COMMISSION DECISION No 3654/91/ECSC of 13 December 1991 amending Decision No 25-67 laying down in implementation of Article 66 (3) of the Treaty a Regulation concerning exemption from prior authorization

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 66 (3) thereof,

With the assent of the Council,

Whereas, by Decision No 25-67 (1) as amended by Decision No 2495/78/ECSC (2), the High Authority, acting pursuant to Article 66 (3), exempted from the requirement of prior authorization certain classes of transaction which, by reason of the size of the assets or undertakings concerned and of the nature of the resulting concentration, satisfied the tests of Article 66 (2);

Whereas experience has shown that Decision No 25-67 should be adapted to take account of the changes which have meanwhile occurred in the volume of production, in economic structure and in market and competitive conditions, particularly as regards quantitative limits;

Whereas changes in the structure of the coal and steel distribution business in the Community warrant higher limits for concentrations between distributors;

Whereas, owing to changes in the market for scrap as a raw material, the limits on sales should be raised;

Whereas the prohibition on exemption from the requirement of prior authorization as provided for in Article 7 of Decision No 25-67 is no longer consonant with the needs of the industry; whereas the acquisition of a 50 % shareholding or the formation of a joint venture may involve undertakings of modest size;

Whereas concentrations effected by establishing group control, whether involving the joint formation of a new undertaking or the establishment of joint control of an existing undertaking, can present particular problems since these concentrations may also have as their object or effect the coordination of the competitive behaviour of the undertakings concerned;

Whereas the joint formation of a new undertaking or the establishment of joint control of an existing undertaking should be exempted from the requirement of prior authorization if the transaction has no appreciable effect on competition,

HAS ADOPTED THIS REGULATION:

Article 1

Decision No 25-67 is hereby amended as follows:

1. In Article 1, point 1, (i), (j) and (k) are replaced by the following:

'(i) crude steel (ordinary steel: ingots, semi-finished products and liquid steel) 6 000 000 tonnes; (j) alloy and non-alloy special steels (ingots, semi-finished products and liquid steel) 1 000 000 tonnes; (k) finished rolled steel products including end products 6 000 000 tonnes.'

2. Article 3 (1) is replaced by the following:

'1. Transactions referred to in Article 66 (1) shall be exempted from the rquirement of prior authorization whre they have the direct of indirect effect of bringing about a concentration between:

(a) undertakings engaged in steel production; and

(b) undertakings not falling within the scope of Article 80, if:

- the annual production of undertakings referred to in (a) does not exceed 20 % of the tonnages set out for the groups of products referred to in Article 1 (1) (g) to (k), or

- the annual consumption of the products in question by the new group as a whole does not exceed 50 % of its production of such products, or

- the undertakings referred to in (b) use no more than 50 000 tonnes of ordinary steel or 5 000 tonnes of special steels, and the resulting expansion in outlets by the undertakings referred to in (a) is no more than 100 000 tonnes of ordinary steel or 10 000 tonnes of special steels in any three-year period.'

3. Article 4 (1) (a) and (b) is replaced by the following:

'(a) either the total volume of business dealt with annually by distribution undertakings involved in the concentration does not exceed 5 000 000 tonnes of coal; or

(b) the increase in the annual volume of business brought about by the concentration does not exceed 200 000 tonnes of coal. However, transactions of this type which are repeated or involve several distribution undertakings at the same time shall be exempted from the equirement of authorization only if the consequent total increase in the volume of business does not exceed 600 000 tonnes.'

4. Article 5 (1) and (2) are replaced by the following:

'1. Transacvtions referred to in Article 66 (1) shall be exempted from the requirement of prior authorization where they have the director or indirect effect of bringing about a concentration between undertakings engaged in steel distribution, other than sales to domestic consumers or to small craft industries (hereinafter called "distribution undertakings"), if:

(a) either the total annual turnover of steel - not including scrap - achieved by the distribution undertakings involved in the concentration does not exceed ECU 500 million; or

(b) the annual turnover of steel - not including scrap - achieved by the distribution undertaking which represents one of the parties to a concentration involving only two parties does not exceed ECU 100 million. However, transactions of this type which are repeated shall be exempted from the requirement of prior authorization only if the consequent total increase in turnover does not exceed ECU 200 million in any three-year period.

2. Transactions referred to in Article 66 (1) shall be exempted from the requirement of prior authorization where they have the direct or indirect effect of bringing about a concentration between undertakings engaged in scrap distribution, if:

(a) either the total annual volume of business of the distribution undertakings involved in the concentration does not exceed 1 500 000 tonnes of scrap; or

(b) the annual volume of business of the distribution undertaking which represents one of the parties to a concentration involving only two parties does not exceed 500 000 tonnes of scrap. However, transactions of this type which are repeated shall be exempted from the requirement of prior authorization only if the consequent total increase in the volume of business does not exceed 1 000 000 tonnes of scrap in any three-year period.'

5. Article 7 is replaced by the following:

'Article 7

1. Article 6 shall not apply to transactions referred to in Article 66 (1) where a concentration results from the joint formation of a new undertaking or the establishment of joint control of an existing undertaking and where the transaction has the effect of bringing about a concentration between:

(a) on the one hand, a number of undertakings of which at least one falls within the scope of Article 80 and which are not concentrated among themselves but which, in fact or in law, exercise joint control (group control) over the undertaking or undertakings at (b); and

(b) on the other hand, one or more undertakings which produce, distribute or process coal or steel as a raw material.

2. Articles 1 to 5 shall not apply to transactions referred to in paragraph 1 where the production, consumption, volume of business or turnover, expressed in terms of tonnes or in terms of ecus respectively, of the undertakings involved in the concentration exceeds 50 % of the levels fixed in whichever of Articles 1 to 5 would be applicable to the transaction.

3. This Article shall be without prejudice to the possible application of Article 65 to the formation of joint ventures on a cooperative basis and to restrictions which are not directly related and necessary to the implementation of the concentration.'

Article 2

This Decision shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Decision shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 13 December 1991. For the Commission

Leon BRITTAN

Vice-President

(1) OJ No 154, 14. 7. 1967, p. 11. (2) OJ No L 300, 27. 10. 1978, p. 21.