INTRODUCTION
A. The purpose of the Form RS
(1) This Form RS specifies the information that must be provided when making a reasoned submission for a pre-notification referral under Article 4(4) or (5) of Regulation (EC) No 139/2004 (65) (“Merger Regulation”). The merger control system of the European Union is laid down in the Merger Regulation 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”) (66) to which this Form RS is annexed. Your attention is drawn to the corresponding provisions of the Agreement on the European Economic Area (67) (‘EEA Agreement’).
B. Contacts prior to submission of the Form RS and waiver requests
(2) The information requested in this Form RS must in principle be provided in all cases and is therefore a requirement for a complete pre-notification referral request.
1. Information that is not reasonably available
(3) In exceptional circumstances, specific elements required by this Form RS may not be reasonably available to the submitting parties in part or in whole (e.g., because information on a target company is not available in case of a contested bid). 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 RS related to this information. This request should be submitted in accordance with the instructions set out in point B.3.
2. Information that is not necessary for the Commission’s examination of the case
(4) Pursuant to Articles 4(2) and 6(2) of the Implementing Regulation, the Commission may dispense with the obligation to provide any particular information in the Form RS, 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 RS related to this information. This request should be submitted in accordance with the instructions set out in point B.3.
3. Prior contacts and waiver requests
(5) Parties that are entitled to submit a Form RS are invited to engage in contacts with the Commission prior to the submission. Parties should engage in such contacts on the basis of a draft Form RS. The possibility to engage in prior contacts is a service offered by the Commission to submitting parties on a voluntary basis in order to prepare the formal submission of this Form RS. As such, while not mandatory, prior contacts are extremely valuable to both the submitting parties and the Commission in determining, among other things, the precise amount of information required in a Form RS and, in the majority of cases, will result in a significant reduction of the information required.
(6) In the course of prior contacts, submitting parties may make requests for waivers. The Commission will consider waiver requests provided one of the following conditions is fulfilled:
the submitting parties give adequate reasons why the relevant information is not reasonably available and provide best estimates for the missing data, identifying the sources for those estimates. Where possible, the submitting 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);
the submitting parties give adequate reasons why the relevant information is not necessary for the examination of the Form RS.
(7) Waiver requests should be submitted at the same time as the draft Form RS. Waiver requests should be made in the text of the draft Form RS itself (at the beginning of the relevant section or sub-section). The Commission will deal with waiver requests in the context of the review of the draft Form RS. The Commission will normally require five working days before responding to a waiver request. Where a waiver request is submitted with the justification that information is not necessary for the examination of the Form RS, the Commission may consult with the relevant Member State(s) or EFTA State authority(-ies) before deciding to accept the request.
(8) For the avoidance of doubt, the fact that the Commission may have accepted that any particular information requested by this Form RS is not necessary for the examination of the pre-notification referral request 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.
(9) The submitting parties may refer to the ‘Best Practices on the conduct of EC merger control proceedings’ of the Commission’s Directorate-General for Competition (‘DG Competition’) as published on DG Competition’s website and updated from time to time, which provide guidance on pre-notification contacts and the preparation of pre-notification referral requests.
C. The requirement for correct and complete reasoned submission
(10) The information requested in this Form RS must in principle be provided in all cases and is therefore a requirement for a complete pre-notification referral request. All information must be supplied in the appropriate section of this Form RS and it must be correct and complete.
(11) In particular you should note that:
in accordance with Article 4(4) and (5) of the Merger Regulation and Article 5(2) and (4), and Article 6(2) of the Implementing Regulation, the time-limits laid down in the Merger Regulation with regard to the Form RS will not start until all the information that has to be supplied with the submission has been received by the Commission. This is to ensure that the Commission is able to assess the pre-notification referral request within the strict time-limits laid down in the Merger Regulation.
in accordance with Article 4(4) of the Merger Regulation, the decision whether or not to refer a case in whole or in part to a Member State or an EFTA State will normally be taken on the basis of the information contained in the Form RS, without further investigation efforts being undertaken by the Commission. In accordance with Article 4(5) of the Merger Regulation, the position of a Member State or an EFTA State regarding the referral of a case to the Commission will normally be taken on the basis of the information contained in the Form RS, without further investigation efforts being undertaken by the authorities involved;
the submitting parties must therefore verify, in the course of preparing their reasoned submission, that all information and arguments relied upon are sufficiently supported by independent sources;
in accordance with Articles 5(4) and 6(2) of the Implementing Regulation, incorrect or misleading information in the reasoned submission will be considered to be incomplete information;
under Article 14(1), point (a), of the Merger Regulation, parties making a reasoned 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 (68).
D. How to make a reasoned submission
(12) The reasoned submission must be completed in one of the official languages of the Union. This language will thereafter be the language of the proceedings for all submitting parties.
(13) In order to facilitate the treatment of the Form RS by Member State authorities and EFTA State authorities, submitting 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 submitting 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.
(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:
‘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.
‘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).
‘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.
‘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)
‘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.
‘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)
‘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.
‘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:
the name of the undertaking;
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;
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:
the name, address, telephone number and e-mail address of, and position held by, each representative; and
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):
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;
explain whether the proposed concentration is one of the following:
a full merger;
an acquisition of sole or joint control;
a contract or other means of conferring direct or indirect control within the meaning of Article 3(2) of the Merger Regulation;
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);
explain how the concentration will be implemented (for example by the conclusion of an agreement, by the launch of a public bid, etc.);
by reference to Article 4(1) of the Merger Regulation explain whether whether at the time of notification, any of the following has occurred:
an agreement has been concluded;
a controlling interest has been acquired;
a public bid or the intention to launch a public bid has been announced;
the undertakings concerned have demonstrated a good faith intention to conclude an agreement;
indicate the expected date of any major events designed to bring about the completion of the concentration;
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):
worldwide turnover;
–EU-wide turnover;
EEA-wide turnover (EU and EFTA);
turnover in each Member State (indicate the Member State, if any, in which more than two-thirds of EU-wide turnover is achieved);
EFTA-wide turnover;
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:
Summary of Affected Markets Horizontal Overlaps | ||
Product market definition | Geographic market definition | Combined market share [Identify year] [Identify metric] |
Summary of Affected Markets Vertical Relationships | |||||
Upstream | Downstream | ||||
Product market definition | Geographic market definition | Combined market share [Identify year] [Identify metric] | Product market definition | Geographic market definition | Combined market share [Identify year] [Identify metric] |
SECTION 4
INFORMATION ON AFFECTED MARKETS
With regard to each affected market, you should provide all the following information for the last year:
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;
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;
for each of the parties to the concentration, the sales in value and volume, as well as an estimate of the market shares;
an estimate of the market share in value (and where appropriate volume) of the three largest competitors (indicating the basis for the estimates);
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:
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);
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;
if the proposed concentration does not give rise to affected markets within the meaning of this Form RS, please explain (84):
in which market(s) the concentration could significantly affect competition within a Member State and how;
why each of the markets identified in response to the question set out in point (a) presents all the characteristics of a distinct market.
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:
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);
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;
explain why the case should be examined by the Commission if (85):
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;
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:
[Submitting party 1] Name: Organisation: Position: Address: Phone number: Email: [‘e-signed’ / signature] | [Submitting party 2 if applicable] Name: Organisation: Position: Address: Phone number: Email: [‘e-signed’ / signature]’ |