
Article 1 
Regulation (EC) No 802/2004 is amended as follows:

1.. In Article 18, the following paragraph 4 is added:
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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.'
2.. In Article 20, the following paragraph 1a is inserted:
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1a. 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 one original and 10 copies of the information and documents prescribed by the Form RM relating to remedies (Form RM) as set out in Annex IV to this Regulation. The information submitted shall be correct and complete.'
3.. The following Article 20a is inserted:
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Article 20a 

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 an independent trustee (or trustees) assisting the Commission in overseeing the parties' compliance with the commitments or having a mandate to implement the commitments. The trustee may be appointed by the parties, after the Commission has approved its identity, or by the Commission. The trustee shall carry out its tasks under the supervision of the Commission.
2. The Commission may attach such trustee-related provisions of the commitments as conditions and obligations pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004.'
4.. The Annexes are amended in accordance with the Annex to this Regulation.
Article 2 
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 20 October 2008.
For the Commission
Neelie KROES
Member of the Commission
ANNEX

The Annexes to Regulation (EC) No 802/2004 are amended as follows:

1.. Annex I is amended as follows:

((a)) In point 1.1, the first paragraph is replaced by the following:
'This Form 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 (hereinafter referred to as “the EC Merger Regulation”), and in Commission Regulation (EC) No 802/2004 (hereinafter referred to as “the Implementing Regulation”), to which this Form CO is annexed. The text of these regulations, as well as other relevant documents, can be found on the Competition page of the Commission's Europa web site. Your attention is drawn to the corresponding provisions of the Agreement on the European Economic Area (hereinafter referred to as “the EEA Agreement”).'
((b)) In point 1.1, the last sentence of the second paragraph is replaced by the following:
‘Mergers which do not meet the turnover thresholds may fall within the competence of the Member States’ and/or the EFTA States’ authorities in charge of merger control.’
((c)) Footnote 1 referred to in subsection 3.5 is replaced by the following:
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(1) See Article 57 of the EEA Agreement and, in particular, Article 2(1) of Protocol 24 to the EEA Agreement. A case qualifies as a cooperation case if the combined turnover of the undertakings concerned in the territory of the EFTA States equals 25 % or more of their total turnover within the territory covered by the EEA Agreement; or each of at least two undertakings concerned has a turnover exceeding EUR 250 million in the territory of the EFTA States; or the concentration is liable to significantly impede effective competition in the territories of the EFTA States or a substantial part thereof, in particular as a result of the creation or strengthening of a dominant position.
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((d)) In Section 10, point (b) is replaced by the following:
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((b)) If the answer to (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 81(1) of the EC Treaty, and, where applicable, the corresponding provisions of the EEA Agreement, give your reasons.'
((e)) In Section 10, the introductory wording of point (c) is replaced by the following:
'Without prejudice to the answers to (a) and (b) and in order to ensure that a complete assessment of the case can be made by the Commission, please explain how the criteria of Article 81(3) of the EC Treaty and, where applicable, the corresponding provisions of the EEA Agreement apply. Under Article 81(3), the provisions of Article 81(1) may be declared inapplicable if the operation:'
2.. Annex II is amended as follows:

((a)) In point 1.1, the second paragraph is replaced by the following:
'In completing this Form, your attention is drawn to Council Regulation (EC) No 139/2004 (hereinafter referred to as “the EC Merger Regulation”), and Commission Regulation (EC) No 802/2004 (hereinafter referred to as “the Implementing Regulation”), to which this Form is annexed. The text of these regulations, as well as other relevant documents, can be found on the Competition page of the Commission's Europa web site. Your attention is also drawn to the corresponding provisions of the Agreement on the European Economic Area (hereinafter referred to as “the EEA Agreement”).'
((b)) In point 1.2, the fourth indent of the second paragraph is replaced by the following:
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— a Member State or an EFTA State expresses substantiated competition concerns about the notified concentration within 15 working days of receipt of the copy of the notification; or'
((c)) Footnote 3 referred to in subsection 3.5 is replaced by the following:
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(3) See Article 57 of the EEA Agreement and, in particular, Article 2(1) of Protocol 24 to the EEA Agreement. A case qualifies to be treated as a cooperation case if the combined turnover of the undertakings concerned in the territory of the EFTA States equals 25 % or more of their total turnover within the territory covered by the EEA Agreement; or each of at least two undertakings concerned has a turnover exceeding EUR 250 million in the territory of the EFTA States; or the concentration is liable to significantly impede effective competition in the territories of the EFTA States or a substantial part thereof, in particular as a result of the creation or strengthening of a dominant position.
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((d)) In Section 8, point (b) is replaced by the following:
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((b)) If the answer to (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 81(1) of the EC Treaty, and, where applicable, the corresponding provisions of the EEA Agreement, give your reasons.'
((e)) In Section 8, the introductory wording of point (c) is replaced by the following:
'Without prejudice to the answers to (a) and (b) and in order to ensure that a complete assessment of the case can be made by the Commission, please explain how the criteria of Article 81(3) of the EC Treaty and, where applicable, the corresponding provisions of the EEA Agreement apply. Under Article 81(3), the provisions of Article 81(1) may be declared inapplicable if the operation:'
3.. Annex III is amended as follows:

((a)) Section A of the Introduction is replaced by the following:
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A. 
This Form specifies the information that requesting parties should provide when making a reasoned submission for a pre-notification referral under Article 4(4) or (5) of Council Regulation (EC) No 139/2004 (hereinafter referred to as “the EC Merger Regulation”).

Your attention is drawn to the EC Merger Regulation and to Commission Regulation (EC) No 802/2004 (hereinafter referred to as “the EC Merger Implementing Regulation”), to which this Form RS is annexed. The text of these regulations, as well as other relevant documents, can be found on the Competition page of the Commission's Europa web site. Your attention is also drawn to the corresponding provisions of the Agreement on the European Economic Area (hereinafter referred to as “the EEA Agreement”).

Experience has shown that prior contacts are extremely valuable to both the parties and the relevant authorities in determining the precise amount and type of information required. Accordingly, parties are encouraged to consult the Commission and the relevant Member State/s or EFTA State/s regarding the adequacy of the scope and type of information on which they intend to base their reasoned submission.
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((b)) In Section B of the Introduction, the last sentence of the third paragraph is replaced by the following:
‘Finally, parties should also be aware that, if a referral is made on the basis of incorrect, misleading or incomplete information included in Form RS, the Commission and/or the Member States and the EFTA States may consider making a post-notification referral rectifying any referral made at pre-notification.’
((c)) In Section B of the Introduction, the first and the second sentences of point (a) are replaced by the following:
‘In accordance with Articles 4(4) and (5) of the EC Merger Regulation, the Commission is obliged to transmit reasoned submissions to the Member States and the EFTA States without delay. The time limits for considering a reasoned submission will begin upon receipt of the submission by the relevant Member State/s or EFTA State/s.’
((d)) In Section B of the Introduction, the last sentence of point (d) is replaced by the following:
‘Where possible, indications as to where any of the requested information that is unavailable to you could be obtained by the Commission or the relevant Member State/s and EFTA State/s should also be provided.’
((e)) In Section B of the Introduction, point (e) is replaced by the following:
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((e)) You may request that the Commission accept that the reasoned submission is complete notwithstanding the failure to provide information required by this Form, if you consider that any particular information requested by this Form may not be necessary for the Commission's or the relevant Member State/s' or EFTA State/s' examination of the case.
The Commission will consider such a request, provided that you give adequate reasons why that information is not relevant and necessary to dealing with your request for a pre-notification referral. You should explain this during your prior contacts with the Commission and with the relevant Member State/s and EFTA State/s, and submit a written request for a waiver asking the Commission to dispense with the obligation to provide that information, pursuant to Article 4(2) of the EC Merger Implementing Regulation. The Commission may consult with the relevant Member State or EFTA State authority or authorities before deciding whether to accede to such a request.'
((f)) In Section D of the Introduction, the second paragraph is replaced by the following:
'In order to facilitate treatment of Form RS by Member State and EFTA State authorities, 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 requesting 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.'
((g)) In Section E of the Introduction, the first paragraph is replaced by the following:
'Article 287 of the Treaty and Article 17(2) of the EC 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 the Regulation of the kind covered by the obligation of professional secrecy. The same principle must also apply to protect confidentiality between notifying parties.'
((h)) In Section 2, the following subsection 2.4.2 is added:
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2.4.2. Provide a breakdown of the EFTA-wide turnover achieved by the undertakings concerned, indicating, where applicable, the EFTA State, if any, in which more than two-thirds of this turnover is achieved.
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((i)) In Section 4, the introductory wording of Section III is replaced by the following:
'For the purposes of the information required in this Form, affected markets consist of relevant product markets where, in the EEA territory, in the Community, in the territory of the EFTA States, in any Member State or in any EFTA State:'
((j)) In Section 4, subsection 4.1 is replaced by the following:
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4.1. 

((a)) at the EEA, Community or EFTA level;
((b)) in the case of a request for referral pursuant to Article 4(4) of the EC Merger Regulation, at the level of each individual Member State or EFTA State;
((c)) in the case of a request for referral pursuant to Article 4(5) of the EC Merger Regulation, at the level of each Member State or EFTA State identified at Section 6.3.1 of this Form as capable of reviewing the concentration.
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((k)) In the first paragraph of Section 5, the introductory wording and points (a), (b) and (c) are replaced by the following:
'For each affected relevant product market, for the last financial year,
((a)) for the EEA territory, for the Community as a whole and for the EFTA States as a whole;
((b)) in the case of a request for referral pursuant to Article 4(4) of the EC Merger Regulation, individually for each Member State/EFTA State where the parties to the concentration do business; and
((c)) in the case of a request for referral pursuant to Article 4(5) of the EC Merger Regulation, individually for each Member State/EFTA State identified at Section 6.3.1 of this Form as capable of reviewing the concentration where the parties to the concentration do business; and'
((l)) In Section 6, subsection 6.2.1 is replaced by the following:
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6.2.1. Identify the Member State/s and EFTA State/s which, pursuant to Article 4(4) of the EC Merger Regulation, you submit should examine the concentration, indicating whether or not you have made informal contact with this Member State/s and/or EFTA State/s.
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((m)) In Section 6, the third paragraph of subsection 6.2.2 is replaced by the following:
'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.'
((n)) In Section 6, subsection 6.2.3 is replaced by the following:
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6.2.3. Explain in what way each of the affected markets in the Member State/s and EFTA State/s to which referral is requested presents all the characteristics of a distinct market within the meaning of Article 4(4) of the EC Merger Regulation.
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((o)) In Section 6, subsection 6.2.5 is replaced by the following:
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6.2.5. In the event of a Member State/s and/or EFTA State/s becoming competent to review the whole or part of the case following a referral pursuant to Article 4(4) of the EC Merger Regulation, do you consent to the information contained in this Form being relied upon by the Member State/s and/or EFTA State/s in question for the purpose of its/their national proceedings relating to that case or part thereof? YES or NO
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((p)) In Section 6, subsection 6.3.1 is replaced by the following:
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6.3.1. 
Is the concentration capable of being reviewed under the national competition law of each of the following Member States and/or EFTA States? You must reply for each Member State and/or EFTA State. Only indicate YES or NO for each Member State and/or EFTA State. Failure to indicate YES or NO for any Member State and/or EFTA State shall be deemed to constitute an indication of YES for that Member State and/or EFTA State.


Belgium: YES NO
Bulgaria: YES NO
Czech Republic: YES NO
Denmark: YES NO
Germany: YES NO
Estonia: YES NO
Ireland: YES NO
Greece: YES NO
Spain: YES NO
France: YES NO
Italy: YES NO
Cyprus: YES NO
Latvia: YES NO
Lithuania: YES NO
Luxembourg: YES NO
Hungary: YES NO
Malta: YES NO
Netherlands: YES NO
Austria: YES NO
Poland: YES NO
Portugal: YES NO
Romania: YES NO
Slovenia: YES NO
Slovakia: YES NO
Finland: YES NO
Sweden: YES NO
United Kingdom: YES NO
Iceland: YES NO
Norway: YES NO
Liechtenstein: YES NO
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((q)) In Section 6, subsection 6.3.2 is replaced by the following:
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6.3.2. For each Member State and/or EFTA State, provide sufficient financial or other data to show that the concentration meets or does not meet the relevant jurisdictional criteria under the applicable national law.
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((r)) In Section 6, the following subsection 6.3.3 is added:
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6.3.3. Explain why the case should be examined by the Commission. Explain in particular whether the concentration might affect competition beyond the territory of one Member State and/or EFTA State.
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((s)) In Section 6, subsection 6.3.4 is deleted.
4.. The following Annex IV is added:

ANNEX IV  Form RM relating to the information concerning commitments submitted pursuant to Article 6(2) and Article 8(2) of Regulation (EC) No 139/2004 
This form specifies the information and documents to be submitted by the undertakings concerned at the same time as offering commitments pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004. The information requested is necessary to allow the Commission to examine whether the commitments are capable of rendering the concentration compatible with the common market in that they will prevent a significant impediment to effective competition. The Commission may dispense with the obligation to provide any particular information in respect of the commitments offered, including documents, or with any other requirement laid down in this form where it considers that compliance with those obligations or requirements is not necessary for the examination of the commitments offered. The level of information required will vary according to 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. The Commission is available to discuss the scope of the information required with the parties upfront. If you consider that any particular information requested by this Form may not be necessary for the Commission's assessment, you may approach the Commission asking to dispense with certain requirements, giving adequate reasons why that information is not relevant.
 SECTION 1  1.1. Provide detailed information on

((i)) the object of the commitments offered, and
((ii)) the conditions for their implementation.
 1.2. Where the commitments offered consist in the divestiture of a business, Section 5 provides for the specific information required.
 SECTION 2  2. Provide information showing the suitability of the commitments offered to remove the significant impediment of effective competition identified by the Commission.
 SECTION 3  3. Identify any deviations of the commitments offered from the pertinent Model Commitments texts published by the Commission's services, as revised from time-to-time, and explain the reasons for the deviations.
 SECTION 4  4. Provide a non-confidential summary of the nature and scope of the commitments offered and why, in your view, they are suitable to remove any significant impediment to effective competition. The Commission may use this summary for the market test of the commitments offered with third parties.
 SECTION 5  5. Where the commitments offered consist in the divestiture of a business, provide the following information and documents.

The following information should be provided as to the current operation of the business to be divested and changes already planned for the future:
 5.1. Describe the business to be divested generally, including the entities belonging to it, their registered place of business and place of management, other locations for production or provisions of services, the general organisational structure and any other relevant information relating to the administrative structure of the business to be divested.
 5.2. 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.
 5.3. 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 these products or services, and any innovations or new products or services planned.
 5.4. Describe the level on which the essential functions of the business to be divested are operated if they are not operated on the level of the business to be divested itself, including such functions as research and development, production, marketing and sales, logistics, relations with customers, relations with suppliers, IT systems, etc. The description should contain the role performed by those other levels, the relations with the business to be divested and the resources (personnel, assets, financial resources, etc.) involved in the function.
 5.5. Describe in detail the links between the business to be divested and other undertakings controlled by the notifying parties (irrespective of the direction of the link), such as:

— supply, production, distribution, service or other contracts,
— shared tangible or intangible assets,
— shared or seconded personnel,
— shared IT systems or other systems, and
— shared customers.
 5.6. Describe in general terms all relevant tangible and intangible assets used and/or owned by the business to be divested, including, in any case, IP rights and brands.
 5.7. 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.
 5.8. 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).
 5.9. Provide financial data for the business to be divested, including the turnover and the EBITDA achieved in the last two years, and the forecast for the next two years.
 5.10. 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 notifying parties.
 5.11. 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 notifying parties.
 5.12. Describe any areas where the business to be divested as set out in the commitments offered differs from the nature and scope of the business as currently operated.
 5.13. Explain the reasons why, in your view, the business will be acquired by a suitable purchaser in the time-frame proposed in the commitments offered.

