prop · GF03170 · 1991-12-31 00:00:00 — 2When sending arequest for informafion fo an undertaking or association of undertakings, theEFTA Surveillance Authority shall forward a copy of the request at the samefime fo fhe competent authority of fhe in whose territoty fhe headoffice of fhe undertaking or association of undertakings is situated. 3In its request,the EFTA Surveillance Authority shall state the legal basis and purpose of therequest and also fhe penalfies for supplying incorrect information providedfor in Arficle 12(l)(b). 4The owners offhe undertakings or fheir representatives and, in fhe case of legal persons orof companies, firms or associations having no legal per-sonality, fhe personauthorized to represent them by law or by fheir rules shall be bound to supplyfhe informafion requested. 5When anundertaking or association of undertakings does not supply fhe informafionrequested within fhe time-limit fixed by fhe EFTA Surveillance Authority, orsupplies incomplete informafion, fhe EFTA Surveillance Authorify shall bydecision require the information to be supplied. The decision shall specifywhat informafion is required, fix an appropriate time-limif within which if isfo be supplied and indicate fhe penalfies provided for in Article 12(l)(b) andArficle 13(l)(c), as well as fhe right fo have fhe decision reviewed by the EFTACourf in accordance wifh Article 108(2) of fhe EEA Agreement and with therelevant provisions of fhis Agreement, in particular Article 35. 6Af fhe samefime fhe EFTA Surveillance Authority shall send a copy of its decision fo fhecompetent authority of fhe in whose territoty the head office of theundertaking or association of undertakings is situated. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 Investigations by fhe authorities of fhe EFTA Sfates 39Af fhe requestof fhe EFTA Surveillance Authority, fhe competent authorifies of the EFTASfates shall undertake fhe investigations which fhe EFTA Surveillance Authorityconsiders fo be necessary under Arficle 11(1) or which if has ordered bydecision adopted pursuant fo Arficle 11(3). The officials of fhe competentauthorifies of fhe EFTA Sfates responsible for conducting these investigationsshall exercise fheir powers upon producfion of an authorizafion in writing issuedby fhe competent authorify of fhe in whose territoty fheinvestigafion is fo be made. Such an authorizafion shall specify the subjectmatter and purpose of fhe investigafion. 40If so requestedby the EFTA Surveillance Authority or by fhe competent authority of fhe EFTASfate in whose territoty the investigation is to be made,EFTA Surveillance Authority officials may assist the officials of fhe competentauthority in carrying ouf fheir dufies. Fnvesfigafingpowers of the EFTA Surveillance Authority Incartying out the duties assigned to if by Arficles 55 and 58 of fhe EEA Agreement, by provisions set out in Protocol 23 and in to the EEA Agreement or by provisions of fhis Chapfer, fhe EFTA Surveillance Authority may undertake all necessaty investigations into undertakings and associations of undertakings. To fhis end the officials authorized by fhe EFTA Surveillance Authority shall be empowered: 2to examine fhe books and otherbusiness records; 3to take copies of, or extracfs from,the books and business records; 4to ask for oral explanafions on fhespof; (d) to enter any premises, land and vehicles usedby undertakings or as sociations of undertakings. 2The authorized officials of the EFTASurveillance Authority shall exercise their powers upon producfion of anauthorizafion in writing specifying the subject matfer and purpose of fheinvestigafion and fhe penalfies provided for in Arficle 12(l)(c) in caseswhere producfion of fhe required books or other business records is incomplete.In good fime, before the investigafion, fhe EFTA Surveillance Authority shallinform fhe competent authority of fhe , in whose territoty the sameis to be made, of fhe investigafion and the idenfity of fhe authorizedofficials. The EFTA Surveillance Authority shall also provide such anauthorizafion fo representatives of fhe EC Commission who shall take part inthe investigation in accordance wifh Arficle 8(4) of Protocol 23 fo fhe EEAAgreement. 3Undertakings and associations ofundertakings shall submit to investigations ordered by decision of fhe EFTASurveillance Authority. The decision shall specify the subject maffer andpurpose of fhe investigafion, appoint the date on which if is fo begin andindicate fhe penalfies provided for in Artides 12(l)(c) and 13(l)(d) and fhe rightfo have fhe decision reviewed by the EFTA Court. 4The EFTA Surveillance Authorify shalltake fhe decisions mentioned in paragraph 3 after consultation wifh fhecompetent authorify of the in whose territoty the investigafion isfo be made. 5Officials of the competent authorityof fhe EFTA Sfate in whose territoty the investigafion is fo be made may assistthe EFTA Surveillance Authority officials in carrying out fheir dufies, af fherequest of such authority or of fhe EFTA Surveillance Authority. 6Where an undertaking opposes aninvestigafion ordered pursuant to fhis Arficle, the concerned shallafford fhe necessary assisfance to the officials authorized by fhe EFTASurveillance Authority fo enable them to make their investigafion. To fhis end,EFTA Stafes shall take fhe necess- 1991/92:170 Bilaga16 /Court Agreement Protocol4 ary measures affer consultation of the EFTA SurveillanceAuthority within six months of fhe entty into force of fhe EEA Agreement. The EFTA Surveillance Authority may, by decision,impose fines on un dertakings or associations of undertakings of from 100 fo 5 000 ECU where, intentionally or negligently: 10they supplyincorrect or misleading informafion in connection wifh an applicafion pursuantfo Arficle 3(2) or Article 5; or 11they supplyincorrect informafion in response to a request made pursuant fo Arfide 9(3) or(5), or do nof supply informafion within fhe time-limit fixed by a decisionadopted under Arficle 9(5); or 12they producethe required books or other business records in incomplete form duringinvestigations under Arficle 10 or Article 11, or refuse to submit to aninvestigation ordered by decision taken pursuant fo Arficle 11(3). The EFTA Surveillance Authorify may, by decision,impose fines on un dertakings or associations of undertakings of from 1 000 fo 1000 000 ECU, or a sum in excess thereof, but nof exceeding of fhe turnover in fhe preceding business year of fhe undertakings partidpafing in fhe infringe ment, where eifher intentionally or negligently they: 2infringeArticle 53(1) or Arficle 54 of fhe EEA Agreement; or 3commif a breachof any obligafion imposed pursuant fo Arficle 6(1) of fhis Chapfer. In fixing fhe amount of fhe fine, regard shall be had bothfo fhe gravify and fo fhe durafion of fhe infringement. 2Arficle 8 shallapply. 3Decisions takenpursuant fo paragraphs 1 and 2 shall not be of a penal nature. 4The finesprovided for in paragraph 2(a) shall not be imposed in respect of acts takingplace affer notification fo the EFTA Surveillance Authority and before ifsdecision in applicafion of Article 53(3) of fhe EEA Agreement, provided theyfall within fhe limits of the activity described in the notificafion. However, fhis provision shall nothave effect where fhe EFTA Surveillance Authority has informed fheundertakings or associations of undertakings concerned fhaf, affer preliminaryexamination, it is of fhe opinion fhaf Article 53(1) of the EEA Agreementapplies and fhaf applicafion of Arficle 53(3) is not justified. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 By decision, the EFTA Surveillance Authority may imposeperiodic pen aity payments on undertakings or associations of undertakings of from 50 to 1 000 ECU per day, calculated from fhe dafe appointed by fhe decision, in order fo compel them: 2fo put an endfo an infringement of Article 53(1) or Arficle 54 of fhe EEAAgreement, theterminafion of which has been ordered pursuant fo Arficle 4 of fhis Chapfer; 3fo refrain fromany act prohibited under Article 6(3); 4to supplycomplefe and correct information which has been requested by decision, takenpursuant to Article 9(5); (d) fo submit fo an investigafionwhich has been ordered by decision taken pursuant fo Arficle 11(3); (e) to comply with any measureimposed by decision taken under Arficle 4a. 3When fheundertakings or associations of undertakings have satisfied fhe obligafionwhich it was fhe purpose of fhe periodic penalfy payment fo enforce, the EFTASurveillance Authority may fbc the total amount of the periodic penaitypayment af a lower figure fhan fhaf which would resulf from fhe originaldecision. 4Article 8 shallapply. Review by fhe EFTA Courf The EFTA Courf, in accordance wifh Article 108(2) of fheEEA Agreement and with fhe relevant provisions of fhis Agreement, shall haveuniimifed jurisdicfion within the meaning of Article 35 of this Agreement toreview decisions whereby fhe EFTA Surveillance Authorify has fbced a fine orperiodic penaity payment; if may cancel, reduce or increase fhe fine orperiodic penaity payment imposed. For fhe purpose of applying Arficles 12 to 14, 'ECU' meansfhe ECU as defined by fhe competent authorifies of fhe European Communities. 1991/92:170 Btiaga 16 /Court Agreement Protocol4 Hearing of the parfies and of third persons Before refusing the certificate mentioned in Article3(2), or taking decisions as provided for in Artides 4, 4a, 5(3) secondsubparagraph and 5(4), 6(3), 12 and 13, fhe EFTA Surveillance Authority shallgive fhe undertakings Orassociations of undertakings concerned the opportunity of being heard on fhematters fo which fhe EFTA Surveillance Authority takes, or has taken,objection. 2Ff the EFTA Surveillance Authority orfhe competent authorifies of fhe EFTA States consider it necessaty, they mayalso hear other natural or legal persons. Applications by such persons fo beheard shall be granted when they show a sufficient interest. 3When fhe EFTA Surveillance Authorityintends to take a decision pursuant to Arficle 53(3) of the EEA Agreement, itshall publish a summaty of the relevant agreement, decision or concertedpracfice in fhe EEA Section of fhe European Communitiesand invite all inferesfed third parties to submit fheir observations within aperiod, not being less than one month, which if shall fix. Publicafion shallhave regard to fhe legifimate interest of undertakings in the protection oftheir business secrets. 4Without prejudice to Article 9 ofProtocol 23 to fhe EEA Agreement, informafion acquired as a result of fheapplication of Arficles 9 fo 11 of fhis Chapter or Artide 58 of fhe EEAAgreement and Protocol 23 thereto shall be used only for fhe purpose of fherelevant request or investigafion. 5Without prejudice fo the provisions ofArficles 16 and 18, fhe EFTA Surveillance Authority and the competentauthorifies of fhe EFTA States, their officials and other servants shall nofdisclose informafion of a kind covered by fhe obligafion of professionalsecrecy and which has been acquired by them as a result of fhe applicafion ofthis Protocol or Arficle 58 of fhe EEA Agreement and Protocol 23 thereto. Thisobligation shall also apply fo the representatives of fhe EC Commission and of theEC Member Stafes who parficipate in fhe pursuant fo Article8(4) and in fhe hearing pursuant fo Article 11(2) of Chapfer XFF. 6The provisions of paragraphs 1 and 2shall nof prevent publicafion of general informafion or of surveys which donof confain information relafing fo parficular undertakings or associations ofundertakings. 2The EFTA Surveillance Authority shallpublish the decision which it adepts pursuant to Arficles3(2), 4, 5(3) secondsubparagraph, 5(4) and 6(3). 3The publication shall sfate fhe namesof fhe parfies and fhe main contents of the decision; if shall have regard fofhe legifimate interest of undertakings in the protection of their businesssecrets. 1991/92:170 Bilaga16 /Court Agreement Protocol 4 TheEFTA Surveillance Authority may submit fo fhe Governments of the EFTA States,in accordance wifh fhe provisions of Arficle 49 of fhis Agreement, proposalsfor forms to be used for complaints pursuant fo Arficle 3 and applicationspursuant fo Arficles 3(2) and 5, as well as proposals for complementaty notesto fhe forms. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 CHAPTER XII FORM, CONTENT AND OTHER DETAILS OFCOMPLAINTS AND OF APPLICATIONS, AND THE HEARINGS PROVIDED FOR IN CHAPTER XI LAYING DOWN THE PROCEDURE FOR THEAPPLICATION OF THE RULES OF COMPETITION TO UNDERTAKINGS IN THE AIR TRANSPORTSECTOR 3Complaints pursuant to Artide 3(1) ofChapter XI shall be submifted in writing in an officiallanguage of an or Community, fheir form, confent andother details being leff fo the discrefion of com-plainanfs. 4Complaints may be submifted by; 6natural 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 to acf. Personsenfitled fo submit applications 12 undertaking which is party to agreements,decisions or practices of fhe kind described in Arficles 53(1) and 54 of theEEA Agreement may submit an application under Artides 3(2) and 5 of Chapfer XI. Where the applicafion is submitted by some but nof all of fheundertakings concerned, they shall give nofice fo fhe others. 13 Where applications under Arficles 3(2) and 5 ofChapfer XI are signed by representatives of undertakings, ofassociations of undertakings, or of natural or legal persons, suchrepresentatives shall produce written proof that they are authorized fo acf. 3.Where a joinf application is submifted, a joint representative shall be appointed. 2Applications pursuant to Artides 3(2)and 5 of Chapfer XI shall be submitted on forms issued for thispurpose by fhe Governments of the EFTA Sfates, by common accord, as shown inAppendix 8, or by the EC Commission. 3Several parfidpafing undertakings maysubmit an applicafion on a singie form. 4Applications shall contain fheinformafion requested in fhe form. 5Nine copies of each applicafion and ofthe supporting documents shall be submifted fo the EFTA Surveillance Authorify. 6The supporting documents shall beeifher originals or copies. Copies must be certified as true copies of fheoriginal. 7Applications shall be in one of theofficial languages of an or fhe European Community. Supportingdocuments shall be submifted in their original language. Where the originallanguage is nof an official language of an or Community,a franslafion in one of these languages shall be aftached. 8The dafe of submission of anapplicafion shall be fhe dafe on which if is received by the EFTA SurveillanceAuthority, without prejudice fo Arficle 11 of Protocol 23 fo the EEAAgreement.Where, however, the applicafion is sent by registered post, if shall be deemedfo have been received on fhe date shown on the postmark of fhe place ofposting. 9Where an applicafion submiftedpursuant fo Artides 3(2) and 5 of Chapfer XI fallsoutside the scope of fhaf Chapter, the EFTA Surveillance Authority shallwithout delay inform the applicant that it intends to examine fhe applicationunder fhe provisions of such other acts referred to in fo fhe EEAAgreement as is applicable fo the case; however, fhe dafe of submission of fheapplicafion shall be fhe date resulting from paragraph 7. The EFTA SurveillanceAuthority shall inform fhe applicanf of ifs reasons and fix a period for him fosubmit any comments in wriring before it conducts ifs appraisal pursuant to theprovisions of fhaf other acf. 1991/92:170 Bilaga16 /Court Agreement Protocol4 Beforeconsulfing fhe in , the EFTASurveillance Authority shall hold a hearing pursuant to Artide 16(1) of ChapferXI. 13 The EFTA Surveillance Authority shall informundertakings and associations of undertakings in writing of fhe objectionsraised against them. The corrununicafion shall be addressed to each of them orfo a joinf agent appointed by them. 14 The EFTA Surveillance Authority may inform theparfies by giving nofice in fhe EEA Section of the Communities, if from the circumsfances of fhe case fhis appearsappropriate, in parficular where notice is to be given to a number ofundertakings but no joinf agent has been appointed. The notice shall have regardto fhe legifimate interest of the undertakings in fhe protection of theirbusiness secrets. 15 A fine or a periodic penaity payment may be imposedon an undertaking or association of undertakings only if the objections werenotified in fhe provided for in paragraph 1. 16 The EFTA Surveillance Authority shall, when givingnofice of objections, fix a period within which the undertakings andassociations of undertakings may inform the EFTA Surveillance Authority offheir view. 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 fo fheir defence. 5They may atfach any relevant documentsin proof of fhe facts set ouf. They may also propose that the EFTA SurveillanceAuthority hear persons who may corroborafe those facts. TheEFTA Surveillance Authority shall in its dedsion deal only with those objectionsraised against undertakings and associations of undertakings in respect ofwhich they have been afforded fhe opportunity of making known fheir views. Iinatural or legal persons showing a sufficient interest apply to be heard pursuantto Article 16(2) of Chapter XIthe EFTA Surveillance Authorify shallafford them fhe opportunity of making known fheir views in writing within suchperiod as it shall fix. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 Wherefhe EFTA Surveillance Authority, having received a complaint pursuant toArticle 3(1) of Chapter XI considers that on the basis of the informa- tionin ifs possession there are insufficienf grounds for acfing on fhe com- Prop. 1991/92:170 plainf, if shall inform fhe persons who submifted fhe complaint of ifsreasons Bilaga 16 and fix a period for them to submit any further comments in writing. Agreement Artide 10 Protocol 4 5The EFTA Surveillance Authority shallafford to persons who have so requested in fheir written comments fheopportunity to put forward fheir arguments orally, if those persons show a sufficientinterest or if fhe EFTA Surveillance Authority proposes fo impose on them afine or periodic penaity payment. 6The EFTA Surveillance Authorify maylikewise afford fo any other person fhe opportunity of orally expressing hisviews. 3The EFTA Surveillance Authority shallsummon fhe persons fo be heard fo affend on such dafe as it shall appoint. 4If shall forthwith transmit a copy ofthe summons to the competent authorifies of fhe EFTA States, who may appointan offidal to take parf in fhe hearing. Likewise, the EFTA SurveillanceAuthority shall invite the EC Commission fo be represented af fhe hearing. Theinvifation shall also extend fo fhe EC Member States. 3Hearings shall be conducted by fhepersons appointed by fhe EFTA Surveillance Authority for fhaf purpose. 4Persons summoned fo affend shalleither appear in person or be represented by legat representatives or byrepresentatives authorized by their consfifution. Undertakings and associationsof undertakings may moreover be represented by a duly authorized agentappointed from among fheir permanent staff. Persons heard by the EFTA Surveillance Authoritymay be assisted by lawyers or advisers who are entifled fo plead before theEFTA Courf, or by other qualified persons. 2Hearings shall nof be public. Personsshall be heard separately or in fhe presence of other persons summoned toaffend. In fhe latter case, regard shall be had fo fhe legifimate interest offhe undertakings in fhe protection of fheir business secrets. 3The essential content of thestafements made by each person heard shall be recorded in minutes which shallbe read and approved by him. Withoutprejudice to Arficle 5(2), information and summonses from fhe EFTA SurveillanceAuthority shall be sent to fhe addressees by registered letterwith acknowledgement of receipt, or shall be delivered by hand against receipt. 0In fixing fhe periods provided for inArticles3(8), 5, 8 and 9, the EFTA Surveillance Authority shall have regardboth to the fime required for prep-aration of comments and to the urgency ofthe case. A period shall be not less than two weeks; it may be extended. 1Periods shall run from the dayfollowing receipt of a communication or delivety thereof by hand. 2Written comments must reach the EFTASurveillance Authority or be dispatched by registered letter before expity ofthe period. Where the period would expire on a Sunday or a public holiday, ifshall be extended up to the end of fhe next following working day. For thepurpose of calculating fhe extension, public holidays shall, in cases where fherelevant dafe is fhe dafe of receipt of written comments, be those set ouf inAppendbc 2 fo fhis Protocol, and in cases where the relevant date is the dateof dispatch, those appointed by law in the countty of dispatch. TheEFTA Surveillance Authority may submit to the Governments of the EFTA Sfates,in accordance wifh fhe provisions of Arficle 49 of this Agreement, proposalsfor forms and complementaty notes. 1991/92:170 Bilaga16 /Court Agreement Protocol4 PART III CONTROL OF CONCENTRATIONS CHAPTER XIII RULES RELATING TO CONTROL OFCONCENTRATIONS BETWEEN UNDERTAKINGS to the division of the text of Regulation (EEC) No4064/89 between to the EEA Agreement (substantive mles) and thepresent Chapter (procedural rules), the text, as adapted, of Artides 1 to 5 isto be found in the act referred to in point 1 of to the EEA Agreement(Regulation (EEC) No 4064/89). The EFTA Surveillance Authority shall carry outthe control of concentration in accordance with the provisions of Article 57 ofthe EEA Agreement, in particular paragraph 2(b). Artides 1 lo 5 (No text) Examination of the nofificafion and initiafion ofproceedings The EFTA Surveillance Authorify, in accordance with fheprovisions of Arficle 57(1) and (2)(b) of fhe EEA Agreement, shall examine fhe notifica tion as soon as if is received. 2Where it concludesfhaf fhe concentrafion notified does nof fall within the scope of fhe acfreferred fo in point 1 of to fhe EEA Agreement (Regulafion (EEC) No4064/89), if shall record fhaf finding by means of a decision. 3Where it findsfhaf fhe concentrafion notified, although falling within fhe scope of fhe saidacf, does nof raise serious doubfs as fo ifs compatibility wifh fhe funcfioningof the EEA Agreement, if shall decide not fo oppose if and shall dedare that itis compafible wifh fhe funcfioning of fhe EEA Agreement. 4If, on fheother hand, it finds fhaf fhe concenfration notified falls within fhe scope offhe said acf and raises serious doubts as fo ifs compatibility wifh fhefuncfioning of fhe EEA Agreement, if shall decide to initiafe proceedings. The EFTA Surveillance Authority shall notify itsdecision fo fhe under takings concerned and fhe competent authorities of fhe EFTA Sfates without delay. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 For fhe purposes of paragraph 2 a concentration asdefined in Article 1 of the acf referred fo in poinf 1 of to fhe EEAAgreement (Regulafion (EEC) No 4064/89) shall nof be put into effect eitherbefore ifs nofificafion or within fhe firsf three weeks following ifsnotificafion. Where the EFTA Surveillance Authority, following a preliminatyexam- Prop. Bilaga 16 /Court Agreement Protocol 4 inafion of the notificafion within fhe period provided forin paragraph 1, finds if necessary in order to ensure fhe full effecfiveness ofany decision taken lafer pursuant fo Arficle 8(3) and (4), if may decide on itsown initiative fo continue fhe suspension of a concenfration in whole or inparf until if fakes a final decision, or fo take other inferim measures fo thateffect.