Annexes to COM(2009)281 - Report on the functioning of Regulation No 139/2004

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dossier COM(2009)281 - Report on the functioning of Regulation No 139/2004.
document COM(2009)281 EN
date June 18, 2009
agreement, the Commission, when it considers that the concentration may significantly affect competition in a market within a Member State which presents all the characteristics of a distinct market, may decide to refer the whole or part of the case to the competent authorities of that Member State with a view to the application of that State's national competition law. Under Article 4(5) concentrations which do not have a Community dimension and which are capable of being reviewed under the national competition laws of at least three Member States can be referred to the Commission unless any Member State competent to examine the concentration under its national competition law expresses its disagreement.

[8] For a referral to the Commission to be available under Article 22 the concentration must: (i) affect trade between Member States; and (ii) it must threaten to significantly affect competition within the territory of the Member State(s) making the request.

[9] Under Article 9, a Member State may request that a case be referred to it in either of the following circumstances: (i) the concentration must "threaten to affect significantly competition in a market" and the market in question must be within the requesting Member State and present all the characteristics of a distinct market, or (ii) the concentration must affect competition in a market and the market in question must be within the requesting Member State and present all the characteristics of a distinct market and does not constitute a substantial part of the common market.

[10] At least 240 cases were reviewable in two or more Member States in 2007.

[11] Reference period between 2001 and 2008.

[12] For the same reference period, more than 26,000 cases where reported at a Member State level.

[13] Furthermore, it must be recalled that the Member States' refusal powers under article 4(5) have been rarely used. Many stakeholders therefore consider, having regard to the experience they acquired over the past years, that one should re-examine the possibilities of shifting to a system of automatic notification under the EC Merger Regulation when the three Member State criterion is met (or other intermediary solutions) as was initially proposed in the process leading up to the current system. This would in their view significantly increase transparency while lowering the cost and time for the review.