prop · GF03170 · 1991-12-31 00:00:00 — 1the only parties thereto areundertakings from one EC or from one and theagreements, decisions or concerted practices do not reläte either to imports orto exports between Contracting Parties; 2not more than two undertakings areparfy thereto, and the agreements only: (i) resfrict the freedom of one party to thecontract in determining the prices or condifions of business upon which thegoods which he has obtained from fhe other party to the contract may be resold;or (ii) impose resfricfions on the exercise of therights of the assignee or user of industrial property rights - in particularpatents, uf-ility models, designs or trademarks - or of the person entifledunder a contract to the assignment, or grant, of the right to use a method ofmanufacture or knowledge relating to the use and to the application of industrialprocesses; (c) theyhave as their sole object: (i) fhe development or uniform application ofstandards or types; or (ii)joint research or development; or (iii) specialization in the manufacture of productsincluding agreements necessary for achieving this: -wherethe products which are the subject of specialization do not, in a substantialpart of the territory covered by the Agreement, represent more than 15 percent of the volume of business done in identical products or those consideredby consumers to be similar by reason of their characteristics, price and use;and -where the total annual turnover of the participating undertakings does notexceed ECU 200 million. Theseagreements, decisions and concerted practices may be notified to the competentsurveillance authority pursuant to Article 56, Protocol 23 and the rulesreferred to in Artides 1 to 3 of this Protocol. 1991/92:170 Bilaga15 Protocol 21 3Agreements, decisions and concertedpractices of the kind described in Arficle 53 (1) which are in existence at thedate of entry into force of the Agreement and in respect of which the partiesseek application of Article 53 (3) shall be notified to the competentsurveillance authority pursuant to the provisions in Article 56, Protocol 23and the rules referred to in Artides 1 to 3 of this Protocol within sbc monthsof the date of entry into force of the Agreement. 4Paragraph 1 shall not apply toagreements, decisions or concerted practices of the kind described in Article53 (1) of the Agreement and falling under Arficle 4 (2) of this Protocol; thesemay be notified to the competent surveillance authority pursuant to Article56, Protocol 23 and the rules referred to in Artides 1 to 3 of this Protocol. The competentsurveillance authority shall specify in its decisions pursuant to Article 53(3) the date from which the decisions shall take effect. That date may beearlier than the date of notification as regards agreements, decisions ofassociations of undertakings or concerted practices falling under Artides 4(2) and 5 (2) of this Protocol, or those falling under Article 5 (1) of thisProtocol which have been notified within the time limit specified in Artide 5(1). 1.Where agreements, decisions or concerted practices of the kind described inArticle 53 (1) which are in existence at the date of entry into force of fheAgreement and notified within the time limits specified in Article 5 (1) of this Protocol do not satisfy fhe requirements of Article53 (3) and the undertakings or associations of undertakings concerned cease togive effect to them or modify them in such a that they no longer fallunder fhe prohibition contained in Article 53 (1) or that they safisfy therequirements of Artide 53 (3), the prohibition contained in Article 53 (1)shall apply only for a period fixed by the competent surveillance authority. Adecision by fhe competent surveillance authority pursuant to the foregoingsenfenee shall not apply as against undertakings and associations ofundertakings which did not expressly consent to the notification. Paragraph 1 shall apply to agreements, decisions orconcerted practices falling under Arficle 4 (2) of this Protocol which are inexistence at the date of entry into force of the Agreement if they are notifiedwithin six months after that date. Applications and notifications submifted to the ECCommission prior to the date of entry into force of the Agreement shall bedeemed to comply with the provisions on application and norificarion under theAgreement. The competent surveillanceauthority pursuant to Article 56 of the Agreement and Article 10 of Protocol23 may require a duly completed form as prescribed for the implementation ofthe Agreement to be submitted to it within such time as if shall appoint. Inthat event, applications and notifica-rions shall be treated as properly madeonly if the forms are submitted within the prescribed period and in accordancewith the provisions of the Agreement. Fines for infringement of Article 53 (1) shall not beimposed in respect of any act prior to notification of the agreements,decisions and concerted practices fo which Artides 5 and 6 of this Protocolapply and which have been notified within the period specified therein. The Contracting Parfies shall ensure that the measuresaffording the necessary assistance to officials of the EFTA SurveillanceAuthority and fhe EC Commission, in order to enable them to make theirinvestigations as foreseen under the Agreement, are taken within sk months ofthe entry into force of the Agreement. Prop.1991/92:170 Bilaga 15 Protocol 21 As regards agreements, decisions and concerted practicesalready in existence af the date of entry into force of the Agreement whichfall under Arficle 53 (1), the prohibition in Article 53 (1) shall not applywhere the agreements, decisions or pracrices are modified within sbc monthsfrom the date ofentry into force of the Agreement so as to fulfil the conditions contained Prop. 1991/92:170 in the block exempfions provided for in . Protocol 21 Article 12 Asregards agreements, decisions of associations of undertakings and concertedpractices already in existence at the date of entry into force of fhe Agreementwhich fall under Article 53 (1), the prohibirion in Arficle 53 (1) shall notapply, from the date of entry into force of the Agreement, where theagreements, decisions or practices are modified within six months from the dateof entry into force of the Agreement so as not to fall under the prohibitionof Article 53 (1) any more. Agreements,decisions of associations of undertakings and concerted practices whichbenefit from an individual exemption granted under Article 85 (3) of the Treatyestablishing Economic Community before the entry into force of theAgreement shall continue to be exempted as regards the provisions of theAgreement, until their date of expiry as provided for in the decisions grantingthese exempfions or until the EC Commission otherwise decides, whichever dateis the earlier. CONCERNING THE DEFINITION OF AND 'TURNOVER' (ARTICLE 56) For the purposes of the attribution of individual casespursuant fo Arficle 56 of fhe Agreement, an 'undertaking' shall be any entitycarrying out activities of a commercial or economic nature. 'Turnover' within the meaning of Article 56 of theAgreement shall comprise the amounts derived by the undertakings concerned, inthe territory covered by the Agreement, in the preceding financial year fromthe sale of products and the provision of services falling within theundertaking's ordinary scope of activities after deduction of sales rebates andof value added tax and other taxes directly relafed to turnover. In place of turnover, the following shall be used: 3for creditinstitutions and other financial institurions, their total assets multipliedby the ratio between loans and advances to credit institutions and intransactions with residents in fhe territory covered by the Agreement and thetotal sum of those loans and advances; 4for Insuranceundertakings, the value of gross premiums received from residents in theterritory covered by fhe Agreement, which shall comprise all amounts receivedand receivable in respect of Insurance contracts issued by or on behalf of theinsurance undertakings, including also outgoing reinsurance premiums, andafter deduction of taxes and parafiscal contributions or levies charged byreference to the amounts of individual premiums or the total value of premiums. Prop.1991/92:170 Bilaga 15 Protocol 22 In derogation from the definition of the turnoverrelevant for the application of Article 56 of the Agreement, as contained inArticle 2 of this Protocol, fhe relevant turnover shall be constituted: (a) as regards agreements,decisions of associations of undertakings and concerted practices related todistribution and supply arrangements between non-compering undertakings, ofthe amounts derived from the sale of goods or the provision of services whichare the subject matter of the agreements, decisions or concerted practices, andfrom the other goods or services which are considered by users 16 1991/92. fo be equivalent in view of their characteristics, priceand intended use; (b) as regards agreements, decisions of associations ofundertakings and concerted practices relafed fo arrangements on transfer oftech-nology between non-compefing undertakings, of the amounts derived fromfhe sale of goods or fhe provision of services which resulf from fhe technologywhich is the subject matfer of fhe agreements, decisions or concertedpractices, and of the amounts derived from the sale of those goods or fheprovision of those services which that technology is designed fo improve orreplace. However, where af fhe time of the coming into existenceof arrangements as described in paragraph 1 (a) and (b) turnover as regards fhesale of goods or the provision of services is not in evidence, the generalprovision as contained in Arficle 2 shall apply. Where individual cases concern products falling withinthe scope of appli cation of Protocol 25, the relevant turnover for the attribution of those cases shall be the turnover achieved in these products. Where individual cases concern products falling withinthe scope of appli cafion of Protocol 25 as well as products or services falling within fhe scope of applicafion of Artides 53 and 54 of the Agreement, the relevant turnover is defermined by taking into account all the products and services as provided for in Arficle 2 . Prop.1991/92:170 Bilaga 15 Protocol 22 CONCERNING THE COOPERATION BETWEEN THE SURVEILLANCEAUTHORITIES (ARTICLE 58) The EFTA Surveillance Authority and the EC Commissionshall exchange information and consult each other on general policy issues atthe request of eifher of fhe surveillance authorities. The EFTA Surveillance Authority andfhe EC Commission, in accordance with their internal rules, respecting Article56 of the Agreement and Protocol 22 and fhe autonomy of both sides in theirdecisions, shall cooperate in the handling of individual cases falling underArticle 56 (1) (b) and (c), (2), second senfenee and (3), as provided for infhe provisions below. For the purposes of this Protocol,the term 'territory of a surveillance authorify' shall mean for the EC Commissionthe territory of fhe EC Member Stafes to which the Treaty establishing theEuropean Economic Community or the Treaty establishing Coal andSteel Community, as the case may be, applies, upon the terms laid down in thoseTreaties, and for the EFTA Surveillance Authority the territories of the EFTAStates to which the Agreement applies. THE INITLVL PHASE OF THE PROCEEDINGS In cases falling under Article 56 (1) (b) and (c), (2),second senfenee and (3) of fhe Agreement, the EFTA Surveillance Authority andthe EC Commission shall without undue delay forward to each othernotificarions and complaints fo the extent that it is not apparent that thesehave been addressed to both surveillance authorities. They shall also informeach other when opening ex officio procedures. The surveillance authority whichhas received informafion as provided for in the first subparagraph may presentits comments thereon within 40 working days of its receipt. Prop.1991/92:170 Bilaga 15 Protocol 23 The competent surveillance authority shall, in casesfalling under Article 56 (1) (b) and (c), (2), second senfenee and (3) of theAgreement, consult the other surveillance authorify when: -publishing ifsintention to give a negative dearance; -publishing itsintention to take a decision in application of Article 53 (3); or -addressing fothe undertakings or associations of undertakings concerned ifs statement ofobjections. The other surveillance authoritymay deliver its comments within the time limits set out in the abovementionedpublication or statement of objections. Observations received from theundertakings concerned or third parfies Prop. 1991/92:170 shall be transmitted to the other surveillance authorify. Protocol 23 Artide 4 In cases falling under Arficle 56 (1) (b) and (c), (2),second senfenee and (3) of fhe Agreement, fhe competent surveillance authorifyshall transmit fo the other surveillance authority fhe administrative lettersby which a filé is closed or a complainf rejected. In cases falling under Arficle 56 (1) (b) and (c), (2),second senfenee and (3) of fhe Agreement, fhe competent surveillance authorityshall invite the other surveillance authorify fo be represented af hearings ofthe undertakings concerned. The invitafion shall also extend fo the Stafesfalling within fhe compefence of fhe other surveillance authority. In cases falling under Arficle 56 (1) (b) and (c), (2),second senfenee and (3) of fhe Agreement, fhe competent surveillance authorityshall, in due time, inform fhe other surveillance authorify of fhe date of themeefing of fhe and transmit fhe relevant documenfafion. All documents forwarded for thatpurpose from the other surveillance authorify shall be presented to fheAdvisory authority which is competent to decideon a case in accordance with Arficle 56 together with the material sent out bythat surveillance authorify. Each surveillance authority and fheStates falling within ifs compefence shall be entifled fo be present in fheAdvisory Committees of the other surveillance authorify and to express fheirviews therein; they shall not have, however, fhe right to vote. REQUEST FOR DOCUMENTS AND THE OBSERVATIONS In cases falling under Arficle 56 (1) (b) and (c), (2),second sentence and (3) of fhe Agreement, the surveillance authority which isnot competent fo decide on a case in accordance with Arficle 56 may request afall stages of fhe proceedings copies of fhe most important documents lodgedwith fhe competent surveillance authorify for the purpose of establishing fheexistence of infringemenfs of Artides 53 and 54 or of obfaining a negativedearance or exemption, and may furthermore, before a final decision is taken,make any observations it considers appropriate. 3When sending arequest for informafion fo an undertaking or association of undertakingslocated within fhe territory of the other surveillance authorify, fhecompetent surveillance authorify, as defined in Arficle 56 of fhe Agreement,shall at fhe same time forward a copy of the request to fhe other surveillanceauthorify. 4Where anundertaking or association of undertakings does not supply fhe informafionrequested within fhe time limit fixed by fhe competent surveillance authorify,or supplies incomplete informafion, fhe competent surveillance authority shallby decision require fhe informafion to be supplied. In the case of undertakingsor associations of undertakings located within the territory of the othersurveillance authorify, fhe competent surveillance authorify shall forward acopy of that decision fo fhe other surveillance authorify. 5Af fhe requestof fhe competent surveillance authorify, as defined in Arficle 56 of theAgreement, fhe other surveillance authority shall, in accordance with itsinternal rules, undertake investigations within its territory in cases wherethe competent surveillance authority so requesting considers if to benecessary. 6The competentsurveillance authorify is entifled fo be represented and take an part ininvestigations carried out by the other surveillance authority in respect ofparagraph 3. 7All informafionobtained during such investigations on request shall be transmitted to fhesurveillance authority which requested the investigations immediately aftertheir finalization. 8Where fhecompetent surveillance authorify, in cases falling under Artide 56 (1) (b) and(c), (2), second sentence and (3) of fhe Agreement, car-ries ouf investigationswithin ifs territory, it shall inform fhe other surveillance authorify of thefacf that such investigations have taken place and, on request, transmit fothat authorify fhe relevant results of the investigations. Prop.1991/92:170 Bilaga 15 Protocol 23 2Informationacquired as a resulf of fhe applicafion of this Protocol shall be used only forthe purpose of procedures under Artides 53 and 54 of the Agreement. 3The EC Commission,the EFTA Surveillance Authorify, fhe competent authorifies of the EC MemberStates and the EFTA Stafes, and fheir officials and other servants shall notdisclose information acquired by them as a resulf of the applicafion of thisProtocol and of the kind covered by fhe obligation of professional secrecy. 4Rules onprofessional secrecy and restricted use of informafion provided for in fheAgreement or in fhe legislation of the Contracfing Parfies shall not preventexchange of informafion as set ouf in this Protocol. Article 10 Prop. 3Undertakingsshall, in cases of notifications of agreements, address the Bilaga 15notification to the competent surveillance authority in accordance with Ar- Protocol 23 ticle 56 of the Agreement. Complaints may be addressed to eifhersurveillance authority. 4Notificationsor complaints addressed to the surveillance authority which, pursuant toArticle 56, is not competent to decide on a given case shall be transferredwithout delay to the competent surveillance authority. 5If, in thepreparafion or initiafion of ex officio proceedings, it becomes apparent thatthe other surveillance authority is competent to decide on a case in accordancewith Article 56 of the Agreement, this case shall be transferred to thecompetent surveillance authority. 6Once a case istransmitted fo the other surveillance authority as provided for in paragraphs 2and 3, a retransmission of the case may not take place. A transmission of acase may not take place after the publishing of the intention fo give anegative dearance, the publishing of the intention fo take a decision inapplication of Article 53 (3) of the Agreement, the addressing to undertakingsor associations of undertakings concerned of the statement of objections or thesending of a letter informing the applicant that there are insufficienf groundsfor pursuing the complainf. The date of submission of an application or notificationshall be the date on which if is received by the EC Commission or the EFTASurveillance Authority, regardless of which of these is competent to decide onthe case under Article 56 of the Agreement. Where, however, the application ornotification is sent by registered post, if shall be deemed fo have beenreceived on the date shown on the postmark of the place of posting. Undertakings shall be entifled to address and be addressedby the EFTA Surveillance Authorify and the EC Commission in an officiallanguage of an or Community which they choose asregards notifications, applications and complaints. This shall also cover allinstances of a proceeding, whether it be opened on notification, application orcomplainf or ex officio by the competent surveillance authorify. ON COOPERATION IN THE FIELD OF CONTROL OF CONCENTRATIONS 3The EFTASurveillance Authorify and fhe EC Commission shall exchange information andconsult each other on general policy issues at the request of eifher of thesurveillance authorifies. 4In casesfalling under Arficle 57 (2) (a), the EC Commission and the EFTA SurveillanceAuthorify shall cooperate in the handling of concentrations as provided for infhe provisions set ouf below. 5For thepurposes of this Protocol, the term "territory of a surveillanceauthorify" shall mean for the EC Commission fhe territory of the EC MemberStafes to which fhe Treafy establishing fhe European Economic Community or theTreafy establishing Coal and Sfeel Community, as the case may be,applies, upon fhe terms laid down in those Treaties, and for the EFTASurveillance Authorify fhe territories of the EFTA States fo which fheAgreement applies. Cooperation shall take place, in accordance with theprovisions set out in this Protocol, where: 2the combinedturnover of the undertakings concerned in fhe territory of the EFTA Statesequals 25 per cent or more of their total turnover within fhe territory coveredby the Agreement; or 3each of atleast two of the undertakings concerned has a turnover exceeding ECU 250million in the territory of the EFTA States; or 4theconcentrafion is liable to create or sfrengthen a dominant posi-rion as aresulf of which effecfive compefition would be significanfly impeded in fheterritories of the EFTA States or a subsfanfial part thereof. Cooperation shall also take place where: 3theconcentrafion threatens fo create or sfrengthen a dominant posifion as aresulf of which effecfive compefition would be significanfly impeded on amärket within an which presents all the characteristics of adisfincf märket, be it a substantial part of the territory covered by thisAgreement or not; or 4an EFTA Statewishes to adopt measures to protect legifimate inferests as set ouf in Article7. Prop.1991/92:170 Bilaga 15 Protocol 24 INITIAL PHASE OF THE PROCEEDINGS 2The ECCommission shall transmit to fhe EFTA Surveillance Authority copies ofnotifications of the cases referred to in Arficle 2 (1) and (2) (a) withinthree working days and, as soon as possible, copies of fhe most importantdocuments lodged with or issued by the EC Commission. 3The ECCommission shall carry out the procedures set ouf for fhe implementation ofArticle 57 of fhe Agreement in close and liaison with the EFTASurveillance Authorify. The EFTA Surveillance Authority and EFTA States mayexpress their views upon those procedures. For the purposes of Article 6 ofthis Protocol, fhe EC Commission shall obtain information from the competentauthority of the concerned and give it the opportunity to make knownifs views at every stage of fhe procedures up to the adoption of a decisionpursuant to that Article. To that end, the EC Commission shall give it accessto the filé. In cases referred fo in Article 2 (1) and (2) (a), the ECCommission shall invite the EFTA Surveillance Authority to be represented atfhe hearings of the undertakings concerned. The EFTA States may likewise berepresented at those hearings. THE EC ADVISORY COMMITTEE ON CONCENTRATIONS 2In casesreferred to in Article 2 (1) and (2) (a), the EC Commission shall in due timeinform the EFTA Surveillance Authority of the date of fhe meefing of the relevant documenfafion. 3All documentsforwarded for that purpose from the EFTA Surveillance Authorify, includingdocuments emanating from EFTA States, shall be presented to the EC AdvisoryCommittee on Concentrations together with the other relevant documentation sentout by the EC Commission. 4The EFTASurveillance Authority and the EFTA States shall be entifled to be present inthe express their viewstherein; they shall not have, however, the right to vote. Prop.1991/92:170 Bilaga 15 Protocol 24 RIGHTS OF INDIVIDUAL STATES The EC Commission may, by means of a decision notifiedwithout delay to the undertakings concerned, to fhe competent authorities offhe EC Member States and to fhe EFTA Surveillance Authorify, refer a notifiedconcent-