prop · GF03170 · 1991-12-31 00:00:00 — Transmissionof documents and summonses from the EFTA Surveillance Authorify to the addressees may be effected in any of the following ways: 2delivety by hand against receipt; 3registered letter with acknowledgementof receipt; 4telefax with a request foracknowledgement of receipt; (d) telex. 2Subject fo Arficle 18(1), paragraph 1above also applies to the transmission of documents from the parties concernedor from third parties to the EFTA Surveillance Authority. 3Where a document is sent by telex orby telefax, it shall be presumed that it has been received by the addressee onthe day on which if was sent. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 3In fbcing fhe fime limits provided forin Artides4(2), 5(2), 11(1) and (2), 12(2) and 15(1), the EFTA SurveillanceAuthority shall have regard fo the time required for preparafion of stafementsand to fhe urgency of the case. If shall also take account of public holidaysin the countty of receipt of fhe EFTA Surveillance Aufhority's communication. 4The day on which fhe addresseereceived a communication shall nof be taken into account for the purpose offbcing time limits. Receipt of documents by fhe EFTA Surveillance Authority 3Subject foArticle4(1), notifications must be delivered fo the EFTA SurveillanceAuthority at fhe address indicated in the form as issued by fhe Governments offhe EFTA Stafes, by common accord, or fhe EC Commission or have been dispatchedby registered letter before expiry of fhe period referred fo in Arficle 4(1)of the acf referred toin poinf 1 of fo fhe EEA Agreement (Regulation(EEC) No4064/89). Addifional information requested fo complefe notificationspursuant fo Article 4(2) or fo supplement notifications pursuant fo Arficle5(2) of fhe said acf must reach the EFTA Surveillance Authority af fheaforesaid address or have been dispatched by registered letter before fheexpity of fhe time-limif fixed in each case. Written comments on pursuant to Artides 11(1) and (2), 12(2)and 15(1) must be delivered to fhe EFTA Surveillance Authority af fhe aforesaidaddress before fhe time-limif fixed in each case. 4Where fhe lastday of a period referred fo in paragraph 1 is a day by which documents must bereceived and fhaf day is nof a working day within fhe meaning of Article 19,the period shall end with fhe expiry of fhe following working day. Where fhe last day of a period referred fo in paragraph1 is a day by which documents must be dispatched and that day is a Safurday, Sunday or public holiday in the countty of dispatch, fhe period shall end wifh fhe expity of fhe following working day in fhaf countty. A It ide 19 Definition of EFTA Surveillance Authority working days The term 'working days' in Artides 6(3), 7(4), 9(3) and18(2) means all days other fhan Saturdays, Sundays, public holidays set ouf inAppendix 10 fo fhis Protocol and other holidays as defermined by fhe EFTASurveillance Authority and published in fhe EEA Section of the OfficialJournal of fhe European Communifies before the beginning of each year. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 PART IV COAL AND STEEL CHAPTER XV RULES APPLICABLE TO UNDERTAKINGS IN THE FIELD OF COAL AND STEEL SECTION I GENERAL RULES REGARDING AGREEMENTS ANDCONCENTRATIONS Authorizafions pursuant fo Arficle 1(2) of Protocol 25fo fhe EEA Agree ment may be granted subject to specified condifions and for limited periods. In such cases fhe EFTA Surveillance Authority shall renew an authorizafion once or several fimes if if finds fhaf the requirements of subparagraphs (a) to (c) of Arficle 1(2) of Protocol 25 fo fhe EEA Agreement are still met af fhe fime of renewal. 0The EFTASurveillance Authority shall revoke or amend an authorizafion if it finds fhafas a resulf of a change in circumsfances fhe agreement no longer meets theserequirements, or fhaf fhe actual results of the agreement or of fhe applicafionthereof are contraty to fhe requirements for ifs authorizafion. 1Decisionsgranting, renewing, amending, refusing or revoking an authorizafion shall bepublished together with the reasons therefor; fhe resfricfions imposed byArticle 3(2) shall nof apply thereto. 2The EFTASurveillance Authority may, as provided in Arficle 3, obtain any informationneeded for the applicafion of Arfide 1 of Protocol 25 fo fhe EEA Agreement andof this Article, eifher by making a special request fo fhe parfies concerned orby means of decisions stating the kinds of agreement, decision or pracficewhich must be communicated fo if. 3The EFTASurveillance Authority shall have sole jurisdicfion, subject to the right tobring actions before fhe EFTA Courf in accordance wifh Article 108(2) of theEEA Agreement and with the relevant provisions of this Agreement and, on fhecondifions set ouf in Arficle 55 of fhe EEA Agreement and Protocols 22 and 25thereto, to rule whether any such agreement or decision is compafible withArticle 1 of Protocol 25 to fhe EEA Agreement. 4On anyundertaking which has entered into an agreement which is aufomafically voidpursuant to Arficle 1(3) of Protocol 25 fo fhe EEA Agreement, or has enforcedor affempted to enforce, by arbifration, penaity, boy-coff or any other means,an agreement or decision which is automatically void or an agreement for whichauthorizafion has been refused or revoked, or has obtained an authorization bymeans of information which if knew fo be false or misleading, or has engaged inpractices prohibited by Arficle 1(1) of Protocol 25 fo fhe EEA Agreement, fheEFTA Surveillance Authorify may impose fines or periodic penaity payments nofexceeding twice fhe turnover on fhe products which were the subject of fheagreement, decision or Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 pracfice prohibited byArficle 1(1) of Protocol 25 to fhe EEA Agreement; if, however, the purpose offhe agreement, decision or practice is fo resfrict producfion, technicaldevelopment or investmenf, this maximum may be raised to of fhe annualturnover of the undertakings in question in the case of fines, and of thedaily turnover in fhe case of periodic penaity payments. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 Inassessing whether the requirements of Arficle 2(2) of Protocol 251 o the EEA Agreement are met, the EFTA Surveillance Authority shall, in accord ance wifh fhe principle of non-discriminafion, take account of fhe size of like undertakings in fhe terrifoty covered by the EEA Agreement, to the extent it considers justified in order to avoid or correct disadvantages resultingfrom unequal competitive condifions. 2The EFTA Surveillance Authority maymake ifs authorizafion subject fo any conditions which if considers appropriatefor fhe purposes of Article 2(2) of Protocol 25 to the EEA Agreement. 3Before ruling on a transactionconceming undertakings at leasf one of which is nof subject fo Arfide 3 ofProtocol 25 to fhe EEA Agreement, the EFTA Surveillance Authority shall obfainthe comments of fhe Governments concerned. 4Without prejudice to the applicationof Article 3 fo undertakings within its jurisdicfion, the EFTA SurveillanceAuthority may obtain from fhe natural or legal persons who have acquired or regroupedor are intending to acquire or regroup fhe righfs or assets in quesfion anyinformafion needed for the application of Arficle 2 of Protocol 25 to fhe EEAAgreement and of fhe present Arficle conceming transactions liable fo producethe effect referred to in Arficle 2(1) of Protocol 25 fo fhe EEAAgreement. 5Ff a concenfration should occur whichfhe EFTA Surveillance Authority finds has been effected contrary fo fheprovisions of Article 2(1) of Protocol 25 fo the EEA Agreement but whichnevertheless meets the requirements of Arficle 2(2) of Protocol 25 fo fhe EEAAgreement, fhe EFTA Surveillance Authority shall make ifs approval of thatconcenfration subject to payment by the persons who have acquired or regroupedfhe righfs or assets in quesfion of fhe fine provided for in paragraph 12(b);the amount of fhe fine shall nof be less fhan half of fhe maximum defermined infhaf subparagraph (b) should it be clear that authorizafion oughf to have beenapplied for. If the fine is nof paid, fhe EFTA Surveillance Authority shalltake fhe steps hereinafter provided for in respect of concentrations found tobe un-lawful. 6If a concentration should occur whichthe EFTA Surveillance Authority finds cannot fulfil fhe general or specificcondifions to which an authorization under Arficle 2(2) of Protocol 25 to fheEEA Agreement would be subject, fhe EFTA Surveillance Authority shall, by meansof a reasoned decision. dedare fhe concentrafion uniawful and, affer giving theparfies concerned fhe opportunity fo submit fheir comments, shall orderseparation of fhe undertakings or assets improperly concentrated or cessafionof joinf control, and any other measures which if considers appropriate foreturn fhe undertakings or assets in question to independent operation andrestore normal conditions of compefition. person directly concerned mayinsfitute proceedings against such decisions, as provided in Arficles 108(2)(b)of the EEA Agreement and 18 of fhe present Agreement. The EFTA Courf, in accordancewifh Article 108(2) of fhe EEA Agreement and wifh the relevant provisions offhis Agreement, shall have uniimifed jurisdicfion to assess whether fhetransaction effected is a concentrafion within fhe meaning of Arficle 2(1) ofProtocol 25 to fhe EEA Agreement and of fhe acts conceming coal and sfeel ascontained in fo fhe EEA Agreement. The institution of proceedingsshall have suspensoty effect. Proceedings may nof be instituted until themeasures provided for above have been ordered, unless fhe EFTA SurveillanceAuthorify agrees fo fhe institution of separate proceedings against fhedecision dedaring the transaction uniawful. 2The EFTASurveillance Authority may at any fime, unless Arficle 41 of this Agreement isapplied, take or cause fo be taken such inferim measures of protection as itmay consider necessaty to safeguard the inferests of com-peting undertakingsand of third parties, and fo forestall any step which might hinder fheimplementation of ifs decisions. Unless fhe EFTA Courf decides otherwise,proceedings shall not have suspensory effect in respect of such interimmeasures. 3The EFTASurveillance Authority shall allow fhe parties concerned a reasonable period inwhich fo comply wifh ifs decisions, on expiration of which it may impose dailypenalfy payments nof exceeding one-fcnfh of of fhe value of fhe righfs orassets in quesfion. 4Furthermore, ifthe parfies concerned do nof fulfil fheir obligafions, fhe EFTA SurveillanceAuthority shall ifself take steps fo implement ifs decision. 2The EFTASurveillance Authority is also empowered to make such recommendations fo fheEFTA Stafes concerned as may be necessary fo ensure that fhe measures providedfor in fhe preceding paragraphs are implemented under their own law. 3In the exerciseof ifs powers, fhe EFTA Surveillance Authority shall take account of fhe righfsof third parties which have been acquired in good faith. The EFTA Surveillance Authority may impose fines notexceeding; of the valueof fhe assets acquired or regrouped or to be acquired or regrouped, on naturalor legal persons who have evaded the obligations laid down in paragraph 4; of thevalue of fhe assets acquired or regrouped, on natural or legal persons who haveevaded fhe obligations laid down in Article2(l) of Protocol25 fo the EEAAgreement; fhis maximum 1991/92:170 Bilaga 16 /Court Agreement Protocol4 shallbe increased by one twenty-fourth for each month which elapses after the end ofthe twelfth month following completion of the transaction until fhe EFTASurveillance Authority esfablishes that there has been an infringement; (c) of the value of the assets acquired orregrouped or fo be ac quired or regrouped, on natural or legal persons who have obtained or affempted to obfain authorizafion under Article 2(2) of Protocol 25 to the EEAAgreement by means of false or misleading informafion; (d) of the value of the assets acquired orregrouped, on undertak ings within its jurisdicfion which have engaged in or been party to transactions confraty to the provisions of Article 2 of Protocol 25 to the EEA Agreement or of the present Article. 13.Persons fined under paragraph 12 may appeal to the EFTA Court as provided inArficle 35 of fhis Agreement. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 2The EFTA Surveillance Authority mayobfain fhe informafion if requires to carty ouf its fasks. It may have anynecessaty checks made. 3Without prejudice to Arficle 9 ofProtocol 23 fo fhe EEA Agreement, fhe EFTA Surveillance Authority must notdisclose informafion acquired as a result of the application of Artides 55 and58 of fhe EEA Agreement, of Protocol 25 thereto and of fhe provisions of fhisChapfer and which is of fhe kind covered by the obligation of professional secrecy,in parficular informafion about undertakings, their business relations ortheir cost components. This obligation shall also apply fo fhe representativesof the EC Commission and of the EC Member Sfates who parficipate in theAdvisory Committee pursuant to Arfide 10(4) of Chapfer II and infhe hearing pursuant to Arfide 8(2) of Chapter IV. Subject to fhis reservation, if shall publish suchdata as could be useful fo governments or to any other parfies concerned. 1The EFTA Surveillance Authority may imposefines or periodic penaity payments on undertakings which evade theirobligafions under decisions taken in pursuance of fhis Arricle or whichknowingly furnish false information. The maximum amount of such fines shall be1% of fhe annual turnover, and fhe maximum amount of such penalfy paymentsshall be of fhe average daily turnover for each day's delay. 2Any breach of professional secrecy byfhe EFTA Surveillance Authorify which has caused damage to an undertaking maybe fhe subject of an acfion for compensafion before fhe EFTA Courf inaccordance wifh Article 108(2) of the EEA Agreement and with fhe relevantprovisions of this Agreement, in parficular Arficle 39. Beforeimposing a pecuniaty sancfion or ordering a periodic penaity payment asprovided for in fhis Chapfer, fhe EFTA Surveillance Authority must give theparty concerned the opportunity to submit its comments. Theturnover taken as fhe basis for calculating any fines and periodic penaitypayments imposed on undertakings under this Chapfer shall be the turnover onproducts referred to in Protocol 14 fo fhe EEA Agreement. SECTION II INFORMATION TO BE FURNISHED (ARTICLE 2(4) OF SECTION I) Allnatural and legal persons except persons engaged within the territoty coveredby fhe EEA Agreement in fhe production of coal and sfeel or in fhe distributionof those products other than by way of sale fo domestic consumers or smallcraff industries shall, where they effect transactions specified in fhefollowing Arficles, furnish informafion as provided for in this Section. Thepersons referred fo in Article 1 shall notify fhe EFTA Surveillance Authorityof any acquisifion of rights in an undertaking covered by Arficle 3 of Protocol25 to the EEAAgreement and any acquisifion of power fo exercise on fheir ownbehalf or on behalf of third parfies righfs in any such undertaking, wherebythey acquire more than of the voting power at meetings of shareholders orother members of such undertaking and where the total value of fhe righfs heldby them exceeds 100000 ECU. righfs, or power fo exercise righfs on behalfof others, held by fhe persons concerned before fhe transaction in questionshall be included in fhaf calculafion. Arficle1 shall also apply fo fhe acquisifion of righfs in any undertaking whichexercises control över an undertaking covered by Article 3 of Protocol 25 tofhe EEA Agreement. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 1.Banks and fheir agents shall be exempt from fhe obligafion fo nofify fhetransactions mentioned in Artides 2 and 3 where exercise of voting righfsattachés: fo shares belonging fo of those or other banks;or - to registered shares orstock in respect of which fhe bank is enfitled to exercise such rights in a fidudary capacity on behalf of ifs elients. Paragraph 1 shall not affect: fhe obligafionfor banks fo furnish informafion on such transactions under Arficle 7; the obligafionfor their to nofify such transactions in accordance with Arficles 2and 3 or to furnish informafion under Arficle 7. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 The EFTA Surveillance Authorify may, by specialauthorization and subject to certain condifions, grant exempfion from fheobligafion fo nofify fhe transactions mentioned in Arficles 2 and 3 to dulyaccredited stockbrokers where they do nof exercise fhe voting righfs atfachingfo fhe stock held by them. Thenotification provided for in Artides 2 and 3 shall be made within four weeksfrom fhe dafe on which fhe person required fo make nofificafion has knowledgeof fhe transaction in quesfion. Special requests for information The EFTA Surveillance Authorify may, by specialrequest, obfain from fhe persons mentioned in Arficle 1 all informationnecessaty for the implemenfafion of Article 2 of Section F regarding: 1acquisifion ofownership of or of righfs fo use premises, industrial plant or concessions ofany undertaking if, before such acquisifion, those premises, plant orconcessions were used in the operations of fhaf undertaking; 2acquisifion ofrights, in an undertaking, conferring voting powers af meetings of shareholdersor other members of such undertaking; 3acquisifion offhe power t o exercise on fheir own behalf or on behalf of third parfies righfsof fhe kind referred to in subparagraph (2) belonging fo third parfies; 4acquisifion bycontract of fhe power fo make decisions as fo how fhe profits of an undertakingare shown in fhe accounts or applied; 5acquisifion offhe power to parficipate in fhe management of an undertaking, alone or wifhothers, whether as owner, beneficiaty, manager or member of fhe managingorgans; 6appoinfment tofhe undertaking. The persons subject fothe obligation fo furnish information must likewise dedare to fhe EFTASurveillance Authority at the laffer's request fhe name and address of theactual owner of the righfs concerned, where they are empowered: foexercise the rights referred fo in paragraph 1 in a fidudaty capacity onbehalf of a third party; toexercise on their own behalf or on behalf of third parfies the rights referredfo in paragraph 1 belonging fo third parties. 1991/92:170 Bilaga16 /Court Agreement Protocol 4 SECTION III LIMITATION PERIODS IN PROCEEDINGS AND THEENFORCEMENT OF SANCTIONS UNDER PROTOCOL 25 TO THE EEA AGREEMENT AND THE PRESENTCHAPTER Thepower of the EFTA Surveillance Authority fo impose fines for in fringemenfs of fhe provisions of Arficles 53 and 54 of fhe EEA Agreement and Protocol 25 thereto or of the provisions contained in fhis Chapfer shall be subject fo a limitafion period: 2of three years in the case of infringemenfsof provisions conceming applications or Communications of fhe parfies, requestsfor information, or fhe cartying ouf of investigations; 3of five years in fhe case of all otherinfringements. Time shallbegin to run upon fhe day on which fhe infringement is com mifted. However, in the case of confinuing or repeafed infringemenfs, fime shall begin to run upon fhe day on which fhe infringement ceases. Inferrupfionof fhe limitafion period in proceedings 1.Any action taken by the EFTA Surveillance Authority for fhe purpose of fhepreliminaty investigafion or proceedings in respect of an infringement shallinferrupt the limitafion period in proceedings. The limitafion period shall beinterrupted wifh effect from fhe dafe on which the acfion is notified fo atleast one party which has parfidpated in fhe infringement. Acfions which inferrupt the running of the periodshall include in particular fhe following: 1written requesfs for informafion byfhe EFTA Surveillance Authority or decisions by the EFTA SurveillanceAuthority requiring fhe requested informafion; 2written authorizafions fo carty outinvestigations issued fo fheir officials by fhe EFTA Surveillance Authority ora dedsion by fhe EFTA Surveillance Authority ordering an investigation; 3the commencement of proceedings by fheEFTA Surveillance Auth- ority;(d) nofificafion by fhe EFTA Surveillance Authority of a letter giving fheparty concerned fhe opportunity to submit ifs comments, pursuant to Arficle4of Section I. 2The inferrupfion of fhe limitafionperiod shall apply for all parfies which have parficipated in fhe infringement. 3Each inferrupfion shall start fimerunning afresh. However, the limitafion period shall expire at fhe latesf onfhe day on which a period equal fo twice the limitafion period has elapsedwithout fhe EFTA Surveillance Authorify having imposed a fine or a penalfy;fhaf period shall be extended by fhe fime during which limitafion is suspendedpursuant fo Arficle 3. Suspensionof fhe limitafion period in proceedings Thelimitafion period in proceedings shall be suspended for as long as the decisionof fhe EFTA Surveillance Authority is fhe subject of proceedings pending beforefhe EFTA Courf. Limitafionperiod for fhe enforcement of sancfions 2The power of fhe EFTA SurveillanceAuthorify fo enforce decisions imposing fines or periodic payments forinfringements of fhe provisions of the EEA Agreement or of provisions made forits implementation shall be subject fo a limitafion period of five years. 3Time shall begin fo run upon fhe dayon which fhe decision becomes final. Inferrupfionof fhe limitafion period for fhe enforcement of sanctions Thelimitafion period for the enforcement of sancfions shall be inter rupted; 4by nofificafion of a decision vatyingfhe original amount of fhe fine or periodic penaity payments or refusing anapplicafion for variation; 5by any acfion of the EFTA SurveillanceAuthority or of an af fhe request of fhe EFTA SurveillanceAuthority, for the purpose of enforcing payments of a fine or periodic penaitypayment. Eachinferrupfion shall start time running afresh. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 Suspensionof the limitafion period for fhe enforcement of sancfions Thelimitafion period for fhe enforcement of sancfions shall be suspended for solong as: 0fime to pay isallowed; or 1enforcement ofpayment is suspended pursuant to a decision of fhe EFTA Courf. SECTION IV POWERS OF OFFICIALS AND AGENTS OF THE EFTA SURVEILLANCE AUTHORITYINSTRUCTED TO CHECKS PROVIDED FOR IN PROTOCOL 25 TO THE EEAAGREEMENT AND IN THIS CHAPTER Officials and agents of fhe EFTA Surveillance Authorityinstmcted fo carty ouf fhe checks on undertakings provided for in Protocol 25 and fo fhe EEAAgreement and in fhe provisions of this Chapter, in parficu lar Arfide 3(1) of Section I, are hereby empowered: (a) fo examine books and businessrecords to the extent necessaty for fhe purpose of fhe check, including recordsheld in automated sysfems of any kind, wherever such books or business recordsare kept; to take copies or phofocopies of or extracfs from fhe books and businessrecords, including data stored in automated sysfems of any kind; (c) (d) fo require oral explanafions on fhe spof; fo enfer any premises, land or means of transport ofundertakings, and of any third party wifh whom books or business records havebeen deposited, and in so doing to have sight of the said books and businessrecords so as to be able fo selecf all those fhaf are relevant and are fo beproduced for inspection. 6Forthcomingvisits of inspection and fhe status of fhe officials shall be duly notified fofhe State concerned. Officials of fhaf State may, af its request or af fhaf offhe EFTA Surveillance Authority, assist the officials of fhe EFTA SurveillanceAuthority in fhe performance of fheir fasks. 7Undertakingsshall assist officials and agents of fhe EFTA Surveillance Authority incarrying ouf fheir dufies.