prop · GF03170 · 1991-12-31 00:00:00 — The EFTA Surveillance Authority shall forthwithtransmit fo the competent authorifies of fhe EFTA States a copy ofnotifications and informafion received from fhe EC Commission pursuant toArtides 3 and 10 of Protocol 24 fo fhe EEA Agreement. The EFTA Surveillance Authority shall forthwithtransmit to fhe competent authorifies of fhe EFTA States a copy of documentsreceived from the EC Commission pursuant to Article 8 of Protocol 24 to fheEEAAgreement. 2An onConcenfrations shall be consulted before any decision is taken pursuant foArficles 8(2) to (5), 14 or 15, or prior fo a proposal referred fo in Article23. 3The shall consistof representatives of the authorifies of fhe EFTA Stafes. Each EFTA Sfateshall appoint one or two representatives; if unable to affend, they may bereplaced by other representatives. Af least one of the representatives of anEFTA State shall be competent in matters of resfricfive practices and dominantpositions. 4Consultation shall take place af ajoint meefing convened at the invifarion of and ehaired by fhe EFTASurveillance Authority. A summaty of fhe case, together wifh the most importantdocuments and a preliminaty draff of fhe decision fo be taken for each caseconsidered, shall be sent wifh the invifation. The meefing shall take placenof less fhan 14 days affer the invifation has been sent. The EFTA SurveillanceAuthority may in excepfional cases shorten fhaf period as appropriate in orderto avoid serious harm to one or more of fhe undertakings concerned by aconcenfration. 5The shall deliveran opinion on the EFTA Surveillance Aufhority's draft decision, if necessatyby taking a vote. may deliver an opinion even if somemembers are absent and unrepresented. The opinion shall be delivered in writingand appended to the draft decision. The EFTA Surveillance Authority shall takethe utmost account of fhe opinion delivered by the Committee. It shall informfhe in which ifs opinion has been taken into account. 6The may recommendpublicafion of the opinion. The EFTA Surveillance Authority may carty ouf suchpublication. The decision to publish shall take due account of the legifimateinterest of undertakings in fhe protection of fheir business secrets and offhe interest of the undertakings concerned in such publication's taking place. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 2The EFTA Surveillance Authority shallpublish fhe decisions which if fakes pursuant fo Arficle 8(2) to (5) in the EEASection of fhe European Communifies. 3The publicafion shall sfate fhe namesof the parfies and fhe main confent of fhe decision; if shall have regard fofhe legifimate interest of undertakings in fhe protection of fheir businesssecrets. 9Subject to review by fhe EFTA Courf inaccordance wifh Arficle 108(2) of fhe EEA Agreement and wifh fhe relevantprovisions of fhis Agreement, the EFTA Surveillance Authority shall have solejurisdicfion, on the condifions set ouf in Arficle 58 of fhe EEA Agreement, fotake the decisions provided for in fhe acf referred fo in point 1 of fhe EEA Agreement (Regulation No 4064/89) and this Chapfer. 10 No EFTA Sfate shall apply ifs nafional legislationon compefition fo any concentrafion fhaf has an EFTA dimension within fhemeaning of Arficle 1 of the said acf. The first subparagraph shall be without prejudiceto any EFTA State's power fo carty ouf any enquiries necessaty for theapplicafion of Arficle 9(2) or affer referral, pursuant fo Arficle 9(3), firsfsubparagraph, indent (b), or (5), fo take fhe measures strictly necessaty forthe applicafion of Arficle 9(8). Notwithstandingparagraphs 1 and 2, the EFTA States may take appropri ate measures fo protecf legifimate inferests other than those taken into con sideration by fhe said acf and this Chapter and compafible wifh fhe general principles and other provisions as provided for, direcriy or indirectly, under the EEA Agreement. Public security, plurality of fhe media andprudential mles shall be regarded as legifimate inferests within fhe meaningof fhe firsf subparagraph. other public interest must be communicated fothe EFTA Surveillance Authority by fhe concerned and shall berecognized by the EFTA Surveillance Authority after an assessment of ifscompatibility with the general principles and other provisions as provided for,directly or indirectly, under fhe EEAAgreement before fhe measures referred foabove may be taken. The EFTA Surveillance Authority shall inform the EFTA Stateconcerned of ifs decision within one month of fhaf communication. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 Applicafionof the acf referred fo in poinf 1 of to fhe EEA Agreement (Regulation(EEC) No 4064/89) and of fhis Chapfer Theact referred t o in poinf 1 of to the EEA Agreement (Re gulation (EEC) No 4064/89) and this Chapter aJone shall appfy to concentra tions as defined in Arficle 3 of the said act. 3Chapfers II, VI, IX andXI and fhe acts referred to in points 10 and 11 ofAnnex XIV to the EEA Agreement (Regulafions (EEC) No 1017/68 and (EEC) No4056/86) shall nof apply fo concentrations as defined in Arficle 3 of fhe acfreferred fo in poinf 1 of fo fhe EEA Agreement (Regulafion (EEC) No4064/89). 4If fhe EFTA Surveillance Authorityfinds, af the request of an , fhaf a concenfration as defined inArficle 3 of fhe said act fhaf has no EFTA dimension within fhe meaning ofArricle 1 of fhe said act creafes or sfrengfhens a dominant posifion as aresulf of which effective compefition would be significanfly impeded within fheterritoty of fhe EFTA Sfate concerned if may, in so far as the concenfrationaffects trade between EFTA Sfates, adopt the decisions provided for in Artide8(2), second subparagraph, (3) and (4). 5Arficles 2(l)(a) and (b), and 5 of fhesaid acf and Arficles 6, 8 and 10 fo 20 of fhis Chapfer shall apply. The periodwithin which proceedings may be initiated pursuant to Arficle 10(1) shall beginon the dafe of fhe receipt of the request from fhe . The request mustbe made within one month af most of the dafe on which fhe concentration wasmade known to fhe EFTA Sfate or effected. This period shall begin on the dateof the firsf of those evenfs. 6Pursuant fo paragraph 3 fhe EFTASurveillance Authority shall take only fhe measures strictly necessaty tomaintain or resfore effective compefition within fhe territory of the EFTASfate af fhe request of which it intervenes. 7Paragraphs 3 fo 5 shall continue toapply until fhe thresholds referred to in Arficle 1(2) of the said act havebeen reviewed. TheEFTA Surveillance Authority may submit fo the Governments of fhe EFTA Sfates,in accordance with the provisions of Arficle 49 of this Agreement, proposalsfor forms to be used for notifications pursuant to Arficle 4 of fhe act referredto in point 1 of to fhe EEA Agreement (Regulafion (EEC) No 4064/89),as well as proposals for complementaty notes fo fhe forms. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 Relations wifh counfries nof party fo fhe EEA Agreement 2The EFTA Statesshall inform fhe EFTA Surveillance Authority of any general difficultiesencounfered by fheir undertakings wifh concenfrations as defined in Arficle 3of fhe act referred fo in poinf 1 of fo fhe EEA Agreement (Regulafion(EEC) No 4064/89) in a countty nof Party fo the EEA Agreement. 3Fnitially nofmore fhan one year after fhe enfty into force of the EEA Agreement andthereafter periodically the EFTA Surveillance Authorify shall draw up a reportexamining fhe freafment accorded to EFTA undertakings, in the terms referredfo in paragraphs 3 and 4, as regards concentrafions in counfries nof parfy tofhe EEA Agreement. The EFTA Surveillance Authorify shafl submit those reportsto fhe , together with any recommendations. 4Whenever ifappears fo fhe EFTA Surveillance Authorify, eifher on the basis of fhe reportsreferred fo in paragraph 2 or on the basis of other informafion, fhaf acountry nof parfy fo fhe EEA Agreement does not grant EFTA undertakingsfreafment comparable fo fhaf granted by EFTA States to undertakings from fhafcountty, the EFTA Surveillance Authority may submit proposals fo each of fheGovernments of the EFTA States wifh a view to obfaining comparable freafmentfor EFTA undertakings. 5Measures takenunder fhis Arficle shall comply with the obligafions of the EFTA States underinfernational agreements, whether bilateral or multilateral. (See Artide 10 of Chapfer XVI) 1991/92:170 Bilaga 16 /Court Agreement Protocol 4 CHAPTER XIV DETAILED RULES CONCERNING NOTIFICATIONS,TIME LIMITS AND HEARINGS IN THE FIELD OF CONTROL OF CONCENTRATIONS BETWEENUNDERTAKINGS Persons entifled fo submit notifications 2Notificationsshall be submifted by fhe persons or undertakings referred fo in Arficle 4(2)of fhe acf referred fo in point 1 of fo the EEA Agreement (Regulafion(EEC) No 4064/89). 3Wherenotifications are signed by representatives of persons or of undertakings,such representatives shall produce written proof fhaf they are authorized foacf. Joinf notifications should be submitted by a joinfrepresentative who is authorized to transmit and to receive documents on behalfof all notifying parfies. 2Notificationsshall be submifted in fhe prescribed in the form issued for fhis purposeby fhe Governments of the EFTA States, by common accord, as shown in Appendix9, or by fhe EC Commission. Joinf notifications shall be submitted on a singieform. 3Nine copies ofeach notification and of fhe supporting documents shall be submitted fo fheEFTA Surveillance Authority at fhe address indicated in fhe form as issued byfhe Governments of fhe EFTA States, by common accord. 4The supportingdocuments shall be eifher originals or copies of the originals; in fhe latfercase the notifying parfies shall confirm fhaf they are true and complefe. 5Notificationsshall be in an official language of an EFTA Sfate or of fhe Communify. Ifundertakings choose to notify fhe EFTA Surveillance Authorify in a languagewhich is not one of fhe official languages of fhe Stafes falling within thecompefence of fhaf Authorify, or a working language of fhaf Authorify, theyshall simultaneously supplement all documenfafion with a franslafion into anofficial language or a working language of fhaf authorify. The language whichis chosen for fhe franslafion shall determine fhe language in which theundertaking may be addressed by fhe EFTA Surveillance Authority. Supportingdocuments shall be submifted in their original language. Where fhe originallanguage is nof one of fhe official languages as referred to above, a translationinto fhe language of fhe proceeding shall be atfached. Information to be provided 3Notificationsshall contain the informafion requested by fhe form as issued by the Governmentsof the EFTA Stafes, by common accord, or the EC Commission. The informafionmust be correct and complete. 4Materialchanges in the facts specified in fhe nofificafion which fhe notifying parfiesknow or oughf fo have known must be communicated fo fhe EFTA SurveillanceAuthorify voluntarily and without delay. 5Incorrect ormisleading informafion shall be deemed fo be incomplete information. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 2Subject to paragraph 2, and withoutprejudice fo Article 11 of Protocol 24 to fhe EEA Agreement, notificationsshall become effective on fhe dafe on which they are received by the EFTASurveillance Authorify. 3Subject to paragraph 3, where theinformation contained in fhe notification is incomplete in a material respect,the EFTA Surveillance Authority shall without delay inform fhe notifyingparties or the joinf representative in writing and shall fix an appropriatetime-limit for fhe complerion of fhe information; in such cases, thenotification shall become effective on the date on which the completeinformafion is received by fhe EFTA Surveillance Authorify. 4The EFTA Surveillance Authority maydispense wifh the obligafion to provide any particular informatiot\ requestedby the form as issued by the Governments of the EFTA Sfates, by common accord,or the EC Commission where fhe EFTA Surveillance Authority considers that suchinformafion is not necessary for fhe examination of the case, 5The EFTA Surveillance Authority shallwithout delay acknowledge in writing to fhe notifying parfies or fhe joinfrepresentative receipt of fhe notificafion and of any reply to a letter sentby the EFTA Surveillance Authorify pursuant to paragraph 2 above. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 1Where fhe EFTA Surveillance Authorityfinds that the operation notified does nof consfifute a concentration withinthe meaning of Arficle 3 of fhe act referred fo in point 1 of to fheEEA Agreement (Regulafion (EEC) No 4064/89) if shall inform the notifying partiesor the joint representative in writing. In such a case, fhe EFTA SurveillanceAuthority may, if requested by the notifying parfies, as appropriate andsubject fo paragraph 2 below, treat the notificafion as an application withinthe meaning of Arficle 2 or a notification within fhe meaning of Arficle 4 ofChapter Fl, as an application within the meaning of Article 12 of Chapter VI,as an applicafion within the meaning of Arficle 12 of Chapfer IX oras an applicafion within the meaning of Arficle 3(2) or of Arficle 5 of ChapferXI. 2In cases referred to in paragraph 1,second sentence, fhe EFTA Surveillance Authorify may require fhaf fheinformafion given in fhe nofificafion be supplemented within an appropriatetime-limif fbced by if in so far as this is necessaty for assessing theoperation on fhe basis of the above-menfioned Chapfers. The applicafion ornofificafion shall be deemed to fulfil the requirements of such Chapfers fromfhe dafe of fhe original notificafion where the addifional information isreceived by the EFTA Surveillance Authority within the time-limif fixed. TIME LIMITS FOR INFTIATING PROCEEDINGS AND FOR DECISIONS Beginning of fhe time-limif 1The periodsreferred fo in Arficle 10(1) of Chapter XIII shall start at fhe beginning offhe day following the effecfive date of fhe notificafion, within fhe meaning ofArficle 4(1) and (2) of fhe acf referred fo in poinf 1 of fo fheEEAAgreement (Regulafion (EEC) No 4064/89). 2The periodreferred fo in Arficle 10(3) of Chapfer XIII shall start af the beginning ofthe day following fhe day on which proceedings were initiated. 3Where the firsfday of a period is nof a working day within the meaning of Arficle 19, theperiod shall start af fhe beginning of fhe following working day. End of fhe time-limif 3The periodreferred fo in fhe firsf subparagraph of Arficle 10(1) of Chapfer XIII shallend wifh fhe expity of fhe day which in fhe month following fhaf in which fheperiod began falls on the same dafe as the day from which fhe period runs.Where such a day does nof occur in fhaf month, fhe period shall end wifh theexpity of the last day of fhaf month. 4The periodreferred fo in fhe second subparagraph of Article 10(1) of Chapfer XIII shallend with fhe expiry of fhe day which in the sbcfh week following that in whichthe period began is the same day of fhe week as fhe day from which fhe periodruns. 5The periodreferred fo in Article 10(3) of Chapter XIII shall end with fhe expity of fheday which in fhe fourth month following fhaf in which fhe period began falls onfhe same dafe as the day from which fhe period runs. Where such a day does nofoccur in fhaf month fhe period shall end wifh fhe expiry of fhe last day offhaf month. 6Where fhe lastday of the period is nof a working day within fhe meaning of Arficle 19, fheperiod shall end with fhe expiry of fhe following working day. 7Paragraphs 1 to4 above shall be subject fo the provisions of Article 8. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 Where public holidays or other holidays of the EFTASurveillance Authority as defined in Arficle 19 fall within the periodsreferred fo in Arficle 10(1) and in Arficle 10(3) of Chapfer XIII, theseperiods shall be extended by a corresponding number of days. Suspension of fhe time-limif The period referred to in Article 10(3) of Chapter XIIIshall be suspended where fhe EFTA Surveillance Authority, pursuant to Arficles 11(5) or 13(3) of Chapfer XIII, has fo take a decision because; 2informafionwhich fhe EFTA Surveillance Authority has requested pursuant to Article 11(2)of Chapter XIII from an undertaking involved in a concentrafion is notprovided or not provided in full within fhe time-limit fbced by the EFTASurveillance Authority; 3an undertakinginvolved in fhe concentrafion has refused to submit to an investigafion deemednecessaty by fhe EFTA Surveillance Authority on fhe basis of Arficle 13(1) ofChapfer XIII or to cooperate in fhe cartying ouf of such an investigafion inaccordance wifh fhe above-menfioned provision; 4fhe notifyingparfies have failed to inform fhe EFTA Surveillance Authorify of materialchanges in the facts specified in the notification. The period referred fo in Arficle 10(3) of Chapter XIIIshall be sus pended: 3in the casesreferred to in subparagraph 1 (a) above, for the period between fhe end of fhetime-limit fixed in the request for informafion and fhe receipt of fhecomplefe and correct information required by decision; 4in fhe casesreferred fo in subparagraph l(b) above, for the period between fhe unsuccessfulaftempt to carty out fhe investigafion and fhe complefion of fhe investigafionordered by decision; 5in fhe cases referredfo in subparagraph l(c) above, for the period between the occurrence of thechange in fhe facts referred fo therein and the receipt of fhe complefe andcorrect informafion requested by decision or the complefion of fheinvestigafion ordered by decision. The suspension of fhe time-limit shall begin on the dayfollowing that on which fhe event causing fhe suspension occurred. It shall end with fhe expity of the day on which fhe reason for suspension is removed. Where such day is nof a working day within the meaning of Artide 19, the suspension of the time-limif shall end with fhe expity of fhe following working day. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 Compliance with fhe time-limif The fime limits referred fo in Arficle 10(1) and (3) ofChapter XIII shall be met where fhe EFTA Surveillance Authority has taken therelevant decision before fhe end of fhe period. Notification of the decision fofhe undertakings concerned must follow without delay. HEARINGOF THE PARTIES AND OF THIRD PARTIES Decisionson fhe suspension of concenfrations 1Where the EFTA Surveillance Authorityinfends to take a decision under Arficle 7(2) of Chapfer XIII or a decisionunder Arficle 7(4) of that Chapter which adversely affects the parties, itshall, pursuant to Arficle 18(1) of that Chapfer, inform the parfies concernedin writing of its objections and shall fix a time-limif within which they maymake known fheir views. 2Where the EFTA Surveillance Authoritypursuant fo Article 18(2) of Chapter XIII has taken a decision referred to inparagraph 1 provisionally without having given the parties concerned theopportunity fo make known their views, it shall without delay and in any eventbefore the expity of the suspension send them the text of the provisionaldedsion and shall fix a time-limif within which they may make known theirviews. Once the parries concerned have made known theirviews, the EFTA Surveillance Authority shall take a final decision annulling,amending or confirming the provisional decision. Where the parties concernedhave not made known their view within the time-limif fixed, fhe EFTASurveillance Authority's provisional dedsion shall become final wifh fhe expityof fhaf period. Theparties concerned shall make known their views in writing or orally within the time-limit fixed. They may confirm fheir oral stafements in writ ing. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 Decisionson the substance of the case Wherethe EFTA Surveillance Authority infends fo take a decision pursu ant to Artide 8(2), second subparagraph, Article 8(3), (4) and (5), Arficle 14 or Article 15 of Chapter XIII, if shall, before consulfing the Advisoty Com mittee on Concentrations, hold a hearing of fhe parties concerned pursuant fo Arficle 18 of that Chapfer. 2The EFTA Surveillance Authority shallinform the parties concerned in writing of ifs objections. The communicationshall be addressed to fhe notifying parfies or to fhe joint representative.The EFTA Surveillance Authorify shall, when giving notice of objections, fbc atime-limit within which the parties concerned may inform fhe EFTA SurveillanceAuthorify of fheir views. 3Having informed the parties of ifsobjections, fhe EFTA Surveillance Authorify shall upon request give the partiesconcerned access to the filé for the purposes of preparing their observations.Documents shall nof be accessible in so far as they contain business secretsof other parfies concerned or of third parties, or other confidentialinformafion including sensitive commer- 18 1991/92. cial informafion fhe disclosure of which would have asignificant adverse effect on fhe supplier of such informafion or where theyare internal documents of fhe authorifies. The parties concerned shall, within fhe time-limitfixed, make known in writing their views on fhe EFTA Surveillance Aufhority'sobjections. They may in their written comments set ouf all fhe matters relevantto the case and may atfach any relevant documents in proof of fhe facts setouf. They may also propose fhaf fhe EFTA Surveillance Authority hear personswho may corroborafe those facts. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 Artide 13 Oral hearings 2The EFTASurveillance Authorify shall afford parties concerned who have so requested infheir written comments fhe opportunity fo put forward their arguments orally,if those persons show a sufficient interest or if the EFTA SurveillanceAuthority proposes fo impose a fine or periodic penaity payment on them. If mayalso in other cases afford the parfies concemed the opportunity of expressingfheir views orally. 3The EFTASurveillance Authority shall summon fhe persons fo be heard fo affend on suchdafe as if shall appoint. 4If shallforthwith transmit a copy of fhe summons fo the competent authorifies of fheEFTA Sfates, who may appoint an official to take parf in the hearing. 2Hearings shallbe conducted by persons appointed by the EFTA Surveillance Authority for fhafpurpose. 3Personssummoned to affend shall either appear in person or be represented by legalrepresentatives or representatives authorized by their consfifution.Undertakings and associations of undertakings may be represented by a dulyauthorized agent appointed from among their permanent staff. 4Persons heardby fhe EFTA Surveillance Authority may be assisted by lawyers or advisers whoare enfitled to plead before fhe EFTA Courf, or by other qualified persons. 5Hearings shallnof be public. Persons shall be heard separafely or in fhe presence of otherpersons summoned fo affend. In the latfer case, regard shall be had fo fhelegifimate interest of fhe undertakings in fhe protection of fheir businesssecrets. 6The stafementsmade by each person heard shall be recorded. 3If natural or legal persons showing asufficient interest, and especially members of the administrative or managementorgans of the undertakings concerned or recognized workers' representatives ofthose undertakings, apply in writing to be heard pursuant to the secondsentence of Article 18(4) of Chapter XIII, the EFTA Surveillance Authorifyshall inform them in writing of the nature and subject matter of the procedureand shall fix a time-limit within which they may make known their views. 4The third parfies referred to inparagraph 1 above shall make known their views in writing or orally within thetime-limit fixed. They may confirm fheir oral stafements in writing. 5The EFTA Surveillance Authorify maylikewise afford to any other third parties fhe opporfunify of expressing theirviews. SECTION IV MISCELLANEOUS PROVISIONS