermore,  it  provides  that  "within  45  working  days  after  the 
Commission's  referral,  the  competent  authority  of  the  Member  State  concerned  shall  inform  the 
undertakings  concerned  of  the  result  of  the  preliminary  competition  assessment  and  what  further 
action,  if  any, it  proposes  to take.  The  Member  State  concerned  may  exceptionally  suspend  this  time 
limit  where  necessary  information  has  not  been  provided  to  it  by  the  undertakings  concerned  as 
provided for by its national competition law" (emphasis added). 
Article 9(8) provides that "[i]n applying the provisions of this Article, the Member State concerned may 
take  only  the  measures  strictly  necessary  to  safeguard  or  restore  effective  competition  on  the  market 
concerned" (emphasis added). 

EN 

43 

  EN 

 
                                                 
153. 

and the resulting extra costs for the undertakings involved make an Article 9 referral 
protracted and unpredictable in the eyes of the parties. 

There  are  also  some  suggestions  from  the  public  consultation  for  mitigating  the 
effects of a referral request, such as: (i) giving the parties a right to be heard when 
such  a  request  is  submitted;  (ii)  adding  more  transparency  to  the  process  by 
providing  access  to  key  documents  from  the  Commission's  case  file  to  the  parties; 
(iii)  allowing  the  parties  to  use  the  same  Form  CO  to  notify  to  the  Member  State 
concerned  rather  than  having  to  re-assemble  more  market  information  in  another 
form  to  notify  in  the  Member  State.  There  are  also  suggestions  to  outlaw  partial 
referrals in an effort to curtail parallel proceedings. Another respondent opined that a 
more  streamlined  Article  4(4)  (i.e.  with  respect  to  the  information  burden  and  the 
length  of  time  it  can  take)  would  make  Article  4(4)  referrals  more  appealing  and 
therefore ultimately reduce the number of Article 9 referrals. As discussed above, the 
NCAs  differ  slightly  in  their  view  on  this  point,  regarding  the  two  provisions  as 
complementary rather than mutually exclusive. 

4.2.4.  Conclusion on the operation of the referral mechanism under Article 9  

154. 

155. 

156. 

One may conclude therefore that, on balance, Article 9 is a useful tool underpinned 
by the principle of the "more appropriate authority". Nevertheless, the limited use of 
this  referral  mechanism  indicates  that  in  most  situations  the  right  kind  of  cases  are 
being allocated to the Commission on the basis of the current thresholds. There are a 
significant number  of stakeholders of the opinion that the referral process could be 
made more business friendly with regard to cutting down delays, the resulting costs, 
and the uncertainty of the outcome. 

PART III – GENERAL CONCLUSION 

The report accompanied by this staff working paper gives account to the Council of 
the  operation  of  the  notification  thresholds  under  Article  1  of  the  EC  Merger 
Regulation in allocating merger cases between the Community level and the national 
level  and  of  the  referral  mechanisms  provided  for  by  its  Articles  4,  9  and  22.  The 
conclusions of this report are limited to taking stock of the situation to date without 
proposing  any  measures.  Following  the  report  and  considering  in  particular  the 
reactions of the Council, the Commission may, pursuant to Articles 1(5) and 4(6) of 
the EC Merger Regulation, present proposals to revise the notification thresholds or 
the referral mechanisms. 

The  Commission  concludes  that  overall,  the jurisdictional thresholds  and  the  set  of 
corrective mechanisms provided for by the EC Merger Regulation have provided an 
appropriate legal framework for allocating cases between the Community level and 
the  Member  States.  This  framework  has  in  most  cases  been  effective  in 
distinguishing  cases  that  have  a  Community  relevance  from  those  with  a  primarily 
national  nexus,  in  pursuit  of  the  objectives  of  "one-stop-shop"  and  the  principle  of 
the "more appropriate authority". 

157. 

The  two-thirds  rule  has  in  most  cases  appropriately  distinguished  between 
concentrations having Community relevance from those that do not. However, there 
are a small number of cases with potential cross-border effects in the Community. It 

EN 

44 

  EN 

 
 
is outside the scope of the report to assess whether it would be necessary, appropriate 
or possible to take measures to remedy this problem. However, for future reference it 
may be a useful exercise to further analyse the need and possibilities for introducing 
more efficient and flexible mechanisms for the re-allocation of certain two-thirds rule 
cases than those currently provided by the EC Merger Regulation. More generally, it 
is desirable that, independently of which authority  is  the  reviewing  agency,  merger 
control across the EU ensures the protection of undistorted competition. 

The  pre-notification  referral  mechanisms  of  Article  4  as  introduced  in  2004  have 
considerably enhanced the efficiency and jurisdictional flexibility of merger control 
in  the  EU.  These  mechanisms  have  improved  the  allocation  of  cases  between  the 
Commission  and  the  Member  States  having  regard  to  the  principles  of  "one-stop-
shop"  and  "more  appropriate  authority".  They  have  contributed  to  avoiding 
unnecessary  duplication  and  inconsistent  enforcement  efforts  to  the  benefit  of  all 
involved parties not least the business Community. 

Notwithstanding this success, there is scope for further improvements of the current 
system  of  case  allocation.  The  business  community  has  expressed  concern  with 
regard to the way the referral system operates. Some would therefore welcome a shift 
from  the  current  referral  system  under  Article  4(5)  to  an  automatic  notification 
system based on  the three  Member State  threshold ("3+"). Others have emphasised 
that for the pre-notification mechanisms to achieve their full potential, there is a need 
for swifter and less cumbersome referral procedures.  

158. 

159. 

160.  While  it  is  outside  the  scope  of  the  report  to  assess  whether  further  procedural  or 
other improvements or adaptations are feasible, it can be concluded that there is still 
more scope for "one-stop-shop" review. In fact, there are still a large number of cases 
with a cross-border interest that are neither caught by Article 1(3) nor referred under 
Article  4(5).  Should  further 
the  pre-notification  referral 
improvements  of 
mechanisms  be  feasible,  this  would  most  likely  result  in  fewer  multiple  filings  and 
therefore  lower  cost  for  the  business  community.  Conversely,  there  may  be  some 
scope  for  more  referrals  in  the  direction  of  the  Member  States  in  application  of 
Article 4(4).  

161. 

162. 

The post-notification  mechanisms provided by Articles 9 and 22 of the EC Merger 
Regulation, have proven to continue to be useful corrective instruments also after the 
introduction of pre-notification referrals. This is a reflection of the different function 
of the post-notification mechanisms, allowing for  a flexible reallocation of  cases at 
the  initiative  of  either  the  Member  States  or  the  Commission  when  appropriate. 
Nevertheless, 
timing  and 
cumbersomeness of the procedures extend also to these mechanisms. 

the  business  community's  concern  regarding 

the 

Looking  beyond  the  application  of  the  existing  jurisdictional  thresholds  and  their 
corrective mechanisms, in order to fully achieve the objective of a level playing field 
in  the  Common  Market,  the  public  consultation  has  suggested  that  efforts  towards 
further convergence of the various national rules governing merger control and their 
relation  to  Community  rules  should  be  envisaged  in  order  to  alleviate  difficulties 
encountered  in  the  context  of  multiple  filings.  This  would  concern  a  number  of 
aspects ranging from jurisdictional matters to procedural and, to a certain extent, also 
some substantive issues. 

EN 

45 

  EN 

 
ANNEX 1 

Report on Regulation 139/2004 

Questionnaire for Member State Competition Authorities 

Explanatory Remarks 

The European Commission must report to the Council by 1 July 2009 on the operation of 
Article 1(2) and (3) and of Article 4(4) and (5) of Council Regulation (EC) No 139/200471 
(the "Merger Regulation"), pursuant to Articles 1(4) and 4(6) of that Regulation. To this 
end, the Commission is launching a wide-ranging consultation on the functioning of these 
jurisdictional  provisions  in  the  Merger  Regulation,  including  a  fact-finding  exercise 
which  seeks  information  and  opinions  from  Member  State  Competition  Authorities  and 
from other stakeholders in the EU merger control process. 

The  questions  are  intended  to  yield  a  comprehensive  picture  of  how  the  turnover 
thresholds  in  Article  1  are  functioning  in  combination  with  the  concentration  referral 
provisions in the Regulation. For that reason, information and opinions are being sought 
not only on the pre-notification referral mechanisms introduced for the first time with the 
adoption  of  the  Regulation  139/2004,  but  also  on  the  pre-existing  post-notification 
referral mechanisms which were somewhat modified in 2004. 

Detailed  information  concerning  the  operation  of  the  Article  1  thresholds  is  only 
requested  for  the  year  2007;  this  is  considered  to  be  a  sufficiently  long  time  period  to 
enable meaningful conclusions to be drawn concerning the functioning of the thresholds. 
However,  detailed  information  concerning  the  operation  of  the  two  thirds  rule  is 
requested  for  a  longer  time  period72.  Insofar  as  the  referral  system  is  concerned, 
information is sought concerning all cases referred to Member States since 1 May 2004. 
Bulgaria and Romania are only required to submit information concerning the operation 
of  the  Article  1  thresholds  relating  to  cases  dealt  with  by  their  authorities  in  the  year 
2007,  and  concerning  cases  referred  to  those  Member  States  during  the  period  since  1 
January 2007. 

This questionnaire also seeks any comments which Member State Competition Authorities 
may have on the operation of the Merger Regulation more generally. 

Replies to this questionnaire should be communicated to the Commission by no later than 
Friday 29 August 2008. 

71  
OJ L24 (Vol. 47) of 29 January 2004; p.1 
72  
The information requested concerning the operation of the two-thirds rule in Article 1(2) and (3) of 
the  Merger  Regulation  is  virtually  identical  to  what  was  requested  in  the  questionnaire  attached  to 
Commission  Competition  D-G  Philip  Lowe's  letter  to  Member  State  Competition  Authorities  of 
16/12/2005 (*30849) for the 5-year period 2001-2005. 

EN 

  EN 

 
 
 
 
 
 
 
 
 
                                                 
Questionnaire 

A. 

(i) 

The  functioning  of  the  turnover  thresholds  in  Article  1(2)  and  (3)  of  Council 
Regulation (EC) No 139/2004 (the EC Merger Regulation) 

Your authority's views about the functioning of the turnover thresholds in 
Article 1(2) and (3) 

The functioning of the turnover thresholds in Article 1(2) and (3) generally 

1. 
Does  your  Competition  Authority  believe  that  Article  1(2)  and  (3)  of  the  Merger 
Regulation is functioning as an effective means of distinguishing those transactions which are 
most appropriately the subject of merger control at the Community level from those which are 
not? Please explain your answer, if possible illustrating your explanation by reference to your 
practical experience with the provisions.73 

If  you  do  not  believe  that  Article  1(2)  and  (3)  of  the  Merger  Regulation  is  functioning 
effectively  in  this  way,  please  indicate  any  suggestions  you  may  have  as  to  how  any 
shortcomings might be remedied. 

The  functioning  of  the  turnover  thresholds  in  Article  1(2)  and  (3)  in  specific  markets  or 
economic sectors  

2. 
Are  there  any  specific  markets  or  economic  sectors  where,  in  the  view  of  your 
Competition Authority, the turnover thresholds in Article 1(2) and (3) are not functioning 
in  the  manner  intended,  namely  to  identify  those  concentrations  which  would  most 
appropriately be the subject of merger control at the Community level? Do you, for example, 
consider  that  the  turnover  thresholds  are  functioning  effectively  with  regard  to  mergers  in 
industries  where  revenues  are  generated  by  fees  or  commissions  (e.g.  stock  exchanges  or 
similar trading platforms)? 

If  there  are  any  such  specific  markets  or  economic  sectors  where,  in  the  view  of  your 
Authority, the turnover thresholds are not functioning in the manner intended, please indicate 
them and explain why your Competition Authority believes that the turnover thresholds do 
not  always  identify  those  concentrations  which  would  most  appropriately  be  the  subject  of 
merger control at the Community level. Please also indicate any manner in which you think 
this shortcoming might be remedied. 

The functioning of the two-thirds rule in Article 1(2) and (3) 

Please  describe  any  specific  concerns  you  may  have  about  the  functioning  of  the 
3. 
"two-thirds rule" in Article 1(2) and (3) of the Merger Regulation, if possible by reference 
to  your  practical  experience  with  the  provisions.  Please  also  describe  any  suggestions  you 
may have as to how these concerns might be remedied.  

73  

To the extent that you would in this context like to make any specific remarks on the functioning of the 
case referral system provided for in Articles 4(4), 4(5), 9 and 22 of the Merger Regulation, please make 
these remarks in response to the questions in Section B of this questionnaire. 

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
(ii) 

Factual information concerning cases dealt with by your authority since 2004 

Number of merger control filings at the national level 

Please  indicate  the  total  number  of  concentrations  reviewed  by  your  Competition 
4. 
Authority under the relevant national merger control law/s in each of the four years 2004–
2007. 

Turnover details concerning merger control filings at the national level 

5. 
For  each  concentration  reviewed  by  your  Competition  authority  in  2007,  please 
indicate  the  number  of  cases  where  the  combined  aggregate  worldwide  turnover  of  all  the 
undertakings concerned exceeded (i) EUR 2500 million and (ii) EUR 5000 million.  
Merger control filings in more than one Member State 

Please  indicate  how  many  of  the  concentrations  reviewed  by  your  Competition 
6. 
Authority  under  the  relevant  national  merger  control  law/s  in  the  year  2007  were  also 
reviewed  in  at  least  one  other  EU  jurisdiction  under  its/their  relevant  national  merger 
control law/s. 

Please  then  also  answer  the  questions  included  in  the  form  attached  as  Annex  1  to  this 
Questionnaire  for  each  concentration  reviewed  by  your  Competition  Authority  in  the  year 
2007  which  was  reviewed  in  at  least  one  other  EU  jurisdiction.  Please  use  one  form  per 
concentration. 

The functioning of the two-thirds rule in Article 1(2) and (3) 

7. 
Please  indicate  how  many  of  the  concentrations  reviewed  by  your  Competition 
Authority  in  each  of  the  two  years  2006–2007  (both  years  included)  fell  under  the  "two-
thirds rule" in Article 1(2) and (3) of the Merger Regulation. In other words, please indicate 
how  many  concentrations  reviewed  by  your  Competition  Authority  under  the  relevant 
national merger control law/s in this two-year period would, in the absence of the "two-thirds 
rule"  in  Article  1(2)  and  (3)  of  the  Merger  Regulation,  have  constituted  a  "concentration" 
within the meaning of Article 3 of the Merger Regulation, and would have had a "Community 
dimension" within the meaning of Article 1(2) and (3) of the Merger Regulation.  

Please  then  also  provide  the  information  requested  in  the  form  attached  as  Annex  2  to  this 
Questionnaire concerning each of the concentrations reviewed by your Competition Authority 
in the two-year period 2006-2007 (both years included) which fell under the "two-thirds rule". 
Please use one form per concentration. 

The  information  requested  in  Annex  2  concerning  the  operation  of  the  two-thirds  rule  is 
virtually  identical  to  what  was  requested  in  the  questionnaire  attached  to  Commission 
Competition  D-G  Philip  Lowe's  letter  to  Member  State  Competition  Authorities  of 
16/12/2005 (*30849) for the 5-year period 2001-2005. If  your authority did  not provide the 
requested  information  –  or  all  of  the  requested  information  –  on  that  occasion,  you  are 
requested  to  do  so  in  response  to  this  questionnaire,  by  filling  out  Annex  2  for  each 
concentration  reviewed  by  your  Competition  Authority  in  the  five-year  period  2001-2005 
(both years included) which fell under the "two-thirds rule". 

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
B. 

The    functioning  of  the  case  referral  provisions  in  Article  4(4),  4(5),  9  and  22  of 
Council Regulation (EC) No 139/2004 (the EC Merger Regulation) since May 2004 

The functioning of the case referral provisions generally  

8. 
Does  your  Competition  Authority  believe  that  the  merger  case  referral  system  in 
general,  which  was  the  subject  of  a  major  overhaul  with  the  entry  into  force  of  Council 
Regulation (EC) No 139/2004 on 1 May 2004, is functioning effectively as a means of re-
allocating  "original"  jurisdiction  from  the  Community  level  to  the  national  level  or  vice 
versa  on  the  basis  that  a  case  is  more  appropriately  dealt  with  in  the  jurisdiction  to  which 
referral is requested? Please explain your answer, if possible illustrating your explanation by 
reference to your practical experience with the case referral system. Please also describe any 
suggestions you may have as to how any shortcomings in the system might be remedied. 

The functioning of Article 4(4)  

9. 
Does  your  Competition  Authority  believe  that  Article  4(4)  is  in  general  functioning 
effectively as a means of re-allocating "original" jurisdiction from the Community level to the 
national  level  on  the  basis  that  a  case  is  more  appropriately  dealt  with  in  the  national 
jurisdiction to which referral is requested? 

If  there  are  any  particular  concerns  which  your  Competition  Authority  has  about  the 
functioning of Article 4(4), please describe those concerns – if possible by reference to your 
Competition Authority's practical experience with the functioning of the provision – and any 
suggestions you may have as to how they might be remedied. 

Do you consider that the right kinds of cases (in terms of their likely impact on competition, 
and in terms of the likely geographic scope of any such impact) are being referred pursuant to 
Article 4(4)? Please explain your answer. 

Do you consider that Article 4(4) is functioning as effectively as it could in procedural terms? 
In particular, do you think that the deadlines in Article 4(4) are appropriate, or do you believe 
there would be scope to shorten them? Please explain your answer. 

Information concerning cases referred under Article 4(4)  

10. 
For  each  concentration  referred  to  your  Competition  Authority  pursuant  to  Article 
4(4)  since  1  May  2004,  please  provide  the  information  requested  in  the  form  attached  as 
Annex 3 to this Questionnaire. Please use one form per concentration. 

The functioning of Article 4(5)  

11. 
Does  your  Competition  Authority  believe  that  Article  4(5)  is  in  general  functioning 
effectively  as  a  means  of  re-allocating  "original"  jurisdiction  from  the  national  level  to  the 
Community  level  on  the  basis  that  a  case  is  more  appropriately  dealt  with  by  the 
Commission? 

If  there  are  any  particular  concerns  which  your  Competition  Authority  has  about  the 
functioning of Article 4(5), please describe those concerns – if possible by reference to your 

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Competition Authority's practical experience with the functioning of the provision – and any 
suggestions you may have as to how they might be remedied. 

Do you consider that the right kinds of cases (in terms of their likely impact on competition, 
and in terms of the likely geographic scope of any such impact) are being referred pursuant to 
Article 4(5)? Please explain your answer.  

If your Authority has vetoed a referral pursuant to Article 4(5) at any time since 1 May 2004, 
please explain why this was done. 

Do  you  think  it  would  be  appropriate  for  a  concentration  to  be  referred  pursuant  to  Article 
4(5) if the concentration appeared likely to have an impact on competition in a market/s which 
represent/s a non-substantial part/s of the common market? Please explain your answer. 

Do you consider that Article 4(5) is functioning as effectively as it could in procedural terms? 
In particular, do you think that the deadline of 15 working days in Article 4(5) is appropriate, 
or do you believe there would be scope to shorten it? Please explain your answer. 

Have you encountered any difficulties in establishing whether or not your Member State has 
been  correctly  considered  capable  of  reviewing  a  concentration  for  the  purposes  of  Article 
4(5) by the party or parties requesting referral? Please explain your answer, with reference to 
any specific experience you have had. 

The functioning of Article 9  

12. 
Does  your  Competition  Authority  believe  that  Article  9  is  in  general  functioning 
effectively as a means of re-allocating "original" jurisdiction from the Community level to the 
national  level  on  the  basis  that  a  case  is  more  appropriately  dealt  with  in  the  national 
jurisdiction to which referral is requested? 

If  there  are  any  particular  concerns  which  your  Competition  Authority  has  about  the 
functioning  of  Article  9,  please  describe  those  concerns  –  if  possible  by  reference  to  your 
Competition Authority's practical experience with the functioning of the provision – and any 
suggestions you may have as to how they might be remedied. 

Do you consider that the right kinds of cases (in terms of their likely impact on competition, 
and in terms of the likely geographic scope of any such impact) are being referred pursuant to 
Article 9? Please explain your answer. 

Do you consider that Article 9 is functioning as effectively as it could in procedural terms? In 
particular, do you think that the deadlines in Article 9 are appropriate, or do you believe there 
would be scope to shorten them? Please explain your answer. 

Has the introduction of Article 4(4) had, in the opinion of your Competition Authority, any 
impact on the functioning/usefulness of Article 9? Please explain your answer. 

Information concerning cases referred under Article 9  

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
13. 
For each concentration referred to your Competition Authority pursuant to Article 9 
since 1 May 2004, please provide the information requested in the form attached as Annex 3 
to this Questionnaire. Please use one form per concentration. 

The functioning of Article 22  

14. 
Does  your  Competition  Authority  believe  that  Article  22  is  in  general  functioning 
effectively  as  a  means  of  referring  a  concentration  to  the  Commission  on  the  basis  that  the 
case is more appropriately dealt with at the Community level? 

If  there  are  any  particular  concerns  which  your  Competition  Authority  has  about  the 
functioning  of  Article  22,  please  describe  those  concerns  –  if  possible  by  reference  to  your 
Competition Authority's practical experience with the functioning of the provision – and any 
suggestions you may have as to how they might be remedied. 

Do you consider that the right kinds of cases (in terms of their likely impact on competition, 
and in terms of the likely geographic scope of any such impact) are being referred pursuant to 
Article 22? Please explain your answer. 

Do you consider that Article 22 is functioning as effectively as it could in procedural terms? 
In particular, do you think that the deadlines in Article 22 are appropriate, or do you believe 
there would be scope to shorten them? Please explain your answer. 

Do you consider that it should be possible for a Member State to make a request for referral of 
a  concentration  under  Article  22,  or  to  join  a  request  for  referral  made  by  another  Member 
State,  if  the  requesting  Member  State  is  not  itself  capable  of  reviewing  the  concentration 
under its national competition laws? Please explain your answer. 

Do  you  consider  that  a  request  for  referral  of  a  concentration  under  Article  22  by  a  single 
Member State (i.e. one which is not joined by any other Member State) should normally be 
accepted by the Commission? Please explain your answer. 

Do you consider that it is appropriate for a Member State to make a request for referral of a 
concentration  under  Article  22,  or  to  join  a  request  for  referral  made  by  another  Member 
State,  if  the  concentration  in  question  has  already  been  implemented  or  partially 
implemented? Please explain your answer. 

Before  contemplating  making  or  joining  a  referral  request  under  Article  22,  how  extensive 
would your Authority's examination of the likely impact of the concentration on competition 
normally  be?  Please  explain  your  answer  by  reference  to  any  specific  referral  requests  you 
have made or joined under Article 22. 

Has the introduction of Article 4(5) had, in the opinion of your Competition Authority, any 
impact on the functioning/usefulness of Article 22? Please explain your answer. 

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
C. 

The  functioning  of  Council  Regulation  (EC)  No  139/2004  (the  EC  Merger 
Regulation) generally 

15. 
Does  your  Competition  Authority  have  any  comments  on  the  functioning  of  the 
Merger Regulation generally?  In particular, are there any aspects of the Regulation, or of its 
application  in  practice,  which  you  believe  are  not  functioning  effectively?    If  so,  please 
explain  your  answer  –  if  possible  by  reference  to  your  Competition  Authority's  practical 
experience with the functioning of the Regulation – and any suggestions you may have as to 
how this/these shortcoming/s might be remedied.  Please feel free to raise any issue, whether 
relating  to  the  jurisdictional,  substantive  or  procedural  aspects  of  the  functioning  of  the 
Regulation. 

EN 

  EN 

 
 
 
Annex 1 

Questionnaire for concentrations subject to multiple national filings  

This form is to be completed for each concentration reviewed by your Competition Authority 
under the relevant national merger control law/s which, to the knowledge of your Competition 
Authority,  was  also  reviewed  in  another  EU  national  jurisdiction.  Please  answer  the 
questions included in the form for each case fulfilling this condition which has been dealt with 
by your Competition Authority in the year 2007.  Please use one form per concentration. 

Questions 

1. 

Concentration (please indicate case reference, reference of publication or link to the 
website and the date of decision):  ………………………………….. 

2.  

Parties to the concentration (please specify the undertakings concerned)74 

Undertaking A: 
Undertaking B:  
Undertaking C: 
Undertaking D: 

…………………………………………… 
…………………………………………… 
………………………………………..…. 
…………………………………………… 

Reviewed in which other Member State/s? 
(Please indicate here in which one/s):  …………………… 

Economic sector/s concerned:     ……………………………………………. 

First phase only or in-depth investigation?     FIRST PHASE ONLY / IN-DEPTH 

Outcome: 
ABANDONMENT 

CLEARANCE / CLEARANCE WITH REMEDIES / PROHIBITION / 

Please indicate whether the investigation was in any way hampered by difficulties in 
fact-finding  outside  of  the  territory  of  your  Member  State.  If  so,  please  explain  the 
nature  of  those  difficulties,  and  any  impact  they  had  on  the  effectiveness  of  the 
investigation. 

For  each  market  where  the  concentration  might  have  had  a  possible  impact  on 
competition,  please  indicate  in  the  table  below  the  relevant  product  market,  its 
geographic  scope,  and  whether  competition  problems  have  been  identified  in  this 
market.  

Relevant Product Market   Geographic Scope  

Competition Problems?  

For the sake of clarity, the notion of "undertaking concerned" is explained in detail at paragraphs 129-
131  of  the  Commission's  Consolidated  Jurisdictional  Notice  under  Council  Regulation  (EC)  No 
139/2004 on the control of concentrations between undertakings, of 10.07.2007. 

3. 

4. 

5. 

6. 

7. 

8. 

74  

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Annex 2 

Questionnaire for concentrations falling under the "two-thirds rule"  

This form is to be completed for each concentration reviewed by your Competition Authority 
under  the  relevant  national  merger  control  law/s  which,  in  the  absence  of  the  "two-thirds 
rule"  in  Article  1(2)  and  (3)  of  the  Merger  Regulation,  would  have  constituted  a 
"concentration"  within  the  meaning  of  Article  3  of  the  Merger  Regulation,  and  would  have 
had  a  "Community  dimension"  within  the  meaning  of  Article  1(2)  and  (3)  of  the  Merger 
Regulation. Please answer the questions included in the form for each of the cases fulfilling 
this  condition  which  have  been  dealt  with  by  your  Competition  Authority  in  the  two-year 
period 2006-2007 (both years included).  Please use one form per concentration. 

Questions 

1. 

Concentration (please indicate case reference, reference of publication or link to the 
website and the date of decision):  ………………………………….. 

2.  

Parties to the concentration (please specify the undertakings concerned)75 

Undertaking A: 
Undertaking B:  
Undertaking C: 
Undertaking D: 

…………………………………………… 
…………………………………………… 
………………………………………..…. 
…………………………………………… 

3. 

Annual turnover (in EUR) 

Undertaking  Member State 

EU-wide 

World-wide 

A 
B 
C 
D 

4. 

Reviewed/Subject to review in other EU Member States? 
(if YES, please indicate in which one/s):  …………………… 

 YES / NO  

75  

For the sake of clarity, the notion of "undertaking concerned" is explained in detail at paragraphs 129-
131  of  the  Commission's  Consolidated  Jurisdictional  Notice  under  Council  Regulation  (EC)  No 
139/2004 on the control of concentrations between undertakings, of 10.07.2007. 

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
5. 

6. 

7. 

8. 

Economic sector/s concerned:     ……………………………………………. 

First phase only or in-depth investigation?     FIRST PHASE ONLY / IN-DEPTH 

Outcome: 
ABANDONMENT 

CLEARANCE / CLEARANCE WITH REMEDIES / PROHIBITION / 

For  each  market  where  the  concentration  might  have  had  a  possible  impact  on 
competition,  please  indicate  in  the  table  below  the  relevant  product  market,  its 
geographic  scope,  and  whether  competition  problems  have  been  identified  in  this 
market.  

Relevant Product Market   Geographic Scope  

Competition Problems?  

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Annex 3 

Questionnaire for concentrations subject to referral under Article 4(4) or 9 

This form is to be completed for each concentration reviewed by your Competition Authority 
under  the  relevant  national  merger  control  law/s  following  a  referral  from  the  European 
Commission pursuant to Article 4(4) or Article 9 of the Merger Regulation. Please answer the 
questions included in the form for each case referred under either of these provisions which 
has been dealt with by your Competition Authority since 1 May 2004.  Please use one form 
per concentration. 

1. 

2. 

3. 

4. 

7. 

Concentration (please indicate case reference, reference of publication or link to the 
website and the date of decision):  ………………………………….. 

Questions 

First phase only or in-depth investigation?     FIRST PHASE ONLY / IN-DEPTH 

Outcome: 
ABANDONMENT 

CLEARANCE / CLEARANCE WITH REMEDIES / PROHIBITION / 

Please indicate the total duration of proceedings between the date of referral and the 
date  of  clearance,  clearance  with 
remedies,  prohibition  or  abandonment:  
……………………………… 

For  each  market  where  the  concentration  might  have  had  a  possible  impact  on 
competition,  please  indicate  in  the  table  below  the  relevant  product  market,  its 
geographic  scope,  and  whether  competition  problems  have  been  identified  in  this 
market.  

Relevant Product Market   Geographic Scope  

Competition Problems?  

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX 2 

Report on Regulation 139/2004  
Questionnaire for respondents to the public consultation 

Explanatory Remarks 

The  European  Commission  must  report  to  the  Council  by  1  July  2009  on  the  operation  of 
Article  1(2)  and  (3)  and  of  Article  4(4)  and  (5)  of  Council  Regulation  (EC)  No  139/200476 
(the “Merger Regulation”), pursuant to Articles 1(4) and 4(6) of that Regulation. To this end, 
the  Commission  is  launching  a  wide-ranging  consultation  on  the  functioning  of  these 
jurisdictional  provisions  in  the  Merger  Regulation,  including  a  fact-finding  exercise  which 
seeks  information  and  opinions  from  Member  State  Competition  Authorities  and  from  other 
stakeholders in the EU merger control process. 

The questions are intended to yield a comprehensive picture of how the turnover thresholds in 
Article  1  are  functioning  in  combination  with  the  concentration  referral  provisions  in  the 
Regulation. For that reason, information and opinions are being sought not only on the pre-
notification  referral  mechanisms  introduced  for  the  first  time  with  the  adoption  of  the 
Regulation  13.9/2004,  but  also  on  the  pre-existing  post-notification  referral  mechanisms 
which were somewhat modified in 2004. 

This  questionnaire  also  seeks  any  comments  which  you  may  have  on  the  operation  of  the 
Merger Regulation more generally. 

Replies to this questionnaire should be communicated to the Commission by no later than 1 
December  2008.  In  your  response,  please  indicate  clearly  your  identity  and  that  of  any 
interest you represent.  Please also specify whether you are, or are representing, a company, 
business  association,  consumer  interest  organisation,  public  authority,  law  firm,  academic 
institution or individual, private individual or some other entity. 

Responses should be addressed to the Commission at:  

European Commission 
DG Competition 
Merger Registry 
B-1049 BRUSSELS 

or by email to comp-merger-registry@ec.europa.eu 

specifying the reference "HT.1277 – reply to public consultation" 

All submissions may be published on the Commission's website.  However, information which 
is clearly marked “confidential” will be treated as such. You are kindly requested to identify 
them  in  your  reply  by  putting  them  in  a  separate  annex.  You  may  alternatively  consider 
providing  a  non-confidential  version  of  your  reply,  which  is  the  Commission’s  preferred 
option. 

76  

OJ L24 (Vol. 47) of 29 January 2004; p. 1 

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Questionnaire 

The  functioning  of  the  turnover  thresholds  in  Article  1(2)  and  (3)  of  Council 

A. 
Regulation (EC) No 139/2004 (the EC Merger Regulation) 

The functioning of the turnover thresholds in Article 1(2) and (3) generally 

1. 
Do you believe that Article 1(2) and (3) of the Merger Regulation is functioning as an 
effective means of distinguishing those transactions which are most appropriately the subject 
of  merger  control  at  the  Community  level  from  those  which  are  not?  Please  explain  your 
answer, if possible illustrating your explanation by reference to your practical experience with 
the provisions.77 

If  you  do  not  believe  that  Article  1(2)  and  (3)  of  the  Merger  Regulation  is  functioning 
effectively  in  this  way,  please  indicate  any  suggestions  you  may  have  as  to  how  any 
shortcomings might be remedied. 

The  functioning  of  the  turnover  thresholds  in  Article  1(2)  and  (3)  in  specific  markets  or 
economic sectors  

2. 
Are there any specific markets or economic sectors where, in your view, the turnover 
thresholds  in  Article  1(2)  and  (3)  are  not  functioning  in  the  manner  intended,  namely  to 
identify those concentrations which would most appropriately be the subject of merger control 
at the Community level?   

If  there  are  any  such  markets  or  sectors,  please  indicate  them  and  explain  why  you  believe 
that  the  turnover  thresholds  do  not  always  identify  those  concentrations  which  would  most 
appropriately  be  the  subject  of  merger  control  at  the  Community  level.  Please  also  indicate 
any manner in which you think this shortcoming might be remedied. 

Merger control filings at the national level 

Some merger transactions are subject to review under the merger control laws of more 
3. 
than one EU Member State.  If you have any specific concerns about the fact or the manner in 
which  some  transactions  are  reviewed  under  the  merger  control  laws  of  multiple  EU 
jurisdictions,  please  explain  those  concerns  -  if  possible  by  reference  to  your  practical 
experience - and any suggestions you may have as to how they might be remedied. 

The functioning of the two-thirds rule in Article 1(2) and (3) 

4. 
Please describe any specific concerns you may have about the functioning of the "two-
thirds rule" in Article 1(2) and (3) of the Merger Regulation, if possible by reference to your 
practical experience with the provisions. Please also describe any suggestions you may have 
as to how these concerns might be remedied. 

77  

To the extent that your would in this context like to make any specific remarks on the functioning of the 
case referral system provided for in Articles 4(4), 4(5), 9 and 22 of the Merger Regulation, please make 
these remarks in response to the questions in Section B of this questionnaire. 

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
B. 

The  functioning  of  the  case  referral  provisions  in  Article  4(4),  4(5),  9  and  22  of 
Council Regulation (EC) No 139/2004 (the EC Merger Regulation) since May 2004 

The functioning of Article 4(4)  

5. 
Do you believe that Article 4(4) is functioning effectively as a means of re-allocating 
"original" jurisdiction from the Community level to the national level on the basis that a case 
is more appropriately dealt with in the national jurisdiction to which referral is requested? 

If  there  are  any  particular  concerns  which  you  have  about  the  functioning  of  Article  4(4), 
please  describe  those  concerns  –  preferably  by  reference  to  your  experience  with  a  specific 
cases/s – and any suggestions you may have as to how they might be remedied. 

The functioning of Article 4(5)  

Do you believe that Article 4(5) is functioning effectively as a means of re-allocating 
6. 
"original" jurisdiction from the national level to the Community level on the basis that a case 
is more appropriately dealt with by the Commission? 

If  there  are  any  particular  concerns  which  you  have  about  the  functioning  of  Article  4(5), 
please  describe  those  concerns  –  preferably  by  reference  to  your  experience  with  a  specific 
cases/s – and any suggestions you may have as to how they might be remedied. 

The functioning of Article 9  

7. 
Do  you  believe  that  Article  9  is  functioning  effectively  as  a  means  of  re-allocating 
"original" jurisdiction from the Community level to the national level on the basis that a case 
is more appropriately dealt with in the national jurisdiction to which referral is requested? 
Has 
impact  on 
functioning/usefulness of Article 9? Please explain your answer. 

introduction  of  Article  4(4)  had, 

in  your  opinion,  any 

the 

the 

If there are any particular concerns which you have about the functioning of Article 9, please 
describe those concerns – preferably by reference to your experience with a specific cases/s – 
and any suggestions you may have as to how they might be remedied. 

The functioning of Article 22  

Do  you  believe  that  Article  22  is  functioning  effectively  as  a  means  of  referring  a 
8. 
concentration to the Commission on the basis that the case is more appropriately dealt with at 
the Community level? 

the 

Has 
functioning/usefulness of Article 22? Please explain your answer. 

introduction  of  Article  4(5)  had, 

in  your  opinion,  any 

impact  on 

the 

If there are any particular concerns which you have about the functioning of Article 22, please 
describe those concerns – preferably by reference to your experience with a specific cases/s – 
and any suggestions you may have as to how they might be remedied. 

EN 

  EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
C. 

The  functioning  of  the  Council  Regulation  (EC)  No  139/2004  (the  EC  Merger 
Regulation) generally 

9. 
Do  you  have  any  comments  on  the  functioning  of  the  Merger  Regulation  generally?  
In particular, are there any aspects of the Regulation, or of its application in practice, which 
you believe are not functioning effectively?  If so, please explain your answer – if possible by 
reference  to  your  practical  experience  with  the  functioning  of  the  Regulation  –  and  any 
suggestions you may have as to how this/these shortcoming/s might be remedied. 

EN 

  EN 

 
 
 
Overview of two-thirds rule cases 2001-2007                                     ANNEX 3 

case 

country 

year 

# MS

geographic 
market 

OÖ Landesbank/Immofinanz Immobilien/Raiffeissen-Landesbank/Wr 
Städtische Versicherung 
WIENER STÄDTISCHE Versicherung AG Vienna Insurance Group 
Belgacom/LaPoste 
Varma Sampo/Sampo Oy Kapiteeli Oy/Kiinteistövarma Oy 
Keswell Oy/Indoor Group Oy 
SOK Corporation/Spar Finland 
SOK Corporation/Inex Partners Oy 
SOK Corporation/oy Esso ab’s 44 service areas and the liquid fuel 
procurement business 
Gaz de France/Société Générale/gaselys 
PAI-BNP/Groupe Lustucru 
Groupe Eiffage/Société Générale Routière 
PAI-BNP/Holdelis 
TF1/M6/TPS 
Banque Fédérale des Banques Populaires/Groupe Crédit Coopératif 
Socpresse/Groupe Express-Expansion 
Groupe Finaref/Crédit Agricole 
Crédit Agricole/Crédit Lyonnais 
Telecom Developpment/Cegetel 
MAAF/MMA 
Crédit Foncier de France/Entenial 
Groupe Caisse d'Epargne/Compagnie Financière Eulia 
Caisse de Dépôts et Consignations/IXIS 
Sodiaal/Entremont/Unicopa/Beuralia 
Cegetel/Neuf Telecom 
TF1/France Televisions/CFII 
BNP Paribas/Galeries Lafayette/Laser et Cofinoga 
Casino/Vindemia 
Geimex/Casino 
Jet Publishing/e-TF1 filiale de TF1 
SGAM COVEA/AZUR-GMF 
SGAM COVEA/Banque Populaire/SBE 
Vinci/ASF 
CNCE/BANQUE POPULAIRE/NATIXIS 
SFR/Somart/Debitel 
Caisse des depots et consignations/COFIDIM 

Rethmann/Remondis Unternehmenbeteiligungs/RWE Umwelt
REWE Deutscher Supermarkt/Karstadt Warenhaus
Deutsche Post/Geschäftsbereich Logistik-stationärer Einzelhandel Karstadt 
Quelle
STEAG Energie Contracting/BMK Biomasse Kraftwerk Lünen/Rethmann-
Entsorgungswirtschaft 
Rethmann/Entsorgungservice Anhalt Mitte/Karl Tönsmeier 
Entsorgungswirtschaft/Gesellschaft Abfallwirtschaft Köthen
Edeka Zentrale/SPAR Handels 

austria 

austria 
belgium 
finland 
finland 
finland 
finland 
finland 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france 
france
france 

germany
germany
germany 
germany 

germany 
germany 

2005 

2007 
2002 
2002 
2004 
2005 
2006 
2007 
2001 
2002 
2002 
2002 
2002 
2002 
2002 
2003 
2003 
2003 
2003 
2003 
2004 
2004 
2004 
2005 
2005 
2005 
2005 
2005 
2005 
2005 
2005 
2006 
2006 
2007
2007 

2004
2004
2004 
2004 

2004 
2005 

1 

2
1
1
4
1
1
1 

1
1 

1
1
1
1
1
3
1
1
1
1
2
1
1
1 

1
1
1
1
1
1
1
1
1
1
1 

1
1
1 

1 

1 

1

national 

national 
EU 
not defined 
not defined 
national 
L/O 
L/O 
not defined 
national 
national 
not defined 
national 
national 
national 
not defined 
national 
national 
not defined 
not defined 
national 
not defined 
national 
national 
national 
not defined 
national 
national 
not defined 
national 
national 
national 
national 
national 
broader than 
national 
regional 
regional 
national 
national 

local 
regional 

sector 

real estate 

Investiga-
tion 
first-phase 

outcome 

clearance 

Financial Services 
e-commerce 
real estate 
retail trade furniture 
retail daily cons goods 
consumers goods 
consumer goods 
gas 
foodstuffs 
road construction 
other 
audiovisual 
banking 
written press 
banking and insurance 
banking 
telecom 
banking 
banking 
banking 
banking 
dairy products 
e-commerce 
audiovisual 
banking 
supermarket 
supermarket 
e-commerce 
insurance 
banking 
public works 
Financial Services 
telecommunications
automobile 

waste management
supermarket
post 
energy 

waste management 
supermarket 

in-depth 
in-depth 
first-phase 
first-phase 
in-depth 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase
first-phase 

in-depth
first-phase
first-phase 
first-phase 

in-depth 
in-depth 

Clearance 
clear remedies 
clearance 
clearance 
clear remedies 
Clearance 
Clearance 
clearance 
Conditional clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
Conditional clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
Clearance 
Clearance 
Clearance
Clearance 

Conditional clearance
clearance
clearance 
clearance 

prohibition 
clearance 

 
 
case 

Overview of two-thirds rule cases 2001-2007                                     ANNEX 3 

country 

year 

# MS geographic 

market 

sector 

Investiga-
tion 

outcome 

Deutsche Post/Logistiekbereich Groszgut-Stückgut Karstadt Quelle 
Quelle/Christ Juweliere/Christ Homeshopping 
Lone Star Partners/Allgemeine Hypothekenbank Rheinboden 
Star Finanz Software Entwicklung/FIDUCIA IT/GAD/Deutsche Postbank 
Commerzbank/Eurohypo 
Postbank/BMW 
DB Zug Bus Regionalverkehr Alb-Bodensee/Stadtwerke Ulm Verkehr 
Commerzbank AG/Eurohypo AG 
Deutsche Ban AG, Berlin/T-SystemsEnterprise Services GmbH, Frankfurt 
(Deutsche Telekom AG)/Wissenschaftszentrum Berlin fuer Sozialforschung 
Gemeinnuetzige GmH, Berlin 
DB Zug Bus Regionalverkehr Alb-Bodensee GmbH/Ulm Verkehr GmbH, Ulm 
(SWU Verkehr)
Landesbank Baden-Wruettemberg. Stuttgart-Karlsruhe/SachsenLB 
Landesbank Sachsen Girozentrale, Leipzig
COSMOTE SA (subsidiary of "OTE Group")/GERMANOS' 
SA/MOBILBEEP 
WIND HELLAS TELCOM SA (subsidiary of Weather Investment Holding 
S.A.)/WIND PPC Holding (Tellas Holding S.A)
Enel/Camuzzi Gazometri 
Banca Monte dei Paschi di Siena/Ticino Assicurazioni-Montepaschi Vita Spa 
SAI/Società Assicuratrice Industriale/la Fondiaria Assicurazioni 
Banca Intesabci/Epsilon Associati 
San Paolo IMI/Cardine Banca 
Cassa di Risparmio de Firenze/Findomestic Banca 
Enel/Camuzzi Gazometri 
San Paolo Vita/Noricum Vita 
Unicredito Italiano/Ramo di Azienda di Abbey National Bank Italia 
Compagnia Assicuratrice Unipol/Winterthur Assicurazioni 
Capitalia/Roma Vita 
I2 Capital/Car World Italia-Car World Rental Italia 
Capitalia/Cofiri 
Cassa Depositi e Prestiti/Trasmissione Elettricità Rete Nazionale 
Unipol Assicurazioni/Banca Nazionale del Lavoro 

Almaviva Technologies/Finisiel-Consulenza e Applicazioni Information 
Technology
Banca Popolare di Lodo/Banca Antoniana Popolare Veneta 
API Anonima Petroli Italiana/ENI 
Aurelia Srl/Enel Spa/Compagnia Porto di Civitavecchia 
Banco Popolare di Verona e di novara Soc. Coop a r.l./Banca Popolare di 
Vicenza Soc. Coop. p.a./Linea Spa 

germany 
germany 
germany 
germany 
germany 
germany 
germany 
germany 
germany 

germany 
germany 
greece 
greece 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 

2005 
2005 
2005 
2005 
2005 
2005 
2005 
2006 
2006 

2006 
2007 
2006 
2007 
2001 
2001 
2002 
2002 
2002 
2002 
2002 
2003 
2003 
2003 
2003 
2004 
2004 
2005 
2005 
2005 
2005 
2005 
2006 
2006 

1
1
1
1 

1
1
1 

1
1 

1 

1 

1 

1 

1
1 

1
1
1
1
1
1
1
1
1
1
1
1 

1 

1 

1 

1
1
1 

national 
national 
national 
not defined 
national 
national 
regional 
national 
national 

national 
national 
national 
national 
national 
national 
EU 
national 
national 
national 
national 
national 
not defined 
national 
national 
national 
national 
national 
national 
national 
national 
national 
national 
national 

other 
jewelry 
mortgage 
financial services 
mortgage 
mortgage 
public transport 
financial services 
market research 

Transport 
Financial Services 
telecommunications 
telecommunications 
gas and electricity 
insurance 
insurance 
investment banking 
banking 
banking 
gas and electricity 
insurance 
insurance 
insurance 
insurance 
car rentals 
financial services 
electricity 

investement banking 
and insurance
information technology 

investement banking 
and insurance
lubrificating oil 
public works 
Financial Services 

in-depth 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
in-depth 
first-phase 
first-phase 

in-depth 
first-phase 
in-depth 
in-depth 
first-phase 
first-phase 
in-depth 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
in-depth 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 

clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
Withdrawal 
Clearance 
Clearance 

Pending 
Clearance 

Conditional clearance 
Conditional clearance 
clearance 
clearance 

Conditional clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
Conditional clearance 
clearance 
clearance 
clearance 
clearance 
Clearance 
Clearance 

 
 
 
case 

Overview of two-thirds rule cases 2001-2007                                     ANNEX 3 

country 

year 

#MS  geographic 

market 

sector 

Investiga-
ion 

outcome 

Gruppo San Paolo Imi/Quadrivio SGR Spa/E-work Spa 
m-dis Distribuzione Media Spa/Gruppo FIAT/to-dis Srl 
Società Cattolica Assicurazioni Soc. Coop./Banca Lombarda e 
Piemontese/Lombarda Vita Spa 
Fondiaria-SAI Spa/Capitalia Spa 

Banco Popolare di Verona e di novara Soc. Coop a r.l./Società Cattolica di 
Assicurazioni Soc. Coop./ABC Assicura Spa
Meliorbanca Spa/San Paolo Imi Spa/Prima Spa 

Gruppo San Paolo Imi/Gruppo Monte dei Paschi di Siena/Azienda 
Prodotti Artistici Spa 
San Paolo IMI Spa/MPS Spa/Banche Popolari Unite 
Banca Intesa S.p.A./SanPaolo IMI S.p.A. 

Banco Popolare di Verona e Novara Soc.Coop. a r.l./Banca Popolare Italiana 
Soc. Coop
Gruppo BPU/Gruppo BLP 
Banco Popolare di Verona e Novara Soc.Coop. a r.l./Fondiaria-SAI 
S.p.A./BPV Vita S.p.A. 
AEM Spa/ASM Brescia Spa 
Pirelli & C Real Estate S.p.A., Via Gaetano Negri 10, 20121 Milano, 
Italy/Intesa Sanpaolo S.p.A., Piazza San Carlo, 156, 10121 Torino, 
Italy/Pirelli & C Real Estate Facility Management S.p.A., Viale Piero e 
Alberto Pirelli, 21, 20126 Milano, Italy 
Koninklijke Volkers Wessels Stevin/KPN Netwerk Bouw 
Pon/Geveke 
Rabobank/Assumij 
ABN AMRO/Borstlap Fasteners 
ABP/Loyalis 
Koninklijke KPN/Telfort 
Archand Holding SàRL/Petroplus Bunkering International B.V 
Coöperatieve Centrale Raiffeisen- Boerenleenbank B.A., (Part of Rabobank 
Group)/ABN AMRO Bouwfonds N.V., (Part of ABN AMRO Bank N.V.) 
SNS REAAL Property Finance B.V/Bouwfonds Property Finance B.V 

SNS REAAL N.V/De Zwitserleven Business/Swiss Life Asset 
Management (Nederland) B.V. 
Essent N.V/N.V. Nuon 

italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 
italy 

2006 
2006 
2006 
2006 
2006 
2006 
2006 
2006 
2006 
2007 
2007 
2007 
2007 
2007 

netherlands 2002 
netherlands 2003 
netherlands 2003 
netherlands 2004 
netherlands 2005 
netherlands 2005 
netherlands 2006 
netherlands 2006 

netherlands 2006 
netherlands 2007 
netherlands 2007 

1
1
1 

1 

1 

1 

1 

1
1 

1 

1
1 

1
6 

1
3
1
3
1
1
1
3 

1 

3 

1 

national 
national 
national 

broader than 
national 
broader than 
national 
broader than 
national 
national 
national 
national 
national 
national 
national 
national 

not available 

staff Leasing 
publshing 
Insurance 
Insurance 
Insurance 
chemicals 
manifacture 
Health care 
Financial Services 
Financial Services 
Financial Services 
Financial Services 
energy 
real estate management 

not defined 
not defined 
national 
not defined 
national 
national 

not available 
not available 

ict-infrastructure 
machinery 
real estate 
fasteners 
insurance pension funds 
telecom 
bunkering 
Financial Services 

not available 

broader than 
national 
broader than 
national 

Financial Services 
Financial Services 
Electricity 

first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
in-depth 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 

first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 

first-phase 
first-phase 
in-depth 

Clearance 
Clearance 
Clearance 
Clearance 
Clearance 
Clearance 
Clearance 
Clearance 
Conditional clearance 
Clearance 
Clearance 
Clearance 
Clearance 
Clearance 

clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
Clearance 
Clearance 

Clearance 
Clearance 
Withdrawal 

 
case 

Polskie Sieci Elektroenergetyczne S.A. (Poland)/BOT Górnictwo i Energetyka 
S.A. (Poland)/Zespół Elektrowni Dolna Odra S.A. (Poland)/Zakład Energetyczny 
Białystok S.A. (Poland)/Zakład Energetyczny Łódź - Teren S.A. (Poland)/Zakład 
Energetyczny Warszawa - Teren S.A. (Poland)/Zamojska Korporacja 
Energetyczna S.A. (Poland)/Rzeszowski Zakład Energetyczny S.A. 
(Poland)/Lubelskie Zakłady Energetyczne S.A. (Poland)/Łódzki Zakład 
Energetyczny S.A. (Poland)/Zakłady Energetyczne Okręgu Radomsko–
Kieleckiego S.A. (Poland)/Zakłady Energetyczne Okręgu Radomsko–
Kieleckiego S.A. (Poland) 

country 

year 

# MS geographic 

market 

sector 

Investiga-
tion 

outcome 

poland 

2007 

1 

national 

Electricity 

first-phase 

Clearance 

Maxcor Inc. (USA)/Ex-Cell-O Machine Tools Inc. (USA)/Ex-Cell-O GmbH 
(Germany)
Banco Santander Central Hispano/Seguros Génesis 
Telefonica Media/Banco Bilbao Vizcaya y Argentaria/Tick Tack Ticket 

Banco Santander Central Hispano/Endesa Telecomunicaciones/Unión Fenosa 
Inversiones/Auna
Iberia/Zenit Servicios Integrales/Clece/Multiservicios Grupo Ramel 
Grupo Actividades de Construcción y Servicios/Grupo Dragados 
Union Fenosa Gas/Iberdrola Gas/Endesa Generacion/Planta de 
Regasificacion de Sagunto 
Ferroser/Cespa-Trasa 
Mapfre Caja Madrid Holding/Musini 
Sociedad General de Aguas de Barcelona/Banco de Crédito Local de España 
Gas Natural/Iberdrola 
EK/FCC 
Sociedad General de Aguas de Barcelona/Union Fenosa/Sociedad de 
Empresarial Caja Madrid/Applus 
ACS/Union Fenosa 
Gas Natural/Endesa 
Svenska Handelsbanken/SPP Fonder/SPP Livförsäkring 
Storebrand/SPP Livförsäkring 
Andra AP Fonden/Sjatte AP Fonden/NS Holding AB 
Kooperativa Forbundet/Coop Sverige Aktiebolag 
Balfour Beatty plc/Birse Group plc 
Balfour Beatty plc/Covvlin Group Limited 
HBOS plc/David Lloyd Leisure Ltd/Next Generation clubs Holding Ltd 
Macquarie/Airwaive Safety Communications Limited 
National Express Group plc/Inter City East Coast rail franchise 
Punch Taverns plc/Matthew Clark Wholesale Limited/Forth Wines 
Limited/The Wine Studio Limited 
Macquarie/Assets of National Grid Wireless Limited 

poland 
spain 
spain 
spain 
spain 
spain 
spain 
spain 
spain 
spain 
spain 
spain 
spain 
spain 
spain 
sweden 
sweden 
sweden 
sweden 
UK 
UK 
UK 
UK 
UK 
UK 
UK 

2007 
2001 
2001 
2002 
2002 
2002 
2002 
2003 
2003 
2003 
2003 
2004 
2005 
2005 
2005 
2001 
2001 
2006 
2007 
2006 
2007 
2007 
2007 
2007 
2007 
2007 

2 

1
1 

1 

1 

1
1 

1
1
1 

1
1
1 

1
3
2
1
1
1 

1
1
1 

1
1
1 

1 

broader than 
national 
national 
national 
national 
EU 
national 
national 
national 
EU 
national 
national 
national 
national 
national 
EU 
national 
not defined 
L/O 
L/O 
national 
national 
national 
national 
national 
national 
national 

machinery 
insurance 
other 
telecom 

supporting air transport 
services
construction 
gas 
sewage and refuse disposal 
insurance 
tax services 
electricity 
construction 
technical consulting 
electricity and construction 
gas and electricity 
insurance 
insurance 
real estate management 
retail market for 
daily consumer 
construction 
construction 
Health care 
telecommunications 
Transport 
food and beverages 
telecommunications 

first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
in-depth 
first-phase 
first-phase 
first-phase 
in-depth 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 
first-phase 

Clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
clearance 
withdrawal 
clearance 
clearance 
clearance 
pending 
clearance 
clearance 
clearance 
clearance 
Clearance 
Clearance 
Clearance 
Clearance 
Clearance 
Clearance 

Conditional clearance