Commission Implementing Regulation (EU) 2023/914 of 20 April 2023 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings and repealing Commission Regulation (EC) No 802/2004 (Text with EEA relevance)
Commission Implementing Regulation (EU) 2023/914of 20 April 2023implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings and repealing Commission Regulation (EC) No 802/2004(Text with EEA relevance)THE EUROPEAN COMMISSION,Having regard to the Treaty on the Functioning of the European Union,Having regard to Article 57(2), point (a) of the Agreement on the European Economic Area in conjunction with Article 1 of Protocol 21 to that Agreement,Having regard to Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings,OJ L 24, 29.1.2004, p. 1. and in particular Article 23(1) thereof,After consulting the Advisory Committee,Whereas:(1)Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakingsOJ L 133, 30.4.2004, p. 1. has been amended several times. Since further changes now need to be made, Regulation (EC) No 802/2004 should be repealed and replaced, in the interest of clarity.(2)Regulation (EC) No 139/2004 is based on the principle of compulsory notification of concentrations before they are put into effect. Notification has important legal consequences which are favourable to the parties to the proposed concentration. However, failure to comply with the obligation to notify renders the parties liable to fines and may also entail civil law disadvantages for them. It is therefore necessary in the interests of legal certainty to define precisely the subject matter and content of the information to be provided in the notification.(3)It is for the notifying parties to make a full and honest disclosure to the Commission of the facts and circumstances which are relevant for taking a decision on the notified concentration.(4)Regulation (EC) No 139/2004 also allows the undertakings concerned to request, in a reasoned submission, prior to notification, that a concentration fulfilling the requirements of that Regulation be referred to the Commission by one or more Member States, or referred by the Commission to one or more Member States, as the case may be. It is important to provide the Commission and the competent authorities of the Member States concerned with sufficient information, in order to enable them to assess, within a short period of time, whether or not a referral ought to be made. To that end, the reasoned submission requesting the referral should contain certain specific information.(5)In order to simplify and expedite examination of notifications, of reasoned submissions, and of the information regarding commitments, standardised forms should be used. Those forms are set out in the Annexes to this Regulation. The format of the Annexes to this Regulation may change and the corresponding forms may be replaced by electronic forms containing the same information requirements.(6)Since notification sets in motion legal time-limits laid down in Regulation (EC) No 139/2004, the conditions governing such time-limits and the time when they become effective should also be determined.(7)In the interest of legal certainty, rules should be laid down for calculating the time-limits provided for in Regulation (EC) No 139/2004. In particular, the beginning and end of time periods and the circumstances suspending the running of such periods should be determined, with due regard to the requirements resulting from the exceptionally tight legal timeframe available for the proceedings.(8)The provisions relating to the Commission's proceedings under Regulation (EC) No 139/2004 should be framed in such a way as to safeguard fully the right to be heard and the rights of defence. For these purposes, the Commission should distinguish between the parties who notify the concentration, other parties involved in the proposed concentration, third parties and parties regarding whom the Commission intends to take a decision imposing a fine or periodic penalty payments.(9)The Commission should give the notifying parties and other parties involved in the proposed concentration, if they so request, an opportunity to discuss the intended concentration informally and in strict confidence, before notification. In addition, the Commission should maintain close contact with those parties after notification, to the extent necessary to discuss with them any practical or legal problems which it discovers on a first examination of the case, with a view, if possible, to resolving such problems by mutual agreement.(10)In accordance with the principle of respect for the rights of defence, the notifying parties should be given the opportunity to submit their comments on all the objections which the Commission proposes to take into account in its decisions. The other parties involved in the proposed concentration should also be informed of the Commission's objections and should be granted the opportunity to express their views.(11)Third parties demonstrating a sufficient interest should also be given the opportunity to express their views, if they make a written application to that effect.(12)The various persons entitled to submit comments should do so in writing, both in their own interests and in the interests of sound administration, without prejudice to their right to request an oral hearing, where appropriate, to supplement the written procedure. In urgent cases, however, the Commission should be able to proceed immediately to oral hearings of the notifying parties, of other parties involved or of third parties.(13)It is necessary to lay down rules on the rights of persons who are to be heard, to what extent they should be granted access to the Commission's file and on what conditions they may be represented or assisted.(14)When granting access to the file, the Commission should ensure the protection of business secrets and other confidential information. The Commission should be able to ask undertakings that have submitted documents or statements to identify confidential information.(15)In order to enable the Commission to carry out a proper assessment of commitments offered by the notifying parties with a view to rendering a concentration compatible with the internal market, and to ensure due consultation with other parties involved, with third parties and with the authorities of the Member States as provided for in Regulation (EC) No 139/2004, the procedure and time-limits for submitting commitments should be laid down.(16)Transmission of documents to and from the Commission should in principle take place through digital means, considering developments in information and communication technology and the environmental impact of such transmissions. This applies in particular to notifications, reasoned submissions, comments in response to objections that the Commission addresses to notifying parties, as well as commitments offered pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004,HAS ADOPTED THIS REGULATION: