Commission Regulation (EC) No 447/98 of 1 March 1998 on the notifications, time limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (Text with EEA relevance)
Modified by
- Council Regulation (EC) No 1103/97of 17 June 1997on certain provisions relating to the introduction of the euro, 31997R1103, June 19, 1997
- Actconcerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, 12003T, September 23, 2003
- Commission Regulation (EC) No 802/2004of 7 April 2004implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings(Text with EEA relevance), 32004R0802, April 30, 2004
Corrected by
- Corrigendum to Commission Regulation (EC) No 447/98 of 1 March 1998 on the notifications, time limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings, 31998R0447R(01), March 6, 1998
(a) information which the Commission has requested pursuant to Article 11(1) of Regulation (EEC) No 4064/89 from one of the notifying parties or another involved party, as defined in Article 11 of this Regulation, is not provided or not provided in full within the time limit fixed by the Commission; (b) information which the Commission has requested pursuant to Article 11(1) of Regulation (EEC) No 4064/89 from a third party, as defined in Article 11 of this Regulation, is not provided or not provided in full within the time limit fixed by the Commission owing to circumstances for which one of the notifying parties or another involved party, as defined in Article 11 of this Regulation, is responsible; (c) one of the notifying parties or another involved party, as defined in Article 11 of this Regulation, has refused to submit to an investigation deemed necessary by the Commission on the basis of Article 13(1) of Regulation (EEC) No 4064/89 or to cooperate in the carrying out of such an investigation in accordance with that provision; (d) the notifying parties have failed to inform the Commission of material changes in the facts contained in the notification.
(a) in the cases referred to in paragraph 1(a) and (b), for the period between the end of the time limit fixed in the request for information and the receipt of the complete and correct information required by decision; (b) in the cases referred to in paragraph 1(c), for the period between the unsuccessful attempt to carry out the investigation and the completion of the investigation ordered by decision; (c) in the cases referred to in paragraph 1(d), for the period between the occurrence of the change in the facts referred to therein and the receipt of the complete and correct information requested by decision or the completion of the investigation ordered by decision.
(a) notifying parties, that is, persons or undertakings submitting a notification pursuant to Article 4(2) of Regulation (EEC) No 4064/89; (b) other involved parties, that is, parties to the concentration plan other than the notifying parties, such as the seller and the undertaking which is the target of the concentration; (c) third parties, that is, natural or legal persons showing a sufficient interest, including customers, suppliers and competitors, and especially members of the administration or management organs of the undertakings concerned or recognised workers' representatives of those undertakings; (d) parties regarding whom the Commission intends to take a decision pursuant to Article 14 or 15 of Regulation (EEC) No 4064/89.
(a) delivery by hand against receipt; (b) registered letter with acknowledgement of receipt; (c) fax with a request for acknowledgement of receipt; (d) telex; (e) electronic mail with a request for acknowledgement of receipt.
(a) In accordance with Article 10(1) of the Merger Regulation and Article 4(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. (b) The notifying parties should check carefully, in the course of preparing their notification, that contact names and numbers, and in particular fax numbers, provided to the Commission are accurate, relevant and up-to-date. (c) Incorrect or misleading information in the notification will be considered to be incomplete information (Article 4(4) of the Implementing Regulation). (d) If a notification is incomplete, the Commission will inform the notifying parties or their representatives of this 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, Article 4(2) and (4) of the Implementing Regulation). (e) Article 14(1)(b) of the Merger Regulation provides that incorrect or misleading information, where supplied intentionally or negligently, can make the notifying party or parties liable to fines of up to ECU 50000 . In addition, pursuant to Article 6(3)(a) and Article 8(5)(a) of the Merger Regulation theCommission may also 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.(f) You may request that the Commission accept that the notification is complete notwithstanding the failure to provide information required by this form, 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. (g) You may request that the Commission accept that the notification is complete notwithstanding the failure to provide information required by this form, if you consider that any particular information requested by this form, in the full or short form version, may not be necessary for the Commission's examination of the case. The Commission will consider such a request, provided that you give reasons why that information is not relevant and necessary to its inquiry into the notified operation. You may explain this during your pre-notification contacts with the Commission and/or in your notification and ask the Commission to dispense with the obligation to provide that information, pursuant to Article 3(2) of the Implementing Regulation.
(a) In cases where a joint venture has no, or de minimis , actual or foreseen activities within the EEA territory, the Commission intends to allow notification of the operation by means of short form. Such cases occur where joint control is acquired by two or more undertakings, and where:(i) the turnover The turnover of the joint venture should be determined according to the most recent audited accounts of the parent companies, or the joint venture itself, depending upon the availability of separate accounts for the resources combined in the joint venture. The expression "and/or" refers to the variety of situations covered by the short form; for example: in the case of the joint acquisition of a target company, the turnover to be taken into account is the turnover of this target (the joint venture), in the case of the creation of a joint venture to which the parent companies contribute their activities, the turnover to be taken into account is that of the contributed activities, in the case of entry of a new controlling party into an existing joint venture, the turnover of the joint venture and the turnover of the activities contributed by the new parent company (if any) must be taken into account.
(ii) the total value of assets The total value of assets of the joint venture should be determined according to the last regularly prepared and approved balance sheet of each parent company. The term "assets" includes: (1) all tangible and intangible assets that will be transferred to the joint venture (examples of tangible assets include production plants, wholesale or retail outlets, and inventory of goods), and (2) any amount of credit or any obligations of the joint venture which any parent company of the joint venture has agreed to extend or guarantee. Where the assets transferred generate turnover, then neither the value of the assets nor that of the turnover may exceed ECU 100 million.
(b) If you consider that the operation to be notified meets these qualifications, you may explain this in your notification and ask the Commission to dispense with the obligation to provide the full-form notification, pursuant to Article 3(2) of the Implementing Regulation, and to allow you to notify by means of short form. (c) Short-form notification allows the notifying parties to limit the information provided in the notification to the following sections and questions: Section 1, Section 2, except questions 2.1 (a, b and d), 2.3.4, and 2.3.5, Section 3, only questions 3.1 and 3.2 (a), Section 5, only questions 5.1 and 5.3, Section 6, Section 10, Section 11 (optional for the convenience of the parties), and Section 12, the five largest independent customers, the five largest independent suppliers, and the five largest competitors in the markets in which the joint venture will be active. Provide the name, address, telephone number, fax number and appropriate contact person of each such customer, supplier and competitor.
(d) In addition, with respect to the affected markets of the joint venture as defined in Section 6, indicate for the EEA territory, for the Community as a whole, for each Member State and EFTA State, and where different, in the opinion of the notifying parties, for the relevant geographic market, the sales in value and volume, as well as the market shares, for the year preceding the operation. (e) The Commission may require full, or where appropriate partial, notification under the form CO where: the notified operation does not meet the short-form thresholds, or this appears to be necessary for an adequate investigation with respect to possible competition problems.
In such cases, the notification may be considered incomplete in a material respect pursuant to Article 4(2) of the Implementing Regulation. The Commission will inform the notifying parties or their representatives of this in writing and without delay and will fix a deadline for the submission of a full or, where appropriate, partial notification. The notification will only become effective on the date on which all information required is received.
(a) whether the proposed concentration is a full legal merger, an acquisition of sole or joint control, a full-function joint venture within the meaning of Article 3(2) of the Merger Regulation or a contract or other means of conferring direct or indirect control within the meaning of Article 3(3) of the Merger Regulation; (b) whether the whole or parts of parties are subject to the concentration; (c) a brief explanation of the economic and financial structure of the concentration; (d) whether any public offer for the securities of one party by another party has the support of the former's supervisory boards of management or other bodies legally representing that party; (e) the proposed or expected date of any major events designed to bring about the completion of the concentration; (f) the proposed structure of ownership and control after the completion of the concentration; (g) any financial or other support received from whatever source (including public authorities) by any of the parties and the nature and amount of this support.
3.1. all undertakings or persons controlling these parties, directly or indirectly; 3.2. all undertakings active on any affected market See Section 6 for the definition of affected markets. (a) by these parties; (b) by any other undertaking identified in 3.1.
(a) two or more of the parties to the concentration are engaged in business activities in the same product market and where the concentration will lead to a combined market share of 15 % or more. These are horizontal relationships; (b) one or more of the parties to the concentration are engaged in business activities in a product market, which is upstream or downstream of a product market in which any other party to the concentration is engaged, and any of their individual or combined market shares is 25 % or more, regardless of whether there is or is not any existing supplier/customer relationship between the parties to the concentration. These are vertical relationships.
(a) the EEA, Community or EFTA level; (b) the individual Member States or EFTA States level.
(a) for the EEA territory, (b) for the Community as a whole, (c) for the territory of the EFTA States as a whole, (d) individually for each Member State and EFTA State where the parties to the concentration do business, (e) and, where in the opinion of the notifying parties, the relevant geographic market is different,
(a) the proportion of such imports that are derived from the groups to which the parties to the concentration belong, (b) an estimate of the extent to which any quotas, tariffs or non-tariff barriers to trade, affect these imports, and (c) an estimate of the extent to which transportation and other costs affect these imports,
(a) transportation and other costs, and (b) other non-tariff barriers to trade;
(a) the distribution systems prevailing on the market and their importance. To what extent is distribution performed by third parties and/or undertakings belonging to the same group as the parties identified in Section 3? (b) the service networks (for example, maintenance and repair) prevailing and their importance in these markets. To what extent are such services performed by third parties and/or undertakings belonging to the same group as the parties identified in Section 3?
(a) the phases of the markets in terms of, for example, take-off, expansion, maturity and decline, and a forecast of the growth rate of demand; (b) the importance of customer preferences, in terms of brand loyalty, product differentiation and the provision of a full range of products; (c) the degree of concentration or dispersion of customers; (d) segmentation of customers into different groups with a description of the "typical customer" of each group; (e) the importance of exclusive distribution contracts and other types of long-term contracts; (f) the extent to which public authorities, government agencies, State enterprises or similar bodies are important participants as a source of demand.
(a) the total costs of entry (R & D, establishing distribution systems, promotion, advertising, servicing, etc.) on a scale equivalent to a significant viable competitor, indicating the market share of such a competitor; (b) any legal or regulatory barriers to entry, such as government authorisation or standard setting in any form; (c) any restrictions created by the existence of patents, know-how and other intellectual property rights in these markets and any restrictions created by licensing such rights; (d) the extent to which each of the parties to the concentration are licensees or licensors of patents, know-how and other rights in the relevant markets; (e) the importance of economies of scale for the production of products in the affected markets; (f) access to sources of supply, such as availability of raw materials.
(a) trends and intensities of research and development Research and development intensity is defined as research development expenditure as a proportion of turnover. (b) the course of technological development for these markets over an appropriate time period (including developments in products and/or services, production processes, distribution systems, etc.); (c) the major innovations that have been made in these markets and the undertakings responsible for these innovations; (d) the cycle of innovation in these markets and where the parties are in this cycle of innovation.
(a) identify those in which the parties to the concentration are members; (b) identify the most important trade associations to which the customers and suppliers of the parties to the concentration belong.
(a) for the EEA territory as a whole; (b) for the Community as a whole; (c) for the territory of the EFTA States as a whole; (d) individually for each Member State and EFTA State where the groups to which the parties belong do business; (e) and, where different, for the relevant geographic market.
(a) Do two or more parents retain to a significant extent activities in the same market as the joint venture or in a market which is downstream or upstream from that of the joint venture or in a neighbouring market closely related to this market For market definitions refer to Section 6. If the answer is affirmative, please indicate for each of the markets referred to here: the turnover of each parent company in the preceding financial year, the economic significance of the activities of the joint venture in relation to this turnover, the market share of each parent.
If the answer is negative, please justify your answer. (b) If the answer to (a) is affirmative and in your view the creation of the joint venture does not lead to coordination between independent undertakings that restricts competition within the meaning of Article 85(1) of the EC Treaty, give your reasons. (c) Without prejudice to the answers to (a) and (b) and in order to ensure that a complete assessment of the case can be made by the Commission, please explain how the criteria of Article 85(3) apply. Under Article 85(3), the provisions of Article 85(1) may be declared inapplicable if the operation: (i) contributes to improving the production or distribution of goods, or to promoting technical or economic progress; (ii) allows consumers a fair share of the resulting benefit; (iii) does not impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; and (iv) does not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
(a) Identify each ancillary restriction in the agreements provided with the notification for which you request an assessment in conjunction with the concentration; and (b) explain why these are directly related and necessary to the implementation of the concentration.
| (million ECU) | ||||
| Income | Insurance A | Insurance B | ||
|---|---|---|---|---|
| Gross premiums written | ||||
| (300) | ||||
| (270) | ||||
| Other income | ||||
| Total income | ||||
(a) the aggregate worldwide turnover of insurances A and B, as replaced by the value of gross premiums written worldwide, is more than ECU 5000 million;(b) for each of the insurance undertakings, the value of gross premiums written with Community residents is more than ECU 250 million; but (c) each of the insurance undertakings achieves more than two thirds of its gross premiums written with Community residents in one (and the same) Member State X,
| (million ECU) | ||||
| Turnover | Undertaking A | Undertaking B | ||
|---|---|---|---|---|
| Sales revenues worldwide | ||||
| (million ECU) | ||
| Turnover | Joint undertaking C | |
|---|---|---|
| Sales revenues worldwide | ||
| (20) | ||
| (10) | ||
| Turnover with third undertakings | ||
| (60) | ||
| (50) | ||
(a) The undertaking C is jointly controlled (in the meaning of Article 3(3) and (4)) by the undertakings A and B concerned by the concentration, irrespective of any third undertaking participating in that undertaking C. (b) The undertaking C is not consolidated A and B in their profit and loss accounts. (c) The turnover of C resulting from operations with A and B shall not be taken into account. (d) The turnover of C resulting from operations with any third undertaking shall be apportioned equally amongst the undertakings A and B, irrespective of their individual shareholdings in C.
(a) Undertaking A's aggregate worldwide turnover shall be calculated as follows: ECU 10000 million and 50 % of C's worldwide turnover with third undertakings (i.e. ECU 35 million), the sum of which is ECU10035 million.Undertaking B's aggregate worldwide turnover shall be calculated as follows: ECU 2000 million and 50 % of C's world-wide turnover with third undertakings (i.e. ECU 35 million), the sum of which is ECU2035 million.(b) The aggregate worldwide turnover of the undertakings concerned is ECU 12070 million.(c) Undertaking A achieves ECU 4025 million within Member State Y (50 % of C's turnover in this Member State taken into account), and a Community-wide turnover of ECU8030 million (including 50 % of C's Community-wide turnover).Undertaking B achieves ECU 925 million within Member State Y (50 % of C's turnover in this Member State taken into account), and a Community-wide turnover of ECU 1530 million (including 50 % of C's Community-wide turnover).
(a) the aggregate worldwide turnover of undertakings A and B is more than ECU 5000 million;(b) each of the undertakings concerned by the concentration achieves more than ECU 250 million within the Community; c) each of the undertakings concerned (undertaking A 50,1 % and undertaking B 60,5 %) achieves less than two thirds of its Community-wide turnover in one (and the same) Member State Y;
| (million ECU) | ||||
| Turnover | Undertaking A | Undertaking B | ||
|---|---|---|---|---|
| Sales revenues worldwide | 500 | |||
| (400) | ||||
| (200) | ||||
| (million ECU) | ||||
| Turnover | Undertaking A | Undertaking B | ||
|---|---|---|---|---|
| Sale revenues worldwide | ||||
| (400) | ||||
| (300) | ||||