prop · GF03170 · 1991-12-31 00:00:00 — 2Paragraphs 1and 2 shall not impede the implemenfafion of a public bid which has beennotified to the EFTA Surveillance Authority in accordance wifh Article 4(1) offhe said acf, provided that the acquirer does nof exercise the voting rightsaftached fo fhe securities in quesfion or does so only fo maintain fhe fullvalue of those investments and on fhe basis of a derogation granted by the EFTASurveillance Authorify pursuant to paragraph 4. 3The EFTASurveillance Authorify may, on request, grant a derogation from the obligationsimposed in paragraphs 1, 2 or 3 in order to prevent serious damage fo one ormore undertakings concerned by a concenfration or to a third party. Thatderogation may be made subject to condifions and obligafions in order toensure condifions of effective compefition. A derogation may be applied for andgranted at any time, even before notification or affer fhe transaction. 4The validity ofany transaction carried out in contravention of paragraph 1 or 2 shall bedependent on a decision pursuant fo Arficle 6(l)(b) or 8(2) or (3) or on apresumption pursuant fo Arficle 10(6). This Arficle shall, however, have no effect on fhevalidity of transactions in securities including those converfible into othersecurities admifted to frading on a märket which is regulated and supervised byauthorifies recognized by public bodies, operates regularly and is accessibledirectly or indirectly to the public, unless fhe buyer and seller knew or oughffo have known fhaf the transaction was carried out in contravention ofparagraph 1 or 2. Powers of decision of fhe EFTA Surveillance Authorify 0Withoutprejudice to Arficle 9, all proceedings initiated pursuant to Article 6(1 )(c)shall be closed by means of a decision as provided for in paragraphs 2 fo 5. 1Where fhe EFTASurveillance Authorify finds fhaf, following modificafion by fhe undertakingsconcerned if necessaty, a notified concenfration fulfils fhe criterion laiddown in Arficle 2(2) of the act referred to in poinf 1 of fo fhe EEAAgreement (Regulafion (EEC) No 4064/89), if shall issue a decision dedaring fheconcenfration compafible wifh the funcfioning of the EEA Agreement. If may atfach fo ifs decisioncondifions and obligations intended to ensure fhaf fhe undertakings concernedcomply with the commifments they have entered into vis-ä-vis the EFTASurveillance Authorify with a view to modi- fyingfhe original concentrafion plan. The decision dedaring fhe concenfrationcompatible shall also cover resfricfions directly related and necessary to fheimplementation of fhe concenfration. 2Where the EFTA Surveillance Authorifyfinds that a concenfration fulfils the criterion laid down in Article 2(3) offhe said act, it shall issue a decision dedaring that the concenfration isincompatible wifh the funcfioning of the EEA Agreement. 3Where a concentrafion has already beenimplemented, the EFTA Surveillance Authorify may, in a decision pursuant toparagraph 3 or by separate decision, require fhe undertakings or assets broughftogether fo be separated or fhe cessafion of joint control or any other acfionfhaf may be appropriate in order to resfore condifions of effectivecompefition. 4The EFTA Surveillance Authorify mayrevoke the decision if has taken pursuant fo paragraph 2 where: 46 fhe dedarafion of compatibility is based onincorrect informafion for which one of the undertakings is responsible or whereit has been obtained by deceif; or 47 fhe undertakings concerned commif a breach of anobligation aftached fo fhe decision. Inthe case referred to in paragraph 5, the EFTA Surveillance Authority may take a decision under paragraph 3, without being bound by fhe deadline referred to in Arficle 10(3). 1991/92:170 Bilaga16 /Court Agreement Protocol4 Referralto the competent authorities of the EFTA States 2The EFTA Surveillance Authority may,by means of a decision notified without delay to fhe undertakings concerned andfhe competent authorifies of fhe other EFTA States, refer a notifiedconcenfration fo the competent authorities of the EFTA Sfate concerned in thefollowing circumsfances. 3Within three weeks of the dafe ofreceipt of the copy of fhe notification an EFTA Sfate may inform fhe EFTASurveillance Authority which shall inform fhe undertakings concerned fhaf aconcenfration threatens to create or fo sfrengthen a dominant posifion as aresult of which effecfive competition would be significanfly impeded on amärket, within fhaf State, which presents all fhe characferistics of a disfincfmärket, be if a subsfanfial parf of the territoty of fhe EFTA Sfates or nof. 4Ff fhe EFTA Surveillance Authorityconsiders fhaf, having regard fo fhe märket for the products or services inquesfion and the geographical reference märket within fhe meaning of paragraph7, there is such a disfincf märket and that such a threat exists, eifher: 3if shall itself deal with the case inorder to maintain or resfore effecfive compefition on the märket concerned; or 4if shall refer fhe case fo fhecompetent authorities of fhe EFTA Sfate 17 1991/92. concerned with a view to the application of that Sfafe'snational compefition law. If, however, the EFTA Surveillance Authorify considersfhaf such a disfincf märket or threat does not exist if shall adopt a decisionfo fhaf effect which if shall address fo fhe EFTA Sfate concerned. A decision fo refer or nof fo refer pursuant foparagraph 3 shall be taken where: 0as a generalrule within the six-week period provided for in Arficle 10(1), secondparagraph, where the EFTA Surveillance Authority, pursuant fo Article 6(l)(b),has nof initiated proceedings; or 1within threemonths af most of fhe nofificafion of the concentrafion concerned where fheEFTA Surveillance Authority has initiated proceedings under Artide 6(l)(c),without taking the preparafoty steps in order fo adopt fhe necessaty measuresunder Arficle 8(2), second subparagraph, (3) or (4) fo maintain or resforeeffective compefition on fhe märket concerned. 2If within fhethree months referred to in paragraph 4(b) the EFTA Surveillance Authority,despite a reminder from the concerned, has nof taken a decision onreferral in accordance wifh paragraph 3 nor has taken fhe preparafoty stepsreferred fo in paragraph 4(b), if shall be deemed fo have taken a decision torefer fhe case to the concerned in accordance wifh paragraph 3(b). 3The publicationof any report or the announeement of fhe findings of the examination of fheconcenfration by the competent authority of fhe EFTA Sfate concerned shall beeffected not more than four months after the EFTA Surveillance Authorify'sreferral. 4Thegeographical reference märket shall consist of the area in which fheundertakings concerned are involved in fhe supply and demand of products orservices, in which fhe conditions of compefition are sufficienfly homogeneousand which can be disfinguished from neighbouring areas because, in particular,conditions of compefition are appreciably different in those areas. Thisassessment should take account in parficular of fhe nature and characteristicsof the products or services concerned, of fhe existence of entry barriers orof consumer preferences, of appreciable differences of the undertakings'märket shares between fhe area concerned and neighbouring areas or ofsubstantial price differences. 5In applying fheprovisions of this Article, fhe concerned may take only fhe measuresstrictly necessaty fo safeguard or resfore effective compefition on fhe märketconcerned. 6In accordancewifh fhe relevant provisions of the EEA Agreement, any may appeal tothe EFTA Court in accordance with Arficle 108(2) of fhe EEA Agreement and withthe relevant provisions of 1991/92:170 Bilaga 16 /Court Agreement Protocol4 fhisAgreement, and in particular request the application of Arficle 41 of this Prop. Bilaga 16 /Court Agreement Protocol4 Agreement,for the purpose of applying ifs nafional compefition law. This Article willbe reviewed before the end of fhe year 1993. Timelimits for inifiating proceedings and for decisions 2The decisions referred fo in Arficle6(1) must be taken within one month at most. That period shall begin on the dayfollowing fhaf of the receipt of a nofificafion or, if the information fo besupplied with fhe nofificafion is incomplete, on fhe day following that of fhereceipt of the complefe informafion. That period shall be increased fo sixweeks if fhe EFTA Surveillance Authorify receives a request from an EFTA Sfatein accordance wifh Artide 9(2). 3Decisions taken pursuant to Arficle8(2) conceming notified concentrafions must be taken as soon as if appearsthat the serious doubts referred fo in Article 6(l)(c) have been removed,particularly as a resulf of modifications made by fhe undertakings concerned,and at fhe latesf by the deadline laid down in paragraph 3. 4Without prejudice fo Article 8(6),decisions taken pursuant to Arficle 8(3) conceming notified concenfrations mustbe taken within not more fhan four months of the date on which the proceedingis initiated. 5The period set by paragraph 3 shallexcepfionally be suspended where, owing fo circumsfances for which one of fheundertakings involved in the concenfration is responsible, fhe EFTASurveillance Authorify has had fo request informafion by decision pursuant toArficle 11 or fo order an investigafion by decision pursuant to Article 13. 6Where the EFTA Court gives a judgmentwhich annuls fhe whole or parf of an EFTA Surveillance Authority decision takenunder fhis Chapfer, fhe periods laid down in this Chapfer shall start againfrom fhe date of fhe judgment. 7Where the EFTA Surveillance Authorityhas nof taken a decision in accordance wifh Arficle 6(l)(b) or (c) or Arficle8(2) or (3) within the deadlines set in paragraphs 1 and 3 respectively, fheconcentration shall be deemed fo have been dedared compatible wifh fhefuncfioning of fhe EEA Agreement, without prejudice to Arficle 9. 1.In carrying ouf fhe dufies assigned fo it by Artides57 or 58 of the EEAAgreement, by provisions set out in Protocol 24 and in to the EEAAgreement and by fhe provisions of fhis Chapfer, the EFTA SurveillanceAuthorify may obfain all necessaty informafion from fhe Governments and competent authorifies of fhe EFTA States, from thepersons referred fo in Arficle 3(l)(b) of fhe act referred to in point 1 ofAnnex XIV fo fhe EEA Agreement (Regulation (EEC) No4064/89), and fromundertakings and associations of undertakings. 2When sending arequest for information to a person, an undertaking or an association ofundertakings, fhe EFTA Surveillance Authority shall af fhe same fime send acopy of the request to fhe competent authority of fhe EFTA Sfate within fheterritoty of which fhe of fhe person or fhe seat of fhe undertakingor association of undertakings is situated. 3In ifs requestfhe EFTA Surveillance Authority shall sfate fhe legal basis and fhe purpose offhe request and also fhe penalfies provided for in Article 14(l)(c) forsupplying incorrect informafion. 4The informafionrequested shall be provided, in fhe case of undertakings, by fheir owners orfheir representatives and, in fhe case of legal persons, companies or firms, orof associations having no legal personality, by fhe persons authorized forepresent them by law or by fheir stafufes. 5Where a person,an undertaking or an association of undertakings does not provide theinformafion requested within fhe period fixed by fhe EFTA SurveillanceAuthority or provides incomplete information, the EFTA Surveillance Authorityshall by decision require the information to be provided. The decision shallspecify what information is required, fix an appropriate period within which ifis fo be supplied and sfate the penalfies provided for in Arficles 14(l)(c) and15(l)(a) and the right fo have fhe decision reviewed by fhe EFTA Courf inaccordance wifh Article 108(2) of the EEA Agreement and wifh fhe relevantprovisions of this Agreement, in particular Artide 35. 6The EFTASurveillance Authorify shall af the same time send a copy of its decision tofhe competent authority of fhe EFTA Sfate within fhe territory of which fheresidence of the person or fhe seat of the undertaking or association ofundertakings is situated. 1991/92:170 Bilaga 16 /Court Agreement Protocol 4 Investigations by the authorifies of fhe EFTA Sfates Af fhe request of the EFTA Surveillance Authorify, thecompetent auth orities of the EFTA States shall undertake the investigations which the EFTA Surveillance Authority considers to be necessary under Arficle 13(1), or which if has ordered by decision pursuant to Arficle 13(3). The officials of fhe competent authorities of the EFTA Sfates responsible for conducting those investigations shall exercise fheir powers upon production of an au thorization in writing issued by fhe competent authorify of fhe EFTA Sfate within fhe territoty of which the investigafion is to be carried ouf. Such au thorizafion shall specify fhe subject matter and purpose of the investigation. 2, If so requested by fhe EFTA Surveillance Authority orby the competent authority of the within the territory of which the investigafion is fo be carried ouf, officials of fhe EFTA SurveillanceAuthority may assist the officials of that authorify in cartying ouf fheirduties. Investigafive powers of the EFTA Surveillance Authority In carrying ouf fhe dufies assigned to if by Arficles57 and 58 of fhe EEA Agreement, by provisions set out in Protocol 24 and in to the EEA Agreement and by fhe provisions of fhis Chapter, fhe EFTA Surveil lance Authority may undertake all necessaty investigations into undertak ings and associations of undertakings. To that end the officialsauthorized by the EFTA Surveillance Authority shall be empowered: 2to examine thebooks and other business records; 3to take ordemand copies of or extracts from the books and business records; 4fo ask for oralexplanafions on fhe spof; (d) to enter any premises, land and means of transport ofundertakings. 2The officialsof the EFTA Surveillance Authority authorized fo carry ouf the investigationsshall exercise their powers on production of an authorization in writingspecifying the subject maffer and purpose of fhe investigafion and fhepenalties provided for in Arficle 14(l)(d) in cases where production of fherequired books or other business records is incomplete. In good fime before fheinvestigafion, the EFTA Surveillance Authority shall inform, in writing, fhecompetent authority of fhe within the territoty of which theinvestigation is fo be carried ouf of fhe investigafion and of fhe idenfifiesof fhe authorized officials. The EFTA Surveillance Authority shall also providesuch an authorizafion fo representatives of fhe EC Commission who shall takeparf in the investigation in accordance wifh Arficle 8(5) of Protocol 24 to theEEA Agreement. 3Undertakingsand associations of undertakings shall submit fo investigations ordered bydecision of fhe EFTA Surveillance Authority. The dedsion shall specify thesubject matfer and purpose of the investigafion, appoint fhe date on which itshall begin and state the penalfies provided for in Arficles 14(l)(d) and15(l)(b) and fhe right to have fhe decision reviewed by the EFTA Courf inaccordance wifh Arficle 108(2) of the EEA Agreement and wifh fhe relevantprovisions of this Agreement, in particular Arficle 35. 4The EFTASurveillance Authorify shall in good fime and in writing inform fhe competentauthority of fhe EFTA Sfate within the territoty of which the investigation isfo be carried out of its intention of taking a decision pursuant to paragraph3. It shall hear the competent authority before taking ifs decision. 5Officials offhe competent authority of the EFTA Sfate within fhe territory of which fheinvestigafion isfo be carried out may, at the request of fhaf authority or ofthe EFTA Surveillance Authority, assist the officials of fhe EFTA SurveillanceAuthority in carrying out their duties. 1991/92:170 Bilaga 16 /Court Agreement Protocol4 Where an undertaking orassociation of undertakings opposes an investigation ordered pursuant fo thisArricle, the EFTA Sfate concerned shall afford the necessaty assisfance to fheofficials authorized by the EFTA Surveillance Authority to enable them focarty out their investigation. To this end the EFTA Sfates shall, afterconsulfing fhe EFTA Surveillance Authority, take the necessaty measures withinsbc months of the entty into force of the EEA Agreement. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol 4 TheEFTA Surveillance Authority may by decision impose on the persons referred to in Article 3(l)(b) of fhe acf referred fo in point 1 of to the EEA Agreement (Regulafion (EEC) No 4064/89), undertakings or as sociations of undertakings fines of from 1 000 to 50 000 ECU where inten tionally or negligently: 2they fail to notify a concentrafion inaccordance with Arficle 4 of fhe said acf; 3they supply incorrect or misleadinginformation in a notificafion pursuant to Article 4 of the said acf; 4they supply incorrect informafion inresponse to a request made pursuant to Arficle 11 or fail fo supplyinformafion within the period fbced by a dedsion taken pursuant fo Arficle 11; (d) they produce fhe required books or otherbusiness records in incom plete form during investigations under Arficle 12 or 13, or refuse fo submit fo an investigafion ordered by decision taken pursuant fo Arfide 13. TheEFTA Surveillance Authorify may by decision impose fines not ex ceeding of fhe aggregate turnover of fhe undertakings concerned within the meaning of Article 5 of the said act on the persons or undertakings con cerned where, either intentionally or negligently, they: 2fail fo comply wifh an obligationimposed by decision pursuant to Arficle 7(4) or 8(2), second subparagraph; 3put into effect a concentrafion inbreach of Article 7(1) or disregard a decision taken pursuant to Article 7(2); 4put into effect a concenfrationdedared incompatible with the functioning of the EEA Agreement by decisionpursuant to Article 8(3) or do nof take the measures ordered by decisionpursuant to Article 8(4). 2In setting the amount of a fine,regard shall be had to fhe nature and gravify of the infringement. 3Decisions taken pursuant to paragraphs1 and 2 shall nof be of a criminal law nature. The EFTA Surveillance Authorify may by decision imposeon the persons referred fo in Arficle 3(l)(b) of fhe act referred fo in poinf 1 of fo the EEAAgreement (Regulafion (EEC) No4064/89), undertakings or as sociations of undertakings concerned periodic penalfy payments of up fo 25 000 ECU for each day of delay calculated from fhe dafe set in fhe decision, in order fo compel them; 3to supplycomplete and correct information which it has requested by decision pursuant foArficle 11; 4to submit to aninvestigafion which if has ordered by decision pursuant fo Arficle 13. The EFTA Surveillance Authorify may by decision imposeon the persons referred to in Article 3(l)(b) of fhe said acf or on undertakings periodic pen aity payments of up fo 100 000 ECU for each day of delay calculated from fhe dafe set in fhe decision, in order fo compel them: 2to comply wifhan obligation imposed by decision pursuant to Arficle 7(4) or Arficle 8(2),second subparagraph; or 3fo apply fhemeasures ordered by decision pursuant fo Arficle8(4). Where the persons referred to in Article 3(l)(b) of thesaid acf, undertak ings or associations of undertakings have satisfied fhe obligafion which it was fhe purpose of the periodic penalfy payment to enforce, fhe EFTA Surveil lance Authorify may set fhe total amount of fhe periodic penalfy payments af a lower figure than fhaf which would arise under fhe original decision. Review by fhe EFTA Courf The EFTA Court, in accordance wifh Arficle 108(2) of fheEEA Agreement and with fhe relevant provisions of fhis Agreement, shall haveuniimifed jurisdicfion within fhe meaning of Arficle 35 of this Agreement foreview decisions whereby fhe EFTA Surveillance Authorify has fbced a fine orperiodic penalfy payments; if may cancel, reduce or increase fhe fine orperiodic penaity payments imposed. Prop.1991/92:170 Bilaga 16 /Court Agreement Protocol4 Artide 17 Professional secrecy 3Withoutprejudice fo Arficle 9 of Protocol 24 fothe EEAAgreement, informafion acquiredas a resulf of fhe applicafion of Arficles 57 and 58 of fhe EEA Agreement, ofProtocol 24 fo fhe EEA Agreement and of Arficles 11, 12, 13 and 18 of fhisChapter shall be used only for the purposes of fhe relevant request,investigafion or hearing. 4Withoutprejudice fo Arficle 4(3) of fhe acf referred fo in point 1 of An- nexXFV to fhe EEA Agreement (Regulation (EEC) No 4064/89) and of Prop.1991/92:170 Artides18 and 20 of this Chapter, the EFTA Surveillance Authority and the Bilaga16 competentauthorifies of fhe EFTA States, fheir officials and other servants /Court shallnof disclose informafion they have acquired through the application of Agreement Protocol24 to the EEA Agreement, of the said acf or of this Chapter of the Protocol4 kind covered by the obligation of professional secrecy. 3.Paragraphs 1 and 2 shall not prevent publication of general information or ofsurveys which do nof confain informafion relafing to parficular undertakingsor associations of undertakings. Hearingof the parfies and of third persons 2Before taking any decision providedfor in Arficles 7(2) and (4), 8(2), second subparagraph, and (3) to (5),Arficles 14 and 15, the EFTA Surveillance Authority shall give fhe persons,undertakings and associations of undertakings concerned the opportunity, atevety stage of fhe procedure up fo the consultation of ,of making known their views on fhe objections against them. 3By way of derogation from paragraph 1,a decision to continue the suspension of a concenfration or to grant aderogation from suspension as referred fo in Arficle 7(2) or (4) may be takenprovisionally, without fhe persons, undertakings or associations ofundertakings concerned being given the opporfunify fo make known fheir viewsbeforehand, provided fhaf the EFTA Surveillance Authorify gives them thatopportunity as soon as possible after having taken ifs decision. 4The EFTA Surveillance Authority shallbase its decision only on objections on which the parties have been able tosubmit their observations. The righfs of fhe defence shall be fully respectedin the proceedings. Access fo fhe filé shall be open af leasf to the parfiesdirectly involved, subject to fhe legifimate interest of undertakings in theprotection of fheir business secrets. 5Fn so far as the EFTA SurveillanceAuthorify and the competent authorities of the EFTA States deem it necessary,they may also hear other natural or legal persons. Natural or legal personsshowing a sufficient interest and especially members of the administrative ormanagement bodies of the undertakings concerned or fhe recognizedrepresentatives of fheir employees shall be enfitled, upon applicafion, fo beheard. Liaisonwifh fhe authorities of fhe EFTA Sfates 1.The EFTA Surveillance Authorify shall transmit fo the competent authorities offhe EFTA Sfates copies of notifications within three working days and, as soonas possible, copies of the most important documents lodged wifh or issued byfhe EFTA Surveillance Authorify pursuant fo fhe act re- ferredfo in poinf 1 of to fhe EEA Agreement (Regulation (EEC) No 4064/89)and this Chapfer. TheEFTA Surveillance Authorify shall carty out the procedures set out in fhe said acf and in fhis Chapfer in close and liaison with fhe com petent authorities of the EFTA Sfates, which may express fheir views upon those procedures. For fhe purposes of Article 9 it shall obtain informafion from fhe competent authority of the as referred fo in paragraph 3of fhaf Article and give if fheopportunity to make known ifs views at every stage of the procedure up to theadoption of a decision pursuant t o paragraph 4of fhaf Arficle; fo fhaf end if shallgive it access to fhe filé.