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)

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

Article 3

Submission of notifications

Article 4

Information and documents to be provided

Article 5

Effective date of notification

Article 6

Specific provisions relating to reasoned submissions, supplements and certifications

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

Article 9

Suspension of time limit

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:

(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;

(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;

(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;

(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.

The time limits referred to in Article 9(4), Article 10(1) and (3) of Regulation (EC) No 139/2004 shall be suspended:

(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;

(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;

(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;

(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.

Article 10

Compliance with time limits

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:

(a) notifying parties, that is, persons or undertakings submitting a notification pursuant to Article 4(2) of Regulation (EC) No 139/2004;

(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;

(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:

ii) for consumer associations, where the proposed concentration concerns products or services used by final consumers.

(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

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

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.

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.

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.

The procedure provided for in paragraph 2, first and second subparagraphs, and paragraphs 3 and 4 shall apply, mutatis mutandis.

Article 14

Oral hearings

Article 15

Conduct of oral hearings

Article 16

Hearing of third persons

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.

CHAPTER V

ACCESS TO THE FILE AND TREATMENT OF CONFIDENTIAL INFORMATION

Article 17

Access to the file and use of documents

The right of access to the file shall not extend to:

(a) confidential information;

(b) internal documents of the Commission;

(c) internal documents of competent authorities of Member States;

(d) correspondence between the Commission and the competent authorities of Member States;

(e) correspondence between the competent authorities of Member States; and

(f) correspondence between the Commission and other competition authorities.

Article 18

Treatment of confidential information

Information, including documents, shall not be communicated or made accessible by the Commission in so far as:

(a) it contains business secrets or other confidential information; and

(b) the disclosure of the information is not considered necessary by the Commission for the purpose of the proceedings.

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.

CHAPTER VI

COMMITMENTS OFFERED BY THE UNDERTAKINGS CONCERNED

Article 19

Time limits for submission of commitments

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.

Article 20

Procedure for the submission of commitments

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.

Article 21

Trustees

CHAPTER VII

MISCELLANEOUS PROVISIONS

Article 22

Transmission and signature of documents

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.

Article 23

Setting of time limits

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

References to the repealed Regulation shall be construed as references to this Regulation.

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.

ANNEX I

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 (²) 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”) (³), to which this Form CO is annexed. Your attention is drawn to the corresponding provisions of the Agreement on the European Economic Area (⁴) (‘EEA Agreement’).

B. Pre-notification contacts and waiver requests

(2)The Form CO requires the following information:

(a) basic information which is in principle necessary for the assessment of all concentrations (Sections 1-10);

(b) information on efficiencies (Section 11);

(c) information to be provided in cases involving joint ventures (Section 12).

(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.

(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.

(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.

(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:

(a) the notifying parties give adequate reasons why the relevant information is not reasonably available and provide best estimates for the missing data, identifying the sources for these estimates. Where possible, the notifying parties must indicate where any of the requested information that is unavailable could be obtained by the Commission or the relevant Member State(s) and EFTA State(s);

(b) the notifying parties give adequate reasons why the relevant information is not necessary for the examination of the case.

(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 (⁵) 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:

(a) in accordance with Article 10(1) of the Merger Regulation and Article 5(2) and (4) of the Implementing Regulation, the time limits laid down in the Merger Regulation with regard to the notification will not start until all the information that has to be supplied with the notification has been received by the Commission. This is to ensure that the Commission is able to assess the notified concentration within the strict time limits laid down in the Merger Regulation;

(b) the notifying party or parties must verify, in the course of preparing their notification, that contact names and numbers, and in particular e-mail addresses, provided to the Commission are accurate, relevant and up-to-date;

(c) in accordance with Article 5(4) of the Implementing Regulation, incorrect or misleading information in the notification will be considered to be incomplete information;

(d) requested contact details must be provided in the format prescribed by DG Competition on its website (⁶). For a proper investigatory process, it is essential that the contact details are accurate. To this end, please ensure that the email addresses provided are personalised and attributed to specific contact persons and that they are not general company mailboxes (e.g., info@, hello@). The Commission may declare the notification incomplete on the basis of inappropriate contact details;