CELEX: 51988PC0097
Language: en
Date: 1988-04-25
Title: AMENDED PROPOSAL FOR A COUNCIL REGULATION ( EEC ) ON THE CONTROL OF CONCENTRATIONS BETWEEN UNDERTAKINGS

No C 130/4                           Official Journal of the European Communities                                 19. 5. 88
                                                             II
                                                     (Preparatory Acts)
                                                COMMISSION
              Amended proposal for a Council Regulation (EEC) on the control of concentrations between
                                                      undertakings (')
                                                    COM(88) 97 final
              (Submitted by the Commission to the Council pursuant to Article 149(3) of the EEC Treaty on
                                                       25 April 1988)
                                                      (88/C 130/05)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                         Whereas, pursuant to Articles 85 and 86, anticompetitive
                                                                 agreements, decisions and practices, which may affect
Having regard to the Treaty establishing the European            trade between Member States, are prohibited as incom-
Economic Community, and in particular Articles 87 and            patible with the common market, provided that their
235 thereof,                                                     impact on competition and trade is appreciable;
Having regard to the proposal from the Commission,               Whereas the principles laid down in Articles 85 and 86
                                                                 apply also to arrangements which alter the competitive
Having regard      to   the  opinion   of  the   European        structure of the market and provisions for the implemen-
Parliament,                                                      tation of these principles must take due account of the
                                                                 specific context of market structure;
Having regard to the opinion of the Economic and
Social Committee,
                                                                 Whereas these provisions should apply to structural
                                                                 alterations, the effects of which are substantial and go
Whereas, for the achievement of the aims of the Treaty           beyond national borders of one Member State;
establishing the European Economic Community, Article
3 (f) requires the Community to institute 'a system
ensuring that competition in the common market is not            Whereas the scope of application of this Regulation
distorted';                                                      should therefore be defined according to the territory of
                                                                 operations of the undertakings concerned and be limited
"Whereas this system is essential for the achievement of         by quantitative thresholds in order to include only those
the internal market by 1992;                                     operations of concentration which have a Community
                                                                 dimension;
Whereas the dismantling of internal frontiers can be
expected to result in major corporate reorganizations in        Whereas this is the case where the aggregate turnover of
the Community, particularly in the form of concen-               all the undertakings concerned exceeds a given level and
trations;                                                       where each of the undertakings effecting the concen-
                                                                tration has its sole or principal field of activities in a
Whereas such a development must be welcomed as being            different Member State or where, although the under-
in line with the requirements of dynamic competition             takings in question act mainly in one and the same
and liable to strengthen the competitiveness of European         Member State, at least one of them has substantial oper-
industry, to improve the conditions of growth and to             ations in other Member States through subsidiaries or
raise the standard of living in the Community;                   direct sales;
Whereas it must be ensured that the process of reorgan-         Whereas the existing competition rules and in particular
ization does not give rise to lasting damage to compe-          Article 87 provide a legal basis for the control of certain
tition; the system of undistorted competition must               forms and types of concentration;
therefore include provisions governing those concen-
trations which may hinder effective competition in the
common market;                                                  Whereas it is necessary, however, to create a legal
                                                                 framework which makes it possible to treat in a compre-
                                                                 hensive way all concentrations having the same impact
(') OJ No C 324, 17. 12. 1986, p. 5.                             on the competitive structure of the common market;
 ---pagebreak--- 19. 5. 88                               Official Journal of the European Communities                              No C 130/5
Whereas, pursuant to Article 235 of the Treaty the                 Whereas the Commission should act in close and
Community may, by way of regulation, give itself the               constant liaison with the competent authorities of the
additional powers of action necessary for the attainment           Member States in order to avoid concurrent proceedings;
of this objective, with regard to concentrations on the
markets for products listed in Annex II to the Treaty;
                                                                   Whereas the Commission must be afforded the assistance
                                                                   of the Member States and must also be empowered to
Whereas such regulation should establish the principle             require information to be given and to carry out the
that concentrations which create or enhance a dominant             necessary investigations in order to examine concen-
position are not compatible with the common market;                trations in the light of the provisions of this Regulation;
Whereas concentrations which, by reason of the limited             Whereas compliance with this Regulation must be
market share of the undertakings concerned, are not                enforceable by means of fines and periodic penalty
likely to impede the preservation of effective competition         payments; whereas it is desirable to confer upon the
may be presumed to be compatible with the common                   Court of Justice, pursuant to Article 172, unlimited juris-
market;                                                            diction to that end;
                                                                   Whereas it is appropriate to define the concept of
Whereas concentrations which, although they give rise to
                                                                   concentration in such a manner as to cover operations
a substantial alteration of the competitive structure
                                                                   bringing about a substantial change in the competitive
within the Community, contribute to the attainment of
                                                                   structure of a market and to exclude from the scope of
the basic objectives of the Treaty in such a way that, on
                                                                   application of this Regulation those operations which
balance, their economic benefits prevail over the risks for
                                                                   have as their principal object or effect the coordination
competition, should be subject to possible authorization
                                                                   of conduct of independant undertakings, the latter oper-
as a positive measure of Community policy;
                                                                   ations having to be examined under the provisions of
                                                                   other regulations implementing Articles 85 and 86;
Whereas the regulation should provide that author-
ization may also be granted under conditions and obli-             Whereas the Commission should be given exclusive
gations to be determined case by case in order to prevent          competence to apply this Regulation, subject to review
in particular a substantial deterioration in the competitive       by the Court of Justice; whereas it should also be
structure of the Community national market concerned;              stipulated that the provisions of this Regulation alone
                                                                   apply to concentrations of Community dimension,
Whereas the Commission should be entitled to take
decisions in respect of concentrations which are incom-
patible with the common market and decisions designed              HAS ADOPTED THIS REGULATION:
to re-establish conditions of effective competition;
                                                                                             Article 1
Whereas, to ensure effective supervision, prior notifi-
cation and the suspension of concentrations pending a                                  Scope of application
Commission decision should be made obligatory;
                                                                    1.   This Regulation shall apply to all concentrations
Whereas a time limit within which the Commission must              having a Community dimension including those falling
commence proceedings in respect of a concentration                 within the scope of Articles 85 (1) or 86 of the Treaty.
notified to it and a time limit within which it must give a
final decision on the incompatibility of a concentration
with the common market should be laid down;                        2.    A concentration has a Community dimension:
                                                                    (a) where at least two of the undertakings effecting
Whereas, before opening proceedings, the Commission                     the concentration have their principal field of
 should consult the Member States directly concerned by                 Community activities in a different Member State; or
 the concentration;
                                                                    (b) where the undertakings effecting the concentration
Whereas undertakings concerned must be accorded the                     have their principal field of Community activities in
 right to be heard by the Commission as soon as                         one and the same Member State, but where at least
 proceedings have commenced, and third parties showing                  one of them has substantial operations in other
 a sufficient interest must be given the opportunity to                 Member States in particular through subsidiaries or
 submit their comments;                                                 direct sales.
 ---pagebreak---  No C 130/6                           Official Journal of the European Communities                                   19. 5. 88
 3.    A concentration    does not have a Community               (b) do not afford the undertakings concerned the possi-
dimension:                                                            bility of eliminating competition in respect of a
                                                                      substantial part of the goods or services concerned.
(a) where the aggregate worldwide turnover of all the
     undertakings concerned is less than 1 000 million                                      Article 3
     ECU; or
                                                                                  Definition of concentration
(b) where the aggregate worldwide turnover of all the
     undertakings concerned exceeds 1 000 million ECU,            1.    A concentration shall be deemed to take place:
     but where the aggregate worldwide turnover of the
     undertaking to be acquired is less than 50 million          (a) where two or more undertakings merge;
     ECU; or
                                                                 (b) or where:
(c) where all the undertakings effecting the concen-                  — one or several persons already controlling at least
     tration achieve more than three-qua-rters of their                    one undertaking, or
     aggregate Community-wide turnover within one and                 — one or several undertakings
     the same Member State.
                                                                      acquire, whether by purchase of shares or assets, by
                                                                      contract or by any other means, direct or indirect
                         Article 2                                    control of the whole or parts of one or more under-
                                                                      takings.
                Appraisal of concentrations
                                                                 2.     Operations which have as their principal object or
1.     Concentrations within the scope of this Regulation        effect the coordination of conduct of independent under-
shall be subject to prior control in order to determine          takings shall be deemed not to give rise to a concen-
whether they are compatible with the common market.              tration within the meaning of paragraph 1 (b).
2.     Concentrations shall not be compatible with the           3.     Control is constituted by rights or contracts which,
common market where they give rise to or strengthen a            either separately or jointly, and having regard to the
dominant position in the common market or in a                   considerations of fact or law involved, make it possible
                                                                 to determine how an undertaking shall operate, and
substantial part thereof. This shall be appraised by
                                                                 particularly by:
reference in particular to the possibilities of choice of
suppliers and consumers, to the market position and the          (a) ownership or the right to use all or part of the assets
economic and financial power of the undertakings                      of an undertaking;
concerned, to their access to supplies or markets, to the
structure of the markets affected, to international              (b) rights or contracts which confer power to influence
competition, to legal and factual barriers to entry, and to           the composition, voting or decisions of the organs of
supply and demand trends for the relevant goods or                    an undertaking;
services.
                                                                ,(c) rights or contracts which make it possible to manage
                                                                      the business of an undertaking;
3.     Concentrations shall be presumed to be compatible
with the common market where the market share of the             (d) contracts made with an undertaking concerning the
undertakings concerned in the common market or in a                   computation or appropriation of its profits;
substantial part thereof is less than 20 %. This
presumption can be rebutted if it is established that the        (e) contracts made with,an undertaking concerning the
concentration nevertheless fulfils the conditions of                  whole or a substantial part of supplies or outlets,
paragraph 2.                                                          where the duration of these contracts or the quan-
                                                                      tities to which they relate, exceed what is usual in
4.     The Commission shall authorize concentrations as               commercial contracts dealing with those matters.
compatible with the common market where they
contribute to the attainment of the basic objectives of the      4.     Control is acquired by persons, undertakings or
Treaty, in particular to improving production and distri-        groups of persons or undertakings which:
bution, to promoting technical or economic progress or
                                                                 (a) are holders of the rights or entitled to rights under
to improving the competitive structure within the
                                                                      the contracts concerned;
common market, taking due account of the compe-
titiveness of the undertakings concerned with regard to          (b) while not being holders of such rights or entitled to
international competition and of the interests of                     rights under such contracts, have power to exercise
consumers, provided that they do not:                                 the rights deriving therefrom;
(a) impose on the undertakings concerned restrictions            (c) in a fiduciary capacity own assets of an undertaking
     which are not indispensable to the achievement of                or shares in an undertaking, and have power to
     the concentration;                                               exercise the rights attaching thereto.
 ---pagebreak---  19. 5. 88                             Official Journal of the European Communities                               No C 130/7
5.     Control of an undertaking is not constituted where,             — has the power to exercise more than half the
upon formation of an undertaking or increase of its                         voting rights, or
capital, banks or financial institutions acquire shares in
that undertaking with a view to selling them on the                    — has the power to appoint more than half the
market, provided that they do not exercise voting rights                    members of the supervisory board, board of
in respect of those shares.                                                 management or bodies legally representing the
                                                                            undertakings, or
                           Article 4
                                                                       — has the right to manage the undertaking's affairs;
             Prior notification of concentrations
                                                                  (c) those which directly or indirectly have in or over a
Concentrations within the scope of this Regulation,                    party to the concentration, the rights or powers
whether agreed or not, shall be notified to the                        listed in (b);
Commission before they are put into effect.
                                                                  (d) those in or over which an undertaking referred to in
                                                                       (c) directly or indirectly has the rights or powers
                           Article 5                                   listed in (b).
         Calculation of turnover and market shares
                                                                  Undertakings in which several undertakings as referred
1.    Aggregate turnover within the meaning of Article 1         to in subparagraphs (a) to (d) jointly have, directly or
shall be calculated by adding together the pre-tax                indirectly, the rights or powers set out in (b) shall also be
turnover of the undertakings concerned for all goods              considered to be undertakings concerned.
and services in the last financial year. Turnover deriving
from internal operations within a group shall not be
                                                                                              Article 6
included in this calculation.
                                                                                            Proceedings
2.    The market share within the meaning of Article
2 (3) shall be calculated by adding together the market
                                                                  1.     Where the Commission considers that a concen-
shares held by the undertakings concerned in the area of
                                                                  tration does not give rise to a substantial change of the
the common market affected by the concentration.
                                                                  competitive structure within the Community, it shall
Market share shall be defined as the percentage share
                                                                  immediately inform the undertakings concerned and the
which the goods or services supplied by an undertaking
                                                                  competent authorities of the Member States that there
concerned represent in the total supplies made in
                                                                  are no grounds for action on its part under this Regu-
identical goods or services and those which, by reason of
                                                                  lation.
their characteristics, their price and their use are
regarded as equivalent by the consumer.
                                                                  2.     Where the Commission considers that a concen-
3.     Where the concentration consists in the acquisition        tration gives rise to a substantial change of the
of a part of the assets of an undertaking, only the               competitive structure within the Community, it shall
Burnover relating to that part shall be taken into account        immediately commence proceedings with a view to
on behalf of the seller.                                          establishing whether or not that concentration may be
                                                                  authorized and so inform the undertakings concerned
                                                                  and the competent authorities of the Member State.
4.     In place of turnover the following shall be used:
(a) for banking and financial institutions: within the            3.     As regards concentrations notified to it, the
     meaning of Article 1 (3) (a) and (b), one-tenth of           Commission shall commence proceedings within a period
     their assets; within the meaning of Article 1 (3) (c),       not exceeding two months unless the undertakings
     the operations with national and foreign clients;            concerned agree to extend that period. The period of
                                                                  two months shall commence on the day following receipt
(b) for insurance companies: the value of the premiums            of the notification, or if the information to be supplied
     received by them.                                            with the notification is incomplete, on the day following
                                                                  the receipt of the complete information.
5.     For the purposes of this Regulation, the under-
takings concerned are:                                            4.     The Commission may commence proceedings after
                                                                  the expiry of the two months period where the infor-
(a) those which take part directly in the concentration;          mation supplied by the undertakings in the notification is
                                                                  false or misleading.
(b) those in which a party to the concentration, directly
     or indirectly:
                                                                  5.     Without prejudice to paragraph 4 a concentration
     — owns more than half the capital or business                notified to the Commission shall be considered not to
         assets, or                                               have given grounds for action if the Commission has not
 ---pagebreak--- No C 130/8                              Official Journal of the European Communities                                   19. 5. 88
commenced proceedings within the period specified in                                         Article 9
paragraph 3.
                                                                                     Closure of proceedings
                           Article 7                               If, after having commenced proceedings in respect of a
                                                                   concentration, the Commission finds that there are no
               Suspension of the concentration                     grounds for action on its part under this Regulation, it
                                                                   shall close the proceedings and so immediately inform
1.     Undertakings shall not put into effect a concen-            the undertakings concerned and the competent auth-
tration notified to the Commission before the end of the           orities of the Member State.
time limit provided for in Article 6 (3) unless the
Commission informs them pursuant to Article 6(1) that                                       Article 10
there are no grounds for action on its part under this
Regulation.                                                                         Requests for information
2.     Paragraph 1 shall not prevent or impede the                 1.    In carrying out the duties assigned to it by this
implementation of a public takeover bid which has been             Regulation, the Commission may obtain all necessary
notified to the Commission at the date of its inscription,         information from the governments and competent auth-
provided that the acquirer does not exercise the voting            orities of the Member States and from undertakings and
rights attached to the shares in question.                         associations of undertakings.
                                                                   2.    When sending a request for information to an
3.     Where the Commission commences proceedings the              undertaking or association of undertakings, the
undertakings concerned shall not put into effect the               Commission shall at the same time forward a copy of the
concentration until the Commission has authorized it as            request to the competent authority of the Member State
compatible with the common market or has closed the                in whose territory the seat of the undertaking or asso-
proceedings.                                                       ciation of undertakings is situated.
4.     The Commission may at any time waive paragraphs             3.    In its request the Commission shall state the legal
1 and 3 in order to prevent serious and irreparable                basis and the purpose of the request and also the
damage to one or more undertakings concerned by the                penalties provided for in Article 13 (1) (b) for supplying
concentration.                                                     incorrect information.
                                                                   4.    The owners of the undertakings or their represen-
                           Article 8                               tatives and, in the case of legal persons, companies or
                                                                   firms, or of associations having no legal personality, the
            Powers of decision of the Commission                   persons authorized to represent them by law or by their
                                                                   memorandum, shall supply the information requested.
 1.     The Commission may by decision state whether a
concentration is or is not compatible with the common              5.    Where an undertaking or association of under-
market.                                                            takings does not supply the information requested within
                                                                   the time limit fixed by the Commission, or supplies
                                                                   incomplete information, the Commission shall by
2.      Where the Commission finds that a concentration is         decision require the information to be supplied. The
caught by Article 2 (2) and that the conditions laid down          decision shall specify what information is required, fix an
in Article 2 (4) are not satisfied, it shall issue a decision      appropriate time limit within which it is to be supplied
refusing the authorization and declaring the concen-               and mention the penalties provided for in Article
tration to be incompatible with the common market.                  13 (1) (b) and Article 14 (1) (a) and the right to have the
                                                                   decision reviewed by the Court of Justice.
3.      Where a concentration has already been put into
effect, the Commission may require, by decision taken              6.    The Commission shall at the same time forward a
under paragraph 1 or by a separate decision, the under-            copy of its decision to the competent authority of the
takings or assets acquired or concentrated to be                   Member State in whose territory the seat of the under-
separated or the cessation of common control or any                taking or association of undertakings is situated.
other action that may be appropriate in order to restore
conditions of effective competition.
                                                                                             Article 11
 4.     Where the Commission finds that a concentration             Investigations by the authorities of the Member States
 satisfies the conditions laid down in Article 2 (4), it shall
 issue a decision authorizing the concentration as                  1.    At the request of the Commission, the competent
 compatible with the common market; conditions and                  authorities of the Member States shall undertake the
 obligations may be attached thereto.                               investigations which the Commission considers to be
 ---pagebreak---  19. 5. 88                            Official Journal of the European Communities                             No C 130/9
necessary pursuant to Article 12 (1), or which it has            4.    The Commission shall take Decisions referred to in
ordered by decision pursuant to Article 12 (3). The              paragraph 3 after consultation with the competent
officials of the competent authorities of the Member             authority of the Member State in whose territory the
States responsible for conducting these investigations           investigation is to be made.
shall exercise their powers upon production of an auth-
orization in writing issued by the competent authority of        5.    Officials of the competent authority of the Member
the Member State in whose territory the investigation is         State in whose territory the investigation is to be made
to be made. Such authorization shall specify the subject         may, at the request of such authority or of the
matter and purpose of the investigation.                         Commission, assist the officials of the Commission in
                                                                 carrying out their duties.
2.     If so requested by the Commission or by the
competent authority of the Member State in whose                 6.    Where an undertaking opposes an investigation
territory the investigation is to be made, officials of the     ordered pursuant to this Article, the Member State
Commission may assist the officials of such authority in         concerned shall afford the necessary assistance to the
carrying out their duties.                                      officials authorized by the Commission to enable them to
                                                                 make their investigation. Member States shall, after
                                                                consultation with the Commission, take the necessary
                          Article 12                            measures to this end before . . .
          Investigating powers of the Commission                                          Article 13
                                                                                            Fines
1.    In carrying out the duties assigned to it by this
Regulation, the Commission may undertake all necessary
investigations into undertakings and associations of             1.    The Commission may, by Decision, impose on
undertakings.                                                   undertakings and associations of undertakings fines of
                                                                from 1 000 to 100 000 ECU where intentionally or negli-
                                                                gently:
To this end the officials authorized by the Commission
are empowered:                                                  (a) they supply incorrect or misleading information in a
                                                                     notification pursuant to Article 4;
(a) to examine the books and other business records;
                                                                 (b) they supply incorrect information in response to a
                                                                     request made pursuant to Article 10 or fail to supply
(b) to take or demand copies of or extracts from the                 information within the time limit fixed by a Decision
     books and business records;                                     taken pursuant to Article 10;
(c) to ask for oral explanations on the spot;                   (c) they produce the required books or other business
                                                                     records in incomplete form during investigations
                                                                     under Article 11 or 12, or refuse to submit to an
(d) to enter any premises, land and means of transport               investigation ordered by Decision taken pursuant to
     of undertakings.                                                Article 12.
2.    The officials of the Commission authorized to             2.     The Commission may by Decision impose on
carry out these investigations shall exercise their powers      natural or legal persons fines of from 1 000 to 2 million
upon production of an authorization in writing speci-           ECU where, either intentionally or negligently, they
fying the subject matter and purpose of the investigation       commit a breach of the obligation to notify pursuant to
and the penalties provided for in Article 13 (1) (c) in         Article 4.
cases where production of the required books or other
business records is incomplete. In good time before the          3.    The Commission may by Decision impose fines not
investigation, the Commission shall inform              the     exceeding 10 % of the value of the reorganized assets
competent authority of the Member State in whose                where the undertakings concerned either intentionally or
territory the investigation is to be made of the investi-        negligently put into effect a concentration in breach of
gation and of the identity of the authorized officials.         their obligations pursuant to Article 7 or in spite of a
                                                                 Decision pursuant to Article 8 (2).
3.    Undertakings and associations of undertakings shall
submit to investigations ordered by Decision of the                                       Article 14
Commission. The Decision shall specify the subject
matter and purpose of the investigation, appoint the date                         Periodic penalty payments
on which it is to begin and indicate the penalties
provided for in Article 13(1) (c) and Article 14(1) (b)          1.    The Commission may, by Decision, impose on
and the right to have the decision reviewed by the Court         undertakings or associations of undertakings periodic
of Justice.                                                      penalty payments up to 50 000 ECU for each day of the
 ---pagebreak---  No C 130/10                          Official Journal of the European Communities                                  19. 5. 88
delay calculated from the date appointed           by   the      persons. Applications to be heard on the part of such
 Decision, in order*to compel them:                              persons shall, where they show a sufficient interest, be
                                                                 granted.
 (a) to supply complete and correct information which it
     has requested by Decision taken pursuant to Article
                                                                                          Article 18
     10;
                                                                    Liaison with the authorities of the Member States
(b) to submit to an investigation which it has ordered by
     Decision taken pursuant to Article 12.
                                                                 1.    The Commission shall forthwith transmit to the
                                                                 competent authorities of Member States a copy of the
2.    The Commission may by Decision impose on such              notifications   together with the most           important
undertakings periodic penalty payments up to 100 000            documents lodged with or issued by the Commission
ECU for each day of the delay, calculated from the day          pursuant to this Regulation.
appointed by the Decision, in order to compel them to
apply the measures resulting from a Decision taken
                                                                2.     Before commencing proceedings pursuant to Article
pursuant to Article 8 (2).
                                                                6, the Commission shall seek the views of the competent
                                                                authorities of the Member States directly concerned by
                        Article 15                              the concentration.
              Review by the Court of Justice                    3.     The Commission shall carry out the procedure set
                                                                out in this Regulation in close and constant cooperation
The Court of Justice shall have unlimited jurisdiction          with the competent authorities of the Member States;
within the meaning of Article 172 of the Treaty to              such authorities shall have the right to express their views
review Decisions whereby the Commission has fixed a             upon that procedure, and in particular to request the
fine or periodic penalty payment; it may cancel, reduce         Commission to commence proceedings pursuant to
or increase the fine or periodic penalty payment                Article 6.
imposed.
                                                                4.     The Advisory Committee on Restrictive Practices
                                                                and Dominant Positions shall be consulted prior to the
                        Article 16
                                                                taking of any decision pursuant to Articles 8, 13 and 14.
                   Professional secrecy
                                                                5.     The Advisory Committee shall consist of officials
                                                                having responsibility for restrictive practices and
1.    Information acquired as a result of the application
                                                                dominant positions. Each Member State shall appoint an
of Articles 10, 11 and 12 shall be used only for the
                                                                official to represent it; he may be replaced by another
purpose of the relevant request or investigation.
                                                                official where he is unable to act.
2.    Without prejudice to the provisons of Article 20,         6.     Consultation shall take place at a meeting convened
the Commission and the competent authorities of the             at the invitation of the Commission. A summary of the
Member States, their officials and other servants shall         facts, together with the most important documents and a
not disclose information acquired by them as a result of        preliminary draft of the decision to be taken, shall be
the application of this Regulation and of the kind              sent with the invitation. The committee shall deliver its
covered by the obligation of professional secrecy.              opinion on the draft, within a time limit which the
                                                                chairman may lay down according to the urgency of the
3.    The provisions of paragraphs 1 and 2 shall not            matter, if necessary by taking a vote.
prevent publication of general information or surveys
which do not contain information relating to particular         7.     The opinion shall be recorded in the minutes; in
undertakings or associations of undertakings.                   addition, each Member State shall have the right to ask
                                                                to have its position recorded in the minutes.
                        Article 17
                                                                8.     The Commission shall take the utmost account of
          Hearing of the parties and third parties              the opinion delivered by the committee. It shall inform
                                                                the committee of the manner in which its opinion has
                                                                been taken into account.
1.    Before taking the Decisions provided for in Articles
8, 13 and 14, the Commission shall give the parties the
opportunity of being heard on the matters to which the                                    Article 19
Commission has taken objection.
                                                                                  Time limits for decision
2.    If the Commission or the competent authorities of
the Member States consider it necessary, the                     1.    Decisions pursuant to Article 8 (2) or (4) shall be
Commission may also hear other natural or legal                 taken within four months following the date of
 ---pagebreak---  19. 5. 88                            Official Journal of the European Communities                           No C 130/11
commencement of proceedings, save where there is                                          Article 21
agreement with the undertakings concerned to extend
that period.                                                                             Jurisdiction
                                                                 Subject to review by the Court of Justice, the
2.    The period of four months shall be suspended               Commission shall have sole competence to take the
where the Commission, owing to circumstances for                 decisions provided for in this Regulation.
which one of the undertakings concerned by the concen-
tration is responsible, has to request information by                                     Article 22
Decision taken pursuant to Article 10 or to order an
investigation by Decision taken pursuant to Article 12.                   Exclusive application of this Regulation
                                                                 Regulations No 17, (EEC) No 1017/68, (EEC) No
3.    Without prejudice to paragraph 2 a concentration
                                                                 4056/86 and (EEC) No 3975/87 shall not apply to
shall be considered to have been authorized as
                                                                 concentrations falling within the scope of this Regu-
compatible with the common market if the Commission
                                                                 lation.
has not taken a Decision pursuant to Article 8 (2) or (4)
before expiry of the period specified in paragraph 1.
                                                                                          Article 23
                                                                                  Implementing provisions
                        Article 20                              The Commission          shall have power to         adopt
                                                                 implementing provisions concerning the form, content
                 Publication of decisions                        and other details of notifications pursuant to Article 4
                                                                 and hearings pursuant to Article 17.
1.    The Commission shall publish in the Official
Journal of the European Communities the decisions which                                   Article 24
it takes pursuant to Article 8.
                                                                                       Entry into force
2.    The publication shall state the names of the parties      This Regulation shall enter into force . . .
and the main content of the decision; it shall have regard
to the legitimate interest of undertakings in the                This Regulation shall be binding in its entirety and
protection of their business secrets.                            directly applicable in all Member States.