prop · GF03170 · 1991-12-31 00:00:00 — The EFTA Surveillance Authority may submit fo the atfenfionof fhe EFTA States, for consultation within inaccordance wifh Arficle 2 of fhe Agreement on a , proposals for exempf ing, in accordance wifh Arficle 53(3) of fhe EEAAgreement, certain cafegories of agreement, decision and concerted practicefrom fhe prohibition set ouf in Arficle 53(1) of fhaf Agreement. 1991/92:170 Bilaga 16 /Court Agreement Protocol 4 CHAPTER III FORM, CONTENT AND OTHER DETAILS CONCERNINGAPPLICATIONS AND NOTIFICATIONS Persons entifled fo submit applications and notifications 2Any undertakingwhich is party fo agreements, decisions or practices of fhe kind described inArficles 53 and 54 of fhe EEA Agreement may submit an applicafion under Arficle2 of Chapfer IIor a nofificafionunder Article 4 of Chapter II andArficle 1 of Chapter XVI. Where the applicafion or nofificafion is submiftedby some, but not all, of fhe undertakings concerned, they shall give nofice tofhe others. 3Whereapplications and notifications under Arficles 2, 3(1), 3(2)(b) and 4 of ChapterII and Article 1 of Chapfer XVI aresigned by representatives of undertakings, or associations of undertakings, ornatural or legal persons such representatives shall produce written proof fhafthey are authorized fo acf. 4Where a jointapplication or notification is submitted a joint representative should beappointed. Submission of applications and notifications 2Nine copies ofeach applicafion and nofificafion shall be submifted fo fhe EFTA SurveillanceAuthority. 3The supportingdocuments shall be either original or copies; copies must be certified as truecopies of the original. 4Applicationsand notifications shall be in an official language of an or theEuropean Community. Supporting documents shall be submifted in their originallanguage. Where the original language is not an official language of an EFTASfate or fhe European Community, a franslafion in one of these languages shallbe aftached. Effecfive dafe of submission of applications andregistrafions The date of submission of an applicafion or nofificafionshall, without prejudice fo Arficle 11 of Protocol 23 fo fhe EEA Agreement, befhe dafe on which if is received by fhe EFTA Surveillance Authority. Where,however, fhe applicafion or nofificafion is sent by registered post, if shallbe deemed fo have been received on fhe dafe shown on fhe postmark of fhe placeof posfing. 1991/92:170 Bilaga 16 /Court Agreement Protocol 4 Confent of applications and notifications 2Applicationsunder Arficle 2 of Chapter II relafingfo fhe applicability of Arficle 53(1) of fhe EEA Agreement and notificationsunder Arficle 4 of Chapfer II orArficle 1(2) of Chapter XVI shall be submitted on forms issued for fhaf purposeby fhe Governments of fhe EFTA Stafes, by common accord, as shown in Appendix1, or by fhe EC Commission. 3Applicationsand notifications shall contain fhe informafion asked for in these forms. 4Severalparfidpafing undertakings may submit an applicafion or nofificafion on asingie form. 5Applicationsunder Arficle 2 of Chapter II relafingfo the applicability of Arficle 54 of fhe EEA Agreement shall confain a fullstatement of fhe facts, specifying, in particular, fhe practice concerned andfhe posifion of fhe undertaking or undertakings within the territoty coveredby the EEA Agreement or a subsfanfial part thereof in regard to products orservices to which the practice relätes. The forms issued for that purpose byfhe Governments of fhe EFTA States, by common accord, as shown in Appendix 1,or by fhe EC Commission may be used. The EFTA Surveillance Authority may submit fo fheGovernments of fhe EFTA Sfates, in accordance wifh the provisions of Article 49of fhis Agreement, proposals for forms and complementary notes. CHAPTER IV HEARINGS PROVIDED FOR IN ARTICLE 19(1) AND (2) OF CHAPTER II Before consulfing fhe ,fhe EFTA Surveillance Authority shall hold a hearing pursuant to Article 19(1)of Chapter II. 2The EFTASurveillance Authority shall inform undertakings and associations ofundertakings in writing of fhe objections raised against them. Thecommunication shall be addressed to each of them or fo a joinf agent appointedby them. 3The EFTASurveillance Authority may inform fhe parfies by giving nofice in fhe EEA Sectionof the , if from fhe circumsfancesof fhe case fhis appears appropriate, in parficular where nofice is to be givenfo a number of undertakings but no joinf agent has been appointed. The noficeshall have regard fo fhe legifimate interest of the undertakings in theprotection of their business secrets. 4A fine or aperiodic penaity payment may be imposed on an undertaking or association ofundertakings only if fhe objections were notified in fhe provided for inparagraph 1. 5The EFTASurveillance Authorify shall, when giving nofice of objections, fix atime-limif up fo which fhe undertakings and associations of undertakings mayinform fhe EFTA Surveillance Authority of their views. 2Undertakingsand associations of undertakings shall, within the appointed time-limit, makeknown in writing their views conceming the objections raised against them. 3They may infheir written comments set ouf all matters relevant fo their defence. 4They may atfachany relevant documents in proof of fhe facts set ouf. They may also proposefhaf the EFTA Surveillance Authority hear persons who may corroborafe thosefacts. The EFTA Surveillance Authority shall in its decisionsdeal only with those objections raised against undertakings and associations ofundertakings in respect of which they have been afforded the opportunity ofmaking known their views. If natural or legal persons showing a sufficient interestapply fo be heard pursuant fo Article 19(2) of Chapfer II, fhe EFTA Surveillance Authorityshall afford them fhe opportunity of making known their views in writing withinsuch time-limif as if shall fix. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 Where fhe EFTA Surveillance Authority, having received anapplication pursuant to Article 3(2) of Chapfer II, considers that on fhe basis of fhe in- formationin its possession there are insuffident grounds for granting fhe applicafion,it shall inform fhe applicanfs of its reasons and fix a time-limif for them fosubmit any further comments in writing. 3The EFTA Surveillance Authority shallafford fo persons who have so requested in their written comments theopportunity fo put forward their arguments orally, if those persons show asufficient interest or if fhe EFTA Surveillance Authorify proposes fo impose onthem a fine or periodic penaity payment. 4The EFTA Surveillance Authorify maylikewise afford to any other person fhe opporfunify of orally expressing hisviews. 2The EFTA Surveillance Authorify shallsummon fhe persons to be heard to affend on such dafe as it shall appoint. 3If shall forthwith transmit a copy offhe summons to the competent authorities of the EFTA States, who may appointan official to take part in the hearing. Likewise, fhe EFTA SurveillanceAuthorify shall invite fhe EC Commission fo be represented af the hearing. Theinvitafion shall also extend to fhe EC Member Sfates. 2Hearings shall be conducted by thepersons appointed by the EFTA Surveillance Authorify for fhaf purpose. 3Persons summoned to affend shallappear eifher in person or be represented by legal representatives or byrepresentatives authorized by their consfifution. Undertakings and associationsof undertakings may moreover be represented by a duly authorized agentappointed from among fheir permanent staff. Persons heard by the EFTA Surveillance Authorifymay be assisted by lawyers or advisers who are entifled to plead before fheEFTA Courf, or by other qualified persons. 0Hearings shall nof be public. Personsshall be heard separately or in the presence of other persons summoned foaffend. In fhe lafter case, regard shall be had fo the legifimate interest of fheundertakings in the protection of their business secrets. 1The essential confent of fhestafements made by each person heard shall be recorded in minutes which shallbe read and approved by him. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 Withoutprejudice fo Arficle 2(2), informafion and summonses from the EFTA SurveillanceAuthorify shall be sent to the addressees by registered letterwifh acknowledgement of receipt, or shall be delivered by hand against receipt. Infixing fhe fime-limits provided for in Arficles 2, 5 and 6, fhe EFTA Sur veillance Authority shall have regard both to the time required for prep arafion of comments and fo fhe urgency of the case. The time-limit shall be not less than two weeks; it may be extended. 5Time-limifs shall run from fhe dayfollowing receipt of a communication or delivety thereof by hand. 6Written comments must reach fhe EFTASurveillance Authority or be dispatched by registered letter before expiry ofthe time-limif. Where fhe time-limif would expire on a Sunday or publicholiday, it shall be extended up to the end of fhe next following working day.For fhe purpose of calculating this extension, publie holidays shall, in caseswhere the relevant date is the date of receipt of written comments, be thoseset ouf in Appendix 2 fo fhis Protocol, and in cases where fhe relevant dafe isthe dafe of dispatch, those appointed by law in the country of dispatch. CHAPTER V LIMITATION PERIODS IN PROCEEDINGS AND THEENFORCEMENT OF SANCTIONS UNDER THE RULES RELATING TO TRANSPORT AND COMPETITIONAS CONTAINED IN CHAPTERS II TOIV AND VI TO XIV Thepowerof the EFTA Surveillance Authority to impose fines or penal fies for infringemenfs of fhe rules of fhe EEA Agreement relafing fo trans port or compefition shall be subject to fhe following limitation periods: 2three years in the case ofinfringements of provisions conceming applications or notifications ofundertakings or associations of undertakings, requesfs for information, or thecartying ouf of investigations; 3five years in the case of all other infringemenfs. Timeshall begin fo run upon fhe day on which fhe infringement is com mifted. However, in fhe case of confinuing or repeafed infringements, time shall begin fo run upon fhe day on which fhe infringement ceases. 1991/92:170 Bilaga16 /Court Agreement Protocol 4 Inferrupfionof the limitation period in proceedings 1.Any acfion taken by fhe EFTA Surveillance Authorify, by the EC Commission atfhe request of the EFTA Surveillance Authorify pursuant to Arricle 8 of Protocol 23 to the EEA Agreement, or by anyEFTA State, acting af fhe request of fhe EFTA Surveillance Authority, for thepurposc of fhe preliminary investigafion or proceedings in respect of aninfringement shall inferrupt fhe limitafion period in proceedings. Thelimitafion period shall be interrupted with effect from the date on which fheacfion is notified to at least one undertaking or association of undertakingswhich have parti-cipafed in fhe infringement. Actions which inferrupt fhe runningof the period shall include in particular fhe following: 2writtenrequests for informafion by fhe EFTA Surveillance Authorify, or by fhecompetent authority of an acting af the request of fhe EFTASurveillance Authority; or a decision by fhe EFTA Surveillance Authorityrequiring fhe requested informafion; 3writtenauthorizafions fo carty out investigations issued fo fheir officials by fheEFTA Surveillance Authority or by the competent authorify of any affhe request of fhe EFTA Surveillance Authority; or a decision by fhe EFTASurveillance Authority ordering an investigation; 4thecommencement of proceedings by the EFTA Surveillance Authorify; (d) nofificafion of fhe EFTASurveillance Aufhority's statement of ob jections. 2Theinferrupfion of the limitafion period shall apply for all fhe undertakings orassociations of undertakings which have parfidpated in fhe infringement. 3Eachinferrupfion shall start time running afresh. However, the limitafion periodshall expire af the latesf on fhe day on which a period equal fo twice the limitationperiod has elapsed without the EFTA Surveillance Authorify having imposed afine or a penalfy; that period shall be extended by fhe time during whichlimitation is suspended pursuant fo Arficle 3. Suspension of fhe limitafion period in proceedings The limitafion period in proceedings shall be suspendedfor as long as fhe decision of fhe EFTA Surveillance Authorify is fhe subjectof proceedings pending before fhe EFTA Courf in accordance wifh Arficle 108(2)of fhe EEA Agreement and with the relevant provisions of this Agreement. Limitafion period for the enforcement of sancfions The power of fhe EFTA Surveillance Authorify fo enforcedecisions imposing fines, penalfies, or periodic payments for infringemenfs offhe rules Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 ofthe EEA Agreement relating fo transport or compefition shall be subject Prop. fo a limitation period of five years. Time shall begin to run upon the day on which fhe decision becomes final. tnterrupfionof fhe limitafion period for fhe enforcement of sancfions Thelimitafion period for fhe enforcement of sancfions shall be inter rupted: 2by notification of a decision vatyingthe original amount of the fine, penaity or periodic penaity payments orrefusing an application for variation; 3by any acfion of the EFTA SurveillanceAuthority or of an at t he request of the EFTA SurveillanceAuthority, for the purpose of enforcing payments, of a fine, penaity orperiodic penaity payment. Eachintermpfion shall start time running afresh. Suspensionof fhe limitafion period for fhe enforcement of sanctions Thelimitafion period for the enforcement of sancfions shall be suspended for solong as: 3time to pay is allowed; or 4enforcement of payment is suspendedpursuant fo a decision of the EFTA Court in accordance wifh Arficle 108(2) ofthe EEA Agreement and with the relevant provisions of fhis Agreement. 14 1991/92. CHAPTER VI APPLICATION OF RULES OF COMPETITION TO TRANSPORT BY RAIL, ROAD ANDINLAND WATERWAY lo the division of the text of Regulation (EEC) No1017/68 between to the EEA Agreement (substantive mles) and thepresent Chapter (procedural mles), the text, as adapted, of Artides 1 to 5 andArtides 7 to 9 is to be found in the act referred to in point 10 of the EEA Agree-mertt (Regulation (EEC) No 1017/68). The EFTA SurveillanceAuthority shall decide on these cases in accordance with the provisions ofArticle 56 of the EEA Agreement, in particular paragraph (l)(a) and (b) andparagraph (3). A 11 ides 1 to 5 (No text) Agreements intended fo reduce disturbances resulting fromfhe sfructure of fhe transport märket 6Until such timeas appropriate measures fo ensure a sfable transport märket are introduced,fhe prohibition laid down in Arficle 2 of fhe acf referred fo in poinf 10 ofAnnex XIV fo fhe EEA Agreement (Regulafion (EEC) No 1017/68) may be dedaredinapplicable to any agreement, decision or concerted pracfice which fends foreduce disturbances on fhe märket in question. 7A decision nofto apply fhe prohibition laid down in Arficle 2 of fhe said acf, made inaccordance with fhe procedure laid down in Article 14, may not be taken untilfhe has found on the basis of a report by the EFTASurveillance Authority, fhaf a sfate of crisis exists in all or parf of atransport märket. 8Withoutprejudice to fhe provisions of paragraph 2, the prohibition in Arficle 2 of fhesaid acf may be dedared inapplicable only where: 3the agreement,decision or concerted pracfice in quesfion does nof impose upon fhe undertakingsconcerned any resfriction nof indispensable fo fhe reduction of disturbances;and 4does nof makeit possible for such undertakings to eliminafe compefition in respect of asubsfanfial parf of fhe fransport märket concerned. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 Artides7 to 9 (No text) Procedureson complainf or on fhe EFTA Surveillance Authorify's own initiative Actingon receipt of a complainf or on ifs own initiative, the EFTA SurveillanceAuthorify shall initiafe procedures to ferminate any infringement of theprovisions of Arficle 2 or Article 8 of fhe acf referred fo in poinf 10 ofAnnex XIV to the EEA Agreement (Regulafion (EEC) No 1017/68) or fo enforceArficle 4(2) of that act. Complaints may be submifted by: 3natural or legal persons who claim alegifimate interest. Resultof procedures on complainf or on fhe EFTA Surveillance Aufhorify's owninitiative Wherefhe EFTA Surveillance Authority finds that there has been an in fringement of Arficle 2 or Arficle 8 of the acf referred fo in poinf 10 ofAnnex XFV fo fhe EEA Agreement (Regulation (EEC) No 1017/68), it may by de cision require fhe undertakings or associations of undertakings concerned fo bring such infringement fo an end. Without prejudice fo the other provisions of fhisChapfer and the said acf, fhe EFTA Surveillance Authority may, before taking adecision under fhe preceding subparagraph, address to fhe undertakings orassociations of undertakings concerned recommendations for terminafion of theinfringement. 2Paragraph 1 shall apply also to casesfalling within Arficle 4(2) of the said act. 3Ff fhe EFTA Surveillance Authorify,acting on a complainf received, concludes fhaf on fhe evidence before it thereare no grounds for intervention under Article 2, Arficle 4(2) or Arficle 8 ofthe said act in respect of any agreement, decision or concerted pracfice, itshall issue a decision rejecting the complainf as unfounded. 4If fhe EFTA Surveillance Authorify,whether acting on a complainf received or on ifs own initiative, concludesfhaf an agreement, decision or concerted pracfice safisfies fhe provisions bothof Arficle 2 and of Arficle 5 of fhe said act, it shall issue a decisionapplying Arficle 5. Such decision shall indicate the dafe from which if is fotake effect. This dafe may be prior fo that of the decision. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 Application of Article 5 of fhe acf referred fo in poinf10 of fo fhe EEA Agreement (Regulafion (EEC) No 1017/68) - objections 32Undertakingsand associations of undertakings which seek applicafion of Arficle 5 of fhe actreferred fo in point 10 of fo fhe EEAAgreement (Regulation (EEC) No1017/68) in respect of agreements, decisions and concerted practices fallingwithin the provisions of Arficle 2 of fhe said act to which they are parfiesmay submit applications to the EFTA Surveillance Authorify. 33If the EFTASurveillance Authorify judges an application admissible and is in possession ofall fhe available evidence, and no acfion under Arficle 10 has been takenagainst fhe agreement, decision or concerted pracfice in quesfion, then ifshall publish as soon as possible in fhe EEA Section of the offhe European Communifies a summaty of fhe application and invite all inferesfedthird parfies fo submit their comments fo fhe EFTA Surveillance Authoritywithin 30 days. Such publicafion shall have regard to the legifimate interestof undertakings in fhe protection of fheir business secrets. 34Unless the EFTASurveillance Authorify notifies applicanfs, within 90 days from the dafe ofsuch publication in fhe EEA Section of the EuropeanCommunifies, fhaf there are serious doubfs as fo the applicability of Artide 5of the said acf, fhe agreement, decision or concerted practice shall be deemedexempt, in so far as it conforms with the description given in the application,from fhe prohibition for fhe time already elapsed and fora maximum of threeyears from fhe dafe of publicafion in fhe EEA Section of the Official Journalof fhe European Communifies. If the EFTA Surveillance Authorityfinds, after expiry of fhe 90-day time-limit, but before expiry of fhethree-year period, fhaf fhe condifions for applying Article 5 of fhe said acfare not satisfied, if shall issue a decision declar-ing fhaf fhe prcihibitionin Article 2 of the said acf is applicable. Such decision may be retroactivewhere the parfies concerned have given inaccurate informafion or whcrc theyabuse the exemption from fhe provisions of Arficle 2 of fhe said acf. If, within fhe 90-day time-limif, fhe EFTA SurveillanceAuthorify notifies applicanfs as referred to in fhe firsf subparagraph of paragraph 3, it shall ex amine whether the provisions of Article 2 and of Article 5 of the said act are satisfied. If it finds fhaf fhe provisions ofArficle 2 and of Arficle 5 of the said acf are satisfied if shall issue adecision applying Arficle 5. The decision shall indicate fhe dafe from whichif is fo take effect. This dafe may be prior fo fhaf of fhe application. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 Duration and revocation of decisions applying Article 5 ofthe act referred fo in poinf 10 of fo fhe EEA Agreement (Regulation(EEC) No 1017/68) 2Any decisionapplying Arficle5 of fhe said acf taken under Article 11(4) or under fhe secondsubparagraph of Arficle 12(4) shall indicate the period for which if is fo bevalid; normally such period shall nof be less fhan six years. Condifions andobligafions may be aftached to the decision. 3The decisionmay be renewed if fhe conditions for applying Article 5 of fhe said acfcontinue fo be satisfied. 4The EFTASurveillance Authorify may revoke or amend ifs decision or prohibif specifiedacts by fhe parfies; 3where there hasbeen a change in any of fhe facts which were basic fo the making of thedecision; 4where fheparfies commif a breach of any obligafion aftached to fhe decision; 5where fhedecision is based on incorrect information or was induced by deceif; (d) where fhe parfies abuse fheexempfion from fhe provisions of Arficle2 of fhe said act granted fo them by fhe decision. In cases falling within (b), (c) or (d), fhe decision maybe revoked wifh refroactive effect. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 Decisions applying Article 6 agreement, decision or concerted pracfice coveredby Artide 2 of fhe acf referred fo in poinf 10 of f o fhe EEA Agreement (Regulation (EEC) No 1017/68) in respect of which fhe parfies seek applicafion of Arficle 6 shall be notified fo fhe EFTA Surveillance Authority. 2Any decision bythe EFTA Surveillance Authorify fo apply Article 6 of fhe said acf shall haveeffect only from the date of ifs adoption. It shall state the period for whichit is to be valid. Such period shall nof exceed three years from fhe finding ofa sfate of crisis by fhe provided for in Arfide 6(2). 3Such decisionmay be renewed by fhe EFTA Surveillance Authorify if the Standing Committeeagain finds, acting under fhe procedure provided for in Arficle 6(2), fhafthere is a sfate of crisis and if the other conditions laid down in Article 6continue to be satisfied. 4Condifions andobligafions may be atfached fo the decision. 5The decision ofthe EFTA Surveillance Authority shall cease to have effect nof lafer fhan sixmonths from fhe coming into operation of the measures referred to in Arficle6(1). 6The provisionsof Arficle 13(3) shall apply. Subjectto review of its decision by fhe EFTA Court in accordance wifh Arficle 108(2)of fhe EEA Agreement and with the relevant provisions of fhis Agreement, theEFTA Surveillance Authorify shall have sole power, on fhe condifions set out inArficle 56 of fhe EEA Agreement: toimpose obligafions pursuant fo Arficle 4(2) of the act referred fo in poinf 10of fo fhe EEA Agreement (Regulafion (EEC) No 1017/68); toissue decisions pursuant fo Arficle 5 of fhe said acf and Arficle 6 of fhisChapter. Theauthoriries of fhe EFTA Stafes shall refain fhe power fo decide whether anycase falls within the provisions of Arficle 2 or Arficle 8 of fhe said acf,until such time as the EFTA Surveillance Authorify has initiated a procedurewith a view to formulating a decision in the case in question or has sent nofificafionas provided for in fhe firsf subparagraph of Arficle 12(3). Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 Liaisonwith authorities of the EFTA States