Official Journal of the European Union
COMMISSION IMPLEMENTING REGULATION (EU) No 1269/2013
of 5 December 2013
amending Regulation (EC) No 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to the Agreement on the European Economic Area,
Having regard to Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) ( 1 ), and in particular Article 23(1) thereof,
After consulting the Advisory Committee on concentrations,
Commission Regulation (EC) No 802/2004 ( 2 ) requires the use of standard forms for the notification of concentrations pursuant to Article 4(1) of Regulation (EC) No 139/2004 and reasoned submissions for the referral of concentrations to the Commission or to a Member State pursuant to Article 4(4) or (5) of Regulation (EC) No 139/2004. Those forms are set out in the Annexes to Regulation (EC) No 802/2004.
In order to simplify and expedite the examination of notifications and reasoned submissions, and in view of the experience gained with the standard forms for notifying concentrations and making reasoned submissions, the information requirements laid down in those forms should be updated, streamlined and reduced. At the same time, the forms should ensure that sufficient information is provided regarding the structure of the concentration and that the most important internal documents prepared by the undertakings concerned discussing the concentration are submitted.
In order to simplify and expedite the examination of concentrations that are unlikely to raise competition concerns, it is furthermore desirable to provide that a larger number of concentrations may be notified using the short form prescribed in Annex II to Regulation (EC) No 802/2004.
The Commission should be able to specify and modify, from time to time, the format and the number of copies requested of submissions by notifying parties, other involved parties and third parties, taking into account developments in information and communication technology and the need to provide copies of certain documents to Member States. This applies in particular to notifications, reasoned submissions, comments in response to objections addressed by the Commission to notifying parties as well as to commitments offered by the undertakings concerned pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004. Details of the number of copies and the format of information and documents to be provided should be published in the Official Journal of the European Union.
In order to enable the Commission to exchange views with competition authorities outside the European Economic Area regarding the examination of notified concentrations freely and in confidence, the right of access to the Commission’s file should not extend to correspondence between the Commission and those competition authorities.
It should be clarified that written proof of representatives’ authority to act is required where notifications are signed by authorised external representatives of persons or of undertakings. It should also be clarified that notifications must contain the information requested in the applicable forms set out in Annex I and II to Regulation (EC) No 802/2004. Article 12 of Regulation (EC) No 802/2004 should be amended in order to refer to a repeal of the provisional decision rather than to an annulment. It should finally be clarified that the extension of the time limit for adoption of a decision pursuant to Article 8(1), (2) and (3) of Regulation (EC) No 139/2004 provided for by the second sentence of Article 10(3) of that Regulation also applies where the undertakings concerned offer commitments pursuant to the second subparagraph of Article 8(2) of that Regulation less than 55 working days after the initiation of proceedings but submit a modified version of the commitments 55 or more working days after the initiation of proceedings.
Regulation (EC) No 802/2004 should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Regulation (EC) No 802/2004 is amended as follows:
in Article 2, paragraph 2 is replaced by the following:
‘2. Where notifications are signed by authorised external representatives of persons or of undertakings, such representatives shall produce written proof that they are authorised to act.’;
in Article 3, paragraph 2 is replaced by the following:
‘2. The Form CO and the supporting documents shall be submitted to the Commission in the format and with the number of copies specified by the Commission from time to time in the Official Journal of the European Union . The notification shall be delivered to the address referred to in Article 23(1).’;
in Article 4, paragraph 1 is replaced by the following:
‘1. Notifications shall contain the information, including documents, requested in the applicable forms set out in Annexes I and II. The information shall be correct and complete.’;
in Article 6(2), the first subparagraph is replaced by the following:
‘2. Article 2, Article 3(1), third sentence, Article 3(2) to (5), Article 4, Article 5(1) to (4), Article 21 and Article 23 of this Regulation shall apply mutatis mutandis to reasoned submissions within the meaning of Article 4(4) 4(5) of Regulation (EC) No 139/2004.’;
in Article 12(2), the first sentence of the second subparagraph is replaced by the following:
‘Once the notifying parties and other involved parties have made known their views, the Commission shall take a final decision repealing, amending or confirming the provisional decision.’;
in Article 13, paragraph 3 is replaced by the following:
‘3. The parties to whom the Commission’s objections have been addressed or who have been informed of those objections may submit their comments on the objections. Any comments shall be submitted in writing within the time limit set. In their written comments, they may set out all facts and matters known to them which are relevant to their defence, and shall attach any relevant documents as proof of the facts set out. They may also propose that the Commission hear persons who may corroborate those facts. They shall submit their comments to the Commission at the address referred to in Article 23(1). The format in which the comments are to be submitted and the number of copies required shall be specified by the Commission from time to time in the Official Journal of the European Union . The Commission shall forward copies of such written comments without delay to the competent authorities of the Member States.’;
in Article 17, paragraph 3 is replaced by the following:
‘3. The right of access to the file shall not extend to confidential information, or to internal documents of the Commission or of the competent authorities of the Member States. The right of access to the file shall equally not extend to correspondence between the Commission and the competent authorities of the Member States, between the competent authorities of the Member States and between the Commission and other competition authorities.’;
in Article 19(2), the first subparagraph is replaced by the following:
‘2. Commitments offered by the undertakings concerned pursuant to Article 8(2) of Regulation (EC) No 139/2004 shall be submitted to the Commission within not more than 65 working days from the date on which proceedings were initiated.
Where the undertakings concerned first offer commitments within less than 55 working days from the date on which proceedings were initiated but submit a modified version of the commitments 55 or more working days from that date, the modified commitments shall be deemed to be new commitments for the purpose of applying the second sentence of Article 10(3) of Regulation (EC) No 139/2004.’;
in Article 20, paragraphs 1 and 1a are replaced by the following:
‘1. The commitments offered by the undertakings concerned pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004 shall be submitted to the Commission at the address referred to in Article 23(1) in the format and with the number of copies specified by the Commission from time to time in the Official Journal of the European Union . The Commission shall forward copies of such commitments without delay to the competent authorities of the Member States.
1a. In addition to the requirements set out in paragraph 1, the undertakings concerned shall, at the same time as offering commitments pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004, submit one original of the information and documents prescribed by the Form RM relating to remedies (Form RM) as set out in Annex IV to this Regulation as well as the number of copies specified by the Commission from time to time in the Official Journal of the European Union . The information submitted shall be correct and complete.’;
Article 21 is amended as follows:
paragraph 1 is replaced by the following:
‘1. The Commission may transmit documents and invitations to the addressees in any of the following ways:
delivery by hand against receipt;
registered letter with acknowledgement of receipt;
fax with a request for acknowledgement of receipt;
electronic mail with a request for acknowledgement of receipt.’;
paragraph 3 is replaced by the following:
‘3. Where a document is sent by fax or by electronic mail, it shall be presumed that it has been received by the addressee on the day on which it was sent.’;
in Article 23, the following paragraph 4 is added:
‘4. Where the Commission specifies that documents submitted to it or any additional copies thereof are to be submitted electronically, it shall specify the format from time to time in the Official Journal of the European Union . Submissions sent by electronic mail shall be sent to the electronic mail address as published by the Commission from time to time in the Official Journal of the European Union .’;
Annex I, Annex II and Annex III are replaced by the text in the Annex to this Regulation.
This Regulation shall enter into force on 1 January 2014.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 December 2013.
For the Commission
José Manuel BARROSO
( 2 ) Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.4.2004, p. 1).
FORM CO RELATING TO THE NOTIFICATION OF A CONCENTRATION PURSUANT TO REGULATION (EC) No 139/2004
1.1. The purpose of this Form CO
This Form CO specifies the information that must be provided by notifying parties when submitting a notification to the European Commission of a proposed merger, acquisition or other concentration. The merger control system of the European Union is laid down in Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings ( 1 ) (hereinafter referred to as ‘the Merger Regulation’) and in Commission Regulation (EC) No 802/2004 ( 2 ) (hereinafter referred to as ‘the Implementing Regulation’), to which this Form CO is annexed. The text of these regulations, as well as other relevant documents, can be found on the Competition page of the Commission’s Europa website. Your attention is drawn to the corresponding provisions of the Agreement on the European Economic Area ( 3 ) (hereinafter referred to as ‘the EEA Agreement’).
In order to limit the time and expense involved in complying with various merger control procedures in several individual countries, the European Union has put in place a system of merger control by which concentrations having a Union dimension ( 4 ) (normally, where the parties to the concentration fulfil certain turnover thresholds) ( 5 ) are assessed by the European Commission in a single procedure (the ‘one stop shop’ principle). Concentrations which do not meet the turnover thresholds may fall within the competence of the Member States’ and/or the EFTA States’ authorities in charge of merger control.
The Merger Regulation requires the Commission to reach a decision within a legal deadline. In an initial phase the Commission normally has 25 working days to decide whether to clear the concentration or to ‘initiate proceedings’, that is to say to undertake an in-depth investigation ( 6 ). If the Commission decides to initiate proceedings, it normally has to take a final decision on the operation within no more than 90 working days of the date when proceedings are initiated ( 7 ).
In view of these deadlines, and for the ‘one stop shop’ principle to work, it is essential that the Commission is provided, in a timely fashion, with the information required to carry out the necessary investigation and to assess the impact of the concentration on the markets concerned. This requires that a certain amount of information be provided at the time of notification.
1.2. Pre-notification contacts
It is recognised that the information requested in this Form CO is substantial. However, experience has shown that, depending on the specific characteristics of the case, not all information is always necessary for an adequate examination of the proposed concentration. Accordingly, if you consider that any particular information requested by this Form CO may not be necessary for the Commission’s examination of the case, you are encouraged to ask the Commission to dispense with the obligation to provide certain information (see point 1.4(g) of this Introductory Part for more details).
The possibility to engage in pre-notification contacts is a service offered by the Commission to notifying parties on a voluntary basis in order to prepare the formal merger review procedure. As such, while not mandatory, pre-notification contacts can be extremely valuable to both the notifying parties and the Commission in determining, amongst other things, the precise amount of information required in a notification and, in the majority of cases, will result in a significant reduction of the information required.
Accordingly, whilst the parties are solely responsible for deciding whether to engage in pre-notification contacts and when exactly to notify, parties are encouraged to consult the Commission on a voluntary basis regarding the adequacy of the scope and type of information on which they intend to base their notification.
In addition, it should be noted that certain concentrations, which are unlikely to pose any competition concerns, can be notified using a Short Form CO, which is attached to the Implementing Regulation, as Annex II.
Notifying parties may refer to the ‘Best Practices on the conduct of EC merger control proceedings’ of the Commission’s Directorate-General for Competition (‘DG Competition’), as published on DG Competition’s website and updated from time to time, which provide guidance on pre-notification contacts and the preparation of notifications.
1.3. Who must notify
In the case of a merger within the meaning of Article 3(1)(a) of the Merger Regulation or the acquisition of joint control of an undertaking within the meaning of Article 3(1)(b) of the Merger Regulation, the notification must be completed jointly by the parties to the merger or by those acquiring joint control, as the case may be ( 8 ).
In case of the acquisition of a controlling interest in one undertaking by another, the acquirer must complete the notification.
In the case of a public bid to acquire an undertaking, the bidder must complete the notification.
Each party completing the notification is responsible for the accuracy of the information which it provides.
1.4. The requirement for a correct and complete notification
All information required by this Form CO must be correct and complete. The information required must be supplied in the appropriate Section of this Form CO.
In particular you should note that:
In accordance with Article 10(1) of the Merger Regulation and Article 5(2) and (4) of the Implementing Regulation, the time-limits of the Merger Regulation linked to the notification will not begin to run until all the information that has to be supplied with the notification has been received by the Commission. This requirement is to ensure that the Commission is able to assess the notified concentration within the strict time-limits provided by the Merger Regulation.
The notifying party or parties must verify, in the course of preparing their notification, that contact names and numbers, and in particular fax numbers and e-mail addresses, provided to the Commission are accurate, relevant and up-to-date ( 9 ).
Incorrect or misleading information in the notification will be considered to be incomplete information (Article 5(4) of the Implementing Regulation).
If a notification is incomplete, the Commission will inform the notifying parties or their representatives in writing and without delay. The notification will only become effective on the date on which the complete and accurate information is received by the Commission (Article 10(1) of the Merger Regulation, Articles 5(2) and (4) of the Implementing Regulation).
Under Article 14(1)(a) of the Merger Regulation, notifying parties who, either intentionally or negligently, supply incorrect or misleading information, may be liable to fines of up to 1 % of the aggregate turnover of the undertaking concerned. In addition, pursuant to Article 6(3)(a) and Article 8(6)(a) of the Merger Regulation the Commission may revoke its decision on the compatibility of a notified concentration where it is based on incorrect information for which one of the undertakings is responsible.
You may request in writing that the Commission accept that the notification is complete notwithstanding the failure to provide information required by this Form CO, if such information is not reasonably available to you in part or in whole (for example, because of the unavailability of information on a target company during a contested bid).
The Commission will consider such a request, provided that you give reasons for the unavailability of that information, and provide your best estimates for missing data together with the sources for the estimates. Where possible, indications as to where any of the requested information that is unavailable to you could be obtained by the Commission should also be provided.
In accordance with Article 4(2) of the Implementing Regulation, the Commission may dispense with the obligation to provide any particular information in the notification, including documents, or with any other requirement specified in this Form CO where the Commission considers that compliance with those obligations or requirements is not necessary for the examination of the case. Accordingly, you may, in pre-notification, submit a written request for a waiver, asking the Commission to dispense with the obligation to provide such information if you consider that that information is not necessary for the Commission’s examination of the case.
The Commission’s experience shows that particular categories of information required by this Form CO, although necessary for the Commission’s examination of certain cases, may not be necessary for the Commission’s examination of a significant number of other cases. These categories of information are specifically indicated in this Form CO (see footnotes 15, 16, 18, 20, 23, 27, 28, 30 and 31). You are particularly invited to consider whether to request a waiver for any of these categories of information.
Waiver requests should be submitted together with a draft Form CO in order to allow the Commission to determine whether or not the information in relation to which a waiver is being requested is necessary for the examination of the case. Waiver requests should be made either within the text of the draft Form CO itself or as an e-mail or letter addressed to the responsible case manager and/or head of unit.
The Commission will consider waiver requests, provided that you give adequate reasons why the information in question is not necessary for the examination of the case. Waiver requests will be dealt with in the context of the review of a draft Form CO. Therefore, in accordance with DG Competition’s Best Practices on the conduct of EC merger control proceedings, DG Competition would normally require five working days before responding to waiver requests.
For the avoidance of doubt, it should be noted that the fact that the Commission may have accepted that any particular information requested by this Form CO was not necessary for the complete notification of a concentration (using the Form CO) does not in any way prevent the Commission from requesting that information at any time, in particular by way of request for information pursuant to Article 11 of the Merger Regulation.
1.5. How to notify
The notification must be completed in one of the official languages of the European Union. This language will thereafter be the language of the proceedings for all notifying parties. Where notifications are made in accordance with Article 12 of Protocol 24 to the EEA Agreement in an official language of an EFTA State which is not an official language of the Union, the notification must simultaneously be supplemented with a translation into an official language of the Union.
The information requested by this Form CO is to be set out using the sections and paragraph numbers of the Form CO, signing a declaration as provided in Section 11, and annexing supporting documentation. The original of the Form CO must be signed by persons authorised by law to act on behalf of each notifying party or by one or more authorised external representatives of the notifying party or parties. In completing Sections 7 to 9 of this Form CO, the notifying parties are invited to consider whether, for purposes of clarity, these sections are best presented in numerical order, or whether they can be grouped together for each individual affected market (or group of affected markets).
For the sake of clarity, certain information may be put in annexes. However, it is essential that all key substantive pieces of information, and in particular market share information for the parties and their largest competitors, are presented in the body of Form CO. Annexes to this Form CO must only be used to supplement the information supplied in the Form CO itself.
Contact details must be provided in a format provided by DG Competition on its website. For a proper investigatory process, it is essential that the contact details are accurate. Multiple instances of incorrect contact details may be a ground for declaring a notification incomplete.
Supporting documents are to be submitted in their original language; where this is not an official language of the Union, they must be translated into the language of the proceeding (Article 3(4) of the Implementing Regulation).
Supporting documents may be originals or copies of the originals. In the latter case, the notifying party must confirm that they are true and complete.
One original and the required number of copies of the Form CO and the supporting documents must be submitted to DG Competition. The required number and format (paper and/or electronic) of copies will be published from time to time in the Official Journal of the European Union as well as on DG Competition’s website.
The notification must be delivered to the address referred to in Article 23(1) of the Implementing Regulation. This address is published in the Official Journal of the European Union and available on DG Competition’s website. The notification must be delivered to the Commission on working days as defined by Article 24 of the Implementing Regulation during the opening hours indicated on DG Competition’s website. The security instructions given on DG Competition’s website must be adhered to.
All electronic copies of the Form CO and supporting documents must be provided in a useable and searchable format as specified on DG Competition’s website.
Article 17(2) of the Merger Regulation as well as the corresponding provisions of the EEA Agreement ( 10 ) require the Commission, the Member States, the EFTA Surveillance Authority and the EFTA States, their officials and other servants not to disclose information they have acquired through the application of the Regulation of the kind covered by the obligation of professional secrecy. The same principle must also apply to protect confidentiality between notifying parties.
If you believe that your interests would be harmed if any of the information you are asked to supply were to be published or otherwise divulged to other parties, submit this information separately with each page clearly marked ‘Business Secrets’. You should also give reasons why this information should not be divulged or published.
In the case of mergers or joint acquisitions, or in other cases where the notification is completed by more than one of the parties, business secrets may be submitted under separate cover, and referred to in the notification as an annex. All such annexes must be included in the submission in order for a notification to be considered complete.
1.7. Definitions and instructions for purposes of this Form CO
Notifying party or parties : in cases where a notification is submitted by only one of the undertakings who is a party to an operation, ‘notifying parties’ is used to refer only to the undertaking actually submitting the notification.
Party(ies) to the concentration or parties : these terms relate to both the acquiring and acquired parties, or to the merging parties, including all undertakings in which a controlling interest is being acquired or which is the subject of a public bid.
Except where otherwise specified, the terms notifying party(ies) and party(ies) to the concentration include all the undertakings which belong to the same groups as those parties.
Affected markets : Section 6 of this Form CO requires the notifying parties to define the relevant product markets, and further to identify which of those relevant markets are likely to be affected by the notified operation. This definition of affected market is used as the basis for requiring information for a number of other questions contained in this Form CO. This term can refer to a relevant market made up either of products or of services.
Year : all references to the word year in this Form CO must be read as meaning calendar year, unless otherwise stated. All information requested in this Form CO must, unless otherwise specified, relate to the year preceding that of the notification.
The financial data requested in Section 4 must be provided in euro at the average exchange rates prevailing for the years or other periods in question.
All references to provisions of law contained in this Form CO are to the relevant articles and paragraphs of the Merger Regulation, unless otherwise stated.
1.8. Description of quantitative economic data collected by the undertakings concerned
In cases in which quantitative economic analysis for the affected markets is likely to be useful, briefly describe the data that each of the undertakings concerned collects and stores in the ordinary course of its business operations and which could be useful for such analysis.
The following are three examples of cases where and the data could be useful for quantitative economic analysis in those cases: a concentration between two providers of services that business customers purchase on the basis of structured procurement processes where candidate suppliers bid against each other and where suppliers or customers collect bidding data, that is to say data about the participants, offers and outcomes of past procurement processes; a concentration between producers of retail products that are sold to final consumers and where ‘scanning data’ about consumers’ purchases in shops are collected over a significant period of time; a concentration amongst providers of mobile telephony services to end customers and where regulatory authorities for telecommunication collect data on customer switching between the providers of mobile telephony services.
The data description should include, in particular, information about the type of such data (information on sales or bids, profit margins, procurement process details, etc.), the level of disaggregation (per country, per product, per customer, per contract, etc.), the time period for which the data are available and the format.
The information requested under this introductory part point 1.8 is not required for the Form CO to be considered as complete. However, given the statutory deadlines for Union merger control, notifying parties are encouraged to provide such descriptions as early as possible in cases and for the markets for which quantitative analysis is likely to be useful.
For further orientation, the undertakings concerned may refer to DG Competition’s ‘Best Practices for the submission of economic evidence and data collection in cases concerning the application of articles 101 and 102 TFEU and in merger cases’ as published on DG Competition’s website and updated from time to time.
1.9. International cooperation between the Commission and other competition authorities
The Commission encourages the undertakings concerned to facilitate the international cooperation between the Commission and other competition authorities reviewing the same concentration. In the Commission’s experience, good cooperation between the Commission and competition authorities in jurisdictions outside the EEA entails substantial benefits for the undertakings concerned. To this end, the Commission encourages notifying parties to submit together with this Form CO a list of those jurisdictions outside the EEA where the concentration is subject to regulatory clearance under merger control rules before or after closing.
Furthermore, the Commission encourages the undertakings concerned to submit waivers of confidentiality that would enable the Commission to share information with other competition authorities outside the EEA reviewing the same concentration. Each waiver facilitates joint discussion and analysis of a concentration as it allows the Commission to share relevant information with another competition authority reviewing the same concentration, including confidential business information obtained from the undertakings concerned. To this end, the Commission encourages the undertakings concerned to use the Commission’s model waiver, which is published on DG Competition’s website and updated from time to time.
1.10. Provision of information to employees and their representatives
The Commission would like to draw attention to the obligations to which the parties to a concentration may be subject under Union and/or national rules on information and consultation regarding transactions of a concentrative nature vis-à-vis employees and/or their representatives.
Description of the concentration