prop · GF03170 · 1991-12-31 00:00:00 — 2Without prejudicefo Arficle 9 of Protocol 23 fo fhe EEA Agreement, informafion acquired as aresulf of fhe applicafion of Arficles 17 and 18 of this Chapter or Arficle 58of fhe EEA Agreement and Protocol 23 thereto shall be used only for the purposeof the relevant request or investigafion. 3Withoutprejudice to fhe provisions of Artides 23 and 25, fhe EFTA SurveillanceAuthority and the competent authorifies of fhe EFTA Stafes, fheir officials andother servants shall not disclose information acquired by them as a resulf offhe applicafion of this Protocol or Arficle 58 of fhe EEA Agreement andProtocol 23 thereto and of fhe kind covered by the obligation of professionalsecrecy. This obligafion shall also apply fo fhe representatives of fhe ECCommission and of fhe EC Member States who parficipate in fhe AdvisotyCommittee pursuant to Arficle 15(4) and in fhe hearing pursuant fo Arfide 12(2)of Chapfer X. 4The provisionsof paragraphs 1 and 2 shall nof prevent publicafion of general informafion orsurveys which do nof confain informafion relafing fo parficular undertakingsor associations of undertakings. 6The EFTASurveillance Authorify shall publish fhe decisions which if takes pursuant toArtides 11, 12(3), second paragraph, 12(4) and 13(3). 7The publicafionshall sfate the names of the parfies and fhe main content of the decision; ifshall have regard to the legifimate interest of undertakings in fhe protectionof fheir business secrets. Article 26 Special provisions The EFTA Surveillance Authority may submit fo theGovernments of fhe EFTA States, in accordance wifh the provisions of Article 49of fhis Agreement, proposals for forms fo be used for complaints pursuant toArficle 10 and applications pursuant to Article 12, as well as proposals forcomplementaty notes to the forms. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 CHAPTER X THEOBLIGATION OF COMMUNICATION, THE FORM, CONTENT AND OTHER DETAILS OF COMPLAINTSAND OF APPLICATIONS, AND THE HEARINGS PROVIDED FOR IN CHLPTER IX NOTIFICATIONS, COMPLAINTS AND APPLICATIONS 4Awards afarbifration and recommendations by condliators accepted by the parfies shall benotified fo the EFTA Surveillance Authority when they concern the seftlemenf ofdispufes relafing to fhe practices of conferences referred to in Artides 4 and5(2) and (3) of the act referred to in point 11 of fo fhe EEAAgreement (Regulafion (EEC) No 4056/86). 5The obligafionof notification applies fo any party to fhe dispufe resolved by fhe award orrecommendation. 6Notificationsshall be submifted forthwith by registered letter wifh an acknowledgement ofreceipt or shall be delivered by hand against receipt. They shall be written inan official language of an or Community. Supporting documents shall beeifher originals or copies. Copies must be certified as true copies of theoriginal. They shall be submifted in their original language. Where theoriginal language is nof an official language of an or fhe EuropeanCommunity, a franslafion in one of these languages shall be aftached. 4.When representatives of undertakings, of associations of undertakings, Prop. 1991/92:170 or of natural or legal persons sign such notifications, they shall producewrit- Bilaga 16 fen proof that they are authorized fo acf. Agreement Artide 2 Protocol 4 2Complaints pursuant fo Arficle 10 ofChapter IX shall be submifted in writing in an officiallanguage of an or fhe European Community, fheir form, confent andother details being leff fo fhe discrefion of com-plainanfs. 3Complaints may be submifted by: 3natural or legal persons who claim alegifimate interest. Whenrepresentatives of undertakings, of associations of undertakings, or of natural or legal persons sign such complaints, they shall produce written proof that they are authorized fo acf. Personsentifled fo submit applications 2Any undertaking which is party foagreements, decisions or practices of fhe kind described in Arficle 53(1) offhe EEA Agreement may submit an applicafion under Arficle 12 of Chapfer IX. Where the application is submifted by some but nof all of fheundertakings concerned, they shall give notice fo fhe others. 3Where applications under Arficle 12 ofChapter IX are signed by representatives of undertakings, ofassociations of undertakings, or of natural or legal persons, suchrepresentatives shall produce written proof fhaf they are authorized to act. 4Where a joinf applicafion issubmifted, a joinf representative shall be appointed. 4AppHcations pursuant to Article 12 ofChapter IX shall be submitted on forms issued for this purposeby the Governments of fhe EFTA Stafes, by common accord, as shown in Appendbc6, or by the EC Commission. 5Several parfidpafing undertakings maysubmit an application on a singie form. 6Applications shall confain fheinformafion requested in the form. 7Nine copies of each applicafion and offhe supporting documents shall be submifted fo fhe EFTA Surveillance Authorify. 4The supporting documents shall beeither originals or copies. Copies must be certified as true copies of fheoriginal. 5Applications shall be in an officiallanguage of an EFTA Sfate or fhe European Community. Supporting documentsshall be submifted in their original language. Where fhe original language isnof an official language of an or fhe European Community, atranslation in one of these languages shall be aftached. 6The dafe of submission of anapplicafion shall be fhe date on which if is received by fhe EFTA SurveillanceAuthority, without prejudice fo Arficle 11 of Protocol 23 fo fhe EEA Agreement.Where, however, fhe applicafion is sent by registered post, if shall be deemedfo have been received on the dafe shown on the postmark of the place ofposting. 7Where an applicafion submiftedpursuant to Arfide 12 of Chapfer IX falls outside fhe scope offhaf Chapfer, the EFTA Surveillance Authority shall without delay inform fheapplicant that if intends fo examine fhe applicafion under fhe provisions ofsuch other acf referred fo in Arficle 3 of Protocol 21 and fo the EEAAgreement as is applicable fo the case; however, fhe date of submission of theapplicafion shall be fhe dafe resulting from paragraph 7. The EFTA SurveillanceAuthorify shall inform fhe applicant of its reasons and fix a period for himfo submit any comments in writing before if conducts ifs appraisal pursuant tofhe provisions of fhaf other acf. Beforeconsulfing in Transport, fheEFTA Surveillance Authority shall hold a hearing pursuant fo Artide 23(1) ofChapter IX. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 5The EFTA Surveillance Authority shallinform undertakings and associations of undertakings in writing of theobjections raised against them. The communication shall be addressed fo each ofthem or to a joinf agent appointed by them. 6The EFTA Surveillance Authority mayinform fhe parfies by giving nofice in the EEA Section of fhe Official Journalof fhe European Communifies, if from fhe circumstances of fhe case fhis appearsappropriate, in particular where notice is fo be given to a number ofundertakings but no joinf agent has been appointed. The notice shall haveregard to the legifimate interest of the undertakings in the protection offheir business secrets. 7A fine or a periodic penaity paymentmay be imposed on an undertaking or association of undertakings only if fheobjections were notified in fhe provided for in paragraph 1. 4.The EFTA Surveillance Authority shall, when giving nofice of objections, fix aperiod within which the undertakings and associations of undertakings mayinform the EFTA Surveillance Authority of their views. 3Undertakings and associations ofundertakings shall, within fhe appointed period, make known in writing fheirviews conceming fhe objections raised against them. 4They may in their written comments setouf all matters relevant to their defence. 5They may atfach any relevant documentsin proof of the facts set out. They may also propose that the EFTA SurveillanceAuthority hear persons who may corroborafe those facts. TheEFTA Surveillance Authority shall in ifs decision deal only wifh thoseobjections raised against undertakings and associations of undertakings inrespect of which they have been afforded fhe opporfunify of making known fheirviews. Ifnatural or legal persons showing a sufficient interest apply to be heard pursuantfo Article 23(2) of Chapfer IXfhe EFTA Surveillance Authorify shallafford them fhe opporfunify of making known fheir views in writing within suchperiod as if shall fix. Wherefhe EFTA Surveillance Authority, having received a complaint pursuant toArricle 10 of Chapter IX, considers that on the basis of the informafion inifs possession there are insufficienf grounds for acting on fhe complainf, itshall inform fhe persons who submifted fhe complainf of its reasons and fix aperiod for them fo submit any further comments in writing. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 3The EFTA Surveillance Authority shallafford to persons who have so requested in their written comments fheopportunity to put forward fheir arguments orally, if those persons show asufficient interest or if the EFTA Surveillance Authorify proposes fo impose onthem a fine or periodic penalfy payment. 4The EFTA Surveillance Authority maylikewise afford to any other person fhe opportunity of orally expressing hisviews. 2The EFTA Surveillance Authority shallsummon fhe persons fo be heard fo affend on such dafe as if shall appoint. 3It shall forthwith transmit a copy offhe summons to the competent authorities of the EFTA Stafes, who may appointan official to take parf in fhe hearing. Likewise, the EFTA SurveillanceAuthority shall invite the EC Commission fo be represented af the hearing. Theinvitafion shall also extend fo fhe EC Member Stafes. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 9Hearings shall be conducted by thepersons appointed by fhe EFTA Surveillance Authority for fhaf purpose. 10 Persons summoned fo affend shall eifher appear inperson or be represented by legal representatives or by representativesauthorized by their consfifution. Undertakings and associations of undertakingsmay moreover be represented by a duly authorized agent appointed from amongtheir permanent staff. Persons heard by fhe EFTA Surveillance Authorifymay be assisted by lawyers or advisers who are enfitled to plead before fheEFTA Courf, or by other qualified persons. 0Hearings shall nof be public. Personsshall be heard separafely or in the presence of other persons summoned foaffend. In fhe latter case, regard shall be had fo fhe legifimate interest ofthe undertakings in fhe protection of their business secrets. 1The essential content of fhestafements made by each person heard shall be recorded in minutes which shallbe read and approved by him. Without prejudicefo Arficle 6(2), information and summonses from the EFTA Surveillance Authorityshall be sent fo fhe addressees by registered letter with acknowledgement ofreceipt, or shall be delivered by and against receipt. 10 In fbdng fhe periods provided for in Arficles4(8),6, 9 and 10, the EFTA Surveillance Authority shall have regard both to the fimerequired for preparafion of comments and to the urgency of the case. A periodshall be not less than two weeks; if may be extended. 11 Periods shall run from fhe day following receipt ofa communication or delivety thereof by hand. 12 Written comments must reach the EFTA SurveillanceAuthority or be dispatched by registered letter before expity of fhe period.Where fhe period wouldexpire on a Sunday or a public holiday, it shall be extended up to the Prop.1991/92:170 endof fhe next following working day. For the purpose of calculating the Bilaga16 extension,public holidays shall, in cases where fhe relevant date is fhe dafe /Court ofreceipt of written comments, be those set ouf in Appendbc 2 fo fhis Profo- Agreement col,and in cases where fhe relevant dafe is fhe date of dispatch, those ap- Protocol4 poinfed by law in fhe countty of dispatch. TheEFTA Surveillance Authority may submit fo fhe Governments of fhe EFTA States,in accordance with the provisions of Arficle 49 of this Agreement, proposalsfor forms and complementaty notes. CHAPTER XI PROCEDURE FOR THE APPLICATION OF THE RULES ON COMPETITION TOUNDERTAKINGS IN THE AIR TRANSPORT SECTOR 0This Chapter lays down detailed rulesfor fhe applicafion of Arficles 53 and 54 of fhe EEA Agreement fo air transportservices. 1This Chapfer shall apply only foinfernational air transport between airports within the territoty covered byfhe EEA Agreement. Exceptionsfor certain technical agreements 41 The prohibition laid down in Arficle 53(1) of theEEA Agreement shall nof apply to fhe agreements, decisions and concertedpractices listed in Appendix 7 to fhis Protocol, in so far as their soleobject and effect is fo achieve technical improvements or cooperafion. Thislist is nof exhausfive. 42If necessaty, the EFTA SurveillanceAuthority may submit to the Governments of the EFTA Stafes, in accordance wifhfhe provisions of Arficle 49 of fhis Agreement, proposals for fhe amendment offhe lisf in Appendix 7. Procedureson complainf or on the EFTA Surveillance Authority's own initiative 1.Acting on receipt of a complainf or on its own initiative, fhe EFTA SurveillanceAuthority shall initiafe procedures to ferminate any infringement of theprovisions of Artides 53(1) or 54 of the EEA Agreement. Complaints may besubmifted by: 3natural or legal persons who claim alegifimate interest. 2.Upon applicafion by the undertakings or associations of undertakings concerned,the EFTA Surveillance Authority may certify that, on the basis of the facts inits possession, there are no grounds under Arficle 53(1) or Arficle 54 of fheEEA Agreement for action on ifs part in respect of an agreement, decision orconcerted practice. 1991/92:170 Bilaga16 /Court Agreement Protocol 4 Resultof procedures on complainf or on the EFTA Surveillance Aufhorify's owninitiative Wherethe EFTA Surveillance Authorify finds that there has been an in fringement of Arficles 53(1) or 54 of the EEA Agreement, it may by decision require the undertakings or associations of undertakings concerned to bring Such an infringement to an end. Without prejudice to the other provisions of fhisChapter, fhe EFTA Surveillance Authorify may address recommendations forterminafion of the infringement to fhe undertakings or associations ofundertakings concerned before taking a decision under the precedingsubparagraph. 2If fhe EFTA Surveillance Authorify,acting on a complainf received, concludes that, on the evidence before it,there are no grounds for intervention under Arficles 53(1) or 54 of fhe EEAAgreement in respect of any agreement, decision or concerted pracfice, ifshall take a decision rejecting fhe complainf as unfounded. 3If fhe EFTA Surveillance Authorify,whether acting on a complaint received or on ifs own initiative concludes thatan agreement, decision or concerted practice safisfies fhe provisions of bothArtide 53(1) and 53(3) of fhe EEA Agreement, if shall take a decision applyingparagraph 3 of the said Article. Such a decision shall indicate the date fromwhich it is to take effect. This dafe may be prior to fhaf of fhe decision. Interimmeasures against anfi-compefifive practices 2Without prejudice to the applicafionof Article 4(1), where the EFTA Surveillance Authorify has c\ear prima fadeevidence that certain practices are contrary fo Arficle 53 or 54 of fhe EEAAgreement and have fhe object or effect of directly jeopardizing the existenceof an air service, and where recourse to normal procedures may not besufficient to protect fhe air service or fhe airline company concerned, if mayby decision take interim measures fo ensure fhaf these practices are notimplemented or cease to be implemented and give such instmcfions as arenecessaty fo prevent the occurrence of these practices unril a decision underArticle 4(1) is taken. 3A decision taken pursuant to paragraph1 shall apply for a period not exceeding six months. Arficle 8(5) shall notapply. 16 1991/92. The EFTA Surveillance Authorify mayreview fhe initial decision, wifh or without modificafion, for a period notexceeding three months. In such case, Article 8(5) shall apply. Applicafion of Arficle 53(3) of fhe EEA Agreement -objections 2Undertakingsand associations of undertakings which wish fo seek applicafion of Arficle53(3) of fhe EEA Agreement in respect of agreements, decisions and concertedpractices falling within fhe provisions of paragraph 1 of fhe said Arficle fowhich they are parfies shall submit applications fo fhe EFTA SurveillanceAuthorify. 3If fhe EFTASurveillance Authority judges an applicafion admissible and is in possession ofall fhe available evidence and no acfion under Arficle 3 has been taken againstfhe agreement, decision or concerted practice in quesfion, then it shallpublish as soon as possible in fhe EEA Section of the Communifies a summary of fhe applicafion and invite all interestedthird parfies and fhe EFTA Sfates fo submit fheir comments to fhe EFTASurveillance Authorify within 30 days. Such publicafions shall have regard fofhe legifimate interest of undertakings in fhe protection of fheir businesssecrets. 4Unless the EFTASurveillance Authority notifies applicanfs, within 90 days of the dafe of suchpublicafion in fhe EEA Section of fhe , fhaf there are serious doubfs as fo the applicability of Article53(3) of fhe EEA Agreement, fhe agreement, decision or concerted pracficeshall be deemed exempf, in so far as if conforms with the descripfion given inthe application, from the prohibition for the fime already elapsed and for amaximum of six years from the dafe of publicafion in the EEA Section of fheOfficial . If fhe EFTA Surveillance Authorityfinds, affer expiry of fhe 90-day time-limif, but before expity of fhe six-yearperiod, that the conditions for applying Arficle 53(3) of fhe EEA Agreementare nof satisfied, it shall issue a decision dedaring fhaf fhe prohibition inArficle 53(1) applies. Such decision may be refroactive where fhe parfiesconcerned have given inaccurate information or where they abuse an exempfionfrom the provisions of Article 53(1) or have confravened Arficle 54. The EFTA Surveillance Authority may notify applicanfsas referred to in fhe firsf subparagraph of paragraph 3; if shall do so if requested by an within 45 days of fhe forwarding fo fhe of fhe application in accordance wifh Arficle 8(2). This request must be justified on fhe basis of considerafions relating fo fhe competition rules of the EEA Agreement. If if finds fhaf the conditions ofArficle 53(1) and (3) of fhe EEA Agreement are satisfied, fhe EFTASurveillance Authorify shall issue a decision applying Article53(3). Thedecision shall indicate fhe date from which it is fo take effect. This dafe maybe prior to that of fhe applicafion. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 Durationand revocation of decisions applying Article 53(3) of the EEA Agreement 62 decision applying Article 53(3) of fhe EEAAgreement adopted under Artides 4 or 5 of fhis Chapfer shall indicate theperiod for which it is to be valid; normally such period shall nof be less fhansix years. Conditions and obligafions may be aftached fo fhe decision. 63 The decision may be renewed if fhe conditions forapplying Arficle 53(3) of fhe EEA Agreement continue to be satisfied. 64 The EFTA Surveillance Authorify may revoke or amendifs decision or prohibif specific acts by fhe parfies: 2where there has been a change in anyof the facts which were basic fo the making of fhe decision; or 3where fhe parties commif a breach ofany obligation aftached fo fhe decision; or 4where fhe decision is based onincorrect informafion or was induced by deceif; or (d) where the parfies abuse fhe exemption from fheprovisions of Article 53(1) of fhe EEA Agreement granted to them by fhe de cision. Incases falling under subparagraphs (b), (c) or (d), fhe decision may be revokedwifh refroactive effect. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 Subjectfo review of its decision by fhe EFTA Courf, in accordance wifh Article 108(2)of the EEA Agreement and with the relevant provisions of this Agreement, theEFTA Surveillance Authority shall have sole power to issue decisions pursuantfo Arficle 53(3) of the EEA Agreement, on the condifions set ouf in Arficle 56of fhe EEA Agreement. Theauthorifies of the EFTA Stafes shall refain the power fo decide whether anycase falls under the provisions of Artides 53(1) or 54 of fhe EEA Agreement,until such fime as fhe EFTA Surveillance Authority has initiated a procedurewifh a view to formulating a decision on fhe case in quesfion or has sentnotificafion as provided by the first subparagraph of Arficle 5(3) of fhisChapfer. Liaisonwith the authorifies of the EFTA States 1.The EFTA Surveillance Authority shall carty ouf fhe procedures provided for inthis Chapter in close and liaison with fhe competent authorifies ofthe EFTA States; these authorifies shall have the right fo express fheir viewson such procedures. The EFTA Surveillance Authorify shall immediatelyforward fo fhe com petent authorifies of fhe EFTA States copies of fhe complaints and applica tions and of fhe most important documents sent fo it or which if sends ouf in the course of such procedures. The EFTA Surveillance Authorifyshall forthwith transmit fo fhe competent authorifies of the EFTA Sfates acopy of notifications, complaints and informafion on opening of ex officioprocedures received from fhe EC Commission pursuant fo Arficles 2 and 10 ofProtocol 23 fo fhe EEA Agreement. The EFTA Surveillance Authorifyshall forthwith transmit fo fhe competent authorities of the EFTA Stafes acopy of documents received from fhe EC Commission pursuant fo Article 7 ofProtocol 23 fo the EEA Agreement. 2An AdvisotyCommittee on Competition in shall be consulted prior to fhetaking of any decision following upon a procedure under ArficleSorof anydecision under fhe second subparagraph of Arficle 5(3), or under fhe secondsubparagraph of paragraph 4 of the same Article or under Article 6. shall also be consulted prior fo a proposal referred to inArticle 19. 3The AdvisoryCommittee shall be composed of officials competent in fhe sphere of airtransport and agreements and dominant positions. Each EFTA Sfate shall nominatetwo officials fo represent it, each of whom may be replaced, in fhe event ofhis being prcvenfed from affending, by another official. The EC Commission and fhe EC MemberStafes shall be enfitled to be present in and fo expresstheir views therein. However, their representatives shall nof have fhe rightfo vote. Consultation shall take place at a joint meetingconvened by fhe EFTA Surveillance Authority; such a meefing shall be held not earlier fhan 14 days affer dispatch of fhe notice convening it. In respect of each case fo be exam ined, this nofice shall be accompanied by a summaty of fhe case, together wifh an indication of fhe most important documents, and a preliminary draff dedsion. In view of fhe partieipationprovided for in the second subparagraph of paragraph 4, the EC Commission shallreceive an invifation fo fhe meefing and the relevant information as providedfor in Article 6 of Protocol 23 fo the EEA Agreement. may deliver an opinionnotwithsfanding fhaf some of its members or fheir alfernafes are nof present. A report of fhe out come of the consultative proceedings shall be annexed to the draff decision. If shall not be made public. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 In carrying ouf fhe dufies assigned fo if by Arficles55and 58 of fhe EEA Agreement, by provisions set ouf in Protocol 23 and in AnnexXIV fo fhe EEA Agreement or by provisions of fhis Chapter, fhe EFTASurveillance Authority may obfain all necessaty information from thegovernments and competent authorifies of the EFTA States and from undertakingsand associations of undertakings.