Commission Regulation (EEC) No 2367/90 of 25 July 1990 on the notifications, time limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings

• Published date: 14 August 1990
• Subject Matter: Competition,Concentrations between undertakings
• Official Gazette Publication: Official Journal of the European Communities, L 219, 14 August 1990

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Commission Regulation (EEC) No 2367/90 of 25 July 1990 on the notifications, time limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings

Official Journal L 219 , 14/08/1990 P. 0005 - 0025

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COMMISSION REGULATION (EEC) No 2367/90

of 25 July 1990

on the notifications, time limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community,

Having regard to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (1), and in particular Article 23 thereof,

Having regard to Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (2), as last amended by the Act of Accession of Spain and Portugal, and in particular Article 24 thereof,

Having regard to Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (3), as last amended by the Act of Accession of Spain and Portugal, and in particular Article 29 thereof,

Having regard to Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (4), and in particular Article 26 thereof,

Having regard to Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down detailed rules for the application of the competition rules to undertakings in air transport (5), and in particular Article 19 thereof,

Having consulted the Advisory Committee on Concentrations, as well as the Advisory Committees on Restrictive Practices and Monopolies in the Transport Industry, in Maritime Transport and in Air Transport,

1. Whereas Article 23 of Regulation (EEC) No 4064/89 empowers the Commission to adopt implementing provisions concerning the form, content and other details of notifications pursuant to Article 4, time limits pursuant to Article 10, and hearings pursuant to Article 18;

2. Whereas Regulation (EEC) No 4064/89 is based on the principle of compulsory notification of concentrations before they are put into effect; hereas, on the one hand, a notification has important legal consequences which are favourable to the parties, while, on the other hand, failure to comply with the obligation to notify renders the parties liable to a fine and may also entail civil law disadvantages for them; whereas it is therefore necessary in the interests of legal certainty to define precisely the subject matter and content of the information to be provided in the notification;

3. Whereas it is for the parties concerned to make full and honest disclosure to the Commission of the facts and circumstances which are relevant for taking a decision on the notified concentration;

4. Whereas in order to simplify and expedite examination of the notification it is desirable to prescribe that a form be used;

5. Whereas since notification sets in motion legal time limits for initiating proceedings and for decisions, the conditions governing such time limits and the time when they become effective must also be determined;

6. Whereas rules must be laid down in the interests of legal certainty for calculating the time limits provided for in Regulation (EEC) No 4064/89; whereas in particular the beginning and end of the period and the circumstances suspending the running of the period must be determined; whereas the provisions should be based on the principles of Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits (6), subject to certain adaptations made necessary by the exceptionally short legal time limits referred to above;

7. Whereas the provisions relating to the Commission's procedure must be framed in such way as to safeguard fully the right to be heard and the rights of defence;

8. Whereas the Commission will give the parties concerned, if they so request, an opportunity before notification to discuss the intended concentration informally and in strict confidence; whereas in addition it will, after notification, maintain close contact with the parties concerned to the extent necessary to discuss with them any practical or legal problems which it discovers on a first examination of the case and if possible to remove such problems by mutual agreement;

9. Whereas in accordance with the principle of the right to be heard, the parties concerned must be given the opportunity to submit their comments on all the objections which the Commission proposes to take into account in its decisions;

10. Whereas third parties having sufficient interest must also be given the opportunity of expressing their views where they make a written application;

11. Whereas the various persons entitled to submit comments should do so in writing, both in their own interest and in the interest of good administration, without prejudice to their right to request an oral hearing where appropriate to supplement the written procedure; whereas in urgent cases, however, the Commission must be able to proceed immediately to oral hearings of the parties concerned or third parties; hereas in such cases the persons to be heard must have the right to confirm their oral statements in writing;

12. Whereas it is necessary to define 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;

13. Whereas it is also necessary to define the rules for fixing and calculating the time limits for reply fixed by the Commission;

14. Whereas the Advisory Committee on Concentrations shall deliver its opinion on the basis of a preliminary draft decision; whereas it must therefore be consulted on a case after the inquiry in to that case has been completed; whereas such consultation does not, however, prevent the Commission from re-opening an inquiry if need be,

HAS ADOPTED THIS REGULATION:

SECTION I

NOTIFICATIONS

Article 1

Persons entitled to submit notifications

1. Notifications shall be submitted by the persons or undertakings referred to in Article 4 (2) of Regulation (EEC) No 4064/89.

2. Where notifications are signed by representatives of persons or of undertakings, such representatives shall produce written proof that they are authorized to act.

3. Joint notifications should be submitted by a joint representative who is authorized to transmit and to receive documents on behalf of all notifying parties.

Article 2

Submission of notifications

1. Notifications shall be submitted in the manner prescribed by form CO as shown in Annex I. Joint notifications shall be submitted on a single form.

2. Twenty copies of each notification and fifteen copies of the supporting documents shall be submitted to the Commission at the address indicated in form CO.

3. The supporting documents shall be either originals or copies of the originals; in the latter case the notifying parties shall confirm that they are true and complete.

4. Notifications shall be in one of the official languages of the Community. This language shall also be the language of the proceeding for the notifying parties. Supporting documents shall be submitted in their original language. Where the original language is not one of the official languages, a translation into the language of the proceeding shall be attached.

Article 3

Information to be provided

1. Notifications shall contain the information requested by form CO. The information must be correct and complete.

2. Material changes in the facts specified in the notification which the notifying parties know or ought to have known must be communicated to the Commission voluntarily and without delay.

3. Incorrect or misleading information shall be deemed to be incomplete information.

Article 4

Effective date of notifications

1. Subject to paragraph 2 notifications shall become effective on the date on which they are received by the Commission.

2. Subject to paragraph 3, where the information contained in the notification is incomplete in a material respect, the Commission shall without delay inform the notifying parties or the joint representative in writing and shall fix an appropriate time limit for the completion of the informaion; in such cases, the notification shall become effective on the date on which the complete information is received by the Commission. 3. The Commission may dispense with the obligation to provide any particular information requested by form CO where the Commission considers that such informatin is not necessary for the examination of the case.

4. The Commission shall without delay acknowledge in writing to the notifying parties or the joint representative receipt of the notification and of any reply to a letter sent by the Commission pursuant to paragraph 2 above.

Article 5

Conversion of notifications

1. Where the Commission finds that the operation notified does not constitute a concentration within the meaning of Article 3 of Regulation (EEC) No 4064/89 it shall inform the notifying parties or the joint representative in writing. In such a case, the Commission may, if requested by the notifying parties, as appropriate and subject to paragraph 2 below, treat the notification as an application within the meaning of Article 2 or a notification within the meaning of Article 4 of Regulation No 17, as an application within the meaning of Article 12 or a notification within the meaning of Article 14 of Regulation (EEC) No 1017/68, as an application within the meaning of Article 12 of Regulation (EEC) No 4056/86 or as an application witin the meaning of Article 3 (2) or of Article 5 of...