CELEX: 51988PC0734
Language: en
Date: 1988-11-25
Title: Amended proposal for a COUNCIL REGULATION (EEC) on the control of concentrations between undertakings (submitted by the Commission pursuant to Article 149(3) of the EEC Treaty)

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COM (88) 734
Vol. 1988/0242
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                          COM(88 ) 734 final - REVISED VERSION
                                         Brussels , 19 December 1988
                      Amended proposal for a
                     COUNCIL REGULATION ( EEC )
     on the control of concentrations between undertakings
            ( submitted by the Commission pursuant to
                Article 149(3 ) of the EEC Treaty )
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                                      - 1 -
                                  Amended proposai for a
                                 Council Régulation ( EEC )
                      on the control of concentrations between undertakings
  THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
  Having regard to the Treaty establishing the European Economic Community, and
  in particular Articles 87 and 235 thereof ,
  Having regard to the proposal from the Commission,
  Having regard to the opinion of the European Parliament ,
  Having regard to the opinion of the Economic and Social Committee,
  (1)  Whereas , for the achievement of the aims of the Treaty establishing the
       European Economic Community , Article 3 ( f ) requires the Community to
       institute "a system ensuring that competition in the common market is not
       di stort ed ";
  (2)  Whereas this system is essential for the achievement of the internal
       market by 1992 ;
  (3)  Whereas the dismantling of internal frontiers can be expected to result
       in major corporate reorganizations in the Community , particularly in the
       form of concentre' 'ons ;
  (4)  Whereas such a development must be welcomed as being in line with the
       requirements of dynamic competition and liable to strengthen the competi ¬
       tiveness of European industry , to improve the conditions of growth and
       to raise the standard of living in the Community;
 ---pagebreak---                                           - 2 -
 (5)   Whereas, however, it must be ensured that the process of reorganization does not
       give rise to Lasting damage to competition; whereas the system of indistorted
       competition must therefore include provisions governing those concentra¬
       tions which may impede effective competition in the common market ;              '
 ( 6)  Whereas , pursuant to Articles 85 and 86 , anticompetitive agreements ,
       decisions and practices , which may affect trade between Member States ,
       are prohibited, provided that their impact on competition and trade is
       appreciable ;
 ( 7)  Whereas the principles laid down in Articles 85 and 86 apply also to
      arrangements which alter the competitive structure of the market and whereas
      provisions for the implementation of those principles must take due
      account of the specific context of market structure;
( 8)  Whereas those provisions should apply to significant structural changes ,
      whose impact on the market goes beyond the national borders of one Member
      State ;
(9)   Whereas the scope of application of this Regulation            should therefore be
      defined according to the territory of operations of            the undertakings
      concerned and be limited by quantitative thresholds            in order to include
      only those operations of concentration which have a            Community dimension;
( 10) Whereas this is the case where the aggregate turnover of all the under¬
      takings concerned exceeds a given level and where at least two of the
      undertakings concerned have their sole or principal field of activities
      in a different Member State or where, although the undertakings in
      question act mainly in one and the same Member State, at least one of
      them has substantial operations in at least one other Member State
      through subsidiaries or direct sales ; whereas this is also the case
      where the concentrations effected by undertakings which do not have their
      principal field of activities in the Community are such as to have an
      effect within the common market ;
 ---pagebreak---                                                - 3 -
  ( 11 ) Whereas the existing competition rules and in particular Article 87
          provide a legal basis for the control of certain forms and types of
          concentration ;
                                                                                                   €
 ( 12 ) Whereas it is necessary , however, to create a legal framework which
          makes it possible to treat in a comprehensive way all concentrations
          having the same impact on the competitive structure of the common market
          or a substantial part thereof ;
 ( 13 ) Whereas , pursuant to Article 235 the Community may , by
          way of Regulation , give itself the additional powers of action necessary
          for the attainment of this objective , and in particular with regard to
          concentrations on the markets for products listed in Annex II to the
          Treaty ;
( 14 ) Whereas the Regulation should establish the principle that concentrations
         which create or strengthen a position as a result of which the mainte¬
         nance or development of effective competition is impeded in the common
         market or in a substantial part thereof are to be declared incompatible
         with the common market ;
( 15 ) Whereas concentrations which , by reason of the limited market share of
         the undertakings concerned , are not liable to impede effective competi ¬
         tion may be presumed to be compatible with the common market ; whereas ,
         in particular, this may be presumed where the market share of the
         undertakings concerned does not exceed 25% either in the common market
         or in a substantial part thereof ;
( 16 ) Whereas authorization should be available in respect of concentrations which, although they
         impede effective competition, contribute to the attainment of the basic objectives of the Treaty
         m such a way that , on balance, their economic benefits prevail over the
         damage they cause to competition )
 ---pagebreak---                                            - 4 -
  ( 17 ) Whereas the Regulation should also provide that decisions of conpatibi lity
          and authorizations may           be made subject to conditions and obliga­
          tions to be determined case by case in order to ensure that conditions
          of effective competition are maintained;                                      1
  ( 18 ) Whereas the Commission should have the task of taking all the decisions
          necessary to establish whether or not concentrations which fall within
          the scope of application of the Regulation are compatible with the
          common market, as well as decisions designed to restore and maintain conditions
          of effective competition :
 ( 19) Whereas , to ensure effective supervision , prior notification and the
          suspension of concentrations should be
         made obligatory ;
 ( 20 ) Whereas a    period      within which the Commission must initiate a proceed¬
         ing in respect of a concentration notified to it and a period , within
         which it must give a final decision on the compatibility or incompatibi ¬
         lity with the common market of a notified concentration should be laid
         down ;
( 21 ) Whereas undertakings concerned must be accorded the right to be heard by
         the Commission as soon as a proceeding has been initiated , and third
         parties showing a legitimate interest must be given the opportunity to
         submit their comments ;
( 22) Whereas the Commission should act in close and constant liaison with
         the competent authorities of the Member States and should obtain the
         views of those most directly concerned by a concentration ;
( 23 ) Whereas , for the purposes of this Regulation , the Commission must be
         afforded the assistance of the Member States and must also be •
         empowered to require information to be given and to carry out the
         necessary investigations in order to appraise concentrations ;
 ---pagebreak---                                       - 5 -
 ( 24 ) Whereas compliance with this Regulation must be enforceable by means
         of fines and periodic penalty payments : whereas the Court of Justice should
        be given unlimited jurisdiction in that regard pursuant to Article 172 ;
( 25 ) Whereas it is appropriate to define the concept of concentration in such
         a manner as to cover operations bringing about a change in the structure
         of the undertakings concerned ; whereas it is therefore necessary to
        exclude from the scope of application of this Regulation those operations
        which have as their object or effect the coordination of the
         competitive behaviour of independent undertaki ngs , since such      operations
         fall    to be examined under the provisions of other regulations imple¬
        menting Article   85 or Article 86 ;
( 26) Whereas the Commission should be given exclusive competence to apply
        this Regulation , subject to review by the Court of Justice; whereas
        it should also be stipulated that the provisions of this Regulation
        apply to all concentrations with a Community     dimension , whether or not
        they fall within the scope of Article       85 or Article 86 ;
( 27 ) Whereas the Member States      may . not apply their national legislation
        on competition to concentrations having a Community dimension, unless
        expressly empowered to do so by the Commission ;
( 28 ) Whereas , however , this principle does not prevent Member States from
        taking appropriate measures in so far as is necessary to protect            legi -
        mate interests other than those pursued by this Regulation, provided that
        such interests are sufficiently defined and protected  by     domestic law and
        that such measures are compatible with the other provisions of
        Community law.
        HAS ADOPTED THIS REGULATION    :
 ---pagebreak---                                      - 6 -
                                     Article 1
                                Scope of application
 1 .    This Regulation shall apply to all concentrations having a Community
        dimension as defined in paragraph 2 r        whether or not they fall
        within the scope of Article    85 or Article 86 .
 2.     For the purposes of this Regulation , a concentration has a Comnunity
        dimension   where :
        (a)   the     aggregate   worldwide turnover of all the undertakings
             concerned is more than one thousand million ECU , and
        (b )  the aggregate Community-wide turnover of each of at least two of
             the undertakings concerned is more than one hundred million
             ECU ,
unless each of the undertakings concerned ac hi eves more than three quarters
of   "its    aggregate Community-wide turnover within one and the same Member
State .
 ---pagebreak---                                          7
                                      Article 2
                               Appraisal of concentrations
1-  Concentrations falling within the scope of this Regulation shall be appraised
   with a view to establishing whether or not they are compatible with
   the common market , by reference in particular to the market position
   of the undertakings concerned and to their economic and financial power,
   to opportunities of choice available to suppliers and users, to their access to supplies
   or markets , to the structure of the markets affected taking account of
   international competition , to legal and factual barriers to entry , and
   to supply and demand trends for the relevant goods or services .
2. Concentrations which do not create or strengthen a position as a result
   of which the maintenance or development of effective competition
   would be impeded in the common market or in a substantial part thereof
   shall be declared compatible with the common market .
3. Concentrations which create or strengthen a position as a result of which
   the maintenance or development of effective competition is impeded in the
   common market or in a substantial part thereof shall be declared incompa¬
   tible with the common market unless authorized on the ground that their
   contribution to improving production and distribution , to promoting
   technical or economic progress or to improving the competitive structure
   within the common market outweighs the damage to competition . In this
   respect , the competitiveness of the sectors concerned with regard to
   international competition and the interests of consumers shall be taken
   into account .
 ---pagebreak---                               - 8 -
Concentrations shall be authorized on account of their compatibility
with the common market only insofar as they do not :
( a ) impose     on    the undertakings concerned restrictions which are
      not indispensable to the implementation of the concentration, and
( b ) afford     the    undertakings concerned the possibility of
      eliminating competition in respect of a substantial part of the goods
      or services concerned .
 ---pagebreak---                                       - 9 -
                                      Artide 3
                              Definition of concentration
 1 . A concentration shall be deemed to     occur where :
     (a ) two or more undertakings merge ; or
    ( b ) - one or   more ' persons already controlling at least
            one undertaking,or
          - one or   more   undertakings
          acqui re, whether by purchase of shares or assets , by contract
          or by any other means , direct or indirect control of the whole
          or parts of one or more undertakings .
2 - Operations which have as their object or effect the coordination of the
      competitive behaviour of independent undertakings shall be deemed not to
     give rise to a concentration within the meaning of paragraph ( 1 ) ( b ).
      The creation of a joint venture performing on a lasting basis all the
      functions of an autonomous economic entity , which does not have as its
     object or effect the coordination of the competitive behaviour of the
     undertakings concerned , shall be deemed to be a concentration within the
     meaning of paragraph ( 1 ) ( b ).
3 - Control is constituted by rights or contracts which , either separately
     or jointly , and having regard to the considerations of fact or law
     involved , make it possible to determine how an undertaking shall operate,
      and in particular by :
 ---pagebreak---                                     - 10 -
    ( a ) ownership or the right to use all or part of. the assets
          of an undertaking ;
    ( b ) rights or contracts which confer decisive influence on the composition,
          voting or decisions of the organs of an undertaking ;
     Cc ) rights or contract which make it possible to manage the business
          of an undertaking ;
    ( d ) contracts made with an undertaking concerning the computation or
          appropriation ot its profits ;
    (e ) any other means conferring decisive influence on the activity      of an
          undertaking .
4 . Control is acquired by persons , undertakings or groups of persons
      or undertakings which :
   ( a ) are holders of the rights or entitled to rights under the
          contracts concerned ;
   <b ) while not being holders of such rights or entitled to rights under
          such contracts , have power to exercise the rights
          deriving therefrom ;
    (c ) in a fiduciary capacity derived from a orivate law contract, hold
          assets of an undertaking or shares in an undertaking, and have power
          to exercise the rights attaching thereto, unless that power may be
          revoked at any time or unless they are bound by special instructions
          from their principals .
5 . Control of an undertaking is net constituted where banks or financial
     institutions acquire shares in an undertaking with a view to selling
     them , provided that they do not exercise voting rights
     in respect of those chares with a view to determining the competit i ve
     behaviour of that undertaking .
 ---pagebreak---                                          - 11
                                         Artide 4
                             Prior notification of concentrations
1 . Concentrations      as referred to by this Regulation, whether or not they form the subject-
     matter of an agreement , shall be notified to the Commission before they are put into effect .
2 . Concentrations within the meaning of Article 3(1)(a ) shall be notified jointly
    by the parties concerned . In the cases referred to in Article 3 ( 1)(b ),
    the notification shall be made by the party or parties seeking to acquire control
    of the whole or parts of one or more undertakings .
3 . Where the Commission finds that a concentration falls within the scope
    of application of this Regulation , it shall immediately publish the main
    contents of the notification . The publication shall contain the names of
    the parties , the nature of the concentration and the economic sectors
    involved . It shall take account of the legimate interest of undertakings
    in the protection of their business secrets .
 ---pagebreak---                                           - 12 -
                                          Artide 5
                                  Calculation of turnover
 1 . Aggregate turnover within the meaning of Article 1 shall be calculated
       by adding together the pre-tax turnover of the undertakings concerned
       for all goods and services in the last financial year . Turnover deriving
       from internal operations within a group shall not be included in this
       ca Iculation .
2 . By way of derogation from paragraph 1 , where the concentration consists in
      the acquisition of parts , whether or not constituted as legal entities ,
      of one or more undertakings or of a group of undertakings , only the
       turnover relating to the parts which are the subject of the operation
      shall be taken into account with regard to the seller      or sellers .
3 . In place of turnover the following shall be used :
     (a ) for banking and financial institutions : as regards
           Article 1 ( 2 ) ( a ) and    ( b ),     one tenth of their assets ; as
           regards the final part of . Article 1(2 ),   operations
           with clients from their own and from other Member States ;
    ( b ) for insurance companies : the value of         . premiums received-
4 . Without prejudice to the provisions of paragraph 2 ,                the relevant
      turnover for each of the undertakings concerned shall be calculated by
      adding together the respective turnovers of all undertakings belonging to
      the same group .
 ---pagebreak---                                      13 -
   In this respect the following undertakings shall be taken into account
( a ) those which take part directly in the concentration ;
( b ) those in which a party to the concentration , directly or indirectly ,
       - owns at   least half the capital or business assets , or
       - has the power to exercise at least      half the voting rights , or
       - has the power to appoint     at  least half the members of the
          supervisory board , board of management or bodies legally
         representing the undertakings , or
       - has the right to manage the undertaking 's affairs ;
( c ) those which directly or indirectly have in or over a party to
       the concentration rights or powers as      listed in ( b ) ;
 <d ) those in or over which an undertaking as referred to in         ( c ) directly
       or indirectly has       rights or powers as listed ; in ( b ).
  Undertakings in which several undertakings as referred to in ( a ) to
  ( d ) jointly have , directly or indirectly , rights or powers as            set out
  in ( b ) shall also be considered to be undertakings concerned .
 ---pagebreak---                                       T4 -
                                    Article 6
                           Initiation of proceedings
1 . Where the Commission finds that a concentration falls within the scope of
    application of this Regulation, it shall immediately initiate a proceeding
    with a view to establishing whether or not that concentration is compa¬
    tible with the common market . It shall so inform the undertakings
    concerned and the competent authorities of the Member States
    without delay .
2.. Where the Commission finds that a notified concentration does not fall
    within the scope of application      of this Regulation , it shall immediately
    so inform the undertakings concerned and the competent authorities of the
    Member States .
3 . As regards notified concentrations , decisions pursuant to paragraphs
    1 and 2 shall be taken      within a period not exceeding one month , unless
    the undertakings concerned agree to extend that period . The period of one
    month shall commence on the day fol lowing the date of receipt of the notification, or
    if the information to be supplied with the notification is incomplete, on
    the day following the date of receipt of the complete in+onnation .
4 . The Commission may initiate a proceeding     after the expiry of the period
    provided for in paragraph 3 where the information supplied by the undoi–
    takings in the notification or thereafter is false or misleading .
 ---pagebreak---                                    - 15
                                  Article 7
                         Suspension of the concentration
1 . Undertakings shall suspend the implementation of a concentration which
    falls within the scope of application of this Regulation until the
    Commission has decided on initiation of a proceeding pursuant to
    Arti cl e 6 .
2 . In order to      ensure   conditions of effective competition, the
    Commission may decide , when it initiates a proceeding pursuant to
    Article 6 ( 1 ), that the suspension of the implementation of a concentration
    should be extended until it takes a final decision pursuant to Article 8 .
3 - The provisions of paragraphs 1 and 2 shall not impede the implementation
    of a public takeover or exchange bid which has been notified to the
    Commission by the date of its announcement , provided that the acquirer
    does not exercise the voting rights attached to the shares in question .
A - The Commission may , on request , waive the provisions of paragraphs 1 and 2
    or the proviso contained in paragraph 3 in order to prevent serious
    damage to one or more undertakings concerned by a concentration .; the
    waiver may be made subject to conditions and obligations in order to
     ensure       conditions of effective competition .
 ---pagebreak---                                         16 -
                                   Article 8
                                                                                     <r
                        Powers of decision of the Commission
   1 - For each proceeding initiated pursuant to Article 6 and concerning a
       notified concentrat ion, the Commission shall establish by decision
       whether or not that concentration is compatible with the common market .
  2 . Where the Commission finds that a notified concentration fulfils the
       conditions of compatibility laid down in Article 2 ( 2 ), it shall issue
       a decision declaring the concentration compatible with the common market ;
       conditions and obligations may be attached thereto in order to en¬
       sure conditions of effective competition . In such a case , the Commission
       may also empower      Member States which are directly concerned by the
- concentration to apply their national legislation on competition in order
       to ensure       conditions of effective competition in local markets within
       their respective territories .
  3 - Where the Commission finds that a notified concentration fulfils all the
       conditions laid down in Article 2 ( 3 ), it shall issue a decision authori ¬
       zing the concentration as being compatible with the common market; conditions
       and obligations may be attached thereto in order to ensure            conditions
       of effective competition . The decision granting the authorization shall
       also cover additional restrictions reasonably ancillary to the implementa-
      tion 0f the concentration .
. 4 * Where the Commission finds that a concentration fulfils the conditions of
       incompatibility laid down in Article 2 ( 3 ) but does not fulfil the
       conditions for an authorization laid down therein, it shall issue a
       decision refusing the authorization and declaring the concentration
       incompatible with the common market .
 ---pagebreak---                                           17 -
 5 . Where a concentration has already been           implemented,   the Commission may
      require in a decision pursuant to paragraph 1 or by             separate decision ,
     the undertakings or assets grouped together to be separated or the cessation of
     common control or any other action that may be appropriate in order
     to restore conditions of effective competition .
6 . The Commission may revoke its decision pursuant to paragraph 2 or
     paragraph 3 where the decision is based on incorrect information for
     which one of the undertakings involved in the concentration is
     responsible or where the decision         has been obtained by deceit .
     It may also revoke its decision pursuant to paragraph 2 or                para¬
     graph 3 where the undertakings concerned commit a breach of an obliga ¬
     tion attached to the decision .
7 . Authorizations of concentrations by the Commission shall in no way
     alter       collective workers' rights in force in the undertakings
     concerned .
 ---pagebreak---                                             18 -
                                       Article 9
                               Time limits for decisions
1 . Decisions pursuant to Article 8 ( 2 ) concerning notified concentrations
     shall be taken within one month following the date of initiation of the
     proceeding ,     unless the undertakings concerned agree to an extension
     of that period .
2 . Decisions pursuant to Article 8 ( 3 ) and ( 4 ) concerning notified concen¬
     trations shall be taken within four months following the date of initia ¬
    tion of the proceeding, unless the undertakings concerned agree to an extension
     of that period .
3 - By way of exception, the periods of one and four months set respectively by paragraphs 1
    and .    2    shall     be      suspended where the Commission , owing to
    circumstances for which one of the undertakings involved in the concentra ¬
    tion is responsible , has had to request information         by decision pursuant to
    Article 10 or to order an investigation by decision pursuant to
    Article 12 .
 ---pagebreak---                                         - 19 -
                                        Article 10
                                  Requests for information
1 . In carrying out the duties assigned to it by this Regulation , the
     Commission may obtain all necessary information from the governments
     and competent authorities of the Member States and from persons ,
     undertakings and associations of undertakings .
2 - When sending a request for information to a person, an undertaking or an
     association of undertakings , the Commission shall at the same time
     forward a copy of the request to the competent authority of the Member
     State in whose territory the residence of the person or the seat of the
     undertaking or association of undertakings is situated .
3 - In its request the Commission shall state the legal basis and the
     purpose of the request and also the penalties provided for in Article
    13(1 ) ( b ) for supplying incorrect information .
4 . The information requested shall be supplied, in the case of undertakings, by their owners
     or their representatives and , in the case of legal persons , companies or
    firms , or of associations having no legal personality , by the persons
    authorized to represent them by law or by their statutes .
 ---pagebreak---                                   - 20 -
 5. Where a person , an undertaking or an association of   undertakings does not
     supply the information requested within the      period     fixed by the
     Commission, or supplies incomplete information , the Commission shall by
    decision require the information to be supplied . The decision shall
    specify what information is required , fix an appropriate        period
    within which it is to be supplied and mention the penalties provided
    for in Article 13(1)(b ) and Article 14(1)(a ) and the right to have
    the decision reviewed by the Court of Justice .
6 . The Commission shall at the same time forward a copy of its decision to
    the competent authority of the Member State in whose territory the
    residence of the person or the seat of the undertaking or association
    of undertakings is situated .
 ---pagebreak---                                  - 21
                                 Article 1 1
                 Investigations by the Authorities of the Member States
1 . At the request of the Commission , the competent authorities of the
    Member States shall undertake the investigations which the Commission
    considers to be necessary under Article 12(1 ), or which it has ordered
    by decision pursuant to Article 12(3 ). The officials of the competent
    authorities of the Member States responsible for conducting these
    investigations shall exercise their powers upon production of an
    authorization in writing issued by the competent authority of the Member
    State in whose territory the investigation is to be made . Such authoriza ¬
    tion shall specify the subject matter and purpose of the investigation .
2 . If so requested by the Commission or by the competent authority of the
    Member State in whose territory the investigation is to be made,
    officials of the Commission may assist the officials of such authority
    in carrying out their duties .
 ---pagebreak---                                        22
                                     Article 12
                        Investigating Powers of the Commission
 1 . In carrying out the duties assigned to it by this Regulation , the
       Commission may undertake all necessary investigations into undertakings
       and associations of undertakings .
      To this end the officials authorized by the Commission are empowered :
    ( a ) to examine the books and other business records ;
    ( b ) to take or demand copies of 0 r extracts from the books and business
          records ;
    ( c ) to ask for oral explanations on the spot ;
    ( d ) to enter any premises , land and means of transport of undertakings .
2 - The officials of the Commission authorized to carry out the
      investigations shall exercise their powers upon production of an author¬
      ization in writing specifying the subject matter and purpose of the
      investigation and the penalties provided for in Article 13(1)(c ) in
      cases where production of the required books or other business records
      is incomplete . In good time before the investigation , the Commission
      shall inform the competent authority of the Member State in whose - terri ¬
     tory the investigation is to be made of the investigation and of the
      identity of the authorized officials .
3 . Undertakings and associations of undertakings shall submit to investi ¬
     gations ordered by decision of the Commission . The decision shall specify
     the subject matter and purpose of the investigation , appoint the date on
     which it is to begin and indicate the penalties provided for in Article
      13(1)(c ) and 14(1)(b ) and the right to have the decision reviewed by
     the Court of Justice .
 ---pagebreak---                                   - 23 -
4 . The Commission shall inform the competent authority of the Member State
    in whose territory the investigation is to be made in good time of its
    intention to take a decision pursuant to paragraph 3 . It shall hear the
    competent authority before taking its decision .                          '
5 . Officials of the competent authority of the Member State in whose
    territory the investigation is to be made may , at the request of such
    authority or of the Commission, assist the officials of the Commission
    in carrying out their duties .
6 . Where an undertaking opposes an investigation ordered pursuant to this
    Article, the Member State concerned shall afford the necessary
    assistance to the officials authorized by the Commission to enable them
    to make their investigation . Member States shall , after consultation with
    the Commission , take the necessary measures to this end before .
 ---pagebreak---                                            24
                                        Artide 13
                                           Fines
 1 . The Commission may by decision impose on persons , undertakings or
       associations of undertakings fines of from 1,000 to 100,000 ECU where
       intentionally or negligently :
      (a ) they supply incorrect or misleading information in a notification
            pursuant to Article 4 ;
     ( b ) they supply incorrect information in response to a request made
           pursuant to Article 10 or fail to supply information within the
           period '       fixed by a decision taken pursuant to Article 10;
    ( c ) they produce the required books or other business records in
            incomplete form during investigations under Article 1 1 or Article 12, or
           refuse to submit to an investigation ordered by decision taken
           pursuant to Article 12 .
2 . The Commission may by decision impose fines not exceeding 1 C% of the
       aggregate turnover of the undertakings concerned within the meaning
      of Article 5 where the persons or undertakings concerned , either
       intentionally or negligently :
    (a ) breach an obligation imposed pursuant to Article 7 or          Article 8,
           or
     (b ) implement a concentration in breach of the provisions of this
           Regul at ion .
3 . In setting the amount of the fine , regard shall be had to the
      gravity of the infringement .
4 . Decisions taken pursuant to paragraphs 1 and 2 shall not be of a
      criminal law nature .
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                                  Article 14
                            Periodic Penalty Payments
1 - The Commission may by decision impose on persons , undertakings or asso¬
     ciations of undertakings periodic penalty payments of up to 50,000 ECU
     for each day of the delay calculated from the date appointed by the
     decision, in order to compel them :
    (a ) to supply complete and correct information which it has
         requested by decision taken pursuant to Article 10;
   ( b ) to submit to an investigation which it has ordered by decision
         taken pursuant to Article 12 .
2 . The Commission may by decision impose on persons or undertakings
     periodic penalty payments of up to 100,000 ECU for each day of the
     delay , calculated from the day appointed by the decision , in order
     to compel them to apply the measures resulting from a decision taken
     pursuant to Article 8 ( 5 ).
3 - Where persons , undertakings or associations of undertakings
     have satisfied the obligation which it was the purpose of the periodic
     penalty payment to enforce , the Commission may set the total amount of
     the periodic penalty payment at a lower figure than that which would
     arise under the original decision .
 ---pagebreak---                               ** 26 -
                                Article 1 5
                      Review by the Court of Justice
The Court of Justice shall have unlimited jurisdiction within the meaning of
Article 172 of the Treaty to review decisions whereby the Commission has fixed
a fine or periodic penalty payment ; it may cancel , reduce or increase the fine
or periodic penalty payment imposed .
 ---pagebreak---                                    27 -
                                 Article 16
                            Professional secrecy
( 1 ) Information acquired as a result of the application of Articles 10, 11
      and 12 shall be used only for the purposes of the relevant request or
      investigation .
( 2 ) Without prejudice to the provisions of Article 1 ?, the Commission and the
      competent authorities of the Member States , their officials and other
      servants shall not disclose information acquired by them as a result of
      the application of this Regulation and of the kind covered by the obliga ¬
      tion of professional secrecy .
( 3 ) The provisions of paragraphs 1 and 2 shall not prevent publication of
      general information or surveys which do not contain information relating
      to particular undertakings or associations of undertakings .
 ---pagebreak---                                         28 -
                                       Article 17
                     Hearing of the parties and third parties
1 » Before taking decisions provided for in Article 8 , paragraph 2 ,
    where conditions and obligations are attached thereto , and in
    Article 8 , paragraphs 3 to 6 , as well as in Articles 13 and 14 , the
    Commission shall give the parties the opportunity of being heard on the
    matters to which the Commission has taken objection .
2 . The Commission may also , on application or on its own initiative, hear
    other natural or legal persons and associations .
3 . Natural or lega l. persons or associations showing a legitimate interest
    shall be entitled to make such applications .
4 . Applications to be heard on the part of members of the adninistrative or management organs
    and the acknowledged employees’’ representatives from the undertakings concerned ,
    shall in all cases be granted .
 ---pagebreak---                                  - 29 -
                                  Artide 18
            Liaison with the authorities of the Member States
 1 < The Commission shall transmit forthwith to the competent authorities
     of the Member States copies of notifications and of the most important
     documents lodged with or issued by the Commission pursuant to this
     Regulation .
2 . The Commission shall carry out the procedures set out in this Regulation
     in close and constant liaison with the competent authorities of the
     Member States , which may express their views upon those procedures . It
     shall obtain the views of the competent authorities of the Member .
     States which show that they are directly concerned by the concentration ,
     in particular with a view to the application of Article 8(2 ).
3 / An advisory Committee on concentrations shall be consulted prior to the
     taking of any decision pursuant to Article 8 , paragraphs 3 to 6 , as well
     as Articles 13 and 14 , or of implementing provisions pursuant to
     Article 22 .
4 » The Advisory Committee shall consist of officials of the Member States .
     Each Member State shall appoint two officials to represent it ; if
     prevented from attending , they may be replaced by other officials .
     At least one of the representatives of a Member State shall be competent
     in the matter of restrictive practices and dominant positions .
 ---pagebreak---                                   - 30 -
 5 < Consultation shall take place at a joint meeting convened at the
      invitation of and chaired by the Commission . A summary of the facts ,
      together with the most important documents and a preliminary draft of
      the decision to be taken , shall be sent with the invitation . The meeting
      shall place no earlier than fourteen days after the invitation has been
      sent . The Commission may , however , shorten this period in order to avoid
      serious harm to one or more of the undertakings concerned
     by a concentration .
6 . The Advisory Committee shall deliver an opinion on the Commission 's
     draft decision , if necessary by taking a vote . The Advisory Committee
     may deliver an opinion even if some members are absent and unrepresented .
     The opinion shall be delivered in writing and appended to the draft
     decision . It shall not be made public .
7 , The Commission shall take the utmost account of the opinion delivered
     by the Committee . It shall inform the Committee of the manner in which
     its opinion has been taken into account .
 ---pagebreak---                                 - 31
                                  Article 19
                           Publication of decisions
1 . The Commission shall publish the decisions which it takes pursuant to
    Article 8 ( 2),    where         conditions and obligations are attached
    thereto , and to Article 8 ( 3 )   to   (6)      in the Official Journal
    of the European Communities .
2 . The publication shall state the names of the parties and the main content
    of the decision ; it shall have regard to the legitimate interest of
    undertakings in the protection of their business secrets .
 ---pagebreak---                                - 32 -
                                Artide 20
                               Juri sdiction
1 - Subject to review by the Court of Justice, the Commission shall have
     sole competence to take the decisions provided for in this Regulation.
2 . Member      States shall not apply their national legislation on com¬
     petition to concentrations having a Community dimension, unless express ¬
     ly empowered to do so by the Commission in accordance with the provisions
     of the last sentence of Article 8 ( 2 ).
3 , Notwithstanding the provisions of paragraphs ( 1 ) and ( 2 ),    * Member
     States may take appropriate measures where necessary, to
    protect     legitimate interests other than those pursued by this .        . .
     Regulation, provided that such interests are sufficient ly. defined and pro¬
    tected     in domestic law and that such measures are compatible with
    other provisions of Community law .
 ---pagebreak---                                    - 33 -
                                    Article 21
                    Exclusive application of this Regulation
Regulation No 17 and Regulations (EEC) No 1017/68, No 4056/86 and No 3975/87 shall not apply
to concentrations falling within the scope of this Regulation .
 ---pagebreak---                                - 34 -
                                Article 22
                           Implementing provisions
The Commission shall have power to adopt implementing provisions concerning
the form , content and other details of notifications pursuant to Article A ,
time limits pursuant to Articles 6 and 9 , as well as hearings pursuant to
Article 17 .
 ---pagebreak---                                - 35 -
                                Artide 23
                           Entry into force
This Regulation shall enter into force .. .
This Regulation shall be binding in its entirety and directly applicable in
all Member States .
Done at                                        For the Council