prop · GF03170 · 1991-12-31 00:00:00 — If,within two months of being so called upon, fhe EFTA Surveillance Authorify hasnot defined its position, fhe acfion may be brought within a further period oftwo months. natural or legal person may,under the conditions laid down in fhe preceding paragraph, complain fo the EFTACourf that the EFTA Surveillance Authority has failed to address to thatperson any decision. If a decision of the EFTA Surveillance Authority has beendedared void or if if has bccn esfablished that fhe EFTA SurveillanceAuthority, in infringement of this Agreement or of fhe provisions of fhe EEAAgreement, has failed to act, the EFTA Surveillance Authorify shall take thenecessary measures to comply wifh fhe judgment. This obligafion shall not affectany obligation which may resulf from the application of Artide 46, secondparagraph. Save as ofhci\visc provided for in Protocol 7 to thisAgreement, the EFTA Court shall have jurisdicfion in actions against the EFTASurveillance Authority relating to compensation for damage provided for inArticle 46, second paragraph. Actions brought before the EFTA Court shall not havesuspensory effect. The EFTA Court may, however, if it considers thatcircumstances so require, order that applicafion of the confestcd acf besuspended. The EFTA Court may in any case before if prescribe anynecessaty inferim measures. Prop.1991/92:170 Bilaga 16 /Court Agreement agreement GENERAL AND FINAL PROVISIONS The Protocols and Annexes fo this Agreement shall form anintegral parf thereof. 3The Stafufe ofthe EFTA Court is laid down in Protocol 5 fo this Agreement. 4The EFTA Courfshall adopt its rules of procedure to be approved by fhe Governments of fheEFTA States by common accord. 3The legalcapacity, privileges and immunifies fo be recognized and granted by fhe EFTASfates in connection wifh the EFTA Surveillance Authority and fhe EFTA Courfare laid down in Protocols 6 and 7 fo this Agreement, respectively. 4The EFTASurveillance Authorify and the EFTA Courf, respectively, may conclude wifh theGovernment of fhe Sfates in whose territoty their seats are situated anagreement relafing fo the privileges and immunifies to be recognized andgranted in connection wifh if. The seat of fhe EFTA Surveillance Authority and fhe EFTACourt, respectively, shall be defermined by common accord of the Governmentsof fhe EFTA Sfates. The contractual liabilify of the EFTA SurveillanceAuthorify shall be governed by fhe law applicable fo the contract in quesfion. In fhe case of non-contracfual liabilify, fhe EFTASurveillance Authorify shall, in accordance wifh the general principles of law,make good any damage caused by if, or by its servants, in fhe performance ofits dufies. The Governments of fhe EFTA Sfates shall, on a proposalfrom fhe EFTA Surveillance Authorify and affer consulfing a committeeconsisting of fhe members ofParliament of fhe EFTA States who are members of the EEA Joinf ParliamentaryCommittee, each year before 1 January by common accord esfablish a budget forthe coming year and fhe apporfionmcnf of those expenses between fhe EFTAStates. The EFTA Surveillance Authorityshall be consulted before a decision modifying or amending its proposal for abudget is adopted. 1991/92:170 Bilaga 16 /Court Agreement Mainagreement The Governments of the EFTA States shall, on a proposalfrom the EFTA Court, each year before 1 Januaty by common accord establish abudget for the EFTA Court for the coming year and the apporfionment of those expensesbetween them. The Governments of the EFTA States may, unless otherwiseprovided in this Agreement, on a proposal from or after hcaring fhe EFTASurveillance Authorify, by common accord amend the main Agreement as well asProtocols 1 to 4 and 6 and 7. Such an amendment shall be submitted to the EFTAStates for acceptance and shall cntcr into force provided it is approved by allEFTA States. Instruments of acceptance shall be deposited with the Governmentof which shall notify all other EFTA States. 2Any EFTA Sfatewhich witiidraws from ihc EEA Agreement shall ipso facfo cease fo be a Party fothe present Agreement on the same day as that withdrawal takes effect. 3Any EFTA Sfatewhich acccdcs to Community shall ipso facfo cease to be a Party tothe present Agreement on the same day as that accession takes effect. 4The Governmentsof tbc remaining EFTA States shall, by common accord, decide on the necessaryamendments to be made to the present Agreement. acceding to the EEA Agreement shall accede to the present Agreementon such terms and conditions as may be laid down by common accord by the EFTAStates. The instrument of accession shall be deposited with the Government ofSweden which shall notify the other EFTA States. The EFTA States shall communicate to the EFTA SurveillanceAuthority fhe measures taken for fhe implementation of this Agreement. This Agreement, drawn up in a singie copy and authenficin fhe English language, shall be ratified by fhe Confracting Parties in accordance with their respective consfitutional requirements. Before the entry into force of thisAgreement, if shall also be drawn up and authenficated in Finnish, French,German, Icelandic, Italian, Norwegian and Swedish. This Agreement shall be deposited wifh the Governmentof which shall transmit a certified copy to each . The instruments of ratification shallbe deposited with the Government of which shall notify all other EFTAStates. This Agreement shall cntcr into force on 1 Januaty 1993provided that the EEA Agreement enfers into force on that day and provided that fhe in struments of ratification of fhe present Agreement have been deposited by all EFTA Stafes. If the EEA Agreement does not enterinto force on that day fhe present Agreement shall enfer into force on the dayfhe EEA Agreement enfers into force or when all instruments of ratification offhe present Agreement have been deposited by all EITA States, whichever day isfhe låter. 1991/92:170 Bilaga16 /Court Agreement agreement ON THE FUNCTIONS AND POWERS OF THE EFTA SURVEILLANCEAUTHORITY WHICH, THROUGH THE APPLICATION OF PROTOCOL 1 TO THE EEA AGREEMENT,FOLLOW FROM THE ACTS REFERRED TO IN THE ANNEXES TO THAT AGREEMENT HAVING REGARD fo fhe EEA Agreement and, in parficular,Protocol 1 thereto; NOTING that paragraphs 4(d) and 5 of Protocol 1 fo fhe EEAAgreement confain references fo fhe EFTA Surveillance Authority and fheStanding Committee; FURTHER NOTING that in paragraph 4(d) of Protocol 1 fo fheEEA Agreement reference is made to procedures esfablished among fhe EFTAStates; WHEREAS for the proper application of acts referred to infhe Annexes fo fhe EEA Agreement, if is necessaty fo establish among fhe EFTAStates fhe functions corresponding to those of the EC Commission which, throughfhe applicafion of Protocol 1 fo fhe EEA Agreement, should be carried ouf eifherby fhe EFTA Surveillance Authority or fhe , as well as toestablish the procedures to be applied among the EFTA States for that purpose; 1991/92:170 Bilaga 16 /Court Agreement Protocol1 Where the acts referred fo in fhe Annexes to the EEAAgreement contain provisions on procedures under which fhe EC Commission: 2informs aMember State whether a precautionary measure or a safeguard measure taken by aMember State was justified; 3shall beconsulted by a Member Sfate before an exempfion or derogation from a provisionof an acf is granted or undertaken by that Sfate; 4may, before anexempfion or derogation from a provision of an acf is granted or undertaken bya , agree or authorize that State fo do so, including, wherenecessaty, fo specify fhe condifions under which fhe authorizafion is grantedor fo lay down defailed rules conceming ifs implemenfafion; (d) shall, where necessaty, holdconsulfafions with fhe Member States concerned or their competent authorifies, in parficular wifh a view to setfling differences and dispufes and, as fhe case may be, propos- ing appropriate solutions; (e) in fhe veterinaty and phytosanifaty field, 228may make orarrange for assessmenfs, fests and on-the-spof checks; 229may giveapprovals, or the like, or make recommendations regard- ing plans, programmes, emergency vaccinations, high-riskareas, etc; -shall draw up lists, such as lists of experts, approved zones, approvedfarms, etc, and, as fhe case may be, forward them fo fhe Member Stafes; (f) in fhe veterinary field, - may adopt appropriate measures in fhe case of dispufes; (g) in the field of technicalregulations, standards, fesfing and cerfifica tion, - shall notify fhe Member Sfates ofnational technical spedfications in respect of which there is a presumption of conformity wifh fhe essential safety requirements and, as fhe case may be, initiafe procedures when if considers that such a presumption of conform ity must be withdrawn; (h) in fhe field of foodstuffs; -may decide whether certaincondifions are satisfied; (i) in the field of energy, -shall implement fhe proceduresprovided for by Community law; (j) in the field of procurement, -may requestinformation from fhe Member Sfates or fheir competent authorities and/or shalldetermine the nature of any addifional statistical informafion required; -may establishlists of fhe categories of activities or services which it considers to becovered by an cxdusion; -shall lay down fhe conditionsunder which Contracfing enfifies shall communicate to it the results of anawarding procedure; those and comparable funcfions shall for fhe EFTA Sfatesbe carried out by fhe EFTA Surveillance Authority in accordance with fheprocedures laid down in fhe acts referred fo. If the EC Commission is entrusted with other comparablefuncfions, fhe corresponding functions shall also be carried ouf by fhe EFTASurveillance Authority. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol1 3The EFTASurveillance Authority shall rcccivc information which an EFTA Sfate or acompetent authorify according fo fhe EEA rules shall submit fo it and pass onthat informafion to the EC Commission. 4The EFTASurveillance Authority shall further receive corresponding information fromfhe EC Commission for distribution to the EFTA States or their competentauthorities. Where, inan act referred to in the Annexes lo the EEAAgreement confaining fheprocedures described in Article 1, fhe EC Commission shall submit a draftmeasure fo be taken fo, or otherwise consult, an , fhe EFTA Surveillance Authority shall, according tocorresponding procedures to be laid down by , consult acorresponding committee, if any, set up or designated in accordance wifh fheAgreement on a . The EFTA Surveillance Authorify shall, unless otherwiseagreed wifh fhe EC Commission, concurrenfly wifh fhe EC Commission prepare, asappropriate, reports, assessmenfs or fhe like wifh regard fo fhe EFTA Stafes,in the cases which through fhe applicafion of paragraph 5 of Protocol 1 fo theEEA Agreement follow from fhe acts referred fo in the Annexes fo that Agreementand which are not directly related fo fhe funcfions of fhe Standing Committeeset ouf in Protocol 1 fo the Agreement on a . The EFTA Surveillance Authority shall consult, and exchange views wifh,fhe EC Commission during fhe preparafion of their respective reports, copies ofwhich are fo be sent to fhe . 1991/92:170 Bilaga 16 /Court Agreement Protocol 1 ON THE FUNCTIONS AND POWERS OF THE EFTA SURVEILLANCEAUTHORITY IN THE FIELD OF PROCUREMENT 2Withoutprejudice fo Arficle 31 of this Agreement, fhe EFTA Surveillance Authority mayinvoke the procedure for which the present Article provides when, prior fo acontract being concluded, if considers that a clear and manifest infringementof fhe provisions of fhe EEA Agreement in fhe field of procurement has been commiftedduring a contract award procedure falling within fhe scope of the acts referredfo in points 2 and 3 of to fhe EEA Agreement. 3The EFTASurveillance Authority shall notify the and the contracfingauthorify concerned of fhe reasons which have led it fo conclude that a clearand manifest infringement has been commifted and request ifs correcfion. 4Within 21 daysof receipt of fhe notification referred fo in paragraph 2, the EFTA Stateconcerned shall communicate fo fhe EFTA Surveillance Authorify: 2ifsconfirmation that the infringement has been eorrected; or 3a reasonedsubmission as to why no correcfion has been made; or 4a notice fo theeffect that the contract award procedure has been suspended eifher by fheconfracting authority on its own initiative or on the basis of the powersspecified in Arficle 2(l)(a) of the acf referred fo in point 5 of tothe EEA Agreement. 4A reasonedsubmission in accordance with paragraph 3(b) of this Article may rely amongother matters on fhe fact fhaf fhe alleged infringement is already fhe subjectof judicial or other review proceedings or of a review as referred to inArticle 2(8) of the act referred to in point 5 of fo the EEAAgreement. In such a case, the EFTA Sfate shall inform fhe EFTA SurveillanceAuthority of fhe result of those proceedings as soon as if becomes known. 5Where noficehas been given fhaf a contract award procedure has been suspended in accordancewifh paragraph 3(c) of this Article, the notify fhe EFTASurveillance Authorify when the suspension is lifted or another contractprocedure relating in whole or in part to the same subject matfer is begun.That notification shall confirm fhaf fhe alleged infringement has beeneorrected or include a reasoned submission as to why no correction has beenmade. 1991/92:170 Bilaga 16 /Court Agreement Protocol2 Not lafer fhan 1 Januaty 1996, fhe EFTA SurveillanceAuthorify shall, together wifh an advisory committee composed ofrepresentatives of the EFTAStafes, review fhe in which fhe provisions of this Protocol and Prop.1991/92:170 theprovisions of the act referred to in point 5 of of the EEA Bilaga16 Agreementhave been implemented and, if necessary, make proposals for /Court amendments.The committee shall have as Chairman a representative of fhe Agreement shall be convened by its Protocol2 Chairman either on bis own initiative or at the request of one of its members. 2.By 1 each year fhe EFTA Sfates shall communicate fo the EFTA SurveillanceAuthority informafion on fhe operation of their nafional review proceduresduring fhe preceding calendar year. The nature of fhe informafion shall bedefermined by fhe EFTA Surveillance Authority in consultation wifh the advisotycommittee. ON THE FUNCTIONS AND POWERS OF THE EFTA SURVEILLANCEAUTHORITY IN THE FIELD OF STATE AID 6The EFTA Surveillance Authorify shall,in cooperarion wifh fhe EFTA Stafes, keep under review all sysfems ofaid existing in those Sfates. If shall propose fo fhe latfer any appropriatemeasures required by fhe progressive development or by fhe funcfioning of fheEEA Agreement. 7If, affer giving nofice fo the partiesconcerned to submit their comments, the EFTA Surveillance Authority finds thataid granted by an or through EFTA Sfate resources is not compafiblewifh the functioning of fhe EEA Agreement having regard fo Arficle 61 of theEEA Agreement, or fhaf such aid is being misused, if shall decide fhaf the EFTAState concerned shall abolish or alter such aid within a period of time fo bedefermined by fhe Authority. If fhe concerned does not comply wifhthis decision within fhe prescribed time, fhe EFTA Surveillance Authorify or anyother inferesfed may, in derogation from Arficles 31 and 32 of thisAgreement, refer the matter to the EFTA Court directly. On application by an , the EFTA Sfatesmay, by common accord, decide that aid which that Sfate is granting or intendsto grant shall be considered fo be compafible wifh fhe functioning of fhe EEAAgreement, in derogation from the provisions of Article 61 of the EEAAgreement,if such a decision is justified by exceptional circumsfances. If, as regardsfhe aid in question, the EFTA Surveillance Authorify has already initiated fheprocedure provided for in fhe firsf subparagraph of this paragraph, fhe factthat the Sfate concerned has made ifs applicafion fo the EFTA Sfates shall havefhe effect of suspending fhaf procedure until the EFTA States, by commonaccord, have made their affitude known. If, however, the EFTA States have not made fheiraffitude known within three months of fhe said applicafion being made, fhe EFTASurveillance Authorify shall give ifs decision on fhe case. TheEFTA Surveillance Authority shall be informed, in sufficient time to enable if to submit ifs comments, of any plans fo grant or alfer aid. If if con siders fhaf any such plan is not compafible wifh the functioning of fhe EEA Agreement having regard fo Article 61 of the EEA Agreement, it shall with out delay inifiate fhe procedure provided for in paragraph 2. con cerned shall not put ifs proposed measures into effect until this procedure has resulfed in a final decision. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 3 1.An advisoty committee shall assist fhe EFTA Surveillance Authority in ifsexamination of aid granted for transport by rail, road and'inland water- way.The committee shall have as Chairman a representative of the EFTA SurveillanceAuthorify and shall consist of representatives appointed by each EFTASfate. 'Not less than ten days' notice of meetings of the committee shall begiven and such notice shall include details of the agenda. This period may bereduced for urgent cases. 2The committee may examine, and give anopinion on, all questions conceming fhe operation of the provisions of the EEAAgreement on the granting of aid in fhe transport secfor. 3The committee shall be kept informedof fhe nature and amount of aid granted fo transport undertakings and,generally, ofall relevant details conceming such aid, as soon as fhe lafter isnotified to fhe EFTA Surveillance Authority in accordance with the provisionslaid down in , section I (iv), to the EEA Agreement governing thegranting of aid in fhe transport secfor. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol3 ON THE FUNCTIONS AND POWERS OF THE EFTA SURVEILLANCEAUTHORITY IN THE FIELD OF COMPETITION Table of contents with references to the corresponding ECacts or provisions of fhe EEA Agreement Chapter I Introduction page 1 Chapter II General procedural rules implemenfing page 2 Arficles 53 and 54 of fhe EEA Agreement (cL Regulafion17/62) Chapfer 111 Form, confentand other details conceming page 21 applications and notifications (ef.Regulafion 27/62) Chapter IV Hearings provided for in Arficle19(1) and (2) page 24 of Chapter II (ef. Regulation 99/63) Chapter V Limitafionperiods in proceedings and the en- page 29 forcement of sanctions under the rules relating fotransport and competition as contained in Chapters II to IV andVI fo XIV (ef. Regulafion 2988/74) 1991/92:170 Bilaga 16 /Court Agreement Protocol 4 Chapter VI Application of rules of competitionfo träns- page 33 port by rail, road and inland waterway (ef. Regulafion1017/68, Artides 6 and 10 to 31) Chapfer VII Form, confent andother details ofcomplainfs page 54 pursuant fo Article 10, applicationspursuant fo Arficle 12 and notifications pursuant to Article 14(1) of Chapter VI (ef. Regulafion1629/69) Chapfer VIII Hearings provided for in Article 26(1) of page 56 Chapfer VI (ef. Regulafion 1630/69) Chapter IX Rules for fhe application ofArtides 53 and 54 page 61 of the EEA Agreement to transport (ef.Regulation 4056/86, Section 11) ChapterX The obligation of communication, the form, page 79 content and other details ofcomplainfs and of applications,and fhe hearings provided for in Chapfer IX (ef. Regulation 4260/88) Chapter XI Procedure for fhe applicafion of fhe rules oncompefition fo undertakings in fhe air transport sector (cL Regulafion3975/87) Chapter XII Form, content and otherdetails of complaints and of applications, and fhe hearings provided for inChapferXI laying down fhe procedure for fhéapplicafion of fhe rules of compefition to undertakings in fhe air transportsecfor (ef. Regulafion 4261/88) 1991/92:170 Bilaga 16 /Court Agreement Protocol4 PART in CONTROL OF CONCENTRATIONS Chapter XIII Rules relafing focontrol of concentrafions be- page 14 tween undertakings (ef. Regulafion4064/89, Arficles 6 to 25) Chapfer XIV Defailed rulesconceming notifications, time- page 139 limits and hearings in fhe field ofcontrol of concenfrations between undertakings (ef. Regulation 2367/90) PART IV COAL AND STEEL ChapferXV Rulesapplicable toundertakings in the field of page 154 coal and steel Section I Generalrules regarding agreements and con- page 154 centrations (ef. Arficles 65(2), subparagraphs 3 fo 5,(3), (4), subparagraphs 2 and (5) and 66(2), suparagraphs 2 fo 4, and (4) to(6), 47, 36(1) and 82 of ) Section II Informafion fo be furnished (Article 2(4) of page 162 Section I) (ef. Decision 26/54) Section III Limitafionperiods in proceedings and fhe en- page 165 forcement of sancfions under Protocol 25 fo fhe EEAAgreement and fhe present Chapfer (ef. Dedsion 715/78) Section IV Powers of officials and agents of fhe EFTA page 169 SurveillanceAuthority instructed to carty ouf fhe checks provided for in Protocol 25 fo theEEA Agreement and in this Chapter (ef. Decision 379/84) PART V TRANSITIONAL AND OTHER RULES Chapfer XVI Transitional and other rules Rules applicable to Chapfers II fo XII and XV (ef. Arficles5 ef seq. of Protocol 21 fo fhe EEA Agreement) Rules applicable fo Chapters XIII and XIV page 175(ef. Arfide 25(2) of Regulafion 4064/89) 1991/92:170 Bilaga 16 /Court Agreement Protocol 4 Appendix 1 Form referred foin Arficles 4(1) and 4(4) of page Chapfer III Appendix 2 Lisf of publicholidays referred fo in Arficle page 11(3) of ChapferIV, Arficle 11(3) of Chapter VIII, Artide 15(3) of Chapter X and Artide 14(3) of Chapfer XII Appendix 3 FormreferredtoinArficle 1(1) of Chapfer VII page Appendix 4 Formreferred fo in Arficle 3(1) of Chapter VII page Appendix 5 FormreferredtoinArficle 3(2) of Chapfer VII page Appendix 6 Formreferred to in Arficle 4(1) of Chapfer X page Appendix 7 List of certaintechnical agreements in fhe air page 177 transport sector, referred to inArficle 2 of Chapfer XI Appendix 8 Form referred fo in Arficle 3(1) ofChapter XII page Appendix 9 Form referred fo in Article 2(1) of page Chapfer XIV Appendix 10 List of publicholidays referred fo in Arficle 19 of Chapter XIV PART I GENERAL RULES CFL\PTER I INTRODUCTION This Protocol sets ouf provisions for fhe implemenfafionof compefition rules applicable fo undertakings in fhe EEA Agreement, and inparficular for the implemenfafion of Protocols 21 fo 25 to that Agreement. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 5Chapters II to V, XIII and XIV apply to allsectors covered by fhe EEA Agreement unless otherwise provided. 6Chapfers II fo IV shall not appfy to agreements, decisions orconcerted practices in fhe transport sector which have as fheir object oreffect fhe fixing of transport rafes and conditions, fhe limitation or controlof fhe supply of transport or fhe sharing of transport markefs; nor shall theyapply fo fhe abuse of a dominant posifion, within the meaning of Arficle 54 ofthe EEA Agreement, within fhe transport märket. Such cases are covered by ChapfersVI fo XII. 7Chapters II to V, XIII and XIV shall not applyto cases covered by ChapferXV, on the condifions set ouf therein. Chapfer XVI sets out the fransifional rules applicable forChapfers II fo XV. The EFTA Surveillance Authority may, in accordance withArticle 49 of this Agreement, submit fo fhe Governments of fhe EFTA Sfatesproposals for amendments fo this Protocol including its Appendices. CHAPTER II GENERAL PROCEDURAL RULES IMPLEMENTING ARTICLES 53 AND 54 OF THE EEAAGREEMENT Artide 1 Basic provision Without prejudice fo Arficle 6 of this Chapfer and Arficle3 of Chapfer XVI, agreements, decisions and concerted practices of fhe kinddescribed in Arficle 53(1) of fhe EEA Agreement and fhe abuse of a dominantposifion in fhe märket, within fhe meaningof Arficle 54 of fhe EEAAgreement,shall be prohibited, no prior decision to that effect being required. Article 2 Negative dearance