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)

(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 (⁶⁹) 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. (⁷⁰)

F. Definitions and instructions for the purposes of this Form RS

(23)For the purposes of this Form, the following definitions apply:

(a) ‘Party/parties to the concentration’ or ‘party/parties’: These terms relate to both the acquiring party/parties and the acquired party/parties, or the merging parties, including all undertakings in which a controlling interest is being acquired or which is the subject of a public bid. Unless otherwise specified, the terms ‘notifying party/parties’ and ‘party/parties to the concentration’ include all the undertakings which belong to the same groups as those parties.

(b) ‘Relevant product market’: A relevant product market comprising all those products or services, or both, which are regarded as interchangeable or substitutable by the consumer, by reason of the products’ or services’ characteristics, their prices and their intended use. A relevant product market may in some cases be composed of a number of individual products or services, or both, which present largely identical physical or technical characteristics and are interchangeable. Factors relevant to the assessment of the relevant product market include the analysis of why the products or services in these markets are included and why others are excluded by using this definition, and having regard to, for example, substitutability of products and services, prices, cross-price elasticity of demand or other relevant factors (such as supply-side substitutability in appropriate cases).

(c) ‘Relevant geographic market’: The relevant geographic market comprising the area in which the undertakings concerned are involved in the supply and demand of relevant products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring geographic areas because, in particular, conditions of competition are appreciably different in those areas. Factors relevant to the assessment of the relevant geographic market include, inter alia, the nature and characteristics of the products or services concerned, the existence of entry barriers, consumer preferences, appreciable differences in the undertakings’ market shares between neighbouring geographic areas or substantial price differences.

(d) ‘Horizontal overlap’: A concentration gives rise to horizontal overlaps when the parties to the concentration are engaged in business activities in the same relevant product and geographic market(s) (including the development of pipeline products (⁷¹)). (⁷²)

(e) ‘Non-horizontal relationship’: A concentration gives rise to non-horizontal relationship when the activities of the parties to the concentration are in a relationship that is not a horizontal overlap.

(f) ‘Vertical relationship’: A concentration gives rise to vertical relationships when one or more of the parties to the concentration are engaged in business activities in a product market which is upstream or downstream from a product market in which any other party to the concentration is engaged (including the development of pipeline products). (⁷³)

(g) ‘Affected markets’: Affected markets are all relevant product and geographic markets, as well as plausible alternative relevant product and geographic markets, where the parties’ activities overlap horizontally or are vertically related and which do not meet the conditions for review under point 5(d) of the Notice on Simplified Procedure (⁷⁴) and do not benefit from the flexibility clauses of point 8 of the Notice on Simplified Procedure.

(h) ‘Year’ means calendar year, unless otherwise stated. All information requested in this Form RS relates, unless otherwise specified, to the year preceding that of the reasoned submission.

(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 (⁷⁵)

For each party making the reasoned submission as well as for each other party to the concentration, you should provide:

1.2.1. the name of the undertaking;

1.2.2. the name, address, telephone number and e-mail address of, and position held by, the appropriate contact person; the address given must be an address for service to which documents and, in particular, Commission decisions and other procedural documents may be notified, and the contact person given shall be deemed to be authorised to accept service;

1.2.3. if one or more authorised external representatives of the undertaking are appointed, to which documents and, in particular, Commission decisions and other procedural documents may be notified: 1.2.3.1. the name, address, telephone number and e-mail address of, and position held by, each representative; and 1.2.3.2. the original power of attorney document(s) (for the notifying party or parties). (⁷⁶)

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 (⁷⁷):

2.1.1. identify the undertakings or persons solely or jointly controlling each of the undertakings concerned, directly or indirectly, and describe the structure of ownership and control of each of the undertakings concerned before the completion of the concentration;

2.1.2. explain whether the proposed concentration is one of the following: (a) a full merger; (b) an acquisition of sole or joint control; (c) a contract or other means of conferring direct or indirect control within the meaning of Article 3(2) of the Merger Regulation; (d) the acquisition of joint control in a full-function joint venture within the meaning of Article 3(4) of the Merger Regulation, and if so, the reasons why the joint venture is considered to be full-function (⁷⁸);

2.1.3. explain how the concentration will be implemented (for example by the conclusion of an agreement, by the launch of a public bid, etc.);

2.1.4. by reference to Article 4(1) of the Merger Regulation explain whether whether at the time of notification, any of the following has occurred: (a) an agreement has been concluded; (b) a controlling interest has been acquired; (c) a public bid or the intention to launch a public bid has been announced; (d) the undertakings concerned have demonstrated a good faith intention to conclude an agreement;

2.1.5. indicate the expected date of any major events designed to bring about the completion of the concentration;

2.1.6. explain the structure of ownership and control of each of the undertakings concerned after the completion of the concentration.

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 (⁷⁹):

2.4.1. worldwide turnover;

2.4.2. –EU-wide turnover;

2.4.3. EEA-wide turnover ( EU and EFTA);

2.4.4. turnover in each Member State (indicate the Member State, if any, in which more than two-thirds of EU-wide turnover is achieved);

2.4.5. EFTA-wide turnover;

2.4.6. 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 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 (⁸⁰). 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 (⁸¹) 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) (⁸²). 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 (⁸³) .

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:

5.1.1. identify the Member State(s) and EFTA State(s) which should in your view examine the concentration in accordance with Article 4(4) of the Merger Regulation indicating whether or not you have made informal contact with this Member State(s) and EFTA State(s);

5.1.2. specify whether you are requesting referral of the whole or part of the case. If you are requesting referral of part of the case, specify clearly the part or parts of the case for which you request the referral. If you are requesting referral of the whole of the case, you must confirm that there are no affected markets outside the territory of the Member State(s) and EFTA State(s) to which you request the referral to be made;

5.1.3. if the proposed concentration does not give rise to affected markets within the meaning of this Form RS, please explain (⁸⁴): (a) in which market(s) the concentration could significantly affect competition within a Member State and how; (b) why each of the markets identified in response to the question set out in point (a) presents all the characteristics of a distinct market.

5.1.4. In the event a Member State and/or EFTA State becomes competent to review the whole or part of the case following a referral pursuant to Article 4(4) of the Merger Regulation, do you consent to the information contained in this Form RS being relied upon by the Member State(s) and/or EFTA State(s) in question for the purpose of its/their national proceedings regarding (part of) this case? Please reply only with a “Yes” or a “No”.

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:

5.2.1. for each Member State and EFTA State, specify whether the concentration is capable of being reviewed under its national competition law. This information must be provided by completing the Commission’s template table available on DG Competition’s website. For each Member State and EFTA State, you must indicate “Yes” (if the concentration is capable of being reviewed under national competition law) or “No” (if it is not);

5.2.2. for each Member State and EFTA State where you completed “Yes” in the table referred to in point 5.2.1, provide sufficient financial or other data to show that the concentration meets the relevant jurisdictional criteria under the applicable national law;

5.2.3. explain why the case should be examined by the Commission if (⁸⁵): (a) the proposed concentration gives rise to affected markets (within the meaning of this Form RS) that are national in scope in less than three Member States; (b) the proposed concentration does not give rise to affected markets (within the meaning of this Form RS).

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:

ANNEX IV

INTRODUCTION

(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. (⁸⁶) 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.

(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.

(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”), (⁸⁷) incorrect or misleading information in the Form RM will be considered to be incomplete information.

(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.

(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.

(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. (⁸⁸)

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

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

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

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

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.

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.

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.

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.

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.

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:

(a) supply, production, distribution, service, research and development or other contracts;

(b) shared tangible or intangible assets;

(c) shared or seconded personnel;

(d) shared IT systems or other systems;

(e) shared customers.

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.

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.

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.

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.

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.

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

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

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: