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5.5.2023 |
EN |
Official Journal of the European Union |
L 119/22 |
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)
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, (1) and in particular Article 23(1) thereof,
After consulting the Advisory Committee,
Whereas:
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(1) |
Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (2) 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 Since further changes now need to be made, Regulation (EC) No 802/2004 should be repealed and replaced, in the interest of clarity. |
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(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. |
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(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. |
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(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. |
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(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. |
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(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. |
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(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. |
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(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. |
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(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. |
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(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. |
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(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. |
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(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. |
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(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. |
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(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. |
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(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. |
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(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:
CHAPTER I
SCOPE
Article 1
This Regulation shall apply to the control of concentrations conducted pursuant to Regulation (EC) No 139/2004.
CHAPTER II
NOTIFICATIONS AND OTHER SUBMISSIONS
Article 2
Persons entitled to submit notifications
1. Notifications shall be submitted by the persons or undertakings referred to in Article 4(2) of Regulation (EC) No 139/2004.
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.
Article 3
Submission of notifications
1. Notifications shall be submitted using the Form CO as set out in Annex I. Under the conditions set out in Annex II, notifications may be submitted using a Short Form CO as set out in that Annex. Joint notifications shall be submitted on a single form.
2. The forms referred to in paragraph 1 and all relevant supporting documents shall be submitted to the Commission in accordance with Article 22 and the instructions published by the Commission in the Official Journal of the European Union.
3. Notifications shall be drafted in one of the official languages of the Union. For the notifying parties, this language shall also be the language of the proceeding, as well as that of any subsequent proceedings relating to the same concentration. Supporting documents shall be submitted in their original language. Where the original language of a document is not one of the official languages of the Union, a translation into the language of the proceedings shall be attached.
4. Where notifications are made pursuant to Article 57 of the Agreement on the European Economic Area, they may also be submitted in one of the official languages of the EFTA States or the working language of the EFTA Surveillance Authority. If the language chosen for the notifications is not an official language of the Union, the notifying parties shall simultaneously supplement all documentation with a translation into an official language of the Union. The language which is chosen for the translation shall determine the language used by the Union as the language of the proceedings for the notifying parties.
Article 4
Information and documents to be provided
1. Notifications shall contain the information, including documents, required in the applicable forms set out in Annexes I and II. The information shall be correct and complete.
2. The Commission may, upon written request by the notifying parties, dispense with the obligation to provide any particular information in the notification, including documents, or with any other requirement specified in Annexes I and II where the Commission considers that compliance with those obligations or requirements is not necessary for the examination of the case.
3. The Commission shall without delay acknowledge in writing to the notifying parties or their representatives receipt of the notification and of any reply to a letter sent by the Commission pursuant to Article 5(2) and (3).
Article 5
Effective date of notification
1. Subject to paragraphs 2, 3 and 4, notifications shall become effective on the date on which they are received by the Commission.
2. Where the information, including documents, contained in the notification is incomplete in any material respect, the Commission shall inform the notifying parties or their representatives in writing without delay. In such cases, the notification shall become effective on the date on which the complete information is received by the Commission.
3. Material changes in the facts contained in the notification coming to light subsequent to the notification which the notifying parties know or ought to know, or any new information coming to light subsequent to the notification which the parties know or ought to know and which would have had to be notified if known at the time of notification, shall be communicated to the Commission without delay. In such cases, when these material changes or new information could have a significant effect on the appraisal of the concentration, the Commission may consider the notification as becoming effective on the date on which it receives the relevant information. The Commission shall inform the notifying parties or their representatives of this in writing and without delay.
4. For the purposes of this Article, incorrect or misleading information shall be considered to be incomplete information, without prejudice to Article 14(1) of Regulation (EC) No 139/2004.
5. Where the Commission publishes the fact of the notification pursuant to Article 4(3) of Regulation (EC) No 139/2004, it shall specify the date upon which the notification has been received. Where, further to the application of paragraphs 2, 3 and 4 of this Article, the effective date of notification is later than the date specified in that publication, the Commission shall issue a further publication in which it shall state the later date.
Article 6
Specific provisions relating to reasoned submissions, supplements and certifications
1. Reasoned submissions within the meaning of Article 4(4) and (5) of Regulation (EC) No 139/2004 shall contain the information, including documents, required in Annex III to this Regulation. The information submitted shall be correct and complete.
2. Article 2, Article 3(1), third sentence, Article 3(2), (3) and (4), Article 4, Article 5(1) to (4) and Article 22 of this Regulation shall apply mutatis mutandis to reasoned submissions within the meaning of Article 4(4) and (5) of Regulation (EC) No 139/2004.
3. Article 2, Article 3(1), third sentence, Article 3(2), (3) and (4), Article 4, Article 5(1) to (4) and Article 22 of this Regulation shall apply mutatis mutandis to supplements to notifications and certifications within the meaning of Article 10(5) of Regulation (EC) No 139/2004.
CHAPTER III
TIME-LIMITS
Article 7
Beginning of time periods
Time periods shall begin on the working day, as defined in Article 24 of this Regulation, following the event to which the relevant provision of Regulation (EC) No 139/2004 refers.
Article 8
Expiry of time periods
1. A time period calculated in working days shall expire at the end of its last working day.
2. A time period set by the Commission in terms of a calendar date shall expire at the end of that day.
Article 9
Suspension of time limit
1. The time limits referred to in Article 9(4) and Article 10(1) and (3) of Regulation (EC) No 139/2004 shall be suspended where the Commission has to take a decision pursuant to Article 11(3) or Article 13(4) of that Regulation, on any of the following grounds:
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(a) |
information which the Commission has requested pursuant to Article 11(2) of Regulation (EC) No 139/2004 from one of the notifying parties or any other 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; |
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(b) |
information which the Commission has requested pursuant to Article 11(2) of Regulation (EC) No 139/2004 from a third party 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 any other involved party, as defined in Article 11 of this Regulation, is responsible; |
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(c) |
one of the notifying parties or any other involved party, as defined in Article 11 of this Regulation, has refused to submit to an inspection deemed necessary by the Commission on the basis of Article 13(1) of Regulation (EC) No 139/2004 or to cooperate in the carrying out of such an inspection in accordance with Article 13(2) of that Regulation; |
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(d) |
the notifying parties have failed to inform the Commission of material changes in the facts contained in the notification, or of any new information of the kind referred to in Article 5(3) of this Regulation. |
2. The time limits referred to in Article 9(4), Article 10(1) and (3) of Regulation (EC) No 139/2004 shall be suspended where the Commission has to take a decision pursuant to Article 11(3) of that Regulation, without proceeding first by way of simple request for information, owing to circumstances for which one of the undertakings involved in the concentration is responsible.
3. The time limits referred to in Article 9(4), Article 10(1) and (3) of Regulation (EC) No 139/2004 shall be suspended:
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(a) |
in the cases referred to in paragraph 1, points (a) and (b), for the period between the expiry of the time limit set in the simple request for information, and the receipt of the complete and correct information required by decision or the moment when the Commission informs the notifying parties that, in light of the results of its ongoing investigation or market developments, the information requested is no longer necessary; |
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(b) |
in the cases referred to in paragraph 1, point (c), for the period between the unsuccessful attempt to carry out the inspection and the completion of the inspection ordered by decision or the moment when the Commission informs the notifying parties that, in light of the results of its ongoing investigation or market developments, the inspection ordered is no longer necessary; |
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(c) |
in the cases referred to in paragraph 1, point (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; |
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(d) |
in the cases referred to in paragraph 2 for the period between the expiry of the time limit set in the decision and the receipt of the complete and correct information required by decision or the moment when the Commission informs the notifying parties that, in light of the results of its ongoing investigation or market developments, the information requested is no longer necessary. |
4. The suspension of the time limit shall begin on the working day following the day on which the event causing the suspension occurred. It shall expire at the end of the day on which the reason for suspension is removed. Where such a day is not a working day, the suspension of the time-limit shall expire at the end of the following working day.
5. The Commission shall process within a reasonable time period all the data it has received in the framework of its investigation that could allow it to deem that information requested or an inspection ordered is no longer necessary, within the meaning of paragraph 3, points (a), (b), and (d).
Article 10
Compliance with time limits
1. The time limits referred to in Article 4(4), fourth subparagraph, Article 9(4), Article 10(1) and (3), and Article 22(3) of Regulation (EC) No 139/2004 shall be met where the Commission has taken the relevant decision before the end of the period.
2. The time limits referred to in Article 4(4), second subparagraph, Article 4(5), third subparagraph, Article 9(2), Article 22(1), second subparagraph, and 22(2), second subparagraph, of Regulation (EC) No 139/2004 shall be met by a Member State concerned where that Member State, before the end of the period, informs the Commission in writing or makes or joins the request in writing, as the case may be.
3. The time limit referred to in Article 9(6) of Regulation (EC) No 139/2004 shall be met where the competent authority of a Member State concerned informs the undertakings concerned in the manner set out in that provision before the end of the period.
CHAPTER IV
EXERCISE OF THE RIGHT TO BE HEARD AND HEARINGS
Article 11
Parties to be heard
For the purposes of the right to be heard pursuant to Article 18 of Regulation (EC) No 139/2004, the following parties are distinguished:
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(a) |
notifying parties, that is, persons or undertakings submitting a notification pursuant to Article 4(2) of Regulation (EC) No 139/2004; |
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(b) |
other involved parties, that is, parties to the proposed concentration other than the notifying parties, such as the seller and the undertaking which is the target of the concentration; |
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(c) |
third persons, that is natural or legal persons, including customers, suppliers and competitors, provided they demonstrate a sufficient interest within the meaning of Article 18(4), second sentence, of Regulation (EC) No 139/2004, which is the case in particular:
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(d) |
parties regarding whom the Commission intends to take a decision pursuant to Article 14 or Article 15 of Regulation (EC) No 139/2004. |
Article 12
Decisions on the suspension of concentrations
1. Where the Commission intends to take a decision pursuant to Article 7(3) of Regulation (EC) No 139/2004 which adversely affects one or more of the parties, it shall inform the notifying parties and other involved parties in writing of its objections and shall set a time limit within which they may make known their views in writing.
2. Where the Commission, pursuant to Article 18(2) of Regulation (EC) No 139/2004, has taken a decision referred to in paragraph 1 of this Article provisionally without having given the notifying parties and other involved parties the opportunity to make known their views, it shall without delay send them the text of the provisional decision and shall set a time limit within which they may make known their views in writing.
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. Where notifying parties and other involved parties have not made known their views in writing within the time limit set, the Commission's provisional decision shall become final with the expiry of that period.
Article 13
Decisions on the substance of the case
1. Where the Commission intends to take a decision pursuant to Article 6(3) or Article 8(2) to (6) of Regulation (EC) No 139/2004, it shall, before consulting the Advisory Committee, hear the parties pursuant to Article 18(1) and (3) of that Regulation.
Article 12(2) of this Regulation shall apply mutatis mutandis where, in application of Article 18(2) of Regulation (EC) No 139/2004, the Commission has taken a decision pursuant to Article 8(5) of that Regulation provisionally.
2. The Commission shall address its objections in writing to the notifying parties in a statement of objections. Following the issuance of the statement of objections, the Commission may address one or more supplementary statement(s) of objections to the notifying parties, if the Commission wishes to raise new objections or modify the intrinsic nature of the objections that were previously raised.
The Commission shall, when giving notice of objections, set a time limit within which the notifying parties may inform the Commission of their comments in writing.
The Commission shall inform other involved parties in writing of the objections referred to in the first subparagraph and set a time limit within which those parties may inform the Commission of their comments in writing.
The Commission shall not be obliged to take into account comments received after the expiry of a time limit which it has set.
3. In their written comments, parties to whom the objections have been addressed or who have been informed of those objections may set out all relevant facts known to them, 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 in accordance with Article 22 and the instructions published by the Commission 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.
4. Following the issuance of a statement of objections, the Commission may address a letter of facts to the notifying parties, informing them of additional or new facts or evidence that the Commission wishes to use to corroborate objections already raised.
When sending a letter of facts, the Commission shall set a time limit within which the notifying parties may inform the Commission of their comments in writing.
5. Where the Commission intends to take a decision pursuant to Article 14 or Article 15 of Regulation (EC) No 139/2004, it shall, before consulting the Advisory Committee, hear the parties regarding whom the Commission intends to take such a decision, pursuant to Article 18(1) and (3) of that Regulation.
The procedure provided for in paragraph 2, first and second subparagraphs, and paragraphs 3 and 4 shall apply, mutatis mutandis.
Article 14
Oral hearings
1. Where the Commission intends to take a decision pursuant to Article 6(3) or Article 8(2) to (6) of Regulation (EC) No 139/2004, it shall afford the notifying parties who have so requested in their written comments the opportunity to develop their arguments at an oral hearing. It may also, at other stages in the proceedings, afford the notifying parties the opportunity of expressing their views orally.
2. Where the Commission intends to take a decision pursuant to Article 6(3) or Article 8(2) to (6) of Regulation (EC) No 139/2004, it shall also afford other involved parties who have so requested in their written comments the opportunity to develop their arguments in an oral hearing. It may also, at other stages in the proceedings, afford other involved parties the opportunity of expressing their views orally.
3. Where the Commission intends to take a decision pursuant to Article 14 or Article 15 of Regulation (EC) No 139/2004, it shall afford parties on whom it proposes to impose a fine or periodic penalty payment the opportunity to develop their arguments in an oral hearing, if so requested in their written comments. It may also, at other stages in the proceedings, afford such parties the opportunity of expressing their views orally.
Article 15
Conduct of oral hearings
1. Oral hearings shall be conducted by the Hearing Officer in full independence.
2. The Commission shall invite the persons to be heard to attend the oral hearing on such date as it shall determine.
3. The Commission shall invite the competent authorities of the Member States to take part in any oral hearing.
4. Persons invited to attend shall either appear in person or be represented by legal representatives or by representatives authorised by their constitution as appropriate. Undertakings and associations of undertakings may also be represented by a duly authorised agent appointed from among their permanent staff.
5. Persons heard by the Commission may be assisted by their lawyers or other qualified and duly authorised persons admitted by the Hearing Officer.
6. Oral hearings shall not be public. Each person may be heard separately or in the presence of other persons invited to attend, having regard to the legitimate interest of the undertakings in the protection of their business secrets and other confidential information.
7. The Hearing Officer may allow all parties within the meaning of Article 11, the Commission services and the competent authorities of the Member States to ask questions during the oral hearing.
8. The Hearing Officer may hold a preparatory meeting with the parties and the Commission services, so as to facilitate the efficient organisation of the oral hearing.
9. The statements made by each person heard shall be recorded. Upon request, the recording of the oral hearing shall be made available to the persons who attended that hearing. Regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets and other confidential information.
Article 16
Hearing of third persons
1. If third persons apply to be heard, the Commission shall inform them in writing of the nature and subject matter of the proceedings and shall set a time limit within which they may make known their views.
2. Where a statement of objections or a supplementary statement of objections has been issued, the Commission may send to third persons a non-confidential version of that statement or inform them of the nature and subject matter of the proceedings by other appropriate means. For this purpose, the notifying parties shall identify any information which they consider confidential in the objections, pursuant to Article 18(3), second and third subparagraphs, within five working days from the receipt of the statement. The Commission shall provide the non-confidential version of the objections to third persons only to be used for the purposes of the relevant proceedings pursuant to Regulation (EC) No 139/2004. Third persons shall accept that use restriction prior to receipt of the non-confidential version of the objections.
Where a statement of objections has not been issued, the Commission shall be under no obligation to provide third persons referred to in paragraph 1 with any information beyond the nature and the subject matter of the proceedings.
3. The third persons referred to in paragraph 1 shall make known their views in writing within the time limit set. The Commission may, where appropriate, afford such third persons who have so requested in their written comments the opportunity to participate in a hearing. It may also in other cases afford such third persons the opportunity of expressing their views orally.
4. The Commission may invite any other natural or legal person to express its views, in writing as well as orally, including at an oral hearing.
CHAPTER V
ACCESS TO THE FILE AND TREATMENT OF CONFIDENTIAL INFORMATION
Article 17
Access to the file and use of documents
1. If so requested, the Commission shall grant access to the file to the parties to whom it has addressed a statement of objections, for the purpose of enabling them to exercise their rights of defence. Access shall be granted after the Commission gives notice of the statement of objections to the notifying parties.
2. The Commission shall, upon request, also give the other involved parties who have been informed of the objections access to the file in so far as this is necessary for the purposes of preparing their comments.
3. The right of access to the file shall not extend to:
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(a) |
confidential information; |
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(b) |
internal documents of the Commission; |
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(c) |
internal documents of competent authorities of Member States; |
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(d) |
correspondence between the Commission and the competent authorities of Member States; |
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(e) |
correspondence between the competent authorities of Member States; and |
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(f) |
correspondence between the Commission and other competition authorities. |
4. Documents obtained through access to the file pursuant to this Article may only be used for the purposes of the relevant proceedings pursuant to Regulation (EC) No 139/2004.
Article 18
Treatment of confidential information
1. Information, including documents, shall not be communicated or made accessible by the Commission in so far as:
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(a) |
it contains business secrets or other confidential information; and |
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(b) |
the disclosure of the information is not considered necessary by the Commission for the purpose of the proceedings. |
2. Persons, undertakings, or associations of undertakings who make known their views or comments pursuant to Articles 12, 13 and 16 of this Regulation, or supply information pursuant to Article 11 of Regulation (EC) No 139/2004, or subsequently submit further information to the Commission in the course of the same proceedings, shall clearly identify any material which they consider to be confidential, giving reasons, and provide a separate non-confidential version by the date set by the Commission.
3. Without prejudice to paragraph 2, the Commission may require persons referred to in Article 3 of Regulation (EC) No 139/2004, undertakings and associations of undertakings in all cases where they produce or have produced documents or statements pursuant to Regulation (EC) No 139/2004 to identify the documents or parts of documents which they consider to contain business secrets or other confidential information belonging to them and to identify the undertakings with regard to which such documents are to be considered confidential.
The Commission may also require persons referred to in Article 3 of Regulation (EC) No 139/2004, undertakings or associations of undertakings to identify any part of a statement of objections, case summary or a decision adopted by the Commission which in their view contains business secrets.
Where business secrets or other confidential information are identified, the persons, undertakings and associations of undertakings shall give reasons and provide a separate non-confidential version by the date set by the Commission.
4. If persons, undertakings or associations of undertakings fail to comply with paragraphs 2 or 3, the Commission may assume that the documents or statements concerned do not contain confidential information.
CHAPTER VI
COMMITMENTS OFFERED BY THE UNDERTAKINGS CONCERNED
Article 19
Time limits for submission of commitments
1. Commitments offered by the undertakings concerned pursuant to Article 6(2) of Regulation (EC) No 139/2004 shall be submitted to the Commission within 20 working days from the date of receipt of the notification.
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 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 Article 10(3), second sentence, of Regulation (EC) No 139/2004.
Where pursuant to Article 10(3), second subparagraph, of Regulation (EC) No 139/2004 the period for the adoption of a decision pursuant to Article 8(1) to (3) is extended, the period of 65 working days for the submission of commitments shall automatically be extended by the same number of working days.
In exceptional circumstances, the Commission may accept to consider commitments offered after the expiry of the relevant time limit for their submission as prescribed in this Article. In deciding whether to accept to consider commitments offered in such circumstances, the Commission shall have particular regard to the need to comply with the requirements of Article 19(5) of Regulation (EC) No 139/2004.
3. Articles 7, 8 and 9 shall apply mutatis mutandis.
Article 20
Procedure for the submission of commitments
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 in accordance with Article 22 and the instructions published by the Commission in the Official Journal of the European Union. The Commission shall forward such commitments without delay to the competent authorities of the Member States.
2. 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 the information required by the Form RM as set out in Annex IV to this Regulation in accordance with Article 22 and the instructions published by the Commission in the Official Journal of the European Union. The information submitted shall be correct and complete.
Article 4 shall apply mutatis mutandis to the Form RM accompanying the commitments offered pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004.
3. When offering commitments pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004, the undertakings concerned shall at the same time clearly identify any information which they consider to be confidential, giving reasons, and shall provide a separate non-confidential version.
4. Commitments offered pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004 shall be signed by the notifying parties, as well as by any other involved parties on whom the commitments impose obligations.
5. A non-confidential version of the commitments shall be published on the website of the Commission's Directorate General for Competition without delay following the adoption of a decision pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004. To that effect, the notifying parties shall provide to the Commission a non-confidential version of the commitments within five working days from the adoption of the decision pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004.
Article 21
Trustees
1. The commitments offered by the undertakings concerned pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004 may include, at the own expense of the undertakings concerned, the appointment of one or more independent trustees to assist the Commission in overseeing the parties' compliance with the commitments or to implement the commitments. The trustees may be appointed by the parties, after the Commission’s approval, or by the Commission. The trustees shall carry out their tasks under the supervision of the Commission.
2. The Commission may attach to its decision pursuant to Article 6(2) or 8(2) of Regulation (EC) No 139/2004 conditions or obligations related to the trustees referred to in paragraph 1.
CHAPTER VII
MISCELLANEOUS PROVISIONS
Article 22
Transmission and signature of documents
1. Transmission of documents to and from the Commission shall take place through digital means, save where the Commission exceptionally allows that other means identified in paragraph (6) and (7) may be used.
2. Where a signature is required, documents submitted through digital means must be signed using at least one Qualified Electronic Signature (QES) complying with the requirements set out in Regulation (EU) No 910/2014 (the “eIDAS Regulation”) (3) and its future amendments.
3. Detailed technical specifications regarding the means of transmission and signature shall be published in the Official Journal of the European Union and shall be made available on the website of the Commission's Directorate General for Competition.
4. With the exception of the forms included in Annexes I, II, and III, all documents transmitted electronically to the Commission on a working day shall be deemed to have been received on the day they were sent, provided that an automated acknowledgement of receipt shows in its timestamp that they were received that day. The forms included in Annexes I, II, and III transmitted electronically to the Commission on a working day shall be deemed to have been received on the day they were sent, provided that an automated acknowledgement of receipt shows in its timestamp that they were received that day before or during the opening hours indicated on DG Competition’s website. The forms included in Annexes I, II, and III transmitted electronically to the Commission on a working day after the opening hours indicated on DG Competition’s website shall be deemed to have been received on the next working day. All documents transmitted electronically to the Commission outside a working day shall be deemed to have been received on the next working day.
5. Documents transmitted electronically to the Commission shall not be deemed to be received if the documents or parts thereof :
|
(a) |
are unusable (corrupted); |
|
(b) |
contain viruses, malware or other threats; |
|
(c) |
contain electronic signatures the validity of which cannot be verified by the Commission. |
In those cases, the Commission shall inform the sender without delay.
6. Documents transmitted to the Commission by registered post shall be deemed to have been received on the day of their arrival at the address published in the Official Journal of the European Union. This address shall be also indicated on the website of the Commission’s Directorate General for Competition.
7. Documents transmitted to the Commission by means of hand delivery shall be deemed to have been received on the day of their arrival at the address published in the Official Journal of the European Union, as long as this is confirmed in an acknowledgment of receipt by the Commission. This address shall be also indicated on the website of the Commission’s Directorate General for Competition.
Article 23
Setting of time limits
1. In setting the time limits referred to in Article 12(1) and (2), Article 13(2) and Article 16(1), the Commission shall have regard to the urgency of the case and the time required for the notifying parties, the other involved parties, or the third persons to prepare their views or comments. The Commission shall also take account of public holidays in the country where the notifying parties, the other involved parties, or the third persons are located.
2. Time limits shall be set in terms of a precise calendar date.
Article 24
Working days
The expression “working days” in Regulation (EC) No 139/2004 and in this Regulation means all days other than Saturdays, Sundays, and Commission holidays as published in the Official Journal of the European Union before the beginning of each year.
Article 25
Repeal and transitional provisions
1. Without prejudice to paragraph 2, Regulation (EC) No 802/2004 is repealed with effect from 1 September 2023.
References to the repealed Regulation shall be construed as references to this Regulation.
2. Regulation (EC) No 802/2004 shall continue to apply to any concentration falling within the scope of Regulation (EC) 139/2004 and notified on or before 31 August 2023.
Article 26
Entry into force
This Regulation shall enter into force on 1 September 2023.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 April 2023.
For the Commission
The President
Ursula VON DER LEYEN
(2) OJ L 133, 30.4.2004, p. 1.
(3) Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73).
ANNEX I
FORM RELATING TO THE NOTIFICATION OF A CONCENTRATION PURSUANT TO COUNCIL REGULATION (EC) No 139/2004
(FORM CO)
INTRODUCTION
A. The purpose of the Form CO
|
(1) |
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 (1) and in Commission Implementing Regulation (EU) 2023/914 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the “Implementing Regulation”) (2), to which this Form CO is annexed. Your attention is drawn to the corresponding provisions of the Agreement on the European Economic Area (3) (‘EEA Agreement’). |
B. Pre-notification contacts and waiver requests
1. Types of information requested by the Form CO
|
(2) |
The Form CO requires the following information:
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|
(3) |
The information requested in Sections 1-10 must in principle be provided in all cases and is therefore a requirement for a complete notification. Section 11 requires information on efficiencies of the notified transaction which the notifying parties may submit if they wish the Commission to consider from the outset any efficiency claims. Section 12 must be provided in all cases involving joint ventures; in these cases, that information is a requirement for a complete notification. |
2. Information that is not reasonably available
|
(4) |
In exceptional circumstances, specific pieces of information required by this Form CO may not be reasonably available to the notifying parties in part or in whole (e.g., because information on a target company is not available in case of a contested bid). In this case, the notifying parties may request the Commission to dispense with the obligation to provide the relevant information or with any other requirement in the Form CO related to that information. The request should be submitted in accordance with the instructions in section B.4. |
3. Information that is not necessary for the Commission’s examination of the case
|
(5) |
Pursuant to Article 4(2) of the Implementing Regulation, the Commission may dispense with the obligation to provide any particular information in the Form CO, including documents, or with any other requirements where the Commission considers compliance with those obligations or requirements is not necessary for the examination of the case. |
|
(6) |
Although necessary for the Commission’s examination of certain cases, in other cases Article 4(2) of the Implementing Regulation would apply in particular to information referred to in sections 3.4, 3.5, 3.6, 3.7, 5.5 and 5.6 and Section 10 of this Form CO. |
|
(7) |
In such circumstances, the notifying parties may request the Commission to dispense with the obligation to provide the relevant information or with any other requirement in the Form CO related to this information. This request should be submitted in accordance with the instructions laid down in section B.4. |
4. Pre-notification contacts and waiver requests
|
(8) |
Notifying parties are invited to engage in pre-notification discussions in all normal cases on the basis of a draft Form CO. 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 proceedings. As such, while not mandatory, pre-notification contacts are extremely valuable to both the notifying parties and the Commission in determining, among other things, the precise amount of information required in a Form CO and, in the majority of cases, will result in a significant reduction of the information required. |
|
(9) |
In the course of pre-notification contacts, notifying parties may submit requests for waivers. The Commission will consider waiver requests provided that one of the following conditions is fulfilled:
|
|
(10) |
Waiver requests should be made in the draft Form CO itself (at the beginning of the relevant Section or sub-Section). The Commission’s Directorate-General for Competition (‘DG Competition’) will deal with waiver requests in the context of the review of the draft Form CO. DG Competition will normally require five working days before responding to a waiver request. |
|
(11) |
For the avoidance of doubt, the fact that the Commission may have accepted that any particular information requested by this Form CO may be omitted from a notification made using the Form CO does not in any way prevent the Commission from requesting that information at any time during the proceedings, in particular through a request for information pursuant to Article 11 of the Merger Regulation. |
|
(12) |
The notifying parties are referred to the ‘Best Practices on the conduct of EC merger control proceedings’ 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. |
C. The requirement for a correct and complete notification
|
(13) |
As explained in section B.1., the information requested in Sections 1-10 must in principle be provided in all normal cases (4) and is therefore a requirement for a complete notification. All the required information must be supplied in the appropriate section of the Form CO and it must be correct and complete. |
|
(14) |
In particular you should note that:
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D. How to notify
|
(15) |
The information requested by this Form CO is to be set out using the provided sections of the Form CO and paragraph numbers, contained therein, signing a declaration as provided in Section 13, and annexing supporting documentation. Where information required by one section partly (or wholly) overlaps with information required by another section, this same information should not be submitted twice though accurate cross-referencing should be used. |
|
(16) |
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. The corresponding power of attorney must be attached to the Form CO. (6) Technical specifications and instructions regarding notifications (including signatures) can be found in the Official Journal of the European Union. |
|
(17) |
In completing Sections 6, 8, 9 and 10 of this Form CO, the notifying parties are invited to consider whether, for purposes of clarity, those sections are best presented in numerical order, or whether they can be grouped together for each individual affected market (or group of affected markets). |
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(18) |
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. |
|
(19) |
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). |
|
(20) |
Supporting documents may be copies of the originals. In this case, the notifying party must confirm that they are true and complete. |
E. Confidentiality and Personal Data
|
(21) |
Article 339 of the Treaty on the Functioning of the European Union and Article 17(2) of the Merger Regulation as well as the corresponding provisions of the EEA Agreement (7) 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. |
|
(22) |
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 disclosed to other parties, you should submit this information separately with each page clearly marked ‘Business Secrets’. You should also give reasons why this information should not be disclosed or published. |
|
(23) |
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. In order for a notification to be considered complete, all such annexes must be included in the notification. |
|
(24) |
Any personal data submitted in this Form CO will be processed in compliance with Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC. (8) |
F. Definitions and instructions for the purposes of this Form CO
|
(25) |
For the purposes of this Annex, the following definitions apply:
|
|
(26) |
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. |
G. Description of quantitative economic data collected by the undertakings concerned
|
(27) |
The information requested in sections 5.5 and 5.6 of this Form must be supplied for the Form CO to be considered complete. |
|
(28) |
For further guidance, the parties to the concentration 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. |
H. International cooperation between the Commission and other competition authorities
|
(29) |
The Commission encourages the parties to the concentration to facilitate 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. |
|
(30) |
Furthermore, the Commission encourages the parties to the concentration to submit confidentiality waivers 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 parties to the concentration. To this end, the Commission encourages the parties to the concentration to use the Commission’s model waiver, which is published on DG Competition’s website and updated from time to time. |
SECTION 1
DESCRIPTION OF THE CONCENTRATION
|
1.1. |
Provide an executive summary of the concentration, specifying the parties to the concentration, the nature of the concentration (for example, merger, acquisition, or joint venture), the areas of activity of the parties to the concentration, the markets on which the concentration will have an impact (including the main affected markets (13)), and the strategic and economic rationale for the concentration. |
|
1.2. |
Provide a non-confidential summary (up to 500 words) of the information provided under Section 1.1, including: the way by which the concentration is accomplished (for example, by way of purchase of shares, public bid, contract etc.); the articles of the Merger Regulation pursuant to which the transaction qualifies as a concentration; the undertakings concerned. For each of the undertakings concerned provide: Full name, country of incorporation, ultimately controlling entity, short description of activities and geographic areas of activity. For newly created JVs provide intended activities and geographic areas of activity. It is intended that this summary will be published on DG Competition’s website upon notification. The summary must be drafted so that it contains no confidential information or business secrets.
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SECTION 2
INFORMATION ABOUT THE PARTIES
|
2.1. |
Information about the parties to the concentration (14)
For each of the parties to the concentration provide:
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|
2.2. |
Nature of the parties’ business
For each of the parties to the concentration, describe the nature of the undertaking’s business. |
SECTION 3
DETAILS OF THE CONCENTRATION, OWNERSHIP AND CONTROL (15)
The information sought in this section may be illustrated by the use of organisation charts or diagrams to show the structure of ownership and control of the parties to the concentration before and after completion of the concentration.
|
3.1. |
Describe the nature of the concentration being notified by reference to the relevant criteria of the Merger Regulation and the Commission Consolidated Jurisdictional Notice (16):
|
|
3.2. |
Describe the economic rationale of the concentration. |
|
3.3. |
State the value of the transaction (the purchase price or the value of all the assets involved, as the case may be; specify whether this is in the form of equity, cash, or other assets). |
|
3.4. |
Describe any financial or other support received from public authorities by any of the parties to the concentration and the nature and amount of that support. In this context:
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|
3.5. |
Provide a list of all the jurisdictions outside the EEA where the concentration has been or will be notified (before or after the completion of the concentration) and/or is under investigation under merger control rules. For each jurisdiction, indicate the (actual or expected) date of notification and, where applicable, identify the stage of the investigation. |
|
3.6. |
For the parties to the concentration, provide a list of all other undertakings which are active in affected markets and in which the undertakings, or persons, of the group hold individually or collectively 10 % or more of the voting rights, issued share capital or other securities, identifying the holder and stating the percentage held. |
|
3.7. |
Describe whether one or more competitors of the parties hold a significant non-controlling shareholding (i.e. above 10%) in any of the parties to the concentration. Indicate the percentage and the rights attached to the shareholding. Provide details of acquisitions made during the last three years by the groups identified in Section 2.1 of undertakings active in affected markets. |
SECTION 4
TURNOVER
For each of the parties to the concentration provide the following data for the last financial year (18):
|
4.1. |
worldwide turnover; |
|
4.2. |
EU-wide turnover; |
|
4.3. |
EEA-wide turnover (EU and EFTA); |
|
4.4. |
turnover in each Member State (indicate the Member State, if any, in which more than two-thirds of EU-wide turnover is achieved); |
|
4.5. |
EFTA-wide turnover; |
|
4.6. |
turnover in each EFTA State (indicate the EFTA State, if any, in which more than two-thirds of EFTA-wide turnover is achieved; also indicate whether the combined turnover of the undertakings concerned in the territory of the EFTA States equals 25 % or more of their total turnover in the EEA territory). |
Turnover data must be provided by filling in the Commission’s template table available on DG Competition’s website.
SECTION 5
SUPPORTING DOCUMENTATION AND DATA
The notifying parties must provide the following:
|
5.1. |
copies of the final or most recent versions of all documents bringing about the concentration, whether by agreement between the parties to the concentration, acquisition of a controlling interest or a public bid; |
|
5.2. |
in case of a public bid, a copy of the offer document. If the offer document is unavailable at the time of notification, a copy of the most recent document demonstrating the intention to launch a public bid must be provided, and a copy of the offer document must be submitted as soon as possible and not later than when it is posted to shareholders; |
|
5.3. |
an indication of the webpage, if any, at which the most recent annual reports and accounts of the parties to the concentration are available, or if no such webpage exists, copies of the most recent annual reports and accounts of the parties to the concentration; |
|
5.4. |
copies of the following documents prepared by or for or received by any member(s) of the board of management, the board of directors, or the supervisory board, depending on the corporate governance structure, or the other person(s) exercising similar functions (or to whom such functions have been delegated or entrusted), or the shareholders’ meeting:
Provide a list of the documents mentioned in this section 5.4, indicating for each document the date of preparation and the name and title of the addressee(s). |
|
5.5. |
data that each of the parties to the concentration collects and stores in the ordinary course of its business operations and which could be useful for a quantitative economic analysis. The data description should include, in particular, information about:
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|
5.6. |
a description of the usage in the normal course of business of the data provided in section 5.5. In particular, describe if relevant, the internal datasets produced based on the above data, as well as the type of internal reporting products and analysis, such as business strategy, marketing plans, investment plans, market intelligence and competitors’ monitoring (e.g., comparison between the products/services and pipeline products of one party to the concentration and those of its main competitors or between those of the parties to the concentration; competitors’ strategy and positioning; or SWOT (20) analyses). |
SECTION 6
MARKET DEFINITIONS
The relevant product and geographic markets serve to identify the scope within which the market power of the new entity resulting from the concentration must be assessed (21). When presenting relevant product and geographic markets, the notifying parties must submit, in addition to any product and geographic market definitions they consider relevant, all plausible alternative product and geographic market definitions. Plausible alternative product and geographic market definitions can be identified on the basis of previous Commission decisions and judgments of the Union Courts and (in particular where there are no Commission or Court precedents) by reference to industry reports, market studies and the notifying parties’ internal documents.
|
6.1. |
Please discuss all plausible relevant market definitions where the proposed concentration could give rise to affected markets. Please explain how the notifying parties consider that the relevant product and geographic markets should be defined. |
|
6.2. |
Taking into account all the plausible relevant market definitions discussed, please identify each affected market (22) and provide summary information on the activities of the parties to the concentration in each plausible relevant market. Please add to the tables as many rows as required to cover all the plausible markets that you consider:
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|
6.3. |
Describe the product and geographic scope of all plausible alternative market definitions (where such markets include the whole or a part of the EEA) other than the affected markets identified in Section 6.2., in which the notified concentration may have a significant impact, for example, where:
In order to enable the Commission to consider, from the outset, the competitive impact of the proposed concentration in the markets identified under Section 6, notifying parties are invited to submit the information under Sections 8 to 10 of this Form CO also in relation to those markets. |
SECTION 7
INFORMATION ON MARKETS FALLING UNDER POINT 8 OF THE NOTICE ON SIMPLIFIED PROCEDURE
For markets falling under point 8 of the Notice on Simplified Procedure, in principle only section 7 needs to be filled in. However, where any of the circumstances listed in Section II.C of the Notice on Simplified Procedure are present, the flexibility clause will normally not be applied (25) . In this case, Sections 6, 8, 9 and 10 of this Form should be completed.
|
7.1. |
For each market falling under point 8 of the Notice on Simplified Procedure, tick the relevant boxes below. (26)
|
|
7.2. |
Complete the table below if the concentration leads to horizontal overlaps that fall under point 8 of the Notice on Simplified Procedure. You should replicate the table as many times as required to cover all the plausible markets that you considered:
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|
7.3. |
Complete the table below if the concentration leads to vertical relationships that fall under point 8 of the Notice on Simplified Procedure. You should replicate the table as many times as required to cover all the plausible markets that you considered: (27)
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7.4. |
Safeguards and exclusions.
Please complete this information regarding the markets identified in Sections 7.2 and 7.3 (28).
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SECTION 8
MARKET INFORMATION
|
8.1. |
With regard to each affected market, provide the following information for each of the last three years:
|
Information on horizontal overlaps and vertical relationships involving pipeline products
|
8.2. |
With regard to each plausible relevant product and geographic market definition, where there is a horizontal overlap or a vertical relationship involving (i) one or more marketed products of one or several of the party(ies) to the concentration and one or more pipeline products of other parties to the concentration (31) or (ii) pipeline products of the parties to the concentration, you should provide the information included in the tables below:
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SECTION 9
STRUCTURE OF SUPPLY
|
9.1. |
Provide a brief explanation of the structure of supply in each of the affected markets. Specify in particular:
|
Structure of demand
|
9.2. |
Provide a brief explanation of the structure of demand in each affected market, specifying, in particular:
|
SECTION 10
PRODUCT DIFFERENTIATION AND CLOSENESS OF COMPETITION
|
10.1. |
Provide a brief explanation of the degree of product differentiation in each affected market, specifying, in particular:
|
Distribution systems and service networks
|
10.2. |
Provide a brief description of:
|
Market entry and exit
|
10.3. |
Over the last five years, indicate whether there has been any significant entry into any affected market. If this is the case, identify such entrants and provide an estimate of the current market share of each such entrant. |
|
10.4. |
Indicate whether in your view there are undertakings (including those at present operating only outside the EU or the EEA) that are likely to enter any affected market. If so, explain why such entry is likely and provide an estimate of the time within which such entry is likely to occur. |
|
10.5. |
Provide a brief description of the main factors influencing entry into each of the affected markets, examining entry from both a geographical and product viewpoint. In doing so, you should take account of the following where appropriate:
|
|
10.6. |
Explain whether any of the parties to the concentration, or any of the competitors, have pipeline products (38), or plans to expand production or sales capacity in any of the affected markets. If so, provide an estimate of the projected sales and market shares of the parties to the concentration over the next three to five years. |
|
10.7. |
Indicate whether there has been any exit from any affected market over the last five years. If so, identify the firm having exited the market and provide an estimate of its market share in the year prior to the exit. |
Research and development
|
10.8. |
Give an account for the affected markets of the importance of research and development in firms’ ability to compete in the long term. Explain the nature of the research and development in affected markets carried out by the parties to the concentration. In so doing, you should take account of the following, where appropriate:
|
Contact details
|
10.9. |
Provide the name, address, telephone number, and e-mail address of the head of the legal department (or other person exercising similar functions; and in cases where there is no such person, the chief executive) for (39):
Contact details must be provided using the Commission’s template available on DG Competition’s website. |
|
10.10. |
Provide the name, address, telephone number, and e-mail address of one or more representatives of the main trade unions and/or worker associations that exist in the parties to the concentration. Contact details must be provided using the Commission’s template available on DG Competition’s website. |
SECTION 11
EFFICIENCIES
Should you wish the Commission specifically to consider from the outset (40) whether efficiency gains generated by the concentration are likely to enhance the ability and incentive of the new entity to act pro-competitively for the benefit of consumers, provide a description of, and supporting documents relating to, each efficiency (including cost savings, new product introductions, and service or product improvements) that the parties anticipate will result from the proposed concentration relating to any relevant product (41).
For each claimed efficiency, provide the following information:
|
(a) |
a detailed explanation of how the proposed concentration would allow the new entity to achieve the efficiency. Specify the steps that the parties anticipate taking to achieve the efficiency, the risks involved in achieving the efficiency, and the time and costs required to achieve it; |
|
(b) |
where reasonably possible, a quantification of the efficiency and a detailed explanation of how the quantification was calculated. Where relevant, also provide an estimate of the significance of efficiencies related to new product introductions or quality improvements. For efficiencies that involve cost savings, state separately the one-time fixed cost savings, recurring fixed cost savings, and variable cost savings (in EUR per unit and EUR per year); |
|
(c) |
the extent to which customers are likely to benefit from the efficiency and a detailed explanation of how this conclusion is arrived at; |
|
(d) |
the reason why the party or parties could not achieve the efficiency to a similar extent by means other than through the concentration proposed, and in a manner that is not likely to raise competition concerns. |
SECTION 12
COOPERATIVE EFFECTS OF A JOINT VENTURE
In the case of a joint venture, for the purpose of Article 2(4) of the Merger Regulation, answer the following questions:
|
(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 upstream or downstream from that of the joint venture or in a neighbouring market closely related to this market? If the answer is affirmative, indicate for each of the markets referred to here:
|
|
(b) |
If the answer to point (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 101(1) TFEU, and, where applicable, the corresponding provisions of the EEA Agreement (42), give your reasons. |
|
(c) |
Without prejudice to the answers to points (a) and (b) and in order to ensure that a complete assessment of the case can be made by the Commission, if you consider that the conditions of Article 101(3) TFEU and, where applicable, the corresponding provisions of the EEA Agreement (43) apply, explain why this is the case. Under Article 101(3) TFEU, the provisions of Article 101(1) TFEU may be declared inapplicable if the operation:
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SECTION 13
DECLARATION
The notification must conclude with the following declaration which is to be signed by or on behalf of all the notifying parties:
‘ The notifying party or parties declare that, to the best of their knowledge and belief, the information given in this notification is true, correct, and complete, that true and complete copies of documents required by Form CO have been supplied, that all estimates are identified as such and are their best estimates of the underlying facts, and that all the opinions expressed are sincere. They are aware of the provisions of Article 14(1), point (a) of the Merger Regulation. ’
For digitally signed forms, the following fields are for information purposes only. They should correspond to the metadata of the corresponding electronic signature(s).
Date:
|
[signatory 1] Name: Organisation: Position: Address: Phone number: E-mail: [“e-signed” / signature] |
[signatory 2 if applicable] Name: Organisation: Position: Address: Phone number: E-mail: [“e-signed” / signature] |
(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the ‘Merger Regulation’) (OJ L 24, 29.1.2004, p. 1).
(2) See p. 22 of this Official Journal.
(3) See in particular Article 57 of the Agreement on the European Economic Area (‘EEA Agreement’), point 1 of Annex XIV to the EEA Agreement, Protocols 21 and 24 to the EEA Agreement (all available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A21994A0103%2801%29), as well as Protocol 4 to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (‘Surveillance and Court Agreement’), available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ%3AJOL_1994_344_R_0001_003. Any reference to EFTA States must be understood to mean those EFTA States which are Contracting Parties to the EEA Agreement. As of 1 May 2004, these States are Iceland, Liechtenstein and Norway.
(4) And Section 12 in cases involving joint ventures.
(5) Please see https://ec.europa.eu/competition-policy/mergers/practical-information_en.
(6) See power of attorney template at https://ec.europa.eu/competition/mergers/legislation/power_of_attorney_template_en.docx.
(7) See, in particular, Article 122 of the EEA Agreement, Article 9 of Protocol 24 to the EEA Agreement and Article 17(2) of Chapter XIII of Protocol 4 to the Surveillance and Court Agreement.
(8) OJ L 295, 21.11.2018, p. 39. See also a privacy statement relating to Merger investigations at https://ec.europa.eu/competition-policy/index/privacy-policy-competition-investigations_en.
(9) Pipeline products are products likely to be brought to market in the short or medium term. “Pipeline products” also covers services.
(10) Horizontal overlaps involving pipeline products include overlaps between pipeline products and overlaps between one or more marketed product(s) and one or more pipeline product(s).
(11) Vertical relationships involving pipeline products include relationships between pipeline products and relationships between one or more marketed product(s) and one or more pipeline product(s).
(12) Commission Notice on a simplified treatment of certain concentrations under Council Regulation (EC) No 139/2004 (OJ C 160, 5.5.2023, p. 1) (the ‘Notice on Simplified Procedure’).
(13) See Section 6 for more information on how to identify affected markets.
(14) This includes the target company in the case of a contested bid, in which case the details should be completed as far as is possible.
(15) See Article 3(3) to (5) and Article 5(4) of the Merger Regulation.
(16) See Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, (OJ C 95, 16.4.2008, p. 1), available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52008XC0416%2808%29 (“Commission Consolidated Jurisdictional Notice”).
(17) See Section B IV of the Consolidated Jurisdictional Notice.
(18) On the calculation of turnover see Commission Consolidated Jurisdictional Notice.
(19) See Section 6 for more information on how to identify affected markets.
(20) SWOT refers to ‘Strengths, Weaknesses, Opportunities and Threats’ analysis. Any other method to depict the competitive landscape of a given product/innovation area falls under the requested data as well.
(21) See Commission Notice on the definition of the relevant market for the purposes of Community competition law, (OJ C 372, 9.12.1997, p. 5).
(22) During pre-notification contacts, notifying parties shall disclose information relating to all potentially affected markets even if they ultimately consider that these markets are not affected, and notwithstanding that the notifying parties may take a particular view in relation to the issue of market definition.
(23) Products (or services) are complementary when, for example, the use (or consumption) of one product essentially implies the use (or consumption) of the other product, such as for staple machines and staples, and printers and printer cartridges.
(24) Examples of products belonging to such a range would be whisky and gin sold to bars and restaurants, and different materials for packaging a certain category of goods sold to producers of such goods.
(25) Notice on Simplified Procedure, point 11.
(26) Please complete only one table for all markets falling under point 8 of the Notice on Simplified Procedure, ticking (all) the relevant boxes.
(27) For example, if regarding the vertical relationship between upstream market U and downstream market D, you considered the plausible upstream market definitions U1 and U2, you should include two tables: one including information on U1 and D and one including information on U2 and D.
(28) Complete only one table for all markets falling under point 8 of the Notice on Simplified Procedure for which none of the safeguards/exclusions apply (i.e., the answer to all questions in Section 7.4 is “No”). For each market falling under point 8 of the Notice on Simplified Procedure for which the answer to at least one question is “Yes”, you should provide a separate table.
(29) If this metric is not relevant for the markets where the concentration gives rise to a horizontal overlap or a vertical relationship between the parties’ activities, please indicate “No”.
(30) The value and volume of a market must reflect output less exports plus imports for the geographic areas under consideration.
(31) This section does not need to be completed if you have disclosed this information in section 8.1.6 with regard to the same pipeline products.
(32) Provide market shares if one or more of the parties have marketed products.
(33) Provide market shares for competitors with marketed products. If there are no marketed products, please provide at least three competitors developing competing products.
(34) Provide market shares if one or more of the parties have marketed products.
(35) Provide market shares for competitors with marketed products. If there are no marketed products, please list at least three competitors developing competing products.
(36) Provide market shares if one or more of the parties have marketed products.
(37) Provide market shares for competitors with marketed products. If there are no marketed products, please list at least three competitors developing competing products.
(38) With reference to your reply to Sections 8.1.6 and 8.2 above.
(39) The Commission may at any time, including for a complete notification of a concentration based on this Form CO, request a higher number of contact details for each of the categories of market participants identified in this Form CO and request contact details for other categories of market participants, for example suppliers.
(40) Not providing the requested information on efficiencies at the notification stage does not preclude providing the information at a later stage. However, the earlier the information is provided, the better the Commission can verify the efficiency claims.
(41) For further guidance on the assessment of efficiencies, see the Commission’s Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings, (OJ C 31, 5.2.2004, p. 5), available at https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A52004XC0205%2802%29.
(42) See Article 53(1) of the EEA Agreement.
(43) See Article 53(3) of the EEA Agreement.
ANNEX II
SHORT FORM CO FOR THE NOTIFICATION OF A CONCENTRATION PURSUANT TO REGULATION (EC) No 139/2004
(SHORT FORM CO)
1. Introduction
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(1) |
The Short Form CO specifies the information that must be provided by the notifying parties when submitting a notification to the European Commission of certain proposed concentrations that are eligible for review under the simplified procedure. |
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(2) |
In completing this Short Form CO, your attention is drawn to Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (1) (the ‘Merger Regulation’) and Commission Implementing Regulation (EU) 2023/914 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the “Implementing Regulation”), (2) to which this Short Form CO is annexed. Your attention is also drawn to the Commission’s Notice on Simplified Procedure for treatment of certain concentrations. (3) |
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(3) |
As a general rule, the Short Form CO may be used for the purpose of notifying concentrations where one of the following conditions are met:
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(4) |
In addition, at the request of the notifying parties, the Commission may review under the simplified procedure and on the basis of a Short Form CO concentrations whereby two or more undertakings merge, or one or more undertakings acquire sole or joint control of another undertaking, provided that both the conditions set out below are fulfilled under all plausible market definitions (10):
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(5) |
In addition, at the request of the notifying parties, the Commission may review under the simplified procedure and on the basis of a Short Form CO concentrations whereby two or more undertakings acquire joint control of a joint venture, provided that: (11)
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(6) |
The Commission may always require a Form CO where it appears that the conditions for using the Short Form CO are not met, or, exceptionally where they are met, but the Commission determines, nonetheless, that a notification under Form CO is necessary for an adequate investigation of possible competition concerns. |
2. How to complete and submit the Short Form CO
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(7) |
In the case of a merger within the meaning of Article 3(1), point (a), of the Merger Regulation or an acquisition of joint control within the meaning of Article 3(1), point (b), of the Merger Regulation, the Short Form CO must be completed jointly by the parties to the merger or by those acquiring joint control. In the case of an acquisition of sole control within the meaning of Article 3(1), point (b), of the Merger Regulation, the Short Form CO must be completed by the acquirer. In the case of a public bid to acquire an undertaking, the Short Form CO must be completed by the bidder. |
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(8) |
Different sections of the Short Form CO must be completed, depending on characteristics of the concentration and the reasons why the concentration qualifies for simplified treatment: (12)
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(9) |
Before formally submitting a notification under the simplified procedure, and regardless of the simplified category in which the concentration falls, the notifying parties must submit in all cases a case team allocation request. The request must indicate the type of transaction, the category of simplified case under which it falls and the expected date of notification. (13) The notifying parties are invited to notify certain categories of simplified cases directly with no or very short pre-notification contacts. (14) In those cases, the case team allocation request must be submitted at least one week before their expected date of notification. In cases giving rise to horizontal overlaps or non-horizontal relationships between the activities of the parties to the concentration, pre-notification contacts should be initiated by submitting the case team allocation request at least two weeks before the expected date of notification. |
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(10) |
Any personal data submitted in the Short Form CO will be processed in compliance with Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC. (15) |
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(11) |
The Short 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. The corresponding power of attorney documents must be attached to the Short Form CO. (16) The technical specifications and instructions for signatures will be published from time to time in the Official Journal of the European Union. |
3. Definitions for the purposes of this Short Form CO
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(12) |
For the purposes of this Short Form, the following definitions apply:
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4. Requirement for a correct and complete notification
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(13) |
All information required by the Short Form CO must be correct and complete. The information required must be supplied in the appropriate Section of the Short Form CO. Each party completing the notification is responsible for the accuracy of the information it provides. In particular, you should note that:
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5. Reversion to the normal procedure and notification under Form CO
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(14) |
In assessing whether a concentration can be notified under the simplified procedure using the Short Form CO, the Commission will ensure that all relevant circumstances are sufficiently clearly established. In this respect, the responsibility to provide correct and complete information rests with the notifying parties. |
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(15) |
If, after the concentration has been notified, the Commission considers that the case is not appropriate for notification under the simplified procedure, the Commission may require full, or where appropriate, partial, notification under the Form CO. This may be the case any of the following circumstances:
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(16) |
In such cases, the notification may be treated as being incomplete in a material respect within the meaning of Article 5(2) of Implementing Regulation. 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 that all information required is received. |
6. Confidentiality
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(17) |
Article 339 of the Treaty on the Functioning of the European Union and Article 17(2) of the Merger Regulation as well as the corresponding provisions of the EEA Agreement 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 that Regulation of the kind covered by the obligation of professional secrecy. The same principle must also apply to protect confidentiality between notifying parties. |
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(18) |
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 disclosed to other parties, you should submit this information separately with each page clearly marked ‘Business Secrets’. You should also give reasons why this information should not be disclosed or published. |
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(19) |
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 attached to the notification so that it can be considered complete. |
SECTION 1
GENERAL CASE INFORMATION
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(*1) Case number: M. |
(*1) Case name: |
Language: |
Unless otherwise specified, references to Articles in the tables below should be read as references to the Articles of the Merger Regulation.
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Notification under simplified treatment: yes |
Merger Regulation |
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Jurisdiction:
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Notification basis:
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Concentration :
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Category of case in accordance with the Notice on Simplified Procedure:
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Notification linked to a previous case (linked operation/parallel transaction/case aborted or withdrawn)? YES ☐ NO ☐ If yes, provide case number: |
Notification linked with a consultation on the same concentration? YES ☐ NO ☐ If yes, provide consultation number: |
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Means of implementing the concentration:
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Value of the concentration in EUR: |
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Seat of the companies involved in the concentration:
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SECTION 2
COMPANIES INVOLVED IN THE CONCENTRATION AND THEIR TURNOVER
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Undertakings concerned (22) |
Category (23) |
Controlled by |
Brief description of the business activities of the undertaking concerned |
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You should provide a chart of the structure of ownership and control of each of the undertakings concerned before and after the completion of the concentration:
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Undertakings concerned |
Country of origin |
Role (24) |
Turnover (in million EUR) (25) |
Year of turnover (26) |
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World-wide |
EU-wide |
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Combined turnover of all undertakings concerned |
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If the merger is notified on the basis of Article 1(3) of the Merger Regulation, you should also fill in the following table. You should include information on all the Member States that fulfil the criteria laid down in Article 1(3), points (b) and (c) and add rows to the table, if needed:
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Name of relevant Member State for the purposes of Article 1(3) point (b) and (c) of the Merger Regulation |
Combined turnover of all undertakings concerned in this Member State (in million EUR) |
Name of relevant undertakings concerned for the purposes of Article 1(3), point (c) of the Merger Regulation |
Turnover of the undertaking concerned in this Member State (in EUR million) |
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Turnover in the territory of EFTA States (27) |
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The combined turnover of the undertakings concerned in the territory of the EFTA States equals 25% or more of their total turnover in the territory of the European Economic Area (EEA). |
YES ☐ NO ☐ |
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Each of at least two of the undertakings concerned has a turnover exceeding EUR 250 million in the territory of the EFTA States. |
YES ☐ NO ☐ |
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The proposed concentration could be a candidate for referral to an EFTA State because it gives rise to affected market(s), within the territory of any of the EFTA States that presents all the characteristics of a distinct market. |
YES ☐ NO ☐ |
SECTION 3
NAME OF THE PRODUCT(S) CONCERNED (28) ACCORDING TO NACE (29)
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Name of product(s) |
NACE |
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SECTION 4
SUMMARY DESCRIPTION OF THE CONCENTRATION
Provide a non-confidential summary (up to 250 words) of the information provided under Section 1.1, including: the way by which the concentration is accomplished (for example, by way of purchase of shares, public bid, contract etc.); the articles of the Merger Regulation pursuant to which the transaction qualifies as a concentration; the undertakings concerned. For each of the undertakings concerned provide: Full name, country of incorporation, ultimately controlling entity, short description of activities and geographic areas of activity. For newly created JVs provide intended activities and geographic areas of activity. It is intended that this summary will be published on DG Competition’s website upon notification. The summary must be drafted so that it contains no confidential information or business secrets. )
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Example (please delete for notification) This notification concerns the following undertakings:
The concentration is accomplished by [Means of implementing the concentration, e.g. way of purchase of shares/assets, etc.)]. The business activities of the undertakings concerned are:
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SECTION 5
RATIONALE OF THE CONCENTRATION AND TIMING
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5.1. Rationale of the concentration You should provide a summary description of rationale for the proposed concentration. |
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5.2. Timing You should provide a summary description of the timing of the proposed concentration (including a legally binding date for closing, if applicable). |
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5.3. Complement your answer with any additional information you wish to submit to the Commission.
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SECTION 6
JURISDICTION (30)
6.1. Brief description of the concentration and change of control (up to 250 words)
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Example 1 (please delete for notification) Pursuant to a share sale and purchase agreement signed on X.X.XX, [Company A] will acquire shares representing 75% of the total voting rights of [Company B]. The remaining 25% of [Company B] voting rights will be held by [the Minority Shareholder M]. As decisions in relation to [Company B]’s commercial strategy will be adopted by simple majority, [Company A] holding a majority of shares and votes will exercise decisive influence over [Company B]. [Company B] will therefore be solely controlled by [Company A]. Example 2 (please delete for notification) Pursuant to a share sale and purchase agreement signed on X.X.XX, [Company A] will acquire shares representing 40% of the total voting rights of [Company B]. The remaining 60% of [Company B]’s voting rights will be held by [Company C]. The board will be composed of seven members, and [Company A] will appoint three of them. [Company A] will have veto rights on the appointment of senior management, the budget, and the business plan. [Company B] will therefore be jointly controlled by [Company A] and [Company C]. |
6.2. Acquisition of control
☐ Acquisition of sole control
The acquirer acquires sole control over the target(s) within the meaning of Article 3(2) of the Merger Regulation. You should specify the means of the acquisition of sole control by ticking the relevant boxes:
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You should also indicate if any of the following elements are present in the concentration:
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☐ Acquisition of joint control
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Acquirers |
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Undertaking 1 |
Undertaking 2 |
Undertaking 3 |
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Share-holding in the joint venture (%) |
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Voting rights (%) |
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Number of representatives appointed in target’s decision-making body (31) / total number of members of decision-making body |
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Management body representative has casting vote (yes/no) |
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Veto rights on appointment of senior management (yes/no) |
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Veto rights on adoption of business plan (yes/no) |
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If Yes, please provide a copy of the most recent business plan(s) of the target. |
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Veto rights on adoption of budget (yes/no) |
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Veto rights on investment |
Indicate in the cell below the level of investments and their frequency in the specific sector. |
Indicate in the cell below the level of investments and their frequency in the specific sector. |
Indicate in the cell below the level of investments and their frequency in the specific sector. |
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Other market-specific rights |
Indicate in the cell below which veto rights. |
Indicate in the cell below which veto rights. |
Indicate in the cell below which veto rights. |
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6.3. Full-functionality (to be filled in only if the concentration falls under Article 3(4) or 3(1), point (b) in combination with 3(4) of the Merger Regulation)
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6.4. Complement your answer with any additional information you wish to submit to the Commission.
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SECTION 7
CATEGORY OF SIMPLIFIED TREATMENT (BY REFERENCE TO THE RELEVANT POINTS IN THE NOTICE ON SIMPLIFIED PROCEDURE)
(a) Point 5(a) of the Notice on Simplified Procedure ☐
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If the concentration fulfils the criteria in point 5(a) of the Notice on Simplified Procedure, Sections 8, 9 and 11 below do not need to be completed. |
AND/OR
(b) Point 5(b) of the Notice on Simplified Procedure ☐
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AND/OR
(c) Point 5(c) of the Notice on Simplified Procedure (35) ☐
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If the concentration fulfils the criteria of point 5(c) of the Notice on Simplified Procedure, Sections 8, 9 and 11 below do not need to be completed. |
AND/OR
(d) Point 5(d) of the Notice on Simplified Procedure ☐
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AND/OR
(e) Point 5(e) of the Notice on Simplified Procedure ☐
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AND/OR
(f) Point 8 of the Notice on Simplified Procedure (flexibility cause) ☐
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AND/OR
(g) Point 9 of the Notice on Simplified Procedure (flexibility cause) ☐
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Complement your answer with any additional information you wish to submit to the Commission.
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SECTION 8
HORIZONTAL OVERLAPS
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8.1. |
You should complete the table below if the concentration leads to horizontal overlaps, including overlaps between (i) pipeline products (41)
and marketed products or (ii) pipeline products (i.e. pipeline to pipeline overlaps). (42)
You should replicate the table as many times as required to cover all the plausible markets that you considered:
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8.2. |
Complement your answer with any additional information you wish to submit to the Commission.
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SECTION 9
VERTICAL RELATIONSHIPS
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9.1. |
You should complete the table below if the concentration leads to vertical relationships, (44)
including between (i) pipeline products and marketed products or (ii) pipeline products (i.e. pipeline to pipeline vertical relations). You should replicate the table as many times as required to cover all the plausible markets that you considered: (45)
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9.2. |
Complement your answer with any additional information you wish to submit to the Commission.
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SECTION 10
VERTICAL RELATIONSHIPS FALLING UNDER POINT 5(D)(II)(BB) OF THE NOTICE ON SIMPLIFIED PROCEDURE
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10.1. |
You should complete the tables below if the concentration leads to vertical relationships falling under point 5(d)(ii)(bb) of the Notice on Simplified Procedure, including between (i) pipeline products and marketed products or (ii) pipeline products (i.e. pipeline to pipeline vertical relations). You should replicate the table as many times as required to cover all the plausible markets that you consider (48):
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10.2. |
Complement your answer with any additional information you wish to submit to the Commission.
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SECTION 11
SAFEGUARDS AND EXCLUSIONS (51)
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Any of the parties to the concentration has significant non-controlling shareholdings (i.e. above 10%) or cross-directorships in companies active in the same markets as any of the other parties or in vertically related markets (e.g. the acquiring undertaking has a non-controlling minority shareholding or common directors in an undertaking active in the same market as the target). |
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One or more of the parties’ competitors have a significant non-controlling shareholding (i.e. above 10%) in any of the undertakings concerned. If yes: indicate the shareholding %: indicate the rights attached to the shareholding: |
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The parties are active in closely neighbouring markets and any of the Parties individually holds a market share of 30% or more in any of these markets under any plausible market definition |
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There will remain fewer than three competitors with market shares above 5% in any of the markets giving raise to horizontal overlaps or vertical relationships under any plausible market definition. |
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The relevant market share thresholds are exceeded in terms of capacity under any plausible market definition (52). |
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The parties (or one of them) are recent entrants in the overlapping markets (i.e. entered the market in the last three years) |
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The parties are important innovators in the overlapping markets. |
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The parties have brought to the market an important pipeline product within the last 5 years. |
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The concentration gives raise to pipeline-to-pipeline or pipeline-to-marketed product overlaps. |
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One of the parties has plans to expand in product markets and/or geographic markets in which the other party is active or which are in a vertical relation with products in which the other party is active. Explain the products or services concerned by such plans and their timing: [open text]. |
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In production chains with more than two levels, individual or combined market shares of the parties are 30% or higher in any of the levels of the value chain (in terms of value, volume or capacity). |
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||||
|
The annual turnover of the joint venture is expected to significantly surpass EUR 100 million in the EEA within the following 3 years. |
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||||
|
The annual turnover of the joint venture is expected to significantly surpass EUR 150 million in the EEA within the following 3 years. If the annual turnover of the joint venture is expected to surpass EUR 100 million in the EEA within the following 3 years, please provide the expected turnover for the next 3 years: [open text]. |
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||||
|
If you answered “yes” to any of the questions above, explain why you think that the case should be treated under the Simplified Procedure Notice and provide all relevant details: [open text]. |
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SECTION 12
COOPERATIVE EFFECTS OF A JOINT VENTURE
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Parent |
Market |
Turnover |
Market share |
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|
Joint venture |
Market |
Turnover |
Market share |
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12.2. |
Explain if the criteria laid down in Articles 101(1) and 101(3) of the Treaty on the Functioning of the European Union and, where applicable the corresponding provisions of the EEA Agreement, are met in this case. |
|
12.3. |
Complement your answer with any additional information you wish to submit to the Commission. |
SECTION 13
CONTACT DETAILS
|
Notifying party |
Notifying party 2 (if applicable) |
|
Name |
Name |
|
Address |
Address |
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Phone number |
Phone number |
|
|
|
|
Website |
Website |
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Target |
Phone number |
|
Name |
|
|
Address |
Website |
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Authorised representative of notifying party |
Authorised representative of notifying party 2 |
|
Name |
Name |
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Organisation |
Organisation |
|
Address |
Address |
|
Phone number |
Phone number |
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SECTION 14
ANNEXES
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Provisions establishing change in control: |
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Provisions establishing full functionality: |
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Describe |
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SECTION 15
OTHER NOTIFICATIONS
|
15.1. |
Is the concentration notifiable in other jurisdictions?
If yes, list them here: |
|
15.2. |
Indicate if you have filed or intend to file a notification under Article 20 of Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market (OJ L 330, 23.12.2022 , p. 1-45). |
SECTION 16
DECLARATION
|
☐ |
The notifying party or parties declare that, to the best of their knowledge and belief, the information included in this form is true, correct, and complete, that true and complete copies of relevant documents have been supplied, that all estimates are identified as such and are their best estimates of the underlying facts, and that all the opinions expressed are sincere. |
|
☐ |
The notifying party or parties are aware of Article 14(1), point (a), Merger Regulation. |
For digitally signed forms, the following fields are for information only. They should correspond to the metadata of the corresponding electronic signature(s).
Date:
|
[signatory 1] Name: Organisation: Position: Address: Phone number: Email: [‘e-signed’ / signature] |
[signatory 2, if applicable] Name: Organisation: Position: Address: Phone number: Email: [‘e-signed’ / signature] |
(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the ‘Merger Regulation’) (OJ L 24, 29.1.2004, p. 1).
(2) See page 22 of this Official Journal.
(3) Commission Notice on a simplified treatment of certain concentrations under Council Regulation (EC) No 139/2004 (OJ C 160, 5.5.2023, p. 1) (the ‘Notice on Simplified Procedure’).
(4) The term “current turnover” refers to turnover generated by the joint venture at the time of notification. The turnover of the joint venture can be determined according to the most recent audited accounts of the parent companies, or the joint venture itself, depending on the availability of separate accounts for the resources combined in the joint venture.
(5) Notice on Simplified Procedure, point 5(a).
(6) Notice on Simplified Procedure, point 5(b).
(7) See Notice on Simplified Procedure, point 5(c).
(8) See Notice on Simplified Procedure, point 5(d).
(9) See Notice on Simplified Procedure, point 5(e).
(10) See Notice on Simplified Procedure, point 8.
(11) See Notice on Simplified Procedure, point 9.
(12) See Notice on Simplified Procedure, point 9.
(13) The case team allocation request can be found at: https://ec.europa.eu/competition-policy/mergers/practical-information_en.
(14) In particular, transactions falling under point 5(a) and 5(c) of the Notice on Simplified Procedure (see Notice on Simplified Procedure, point 27).
(15) OJ L 295, 21.11.2018, p. 39EUR-Lex - 32018R1725 - EN - EUR-Lex (europa.eu).
(16) See power of attorney document template at https://ec.europa.eu/competition/mergers/legislation/power_of_attorney_template_en.docx.
(17) See https://ec.europa.eu/competition-policy/mergers/practical-information_en.
(*1) to be completed with information provided by the Merger Registry
(18) A merger occurs when two or more independent undertakings amalgamate into a new undertaking and cease to exist as separate legal entities. See points 9 and 10 of the Commission Consolidated Jurisdictional Notice under Regulation (EC) No 139/2004 on the control of concentrations between undertakings (“Commission Consolidated Jurisdictional Notice”) (OJ C 95, 16.04.2008, p. 1), available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52008XC0416%2808%29 for further information and guidance on jurisdictional aspects.
(19) This scenario refers to acquisitions of joint control over target companies which were not previously controlled by any of the parties acquiring joint control (i.e. acquisition of control over an undertaking from an unrelated third party). See in particular Commission Consolidated Jurisdictional Notice, point 91.
(20) This category refers to the creation of a greenfield joint venture to which the parent companies do not transfer an existing economic activity (i.e. a subsidiary or business with a market presence) or transfer only assets which do not constitute a business in themselves.
(21) These cases include, among other things, (i) the creation of new full-function joint ventures when one or more parent companies transfer an existing business or economic activity and (ii) the entry or replacement of controlling shareholders of a joint venture. See in particular Commission Consolidated Jurisdictional Notice, point 92.
(22) For a definition of undertakings concerned, please see Commission Consolidated Jurisdictional Notice, points 129-153.
(23) NP (Notifying Party) or Other.
(24) A = Acquirer in the case of acquisition of sole or joint control (if more than one, define A1, A2, etc.).
T = Target in the case of acquisition of sole control (if more than one, define T1, T2, etc.).
JV = Joint venture in the case of acquisition of joint control (if more than one, define JV1, JV2, etc.).
MP = Merging Party in the case of a merger (if more than one, define MP1, MP2, etc.).
(25) The turnover information must be provided in euro at the average exchange rates prevailing for the years or other periods in question.
(26) If the fiscal year does not fall together with the calendar year, indicate the end of the fiscal year in full date format (dd/mm/yyyy).
(27) The EFTA States include Iceland, Liechtenstein and Norway.
(28) You should include only the NACE codes of the products that lead to any horizontal overlaps and/or non-horizontal relationships. For cases without horizontal overlaps or non-horizontal relationships, you should include the NACE codes of the main products of the target.
(29) Regulation (EC) No 1893/2006 of the European Parliament and of the Council of 20 December 2006 establishing the statistical classification of economic activities NACE Revision 2 and amending Council Regulation (EEC) No 3037/90 as well as certain EC Regulations on specific statistical domains, (OJ L 393, 30.12.2006, p. 1), available at EUR-Lex - 32006R1893 - EN - EUR-Lex (europa.eu).
(30) You should refer to the Commission Consolidated Jurisdictional Notice.
(31) You should complete taking into account the decision-making body that takes strategic decisions of the nature described in Commission Consolidated Jurisdictional Notice, Sections 3.1 and 3.2.
(32) Any asset planned to be transferred to the joint venture at the time of notification should be considered, regardless of the date in which these assets will actually be transferred to the joint venture.
(33) The expression ‘and/or’ refers to the variety of situations covered. These include:
|
— |
in the case of a 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. |
(34) Any asset planned to be transferred to the joint venture at the time of notification should be considered, regardless of the date in which these assets will actually be transferred to the joint venture.
(35) The two boxes need be ticked for this category to apply.
(36) The thresholds for horizontal overlaps and vertical relationships apply to any plausible alternative product and geographic market definition that may have to be considered in a given case. It is important that the underlying market definitions set out in the notification are precise enough to justify the assessment that these thresholds are not met, and that all plausible alternative market definitions that may have to be considered are mentioned (including geographic markets narrower than national).
(37) The HHI is calculated by summing the squares of the individual market shares of all the firms in the market: see Commission Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ C 31, 5.2.2004, p. 5, point 16), available at https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A52004XC0205%2802%29. However, in order to calculate the HHI delta resulting from the concentration, it is sufficient to subtract from the square of the sum of the market shares of the parties to the concentration (in other words, the square of the merged entity's market share post-concentration) the sum of the squares of the parties' individual market shares (since the market shares of all other competitors in the market remain unchanged and thus do not influence the result of the equation).
(38) This category aims to capture small increments to a pre-existing vertical integration. For example, Company A, active in an upstream and a downstream market (with a share of 45 % in each) acquires Company B active in the same upstream and downstream markets (with a share of 0.5 % in each). This category does not capture situations in which the bulk of the vertical integration results from the transaction, even if the combined market shares are below 50 % and the HHI delta is below 150. For example, this category does not capture the following situation: Company A, active upstream with a market share of 45 % and downstream with a market share of 0.5 % acquires company B active upstream with a market share of 0.5% and downstream with a market share of 45 %.
(39) See Footnote 31.
(40) See Footnote 32.
(41) Pipeline products are products likely to be brought to market in the short or medium term. “Pipeline products” also covers services.
(42) In case of horizontal overlaps involving pipeline products, you should provide shares for the marketed products that compete in the plausible relevant market.
(43) You should provide market shares for the parties and/or the competitors who offer marketed products. If there are no marketed products, you should identify at least three competitors developing rival pipeline products.
(44) Excluding vertical relationships falling under point 5(d)(ii)(bb) of the Notice on Simplified Procedure. For these vertical relationships, you should complete Section 10 below.
(45) For example, if regarding the vertical relationship between upstream market U and downstream market D, you considered the plausible upstream market definitions U1 an U2, you should include two tables: (i) information on U1 and D, and (ii) information on U2 and D.
(46) You should provide market shares for the parties and/or the competitors who offer marketed products. If there are no marketed products, you should identify at least three competitors developing rival pipeline products.
(47) You should provide market shares for the parties and/or the competitors who offer marketed products. If there are no marketed products, you should identify at least three competitors developing rival pipeline products.
(48) For example, if regarding the vertical relationship between upstream market U and downstream market D, you considered the plausible upstream market definitions U1 an U2, you should include two tables: (i) information on U1 and D, and (ii) information on U2 and D.
(49) You should provide market shares for the parties and/or the competitors who offer marketed products. If there are no marketed products, you should identify at least three competitors developing rival pipeline products.
(50) You should provide market shares for the parties and/or the competitors who offer marketed products. If there are no marketed products, you should identify at least three competitors developing rival pipeline products.
(51) Complete only one table for all markets falling under any of the categories of the Notice on Simplified Procedure for which none of the safeguards/exclusions apply (i.e., the answer to all questions in Section 11 is “No”). For each market falling under any of the categories of the Notice on Simplified Procedure for which the answer to at least one question is “Yes”, you should provide a separate table.
(52) If this metric is relevant for the markets where the concentration gives rise to a horizontal overlap or a vertical relationship between the parties’ activities.
ANNEX III
FORM RELATING TO REASONED SUBMISSIONS PURSUANT TO ARTICLES 4(4) AND 4(5) OF COUNCIL REGULATION (EC) No 139/2004
(FORM RS)
INTRODUCTION
A. The purpose of the Form RS
|
(1) |
This Form RS specifies the information that must be provided when making a reasoned submission for a pre-notification referral under Article 4(4) or (5) of Regulation (EC) No 139/2004 (1) (“Merger Regulation”). The merger control system of the European Union is laid down in the Merger Regulation and in Commission Implementing Regulation (EU) 2023/914 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the “Implementing Regulation”) (2) to which this Form RS is annexed. Your attention is drawn to the corresponding provisions of the Agreement on the European Economic Area (3) (‘EEA Agreement’). |
B. Contacts prior to submission of the Form RS and waiver requests
|
(2) |
The information requested in this Form RS must in principle be provided in all cases and is therefore a requirement for a complete pre-notification referral request. |
1. Information that is not reasonably available
|
(3) |
In exceptional circumstances, specific elements required by this Form RS may not be reasonably available to the submitting parties in part or in whole (e.g., because information on a target company is not available in case of a contested bid). In that case, the submitting parties may request the Commission to dispense with the obligation to provide the relevant information or with any other requirement in the Form RS related to this information. This request should be submitted in accordance with the instructions set out in point B.3. |
2. Information that is not necessary for the Commission’s examination of the case
|
(4) |
Pursuant to Articles 4(2) and 6(2) of the Implementing Regulation, the Commission may dispense with the obligation to provide any particular information in the Form RS, including documents, or with any other requirements, where the Commission considers compliance with those obligations or requirements is not necessary for the examination of the case. In that case, the submitting parties may request the Commission to dispense with the obligation to provide the relevant information or with any other requirement in the Form RS related to this information. This request should be submitted in accordance with the instructions set out in point B.3. |
3. Prior contacts and waiver requests
|
(5) |
Parties that are entitled to submit a Form RS are invited to engage in contacts with the Commission prior to the submission. Parties should engage in such contacts on the basis of a draft Form RS. The possibility to engage in prior contacts is a service offered by the Commission to submitting parties on a voluntary basis in order to prepare the formal submission of this Form RS. As such, while not mandatory, prior contacts are extremely valuable to both the submitting parties and the Commission in determining, among other things, the precise amount of information required in a Form RS and, in the majority of cases, will result in a significant reduction of the information required. |
|
(6) |
In the course of prior contacts, submitting parties may make requests for waivers. The Commission will consider waiver requests provided one of the following conditions is fulfilled:
|
|
(7) |
Waiver requests should be submitted at the same time as the draft Form RS. Waiver requests should be made in the text of the draft Form RS itself (at the beginning of the relevant section or sub-section). The Commission will deal with waiver requests in the context of the review of the draft Form RS. The Commission will normally require five working days before responding to a waiver request. Where a waiver request is submitted with the justification that information is not necessary for the examination of the Form RS, the Commission may consult with the relevant Member State(s) or EFTA State authority(-ies) before deciding to accept the request. |
|
(8) |
For the avoidance of doubt, the fact that the Commission may have accepted that any particular information requested by this Form RS is not necessary for the examination of the pre-notification referral request does not in any way prevent the Commission from requesting that information at any time during the proceedings, in particular through a request for information pursuant to Article 11 of the Merger Regulation. |
|
(9) |
The submitting 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 pre-notification referral requests. |
C. The requirement for correct and complete reasoned submission
|
(10) |
The information requested in this Form RS must in principle be provided in all cases and is therefore a requirement for a complete pre-notification referral request. All information must be supplied in the appropriate section of this Form RS and it must be correct and complete. |
|
(11) |
In particular you should note that:
|
D. How to make a reasoned submission
|
(12) |
The reasoned submission must be completed in one of the official languages of the Union. This language will thereafter be the language of the proceedings for all submitting parties. |
|
(13) |
In order to facilitate the treatment of the Form RS by Member State authorities and EFTA State authorities, submitting parties are strongly encouraged to provide the Commission with a translation of their reasoned submission in a language or languages which will be understood by all addressees of the information. As regards requests for referral to (a) Member State(s) or (an) EFTA State(s), the submitting parties are strongly encouraged to include a copy of the request in the language(s) of the Member State(s) and EFTA State(s) to which referral is being requested. |
|
(14) |
The information requested by this Form RS is to be set out using the sections and paragraph numbers signing a declaration as provided in Section 6, and annexing supporting documentation. Where information required by one section partly (or wholly) overlaps with information required by another section, this same information should not be submitted twice though accurate cross-referencing should be used. |
|
(15) |
The Form RS must be signed by persons authorised by law to act on behalf of each of the submitting party or parties or by one or more authorised external representatives of the submitting party or parties. Technical specifications and instructions regarding reasoned submissions (including signatures) can be found in the Official Journal of the European Union. |
|
(16) |
For the sake of clarity, certain information may be put in annexes. However, it is essential that all key substantive pieces of information are presented in the body of the Form RS. Annexes to this Form RS must only be used to supplement the information supplied in the Form RS itself. |
|
(17) |
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 (Articles 3(4) and 6(2) of the Implementing Regulation). |
|
(18) |
Supporting documents may be copies of the originals. In this case, the submitting party must confirm that they are true and complete. |
E. Confidentiality and Personal Data
|
(19) |
Article 339 of the Treaty on the Functioning of the European Union and Article 17(2) of the Merger Regulation as well as the corresponding provisions of the EEA Agreement (5) 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 that Regulation of the kind covered by the obligation of professional secrecy. The same principle must also apply to protect confidentiality between submitting parties. |
|
(20) |
If you believe that your interests would be harmed if any of the information supplied were to be published or otherwise disclosed to other parties, you should submit this information separately with each page clearly marked ‘Business Secrets’. You should also give reasons why this information should not be disclosed or published. |
|
(21) |
In the case of mergers or joint acquisitions, or in other cases where the reasoned submission is completed by more than one of the parties, business secrets may be submitted in separate annexes, and referred to in the submission as an annex. In order for the submission to be considered complete, all such annexes must be included in the reasoned submission. |
|
(22) |
Any personal data submitted in this Form RS will be processed in compliance with Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC. (6) |
F. Definitions and instructions for the purposes of this Form RS
|
(23) |
For the purposes of this Form, the following definitions apply:
|
|
(24) |
The financial data requested in this Form RS must be provided in euro at the average exchange rates prevailing for the years or other periods in question. |
G. International cooperation between the Commission and other competition authorities
|
(25) |
The Commission encourages the parties to the concentration 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 that end, the Commission encourages submitting parties to submit together with this Form RS a list of those jurisdictions outside the EEA where the concentration is subject to regulatory clearance under merger control rules before or after its completion. |
|
(26) |
Furthermore, the Commission encourages the parties to the concentration 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 parties to the concentration. To that end, the Commission encourages the parties to the concentration to use the Commission’s model waiver, which is published on DG Competition’s website and updated from time to time. |
SECTION 1
|
1.1. |
Background information |
|
1.1.1. |
Provide an executive summary of the concentration, specifying the parties to the concentration, the nature of the concentration (for example, merger, acquisition, or joint venture), the areas of activity of the parties to the concentration, the markets on which the concentration will have an impact (including the main affected markets), and the strategic and economic rationale for the concentration. |
|
1.1.2. |
Indicate whether the reasoned submission is made under Article 4(4) or (5) of the Merger Regulation, pursuant to the corresponding provisions of the EEA Agreement, or both. |
|
1.2. |
Information on submitting party (or parties) and other parties to the concentration (11)
For each party making the reasoned submission as well as for each other party to the concentration, you should provide:
|
SECTION 2
GENERAL BACKGROUND AND DETAILS OF THE CONCENTRATION
The information sought in this section may be illustrated by the use of organization charts or diagrams to show the structure of ownership and control of the parties to the concentration before and after completion of the concentration.
|
2.1. |
Describe the nature of the concentration being notified by reference to the relevant criteria of the Merger Regulation and the Commission Consolidated Jurisdictional Notice (13):
|
|
2.2. |
Describe the economic rationale of the concentration. |
|
2.3. |
State the value of the concentration [the purchase price (or the value of all the assets involved as the case may be); specify whether this is in the form of equity, cash, or other assets]. |
|
2.4. |
Provide sufficient financial or other data to show whether the concentration meets or does not meet the jurisdictional thresholds set out in Article 1 of the Merger Regulation by submitting the following information for each of the undertakings concerned by the concentration for the last financial year (15):
Turnover data must be provided by filling in the Commission’s template table available on DG Competition’s website. |
SECTION 3
MARKET DEFINITIONS
The relevant product and geographic markets serve to identify the scope within which the market power of the new entity resulting from the concentration must be assessed (16). When presenting relevant product and geographic markets, the submitting parties must submit, in addition to any product and geographic market definitions they consider relevant, all plausible alternative product and geographic market definitions. Plausible alternative product and geographic market definitions can be identified on the basis of previous Commission decisions and judgments of the Union Courts and (in particular where there are no Commission or Court precedents) by reference to industry reports, market studies and the submitting parties’ internal documents.
|
3.1. |
Please discuss all plausible relevant market definitions where the proposed concentration could give rise to affected markets. Please explain how the submitting parties consider that the relevant product and geographic markets should be defined. |
|
3.2. |
Taking into account all the plausible relevant market definitions discussed, you should identify each affected market (17) and provide summary information on the activities of the parties to the concentration in each plausible relevant market. Please add to the tables as many rows as required to cover all the plausible markets that you consider:
|
|||||||||||||||||||||||||||||||||||||||||||
SECTION 4
INFORMATION ON AFFECTED MARKETS
With regard to each affected market, you should provide all the following information for the last year:
|
4.1. |
for each of the parties to the concentration, the nature of the undertaking’s business, the main subsidiaries active, brands, product names, and trademarks, , used in each of those markets; |
|
4.2. |
an estimate of the total size of the market in terms of sales value (in euro) and volume (units) (18). You should indicate the basis and sources for the calculations and provide documents where available to confirm those calculations; |
|
4.3. |
for each of the parties to the concentration, the sales in value and volume, as well as an estimate of the market shares; |
|
4.4. |
an estimate of the market share in value (and where appropriate volume) of the three largest competitors (indicating the basis for the estimates); |
|
4.5. |
if the concentration is a joint venture, indicate whether 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 (19) . |
SECTION 5
DETAILS OF THE REFERRAL REQUEST AND REASONS WHY THE CASE SHOULD BE REFERRED
|
5.1. |
With regard to referrals made pursuant to Article 4(4) of the Merger Regulation and referrals made pursuant to the relevant provisions of the EEA Agreement:
|
|
5.2. |
With regard to referrals made pursuant to Article 4(5) of the Merger Regulation and referrals made pursuant to the relevant provisions of the EEA Agreement:
|
SECTION 6
DECLARATION
The reasoned submission must conclude with the following declaration which is to be signed by or on behalf of all the submitting parties:
‘The submitting party or parties declare that, following careful verification, the information given in this reasoned submission is to the best of their knowledge and belief true, correct, and complete, that true and complete copies of documents required by Form RS have been supplied, that all estimates are identified as such and are their best estimates of the underlying facts, and that all the opinions expressed are sincere. They are aware of the provisions of Article 14(1), point (a), of the Merger Regulation .’
For digitally signed forms, the following fields are for information purposes only. They should correspond to the metadata of the corresponding electronic signature(s).
Date:
|
[signatory 1] Name: Organisation: Position: Address: Phone number: E-mail: [“e-signed” / signature] |
[signatory 2 if applicable] Name: Organisation: Position: Address: Phone number: E-mail: [“e-signed” / signature] |
(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the “Merger Regulation”) (OJ L 24, 29.1.2004, p. 1).
(2) OJ L 119, 5.5.2023, p. 22.
(3) See in particular Article 57 of the EEA Agreement, point 1 of Annex XIV to the EEA Agreement, Protocols 21 and 24 to the EEA Agreement (all available at EUR-Lex - 21994A0103(74) - EN - EUR-Lex (europa.eu)) , as well as Protocol 4 to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (hereinafter ‘Surveillance and Court Agreement’), available at EUR-Lex - JOL_1994_344_R_0001_003 - EN - EUR-Lex (europa.eu) . Any reference to EFTA States must be understood to mean those EFTA States which are Contracting Parties to the EEA Agreement. As of 1 May 2004, those States are Iceland, Liechtenstein and Norway.
(4) In case submitting parties provide incorrect or misleading information in the Form RS, the Commission can also take the courses of action described in Commission Notice on case referral in respect of concentrations (‘Referral Notice’) (OJ C 56, 5.3.2005, p. 2), point 60, available at EUR-Lex - 52005XC0305(01) - EN - EUR-Lex (europa.eu).
(5) See, in particular, Article 122 of the EEA Agreement, Article 9 of Protocol 24 to the EEA Agreement and Article 17(2) of Chapter XIII of Protocol 4 to the Surveillance and Court Agreement.
(6) OJ L 295, 21.11.2018, p. 39. See also a privacy statement relating to Merger investigations at https://ec.europa.eu/competition-policy/index/privacy-policy-competition-investigations_en.
(7) Pipeline products are products likely to be brought to market in the short or medium term. “Pipeline products” also covers services.
(8) Horizontal overlaps involving pipeline products include overlaps between pipeline products and overlaps between one or more marketed product(s) and one or more pipeline product(s).
(9) Vertical relationships involving pipeline products include relationships between pipeline products and relationships between one or more marketed product(s) and one or more pipeline product(s).
(10) Commission Notice on a simplified treatment of certain concentrations under Council Regulation (EC) No 139/2004 (OJ C 160, 5.5.2023, p. 1) (the ‘Notice on Simplified Procedure’).
(11) This includes the target company in the case of a contested bid, in which case the details should be completed as far as is possible.
(12) See power of attorney document template at https://ec.europa.eu/competition/mergers/legislation/power_of_attorney_template_en.docx.
(13) Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (“Commission Consolidated Jurisdictional Notice”), (OJ C 95, 16.4.2008, p. 1), available at EUR-Lex - 52008XC0416(08) - EN - EUR-Lex (europa.eu).
(14) See Section B IV of the Commission Consolidated Jurisdictional Notice.
(15) On the concepts of ‘undertaking concerned’ and the calculation of turnover, see Commission Consolidated Jurisdictional Notice.
(16) See Commission Notice on the definition of the relevant market for the purposes of Community competition law, (OJ C 372, 9.12.1997, p. 5).
(17) During pre-notification contacts, submitting parties shall disclose information relating to all potentially affected markets even if they ultimately consider that these markets are not affected and notwithstanding that the submitting parties may take a particular view in relation to the issue of market definition.
(18) The value and volume of a market must reflect output less exports plus imports for the geographic areas under consideration.
(19) For market definitions refer to Section 3.
(20) For guiding principles of case referrals, see Referral Notice, point 17 and fn. 21.
(21) For guiding principles of case referrals, see Referral Notice, point 28.
ANNEX IV
FORM RELATING TO THE INFORMATION CONCERNING COMMITMENTS SUBMITTED PURSUANT TO ARTICLE 6(2) AND ARTICLE 8(2) OF COUNCIL REGULATION (EC) No 139/2004
(FORM RM)
INTRODUCTION
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(1) |
This form specifies the information and documents to be submitted by the undertakings concerned when offering commitments pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004. (1) The information requested is necessary to allow the Commission to examine whether the commitments are capable of rendering the concentration compatible with the internal market by preventing a significant impediment to effective competition. The level of information required will vary depending on the type and structure of the remedy proposed. For example, carve-out remedies will typically require more detailed information than divestitures of stand-alone businesses. |
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(2) |
The information requested in the Form RM must be supplied in the appropriate section of the Form RM and must be correct and complete. |
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(3) |
In accordance with Articles 5(4) and 6(2) of the Commission Implementing Regulation (EU) 2023/914 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the “Implementing Regulation”), (2) incorrect or misleading information in the Form RM will be considered to be incomplete information. |
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(4) |
Under Article 14(1), point (a), of the Merger Regulation, parties making a submission who, either intentionally or negligently, provide incorrect or misleading information, may be liable to fines of up to 1% of the aggregate turnover of the undertaking concerned. |
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(5) |
Pursuant to Article 6(3), point (a), and Article 8(6), point (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 parties to the concentration is responsible. |
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(6) |
Pursuant to Articles 4(2) and 20(2) of the Implementing Regulation the Commission may dispense with the obligation to provide any particular information in the Form RM, including documents, or with any other requirements where the Commission considers compliance with those obligations or requirements is not necessary for the examination of the case. In that case, the submitting parties may request the Commission to dispense with the obligation to provide the relevant information or with any other requirement in the Form RM related to this information. The Commission is available to discuss such requests with the parties upfront.
Any personal data submitted in this Form RM will be processed in compliance with Regulation (EU) 2018/1725 of the European Parliament and of the Council. (3) The Form RM must be signed by persons authorised by law to act on behalf of each notifying party and/or on behalf of any other party signing the commitments or by one or more authorised external representatives of the notifying party or parties and/or any other party signing the commitments. Technical specifications and instructions regarding signatures can be found in the Official Journal of the European Union. |
SECTION 1
SUMMARY OF THE COMMITMENTS
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1. |
Provide a non-confidential summary of the nature and scope of the commitments offered. The Commission may use this summary for the market test with third parties of the commitments offered. |
SECTION 2
SUITABILITY TO REMOVE COMPETITION CONCERNS
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2. |
Provide information showing the suitability of the commitments offered to remove the significant impediment of effective competition identified by the Commission. |
SECTION 3
DEVIATION FROM MODEL TEXTS
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3. |
Provide an annex identifying any deviations of the commitments offered from the up-to-date model commitments text as published in DG COMP website. |
SECTION 4
INFORMATION ON A BUSINESS TO BE DIVESTED
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4. |
Where the commitments offered consist in the divestiture of a business, provide the following information and documents. |
General information on the business to be divested
The following information should be provided regarding all aspects of the current (i.e., pre-divestment) operation of the business to be divested and any changes already planned for the future.
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4.1. |
Describe the legal structure of the business to be divested and provide the organigram of the company explaining where the business to be divested is integrated. Describe the entities belonging to the business to be divested, specifying their registered place of business and place of management, the general organisational structure and any other relevant information relating to the administrative structure of the business to be divested. If the business to be divested consists in a carve-out, all this information should also be provided for the entire business from which the business to be divested would be carved out. |
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4.2. |
State whether there are and describe any legal obstacles for the transfer of the business to be divested or the assets, including third party rights and administrative approvals required. |
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4.3. |
Describe the entire value chain of the products produced or services provided by the business to be divested, including the location of the relevant facilities. List and describe the products manufactured or services provided, in particular their technical and other characteristics, the brands involved, the turnover generated with each of those products or services, and any innovations or research and development activities or pipeline products or new products ready for launch and services planned. If the business to be divested consists in a carve-out, all this information should also be provided for the entire business from which the business to be divested would be carved out. |
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4.4. |
Describe the level at which the essential functions of the business to be divested (for example, research and development, production, marketing and sales, logistics, relations with customers, relations with suppliers, IT systems) are operated if they are not carried out on the level of the business to be divested. The description should contain the role performed by those other levels, the relations with the business to be divested and the resources (such as personnel, assets, financial resources) involved in the function. |
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4.5. |
Describe in detail the links between the business to be divested and other entities controlled by any of parties to the concentration (irrespective of the direction of the link), such as:
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4.6. |
Describe in general terms all relevant tangible and intangible assets used or owned by the business to be divested, including, in any case, IP rights and brands. If the business to be divested consists in a carve-out, all this information should also be provided for the entire business from which the business to be divested would be carved out. |
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4.7. |
Submit an organisational chart identifying the number of personnel currently working in each of the functions of the business to be divested and a list of those employees who are indispensable for the operation of the business to be divested, describing their functions. If the business to be divested consists in a carve-out, all this information should also be provided for the entire business from which the business to be divested would be carved out. |
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4.8. |
Describe the customers of the business to be divested, including a list of customers, a description of the corresponding records available, and provide the total turnover generated by the business to be divested with each of these customers (in EUR and as percentage of the total turnover of business to be divested). If the business to be divested consists in a carve-out, all this information should also be provided on the entire business from which the business to be divested would be carved out. |
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4.9. |
Provide all relevant financial data for the business to be divested, including the turnover and the EBITDA achieved in the last three financial years, and the forecast for the next two financial years. If available, provide the current business or strategic plan for the business to be divested, including any forecasts that may be available. If the business to be divested consists in a carve-out, all the information should also be provided for the entire business from which the business to be divested would be carved out. |
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4.10. |
Identify and describe any changes that have occurred in the last two years, in the organisation of the business to be divested or in the links with other undertakings controlled by the parties. If the business to be divested consists in a carve-out, all the information should also be provided for the entire business from which the business to be divested would be carved out. |
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4.11. |
Identify and describe any changes, planned for the next two years, in the organisation of the business to be divested or in the links with other undertakings controlled by the parties. If the business to be divested consists in a carve-out, all this information should also be provided for the entire business from which the business to be divested would be carved out. |
Information on the business to be divested as described in the commitments offered and comparison with the business to be divested as currently operated
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4.12. |
Taking into account your replies to questions 4.1-4.11 above, please set out all the differences between (i) the business to be divested as described in the commitments offered and (ii) the business to be divested as it is currently operated. In case there are any tangible or intangible assets, personnel, facilities, contracts, products, research and development, pipeline products, shared services etc. which are currently produced, used or relied on in any way by the business to be divested but which are not included in the commitments, please provide an exhaustive list. |
Acquisition by a suitable purchaser
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4.13. |
Explain the reasons why, in your view, the business to be divested is likely to be acquired by a suitable purchaser in the time-frame proposed in the commitments offered. |
SECTION 5
DECLARATION
The Form RM must conclude with the following declaration which is to be signed by or on behalf of the notifying parties and any other parties signing the commitments:
‘ The notifying parties and any other parties signing the commitments declare that, to the best of their knowledge and belief, the information given in this notification is true, correct, and complete, that true and complete copies of documents required by Form RM have been supplied, that all estimates are identified as such and are their best estimates of the underlying facts, and that all the opinions expressed are sincere. They are aware of the provisions of Article 14(1), point (a) of the Merger Regulation. ’
For digitally signed forms, the following fields are for information purposes only. They should correspond to the metadata of the corresponding electronic signature(s).
Date:
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[signatory 1] Name: Organisation: Position: Address: Phone number: E-mail: [“e-signed” / signature] |
[signatory 2 if applicable] Name: Organisation: Position: Address: Phone number: E-mail: [“e-signed” / signature] |
(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the “Merger Regulation”) (OJ L 24, 29.1.2004, p. 1), available at EUR-Lex - 32004R0139 - EN - EUR-Lex (europa.eu).
(2) See page 22 of this Official Journal.
(3) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), available at EUR-Lex - 32018R1725 - EN - EUR-Lex (europa.eu). See also a privacy statement relating to Merger investigations at https://ec.europa.eu/competition-policy/index/privacy-policy-competition-investigations_en.