CELEX: 51988PC0734
Language: en
Date: 1988-12-19
Title: AMENDED PROPOSAL FOR A COUNCIL REGULATION ( EEC ) ON THE CONTROL OF CONCENTRATIONS BETWEEN UNDERTAKINGS

No C 22/14                            Official Journal of the European Communities                                 28. 1. 89
                                                             II
                                                     (Preparatory Acts)
                                                COMMISSION
               Amended proposal for a Council Regulation (EEC) on the control of concentrations between
                                                      undertakings (')
                                           COM(88) 734 final — revised version
               (Submitted by the Commission pursuant to Article 149 (3) of the EEC Treaty on 30 November
                                                            1988)
                                                       (89/C 22/06)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           (5) Whereas, however, it must be ensured that the
                                                                       process of reorganization does not give rise to
                                                                       lasting damage to competition; whereas the system
Having regard to the Treaty establishing the European                  of undistorted competition must therefore include
Economic Community, and in particular Articles 87 and                  provisions governing those concentrations which
235 thereof,                                                           may impede effective competition in the common
                                                                       market;
Having regard to the proposal from the Commission,
                                                                   (6) Whereas, pursuant to Articles 85 and 86, anti-
                                                                       competitive agreements, decisions and practices,
Having regard       to   the  opinion   of  the   European
                                                                       which may affect trade between Member States, are
Parliament,                                                            prohibited, provided that their impact on compe-
                                                                       tition and trade is appreciable;
Having regard to the opinion of the Economic and
Social Committee,
                                                                   (7) Whereas the principles laid down in Articles 85 and
                                                                       86 apply also to arrangements which alter the
  (1) Whereas, for the achievement of the aims of the                  competitive structure of the market and whereas
      Treaty establishing the European           Economic              provisions for the implementation of those prin-
      Community, Article 3 (f) requires the Community                  ciples must take due account of the specific context
      to institute 'a system ensuring that competition in              of market structure;
      the common market is not distorted';
                                                                   (8) Whereas those provisions should apply to
  (2) Whereas this system is essential for the achievement             significant structural changes, whose impact on the
      of the internal market by 1992;                                  market goes beyond the national borders of one
                                                                       Member State;
  (3) Whereas the dismantling of internal frontiers can be
      expected to result in major corporate reorganiz-             (9) Whereas the scope of application of this Regulation
      ations in the Community, particularly in the form                should therefore be defined according to the
      of concentrations;                                               territory of operations of the undertakings
                                                                       concerned and be limited by quantitative thresholds
                                                                       in order to include only those operations of
  (4) Whereas such a development must be welcomed as                   concentration which have a Community dimension;
      being in line with the requirements of dynamic
      competition and liable to strengthen the competi-
      tiveness of European industry, to improve the               (10) Whereas this is the case where the aggregate
      conditions of growth and to raise the standard of                turnover of all the undertakings concerned exceeds
      living in the Community;                                         a given level and where at least two of the under-
                                                                       takings concerned have their sole or principal field
                                                                       of activities in a different Member State or where,
                                                                       although the undertakings in question act mainly in
(') OJ No C 130, 19. 5. 1(                                             one and the same Member State, at least one of
 ---pagebreak--- 28. 1. 89                              Official Journal of the European Communities                           No C 22/15
     them has substantial operations in at least one other       (18) Whereas the Commission should have the task of
     Member State through subsidiaries or direct sales;               taking all the decisions necessary to establish
     whereas this is also the case where the concen-                  whether or not concentrations which fall within the
     trations effected by undertakings which do not have              scope of application of the Regulation are
     their principal field of activities in the Community             compatible with the common market, as well as
     are such as to have an effect within the common                  decisions designed to restore and maintain
     market;                                                          conditions of effective competition;
                                                                 (19) Whereas, to ensure effective supervision, prior noti-
(11) Whereas the existing competition rules and in
                                                                      fication and the suspension of concentrations
     particular Article 87 provide a legal basis for the
                                                                      should be made obligatory;
     control of certain forms and types of concentration;
                                                                 (20) Whereas a period within which the Commission
(12) Whereas it is necessary, however, to create a legal              must initiate a proceeding in respect of a concen-
     framework which makes it possible to treat in a                  tration notified to it and a period within which it
     comprehensive way all concentrations having the                  must give a final decision on the compatibility or
     same impact on the competitive structure of the                  incompatibility with the common market of a
     common market or a substantial part thereof;                     notified concentration should be laid down;
                                                                 (21) Whereas undertakings concerned must be accorded
(13) Whereas, pursuant to Article 235 the Community
                                                                      the right to be heard by the Commission as soon as
     may, by way of Regulation, give itself the
                                                                      a proceeding has been initiated, and third parties
     additional powers of action necessary for the
                                                                      showing a legitimate interest must be given the
     attainment of this objective, and in particular with
                                                                      opportunity to submit their comments;
     regard to concentrations on the markets for
     products listed in Annex II to the Treaty;
                                                                 (22) Whereas the Commission should act in close and
                                                                      constant liaison with the competent authorities of
(14) Whereas the Regulation should establish the                      the Member States and should obtain the views of
     principle that concentrations which create or                    those most directly concerned by a concentration;
     strengthen a position as a result of which the main-
     tenance or development of effective competition is
     impeded in the common market or in a substantial            (23) Whereas, for the purposes of this Regulation, the
     part thereof are to be declared incompatible with                Commission must be afforded the assistance of the
     the common market;                                               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;
(15) Whereas concentrations which, by reason of the
     limited market share of the                undertakings
     concerned, are not liable to impede effective               (24) Whereas compliance with this Regulation must be
     competition may be presumed to be compatible                     enforceable by means of fines and periodic penalty
     with the common market; whereas, in particular,                  payments: whereas the Court of Justice should be
     this may be presumed where the market share of                   given unlimited jurisdiction in that regard pursuant
     the undertakings concerned does not exceed 25 %                  to Article 172;
     either in the common market or in a substantial
     part thereof;
                                                                 (25) Whereas it is appropriate to define the concept of
                                                                      concentration in such a manner as to cover oper-
                                                                      ations bringing about a change in the structure of
(16) Whereas authorization should be available in
                                                                      the undertakings concerned; whereas it is therefore
     respect of concentrations which, although they
                                                                      necessary to exclude from the scope of application
     impede effective competition, contribute to the
                                                                      of this Regulation those operations which have as
     attainment of the basic objectives of the Treaty in
                                                                      their object or effect the coordination of the
     such a way that, on balance, their economic
                                                                      competitive behaviour of independent undertakings,
     benefits prevail over the damage they cause to
                                                                      since such operations fall to be examined under the
     competition;
                                                                      provisions of other regulations implementing
                                                                      Articles 85 or 86;
(17) Whereas the Regulation should also provide that
     decisions of compatibility and authorizations may           (26) Whereas the Commission should be given exclusive
     be made subject to conditions and obligations to be              competence to apply this Regulation, subject to
     determined case by case in order to ensure that                  review by the Court of Justice; whereas it should
     conditions of effective competition are maintained;              also be stipulated that the provisions of this Regu-
 ---pagebreak--- No C 22/16                              Official Journal of the European Communities                               28. 1. 89
        lation apply to all concentrations with a                 2.     Concentrations which do not create or strengthen a
        Community dimension, whether or not they fall             position as a result of which the maintenance or devel-
        within the scope of Article 85 or 86;                     opment of effective competition would be impeded in the
                                                                  common market or in a substantial part thereof shall be
                                                                  declared compatible with the common market.
 (27) Whereas the Member States may not apply their
        national legislation on competition to concen-
        trations having a Community dimension, unless             3.     Concentrations which create or strengthen a
        expressly empowered to do so by the Commission;           position as a result of which the maintenance or devel-
                                                                  opment of effective competition is impeded in the
                                                                  common market or in a substantial part thereof shall be
(28) Whereas, however, this principle does not prevent            declared incompatible with the common market unless
        Member States from taking appropriate measures in         authorized on the ground that their contribution to
        so far as is necessary to protect legitimate interests    improving production and distribution, to promoting
        other than those pursued by this Regulation,              technical or economic progress or to improving the
     ,, provided that such interests are sufficiently defined     competitive structure within the common market
        and protected by domestic law and that such               outweighs the damage to competition. In this respect, the
        measures are compatible with the other provisions         competitiveness of the sectors concerned with regard to
        of Community law,                                         international competition and the interests of consumers
                                                                  shall be taken into account.
HAS ADOPTED THIS REGULATION:
                                                                  Concentrations shall be authorized on account of their
                                                                  compatibility with the common market only in so far as
                            Article 1                             they do not:
                      Scope of application
                                                                  (a) impose on the undertakings concerned restrictions
                                                                       which are not indispensable to the implementation of
 1.     This Regulation shall apply to all concentrations
                                                                       the concentration, and
having a Community dimension as defined in paragraph
2, whether or not they fall within the scope of Article 85
or 86.                                                            (b) afford the undertakings concerned the possibility of
                                                                       eliminating competition in respect of a substantial
                                                                       part of the goods or services concerned.
2.      For the purposes of this Regulation, a concen-
tration has a Community dimension where:
                                                                                             Article 3
(a) the aggregate worldwide turnover of all the under-
     takings concerned is more than ECU 1 000 million                              Definition of concentration
     ECU, and
                                                                  1.    A concentration shall be deemed to occur where:
(b) the aggregate Community-wide turnover of each of
                                                                  (a) two or more undertakings merge; or
     at least two of the undertakings concerned is more
     than ECU 100 million,
                                                                  (b) — one or more persons already controlling at least
                                                                           one undertaking, or
unless each of the undertakings concerned achieves more
than three-quarters of its aggregate Community-wide                   — one or more undertakings
turnover within one and 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
1.      Concentrations falling within the scope of this           2.     Operations which have as their object or effect the
Regulation shall be appraised with a view to establishing         coordination of the competitive behaviour of inde-
whether or not they are compatible with the common                pendent undertakings shall be deemed not to give rise to
market, by reference in particular to the market position         a concentration within the meaning of paragraph 1 (b).
of the undertakings concerned and to their economic
and financial power, to opportunities of choice available         The creation of a joint venture performing on a lasting
to suppliers and users, to their access to supplies or            basis all the functions of an autonomous economic
markets, to the structure of the markets affected taking          entity, which does not have as its object or effect the
account of international competition, to legal and factual        coordination of the competitive behaviour of the under-
barriers to entry, and to supply and demand trends for            takings concerned, shall be deemed to be a concentration
the relevant goods or services.                                   within the meaning of paragraph 1 (b).
 ---pagebreak--- 28. 1. 89                              Official Journal of the European Communities                              No C 22/17
3.     Control is constituted by rights or contracts which,      2.     Concentrations within the meaning of            Article
either separately or jointly, and having regard to the            3 (1) (a) shall be notified jointly by the            parties
considerations of fact or law involved, make it possible         concerned. In the cases referred to in Article 3      (1) (b),
to determine how an undertaking shall operate, and in            the notification shall be made by the party or         parties
particular by:                                                   seeking to acquire control of the whole or parts       of one
                                                                 or more undertakings.
(a) ownership or the right to use all or part of the assets
    of an undertaking;                                            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 notifi-
(b) rights or contracts which confer decisive influence on       cation. The publication shall contain the names of the
    the composition, voting or decisions of the organs of        parties, the nature of the concentration and the
    an undertaking;                                              economic sectors involved. It shall take account of the
                                                                 legimate interest of undertakings in the protection of
                                                                 their business secrets.
(c) rights or contract which make it possible to manage
    the business of an undertaking;
                                                                                            Article 5
(d) contracts made with an undertaking concerning the
    computation or appropriation of its profits;                                    Calculation of turnover
                                                                  1.    Aggregate turnover within the meaning of Article 1
(e) any other means conferring decisive influence on the         shall be calculated by adding together the pre-tax
    activity of an undertaking.                                  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
4.     Control is acquired by persons, undertakings or            included in this calculation.
groups of persons or undertakings which:
                                                                  2.    By way of derogation from paragraph 1, where the
(a) are holders of the rights or entitled to rights under         concentration consists in the acquisition of parts,
    the contracts concerned;                                     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
(b) while not being holders of such rights or entitled to         the operation shall be taken into account with regard to
     rights under such contracts, have power to exercise          the seller or sellers.
     the rights deriving therefrom;
                                                                  3.    In place of turnover the following shall be used:
(c) in a fiduciary capacity derived from a private law
     contract, hold assets of an undertaking or shares in
     an undertaking, and have power to exercise the               (a) for banking and financial institutions: as regards
     rights attaching thereto, unless that power may be               Article 1 (2) (a) and (b), one tenth of their assets; as
     revoked at any time or unless they are bound by                  regards the final part of Article 1 (2), operations with
     special instructions from their principals.                      clients from their own and from other Member
                                                                      States;
5.     Control of an undertaking is not constituted where
                                                                  (b) for insurance companies: the value of premiums
banks or financial institutions acquire shares in an under-
taking with a view to selling them, provided that they do             received.
not exercise voting rights in respect of those shares with
a view to determining the competitive behaviour of that
                                                                  4.    Without prejudice to the provisions of paragraph 2,
undertaking.
                                                                  the relevant turnover for each of the undertakings
                                                                  concerned shall be calculated by adding together the
                                                                  respective turnovers of all undertakings belonging to the
                           Article 4                              same group.
             Prior notification of concentrations
                                                                  In this respect the following undertakings shall be taken
 1.    Concentrations as referred to by this Regulation,          into account:
whether or not they form the subject-matter of an
agreement, shall be notified to the Commission before
they are put into effect.                                         (a) those which take part directly in the concentration;
 ---pagebreak--- No C 22/18                              Official Journal of the European Communities                                 28. 1. 89
(b) those in which a party to the concentration, directly                                   Article 7
     or indirectly,
                                                                                Suspension of the concentration
     — owns at least half the capital or business assets,
          or                                                       1.    Undertakings shall suspend the implementation of a
     — has the power to exercise at least half the voting         concentration which falls within the scope of application
          rights, or                                              of this Regulation until the Commission has decided on
     — has the power to appoint at least half the                 initiation of a proceeding pursuant to Article 6.
          members of the supervisory board, board of
          management or bodies legally representing the
          undertakings, or                                        2.     In order to ensure conditions of effective compe-
                                                                  tition, the Commission may decide, when it initiates a
     — has the right to manage the undertaking's affairs;         proceeding pursuant to Article 6 (1), that the suspension
                                                                  of the implementation of a concentration should be
(c) those which directly or indirectly have in or over a          extended until it takes a final decision pursuant to
     party to the concentration rights or powers as listed        Article 8.
     in (b);
                                                                  3.    The provisions of paragraphs 1 and 2 shall not
(d) those in or over which an undertaking as referred to          impede the implementation of a public takeover or
     in (c) directly or indirectly has rights or powers as        exchange bid which has been notified to the Commission
     listed in (b).                                               by the date of its announcement, provided that the
                                                                  acquirer does not exercise the voting rights attached to
                                                                  the shares in question.
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        4.    The Commission may, on request, waive the
undertakings concerned.                                           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
                             Article 6                            concentration; the waiver may be made subject to
                                                                  conditions and obligations in order to ensure conditions
                    Initiation of proceedings                     of effective competition.
 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                                     Article 8
establishing whether or not that concentration is
compatible with the common market. It shall so inform                        Powers of decision of the Commission
the undertakings concerned and the competent auth-
                                                                   1.   For each proceeding initiated pursuant to Article 6
orities of the Member States without delay.
                                                                  and      concerning   a    notified   concentration,     the
                                                                  Commission shall establish by decision whether or not
2.     Where the Commission finds that a notified                 that concentration is compatible with the common
concentration does not fall within the scope of                   market.
application of this Regulation, it shall immediately so
inform the undertakings concerned and the competent
authorities of the Member States.                                 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
3.     As regards notified concentrations, decisions              the concentration compatible with the common market;
pursuant to paragraphs 1 and 2 shall be taken within a            conditions and obligations may be attached thereto in
period not exceeding one month, unless the undertakings           order to ensure conditions of effective competition. In
concerned agree to extend that period. The period of              such a case, the Commission may also empower Member
one month shall commence on the day following the                 States which are directly concerned by the concentration
date of receipt of the notification, or if the information        to apply their national legislation on competition in
to be supplied with the notification is incomplete, on the        order to ensure conditions of effective competition in
day following the date of receipt of the complete infor-          local markets within their respective territories.
mation.
                                                                  3.    Where the Commission finds that a notified
4.     The Commission may initiate a proceeding after             concentration fulfils all the conditions laid down in
the expiry of the period provided for in paragraph 3              Article 2 (3), it shall issue a decision authorizing the
where the information supplied by the undertakings in             concentration as being compatible with the common
the notification or thereafter is false or misleading.            market; conditions and obligations may be attached
 ---pagebreak--- 28. 1. 89                             Official Journal of the European Communities                            No C 22/19
thereto in order to ensure conditions of effective compe-                                Article 10
tition. The decision granting the authorization shall also
cover additional restrictions reasonably ancillary to the                        Requests for information
implementation of the concentration.
                                                                 1.   In carrying out the duties assigned to it by this
                                                                Regulation, the Commission may obtain all necessary
4.     Where the Commission finds that a concentration          information from the governments and competent auth-
fulfils the conditions of incompatibility laid down in          orities of the Member States and from persons, under-
Article 2 (3) but does not fulfil the conditions for an         takings and associations of undertakings.
authorization laid down therein, it shall issue a decision
refusing the authorization and declaring the concen-
tration incompatible with the common market.                    2.    When sending a request for information to a
                                                                person, an undertaking or an association of under-
                                                                takings, the Commission shall at the same time forward a
5.     Where    a concentration      has already      been      copy of the request to the competent authority of the
implemented, the Commission may require in a decision           Member State in whose territory the residence of the
pursuant to paragraph 1 or by separate decision, the            person or the seat of the undertaking or association of
undertakings or assets grouped together to be separated         undertakings is situated.
or the cessation of common control or any other action
that may be appropriate in order to restore conditions of
effective competition.
                                                                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
6.     The Commission may revoke its decision pursuant
                                                                incorrect information.
to paragraphs 2 or 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.                           4.    The information requested shall be supplied, in the
                                                                case of undertakings, by their owners or their represen-
                                                                tatives and, in the case of legal persons, companies or
It may also revoke its decision pursuant to paragraphs 2        firms, or of associations having no legal personality, by
or 3 where the undertakings concerned commit a breach           the persons authorized to represent them by law or by
of an obligation attached to the decision.                      their statutes.
7.     Authorizations    of    concentrations     by    the     5.    Where a person, an undertaking or an association
Commission shall in no way alter collective workers'            of undertakings does not supply the information
rights in force in the undertakings concerned.                  requested within the period fixed by the Commission, or
                                                                supplies incomplete information, the Commission shall
                                                                by decision require the information to be supplied. The
                         Article 9                              decision shall specify what information is required, fix an
                                                                appropriate period within which it is to be supplied and
                  Time limits for decisions                      mention the penalties provided for in Article 13 (1) (b)
                                                                and Article 14 (1) (a) and the right to have the decision
1.     Decisions pursuant to Article 8 (2) concerning           reviewed by the Court of Justice.
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        6.    The Commission shall at the same time forward a
period.                                                         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
2.     Decisions pursuant to Article 8 (3) and (4)
                                                                 undertakings is situated.
concerning notified concentrations shall be taken within
four months following the date of initiation of the
proceeding, unless the undertakings concerned agree to
an extension of that period.                                                             Article 11
                                                                 Investigations by the authorities of the Member States
3.     By way of exception, the periods of one and four
months set respectively by paragraphs 1 and 2 shall be           1.   At the request of the Commission, the competent
suspended where the Commission, owing to circum-                 authorities of the Member States shall undertake the
stances for which one of the undertakings involved in the        investigations which the Commission considers to be
concentration is responsible, has had to request infor-          necessary under Article 12 (1), or which it has ordered
mation by decision pursuant to Article 10 or to order an         by decision pursuant to Article 12 (3). The officials of
investigation by decision pursuant to Article 12.                the competent authorities of the Member States
 ---pagebreak---  No C 22/20                            Official Journal of the European Communities                                 28. 1. 89
 responsible for conducting these investigations shall            4.    The Commission shall inform the competent
 exercise their powers upon production of an authori-             authority of the Member State in whose territory the
 zation in writing issued by the competent authority of           investigation is to be made in good time of its intention
 the Member State in whose territory the investigation is         to take a decision pursuant to paragraph 3. It shall hear
 to be made. Such authorization shall specify the subject         the competent authority before taking its decision.
 matter and purpose of the investigation.
                                                                  5.    Officials of the competent authority of the Member
                                                                  State in whose territory the investigation is to be made
 2.    If so requested by the Commission or by the                may, at the request of such authority or of the
 competent authority of the Member State in whose                 Commission, assist the officials of the Commission in
 territory the investigation is to be made, officials of the      carrying out their duties.
 Commission may assist the officials of such authority 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
                          Article 12                             officials authorized by the Commission to enable them to
                                                                 make their investigation. Member States shall, after
          Investigating Powers of the Commission                 consultation with the Commission, take the necessary
                                                                 measures to this end before
 1.    In carrying out the duties assigned to it by this
 Regulation, the Commission may undertake all necessary
 investigations into undertakings and associations of                                      Article 13
 undertakings.
                                                                                             Fines
To this end the officials authorized by the Commission            1.    The Commission may by decision impose on
are empowered:                                                   persons, undertakings or associations of undertakings
                                                                 fines of from ECU 1 000 to ECU 100 000 where inten-
                                                                 tionally or negligently:
 (a) to examine the books and other business records;
                                                                 (a) they supply incorrect or misleading information in a
(b) to take or demand copies of or extracts from the                  notification pursuant to Article 4;
     books and business records;
                                                                 (b) they supply incorrect information in response to a
                                                                      request made pursuant to Article 10 or fail to supply
(c) to ask for oral explanations on the spot;                         information within the period fixed by a decision
                                                                      taken pursuant to Article 10;
(d) to enter any premises, land and means of transport
                                                                 (c) they produce the required books or other business
     of undertakings.                                                 records in incomplete form during investigations
                                                                      under Article 11 or Article 12, or refuse to submit to
                                                                      an investigation ordered by decision taken pursuant
2.     The officials of the Commission authorized to                  to Article 12.
carry out the investigations shall exercise their powers
upon production of an authorization in writing speci-
fying the subject matter and purpose of the investigation        2.     The Commission may by decision impose fines not
and the penalties provided for in Article 13 (1) (c) in          exceeding 10 % of the aggregate turnover of the under-
cases where production of the required books or other            takings concerned within the meaning of Article 5 where
business records is incomplete. In good time before the          the persons or undertakings concerned, either inten-
investigation, the Commission shall inform               the     tionally or negligently:
competent authority of the Member State in whose
territory the investigation is to be made of the investi-        (a) breach an obligation imposed pursuant to Article 7
gation and of the identity of the authorized officials.               or Article 8, or
                                                                 (b) implement a concentration          in  breach   of  the
3.     Undertakings and associations of undertakings shall            provisions of this Regulation.
submit to investigations ordered by decision of the
Commission. The decision shall specify the subject
                                                                 3.    In setting the amount of the fine, regard shall be
matter and purpose of the investigation, appoint the date
                                                                 had to the gravity of the infringement.
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              4.    Decisions taken pursuant to paragraphs 1 and 2
Justice.                                                         shall not be of a criminal law nature.
 ---pagebreak--- 28. 1. 89                             Official Journal of the European Communities                              No C 22/21
                         Article 14                              3.    The provisions of paragraphs 1 and 2 shall not
                                                                prevent publication of general information or surveys
                 Periodic penalty payments                      which do not contain information relating to particular
                                                                undertakings or associations of undertakings.
1.    The Commission may by decision impose on
persons, undertakings or associations of undertakings
periodic penalty payments of up to ECU 50 000 for each                                    Article 17
day of the delay calculated from the date appointed by
the decision, in order to compel them:                                     Hearing of the parties and third parties
                                                                 1.    Before taking decisions provided for in Article 8,
(a) to supply complete and correct information which it         paragraph 2, where conditions and obligations are
     has requested by decision taken pursuant to Article        attached thereto, and in Article 8, paragraphs 3 to 6, as
     10;                                                        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.
(b) to submit to an investigation which it has ordered by
    decision taken pursuant to Article 12.                      2.     The Commission may also, on application or on its
                                                                own initiative, hear other natural or legal persons and
                                                                associations.
2.    The Commission may by decision impose on
persons or undertakings periodic penalty payments of up
to ECU 100 000 for each day of the delay, calculated             3.    Natural or legal persons or associations showing a
from the day appointed by the decision, in order to              legitimate interest shall be entitled to make such
compel them to apply the measures resulting from a               applications.
decision taken pursuant to Article 8 (5).
                                                                 4.    Applications to be heard on the part of members of
                                                                the administrative or management organs and the
3.    Where persons, undertakings or associations of             acknowledged employees' representatives from the
undertakings have satisfied the obligation which it was          undertakings concerned, shall in all cases be granted.
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                                   Article 18
arise under the original decision.
                                                                     Liaison with the authorities of the Member States
                                                                 1.    The Commission      shall transmit forthwith to the
                         Article 15                              competent authorities   of the Member States copies of
                                                                 notifications and of    the most important documents
              Review by the Court of Justice                     lodged with or issued    by the Commission pursuant to
                                                                 this Regulation.
The Court of Justice shall have unlimited jurisdiction
within the meaning of Article 172 of the Treaty to
                                                                 2.    The Commission shall carry out the procedures set
review decisions whereby the Commission has fixed a
                                                                 out in this Regulation in close and constant liaison with
fine or periodic penalty payment; it may cancel, reduce
                                                                 the competent authorities of the Member States, which
or increase the fine or periodic penalty payment
                                                                 may express their views upon those procedures. It shall
imposed.
                                                                 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
                          Article 16                             to the application of Article 8 (2).
                    Professional secrecy
                                                                 3.    An advisory Committee on concentrations shall be
 1.    Information acquired as a result of the application       consulted prior to the taking of any decision pursuant to
of Articles 10, 11 and 12 shall be used only for the             Article 8, paragraphs 3 to 6, as well as Articles 13 and
purposes of the relevant request or investigation.                14, or of implementing provisions pursuant to Article 22.
                                                                 4.    The Advisory Committee shall consist of officials of
2.    Without prejudice to the provisions of Article 19,         the Member States. Each Member State shall appoint
the Commission and the competent authorities of the              two officials to represent it; if prevented from attending,
 Member States, their officials and other servants shall         they may be replaced by other officials. At least one of
not disclose information acquired by them as a result of         the representatives of a Member State shall be competent
the application of this Regulation and of the kind               in the matter of restrictive practices and dominant
covered by the obligation of professional secrecy.               positions.
 ---pagebreak--- No C 22/22                            Official Journal of the European Communities                                28. 1. 89
5.    Consultation shall take place at a joint meeting          2.    Member States shall not apply their national legis-
convened at the invitation of and chaired by the                lation on competition to concentrations having a
Commission. A summary of the facts, together with the           Community dimension, unless expressly empowered to
most important documents and a preliminary draft of the         do so by the Commission in accordance with the
decision to be taken, shall be sent with the invitation.        provisions of the last sentence of Article 8 (2).
The meeting shall take place no earlier than fourteen
days after the invitation has been sent. The Commission
may, however, shorten this period in order to avoid             3.    Notwithstanding the provisions of paragraphs (1)
serious harm to one or more of the undertakings                 and (2), Member States may take appropriate measures
concerned by a concentration.                                   where necessary to protect legitimate interests other than
                                                                those pursued by this Regulation, provided that such
6.    The Advisory Committee shall deliver an opinion           interests are sufficiently defined and protected in
on the Commission's draft decision, if necessary by             domestic law and that such measures are compatible with
taking a vote. The Advisory Committee may deliver an            other provisions of Community law.
opinion even if some members are absent and unrep-
resented. The opinion shall be delivered in writing and
appended to the draft decision. It shall not be made                                      Article 21
public.
                                                                         Exclusive application of this Regulation
7.    The Commission shall take the utmost account of
the opinion delivered by the Committee. It shall inform         Regulation No 17 and Regulations (EEC) No 1017/68,
the Committee of the manner in which its opinion has            No 4056/86 and No 3975/87 shall not apply to concen-
been taken into account.                                        trations falling within the scope of this Regulation.
                         Article 19
                                                                                         Article 22
                  Publication of decisions
                                                                                  Implementing provisions
1.    The Commission shall publish the decisions which
it takes pursuant to Article 8 (2), where conditions and        The     Commission      shall have power to          adopt
obligations are attached thereto, and to Article 8 (3) to       implementing provisions concerning the form, content
(6) in the Official Journal of the European Communities.        and other details of notifications pursuant to Article 4,
                                                                time limits pursuant to Articles 6 and 9, as well as
2.    The publication shall state the names of the parties
                                                                hearings pursuant to Article 17.
and the main content of the decision; it shall have regard
to the legitimate interest of undertakings in the
protection of their business secrets.                                                    Article 23
                         Article 20                                                   Entry into force
                        Jurisdiction                            This Regulation shall enter into force
1.    Subject to review by the Court of Justice, the
Commission shall have sole competence to take the               This Regulation shall be binding in its entirety and
decisions provided for in this Regulation.                      directly applicable in all Member States.