prop · GF03170 · 1991-12-31 00:00:00 — Officials and agents of fhe EFTA Surveillance Authorityinstmcted to carty out checks shall exercise fheir powers upon production of anauthorization in writing specifying fhe purpose of fhe check. The EFTASurveillance Authorify shall also provide such an authorizafion forepresentatives of fhe EC Commission who shall take parf in fhe investigafionin accordance with Artide 8(4) of Protocol 23 fo fhe EEA Agreement. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 Undertakings shall comply wifh the obligafions imposed byArficle 1 of fhis Section without an individual decision being required forfhaf purpose, fail- ure fo do so renderingthem liable to the fines and penalties provided for in Prop. 1991/92:170 Arfide 3(3) of Section F. Bilaga 16 /CourtAgreement Protocol 4 Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 SECTION I RULES APPLICABLE TO CHAPTERS II TO XII AND XV Nofificafionof exisfing agreements, decisions and practices 4Agreements, decisions and concertedpractices of the kind described in Arficle 53(1) of fhe EEA Agreement which arein existence at fhe dafe of enfty into force of fhe EEA Agreement and inrespect of which the parfies seek application of Arficle 53(3) of fhe EEAAgreement shall be notified fo fhe EFTA Surveillance Authority pursuant to fheprovisions in Arficle 56 of fhe EEA Agreement, the rules referred fo in Artides1 to 3 of Protocol 21 and Protocol 23 to the EEA Agreement, as well as ChapfersIII, VI, VII, IX, X, XI, XII and XV, within sbc months of the dafe of enfty into force of fhe EEAAgreement. 5Paragraph 1 shall nof apply toagreements, decisions or concerted practices of the kind described in Arficle53(1) of fhe EEA Agreement and falling under Article 4(2) of Chapter II; these may be notified to the EFTA Surveillance Authority pursuant toArficle 56 of fhe EEA Agreement, fhe rules referred fo in Arficles 1 to 3 ofProtocol 21 and Protocol 23 fo fhe EEA Agreement, as wdl as Chapters III, VI, VII, IX, X, XI, XII and XV. Decisionspursuant fo Article 53(3) of fhe EEA Agreement 3Whenever the EFTA SurveillanceAuthority fakes a decision pursuant to Arficle 53(3) of the EEA Agreement, itshall specify therein the dafe from which fhe decision shall take effect. Suchdafe shall not be earlier fhan the dafe of nofificafion. 4The second sentence of paragraph 1shall nof apply to agreements, decisions or concerted practices falling withinArficle 4(2) of Chapfer II and Arficle 1(2) of fhis Chapfer, nor to thosefalling within Arficle 1(1) which have been notified within the time-limitspecified in Arficle 1(1). Specialprovisions for exisfing agreements, decisions and practices 1.Where agreements, decisions or concerted practices of the kind described inArficle 53(1) of fhe EEA Agreement which are in existence at fhe dafe of entryinto force of fhe EEA Agreement and notified within the time limits specifiedin Arficle 1(1) of this Chapfer do nof safisfy the requirements of Arficle53(3) of the EEA Agreement and fhe undertakings or associations of undertakingsconcerned cease fo give effect fo them or modify them in such a thatthey no longer fall under the prohibition contained in Arficle 53(1) or thatthey satisfy fhe requirements of Arficle 53(3), fhe prohibition contained inArtide 53(1) shall apply only for a period fixed by the EFTA SurveillanceAuthority. A decision by fhe EFTA Surveillance Authority pursuant fo theforegoing sentence shall nof apply as against undertakings and associations ofundertakings which did nof expressly consent to the nofificafion. 2.Paragraph 1 shall apply fo agreements, decisions or concerted practices fallingunder Arficle 4(2) of which are in existence af fhe date of enttyinto force of fhe EEA Agreement if they are notified within six months afferfhaf dafe. Applicationsand notifications submifted to fhe EC Commission prior fo fhe date of enttyinto force of the EEA Agreement shall be deemed to comply with the provisionson applicafion and nofificafion under fhaf Agreement. The EFTA Surveillance Authorify pursuant to Arficle56 of fhe EEA Agreement and Arficle 10 of Protocol 23 fo fhe EEA Agreement mayrequire a duly complefed form as prescribed for fhe implemenfafion of the EEAAgreement to be submifted to it within such time as if shall appoint. In fhafevent, applications and notifications shall be freated as properiy made only ifthe forms are submifted within the prescribed period and in accordance wifh fheprovisions of the EEA Agreement and of Chapfers II, III,V, VII, X, XII and XV of this Protocol. Finesfor infringement of Arficle 53(1) of the EEA Agreement shall nof be imposed inrespect of any act prior to notificafion of the agreements, decisions andconcerted practices fo which Arficles 1 and 2 of this Chapter apply and whichhave been notified within the period specified therein. TheEFTA States shall ensure that the measures affording the necessaty assistanceto officials of fhe EFTA Surveillance Authority and the EC Commission, inorder fo enable them fo make fheir investigations as foreseen under fheAgreement, are taken within sbc months of fhe enfty into force of fhe EEAAgreement. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 As regards agreements,decisions and concerted practices already in existence at fhe dafe of entryinto force of the EEA Agreement which fall under Arficle 53(1) of fhe EEAAgreement, the prohibition in Arficle 53(1) shall notappfy where the agreements, decisions or practices are modified within sbcmonths from fhe date of enfty into force of fhe EEA Agreement so as fo fulfilfhe condifions contained in the block exempfions provided for in tothe EEA Agreement. Asregards agreements, decisions of associations of undertakings and concertedpractices already in existence af fhe dafe of enfty into force of the EEAAgreement which fall under Arficle 53(1) of the EEA Agreement, fhe prohibitionin Arficle 53(1) shall nof apply, from the dafe of entty into force of fheAgreement, where the agreements, decisions or practices are modified withinsix months from the dafe of enfty into force of the EEA Agreement so as nof tofall under fhe prohibition of Article 53(1) any more. Agreements,decisions of associations of undertakings and concerted practices whichbenefit from an individual exempfion granted under Artide 85(3) of the Treatyestablishing fhe European Economic Community before the entty into force of fheEEA Agreement shall continue to be exempted as regards fhe provisions of fheEEA Agreement, until fheir dafe of expity as provided for in fhe decisionsgranting these exempfions or until fhe EC Commission otherwise decides,whichever dafe is fhe earlier. SECTION II RULES APPLICABLE TO CHAPTERS XIII AND XIV Theact as referred to in poinf 1 of to fhe EEA Agreement (Regulafion(EEC) No 4064/89) and Chapfer XIII shall not apply fo any concenfration whichwas the subject of an agreement or announeement or where control was acquiredwithin the meaningof Arficle 4(1) of the said acf before fhe enfty into forceof the EEA Agreement and they shall nof in any circumstances apply fo anyconcenfration in respect of which proceedings were initiated before that dateby an EFTA Sfafe's authorify wifh responsibilify for compefition. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 19 1991/92. LIST OF CERTAIN TECHNICAL AGREEMENTS IN THE AIR SECTOR REFERRED TO IN ARTICLE 2 OF CHAPTERXI 7Theintroduction or uniform applicafion of mandafoty or recommended technicalstandards for aircraft, aircraft parts, equipment and aircraft supplies, wheresuch standards are set by an organizafion normally accorded internafionalrecognition, or by an aircraft or equipment manufacturer; 8fheintroduction or uniform application of technical standards for fixedinstallations for aircraft, where such standards are set by an organizafionnormally accorded internafional recognition; fhe exchange, leasing, pooling, ormainfenance of aircraft, aircraft parts, equipment or fbced installations forfhe purpose of operating air services and fhe joinf purchase of aircraft parts,provided that such arrangements are made on a non-discriminafoty basis; fheintroduction, operation and mainfenance of technical communication networks,provided that such arrangements are made on a non-discriminatoty basis; (e) fhe exchange, pooling ortraining of personnel for technical or op-erational purposes; fhe organizafion and execution of substitute transportoperations for passengers, mail and baggage, in fhe event of breakdown/delay ofaircraft, either under charter or by provision of substitute aircraft undercontractual arrangements; (h) (i) fhe organizafion and execution of successive orsupplementary air transport operations, and fhe fixing and applicafion ofinclusive rafes and condifions for such operations; fhe consolidation ofindividual consignments; fhe or applicafion of uniform rulesconceming fhe sfructure and fhe conditions governing the applicafion oftransport tariffs, provided fhaf such rules do nof directly or indirectly fbctransport fares and condifions; arrangements as fo fhe sale, endorsemenf and acceptance offickefs between air (interlining) as well as fhe refund, pro-rafingand accounting schemes esfablished for such purposes; (k) fhe clearing and setfling ofaccounts between air by means of a clearing house, including suchservices as may be necessaty or incidenfal thereto; fhe clearing and setflingof accounts between air and their appointed agents by means of acenfralized and automated seffiement plan or sysfem, including such services asmay be necessaty or incidenfal thereto. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 ON THE STATUTE OF THE EFTA COURT TheEFTA Courf esfablished by Arficle 27 of fhis Agreement shall be constitutedand function in accordance wifh fhe provisions of fhis Agreement and of fhisStafufe. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol5 Beforetaking up his dufies each Judge shall, in open courf, take an oafh to performhis duties imparfially and consdentiously and to preserve fhe secrecy of thedeliberafions of the Court. Immediatelyaffer fhe oafh has been taken, the Court shall proceed fo choose by lot fheJudges of fhe Courf whose terms of office are fo expire af fhe end of fhe firsfthree years in accordance with Arficle 30 of the Agreement. TheJudges may nof hold any polifical or administrative office. They may nof engage in any occupation, whethergainful or nof, unless exempfion is granted by fhe Governments of fhe EFTAStafes acfing by common accord. When taking up fheir dufies, they shall give asolemn undertaking fhaf, both during and affer fheir term of office, they willrespect fhe obligafions arising therefrom, in parficular the duty fo behavewifh infegrity and discrefion as regards fhe acceptance, affer they haveceased fo hold office, of certain appoinfments or benefits. Anydoubt on fhis point shall be seffied by decision of fhe Courf. Apartfrom normal replacement, or death, fhe dufies of a Judge shall end when heresigns. Where a Judge resigns, his letter of resignationshall be addressed fo fhe President of fhe Courf for transmission fo fheGovernments of fhe EFTA Stafes. Upon fhis nofificafion a vacancy shall arise onfhe bench. Save where Article 6 applies, a Judge shallcontinue fo hold office until his successor fakes up his dufies. A Judge may be deprived of his office or of his right fo apension or other benefits in its stead only if, in fhe unanimous opinion of fheCourf in plenary, he no longer fulfils fhe requisite conditions or meets theobligafions arising from his office. The Judge concerned shall nof take parf inany such deliberafions. The Registrar of fhe Courf shallnofify such a decision fo fhe Governments of fhe EFTA Sfates. 1991/92:170 Bilaga 16 /Court Agreement Protocol5 A Judge who is fo replace a member of the Court whose termof office has not expired shall be appointed for the remainder of hispredecessor's term. Decisions of fhe Courf shall be taken by a majority of fheJudges sitting in fhe deliberafions and in accordance with conditions laid downin fhe rules of procedure. The Courf shall appoint ifs Registrar and lay down therules governing his service. The Registrar shall take an oafh before the Court foperform his duties imparfially and consdentiously and to preserve the secrecyof the deliberafions of fhe Courf. The Courf shall arrange for replacement of fhe Registraron occasions when he is prcvenfed from affending the Court. Officialsand other servants shall be atfached fo the Court fo enable it fo function.They shall be responsible fo fhe Registrar under fhe authorify of thePresident. The Judges and fhe Registrar shall be required to resideaf the place where fhe Court has ifs seat. The Courf shall remain permanenfly in session. Thedurafion of fhe judicial vacafions shall be determined by fhe Court wifh dueregard fo fhe needs of ifs business. No Judge may take part in the disposal of a case in whichhe has previously taken parf as agent or adviser or has acted for one of fheparfies, or in which he has been called upon fo pronounce as a member of acourf or tribunal, of a commission of inquiry or in any other capadfy. If, for some special reason, anyJudge considers fhaf he should nof take part in fhe judgment or examination ofa parficular case, he shall so inform fhe President of fhe Courf. If, for somereason, fhe President considers fhaf any Judge should nof sit in a parficularcase, he shall nofify him accordingly. difficulty arising as fo fheapplicafion of fhis Arficle shall be settled by decision of fhe Courf. A party may not apply for a changein fhe composifion of fhe Courf on fhe grounds of eifher nationality of a Judgeor fhe absence from fhe Courf of a Judge of fhe nationality of fhaf party. Rules governing fhe languages of fhe Courf shall be laiddown in fhe rules of procedure of the Courf. The EFTA Sfates, the EFTA Surveillance Authority, fheCommunity and fhe EC Commission shall be represented before the Courf by anagent appointed for each case; fhe agent may be assisted by an adviser or by alawyer enfitled fo practise before a courf of a Contracfing Party fo fhe EEAAgreement. Other parfies must be representedby a lawyer entifled fo practise before a courf in a Confracting Party fo fheEEA Agreement. Such agents, advisers and lawyersshall, when they appear before fhe Courf, enjoy fhe righfs and immunifiesnecessaty fo fhe independent exercise of fheir duties, under conditions laiddown in fhe rules of procedure of fhe Courf. As regards such advisers andlawyers who appear before if, fhe Courf shall have the powers normally accordedfo courts of law, in accordance wifh fhe rules of procedure of fhe Courf. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol5 Theprocedure before the Courf shall consist of two parts: written and oral. Thewritten procedure shall consist of the communication to the parties ofapplications, stafements of case, defences and observations, and of replies, ifany, as well as ofall papers and documents in support or of certified copies ofthem. Communications shall be made by the Registrar inthe order and within the fime laid down in the rules of procedure of fhe Court.' The oral procedure shall consist of fhe reading of fhe report presented by aJudge acting as Rapporteur, the hearing by the Courf of agents, advisers andlawyers, as well as the hearing, if any, of wifnesses and experts. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 5 Acase shall be broughf before the Court by a written application addressed fofhe Registrar. The applicafion shall contain the applicant's name and permanentaddress and the descripfion of fhe signafoty, the name of fhe party againstwhom fhe applicafion is made, fhe subject maffer of the dispufe, fhesubmissions and a brief statement of the grounds on which the application isbased. The applicafion shall be accompanied, whereappropriate, by fhe measure the annulmenf of which is sought or by any other relevantdocuments. If the documents are not submitted with the application, theRegistrar shall ask fhe party concerned to produce them within a reasonableperiod, but in fhaf event the righfs of fhe party shall nof lapse even if suchdocuments are produced affer fhe time-limif for bringing proceedings. Assoon as a case is pending before the Courf, fhe Registrar shall nofify fheGovernments of the EFTA States, the EFTA Surveillance Authorify, the Communifyand fhe EC Commission. Within two months of this notificafion, fhe EFTASfates, fhe EFTA Surveillance Authority, the Community and fhe EC Commissionshall be enfitled fo submit stafements of case or written observations to theCourt. TheCourf may require the parfies to produce all documents and to supply allinformation which the Courf considers desirable. Formål note shall be taken ofany refusal. TheCourf may also require fhe EFTA Sfates nof being parfies to fhe case to supplyall information which the Court considers necessary for the proceedings. TheCourf may af any fime enfrust any individual, body, authorify, committee orother organizafion if chooses wifh fhe task of giving an expert opinion. Article 23 Prop. Wifnesses may be heard in accordance wifh fhe rules ofprocedure of fhe tJUaga lo ,.,.,, Protocol 5 Wifnesses and experts may be heard on oafh taken inaccordance with fhe rules of procedure of the Courf or in fhe laid downby fhe law of fhe countty of the witness or expert. The Courf may order fhaf a witness or expert be heard byfhe judicial authority of his place of permanent . The order shall be sent forimplemenfafion fo the competent judicial authority under condifions laid downin the rules of procedure of the Courf. The documents drawn up in compliancewifh the letters rogafoty shall be refurned fo fhe Courf under fhe samecondifions. The Court shall defray fheexpenses, without prejudice fo fhe right fo charge them, where appropriate, tothe parfies. An treat any defaulfing witness or anyviolation of an oafh by a witness or expert in the same as if theoffence had been commifted before one of ifs courts wifh jurisdicfion in civilproceedings. Af the instance of the Courf, the EFTA Sfate concerned shallprosecute fhe offender before ifs competent court. The hearing in court shall be public, unless the Court, ofits own motion or on applicafion by the parties, decides otherwise for seriousreasons. During fhe hearings fhe Courf may examine fhe experts, fhewifnesses and the parfies themselves. The latfer, however, may address fheCourf only through fheir representatives. Minufes shall be made of each hearing and signed by thePresident and fhe Registrar. Thecase list shall be established by fhe President. Thedeliberafions of fhe Courf shall be and shall remain secret. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 5 Judgmentsshall state fhe reasons on which they are based. They shall contain the namesof the Judges who took parf in fhe deliberafions. Judgmentsshall be signed by the President and fhe Registrar. They shall be read in opencourf. TheCourt shall adjudicafe upon cosfs. ThePresident of fhe Courf may, by way of summaty procedure, which may, in so faras necessary, differ from some of fhe rules contained in this Agreement andwhich shall be laid down in the rules of procedure, adjudicafe uponapplications to suspend execution as provided for in Arficle 40 of fhis Agreement,or to prescribe interim measures in pursuance of Artide 41 of fhis Agreement,or fo suspend enforcement in accordance wifh Arficle 110, fourth paragraph, ofthe EEA Agreement. Should the President be prevented from affending,his place shall be taken by another Judge in accordance wifh fhe rules ofprocedure. The ruling of fhe President or of fhe Judgerepladng him shall be provisional and shall in no way prejudice fhe decisionof fhe Court on fhe substance of the case. AnyEFTA Sfate, the EFTA Surveillance Authority, fhe Community and fhe ECCommission may infervene in cases before fhe Courf. The same right shall be open to any person establishingan interest in fhe result of any case submifted fo fhe Courf, save in casesbetween EFTA States or between EFTA States and the EFTA Surveillance Authority. Submissionsmade in an applicafion to infervene shall be limited fo supporting fhesubmissions of one of fhe parfies. Wherefhe defending party, after having been duly summoned, fails fo file writtensubmissions in defence, judgment shall be given against fhaf party by defaulf.An objection may be lodged against fhe judgment within one month of if beingnotified. The objection shall not have fhe effect of staying enforcement offhe judgment by defaulf unless the Courf decides otherwise. EFTAStafes, and any other natural or legal persons may, in cases and undercondifions to be defermined by the rules of procedure, institute third-partyproceedings fo confest a judgment rendered without fheir being heard, where fhejudgment is prejudidal fo fheir rights. Iffhe meaning or scope of a judgment is in doubt, the Courf shall consfrue if onapplicafion by any party establishing an interest therein or by fhe EFTASurveillance Authority. Anapplicafion for revision of a judgment may be made fo fhe Courf only ondiscovety of a facf which is of such nature as to be a dedsive facfor, andwhich, when fhe judgment was given, was unknown to fhe Court and to fhe partydaiming fhe revision. The revision shall be opened by a judgment of fheCourf expressly recording fhe existence of a new facf, recognizing that if isof such a character as to lay fhe case open to revision and dedaring fheapplicafion admissible on this ground. No application for revision may be made affer thelapse of ten years from ■ fhe dafe of fhe judgment. Periodsof grace based on considerafions of distance shall be defermined by the rulesof procedure of fhe Courf. No right shall be prejudiced in consequence of fheexpity of a time-limit if fhe party concerned proves the existence ofunforeseeable circumsfances or of force majeure. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol5 Proceedingsagainst fhe EFTA Surveillance Authority in matters arising from non-contracfualliability shall be barred affer a period of five years from the occurrence ofthe event giving rise thereto. The period of limitafion shall be interrupted ifproceedings are instituted before the Court or if prior to such proceedings anapplicafion is made by fhe aggrieved party fo the EFTA Surveillance Authority.In fhe lafter event the proceedings must be instituted within two months of thepublication of fhe measure, or of its nofificafion fo fhe plaintiff, or, in fheabsence thereof, of fhe day on which it came to the knowledge of the latter, asthe case may be. Therules of procedure of the Courf shall confain, apart from fhe provisions Protocol 5 confemplatedby this Stafufe, any other provisions necessaty for applying and,where required, supplementing if. TheGovernments of the EFTA States may, on a proposal from or after hearing fheCourt, by common accord amend this Stafufe. ON THE LEGAL CAPACITY, PRIVILEGES AND THE EFTA SURVEILLANCE AUTHORITY TheEFTA Surveillance Authority shall possess legal personality. It shall inparticular have the capacity to contract, fo acquire and dispose of movable andimmovable property, and fo be a party fo legal proceedings. Withinfhe scope of ifs official acfivifies, fhe EFTA Surveillance Auth ority shall have immunity from jurisdiction and execution, except: 2in so far as if has expressly waivedsuch immunify in a parficular case; 3in respect of a civil action by athird parfy for damage arising from an accident caused by a vehicle or othermeans of transport belonging fo or operated on behalf of the EFTA SurveillanceAuthority or in respect of a traffic offence involving such means of transport;