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EFTA Surveillance Authority Notice on cooperation within the EFTA Network of Competition Authorities

(2006/C 227/07)

1.   INTRODUCTION

2.   DIVISION OF WORK IN THE EFTA PILLAR

2.1.   Principles of allocation

2.2.   Mechanisms of cooperation for the purpose of case allocation and assistance

2.2.1.   Information at the beginning of the procedure (Article 11 of Chapter II)

2.2.2.   Suspension or termination of proceedings (Article 13 of Chapter II)

2.2.3.   Exchange and use of confidential information (Article 12 of Chapter II)

2.2.4.   Investigations (Article 22 of Chapter II)

2.3.   Position of undertakings

2.3.1.   General

2.3.2.   Position of complainants

2.3.3.   Position of applicants claiming the benefit of a leniency programme

3.   CONSISTENT APPLICATION OF EEA COMPETITION RULES (21)

3.1.   Mechanism of cooperation (Article 11(4) and (5) of Chapter II)

3.2.   The initiation of proceedings by the EFTA Surveillance Authority under Article 11(6) of Chapter II

4.   THE ROLE AND THE FUNCTIONING OF THE ADVISORY COMMITTEE IN THE NEW SYSTEM

4.1.   Scope of the consultation

4.1.1.   Decisions of the EFTA Surveillance Authority

4.1.2.   Decisions of NCAs

4.1.3.   Implementing measures, recommendations, guidelines and other notices (Article 33 of Chapter II)

4.2.   Procedure

4.2.1.   Normal procedure

4.2.2.   Written procedure

4.3.   Publication of the opinion of the Advisory Committee

5.   FINAL REMARKS

6.   STATEMENT BY OTHER NETWORK MEMBERS

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(1)OJ C 101, 27.4.2004, p. 43.

(2)  The competence to handle individual cases falling under Articles 53 and 54 of the EEA Agreement is divided between the EFTA Surveillance Authority and the Commission according to the rules laid down in Article 56 of the EEA Agreement. Only one of the surveillance authorities is competent to handle any given case.

(3)  It is noted that according to Article 41 of Chapter II of Protocol 4 to the Surveillance and Court Agreement, Liechtenstein is not obliged to designate a competition authority. Until Liechtenstein takes the decision to empower a national authority to apply Articles 53 and 54 of the EEA Agreement, the Liechtenstein Office of National Economy will take part in the EFTA Competition Network. This office does not have the power to apply Articles 53 and 54 of the EEA Agreement and cannot assist another EFTA NCA in order to collect information on its behalf or carry out fact-finding measures for another EFTA NCA.

(4)OJ C 307, 26.10.2000, p. 6 and EEA Supplement to the OJ No 61, 21.12.2000, p. 5.

(5)  Following the entry into force of the Agreement amending Protocol 4 to the Agreement of the EFTA States on the establishment of a Surveillance Authority and a Court of Justice of 24 September 2004, Chapter II of Protocol 4 of the Surveillance and Court Agreement will to a large extent reflect in the EFTA pillar Council Regulation (EC) No 1/2003 (OJ L 1, 4.1.2003, p. 1).

(6)  In this notice, the EFTA Surveillance Authority and the NCAs are collectively referred to as ‘the competition authorities’.

(7)  Cf. ECJ Case 68/88 Commission v. Greece [1989] ECR 2965 (recitals 23 to 25). Article 6 of the EEA Agreement provides that, without prejudice to future developments of case-law, the provisions of the EEA Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two treaties, shall in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of the EEA Agreement. As regards relevant rulings by the Court of Justice given after the date of signature of the EEA Agreement, it follows from Article 3(2) of the Surveillance and Court Agreement that the EFTA Surveillance Authority and the EFTA Court shall pay due account to the principles laid down by these rulings.

(8)  As mentioned in footnote 3, Liechtenstein is under no obligation to designate a competition authority.

(9)  In this Notice the term ‘procedure’ is used for investigations and/or formal proceedings for the adoption of a decision pursuant to the Chapter II conducted by an NCA or the EFTA Surveillance Authority, as the case may be.

(10)  Recital 18 of Regulation 1/2003 states that ‘to ensure that cases are dealt with by the most appropriate authorities within the network, a general provision should be laid down allowing a competition authority to suspend or close a case on the ground that another authority is dealing with it or has already dealt with it, the objective being that each case should be handled by a single authority. This provision should not prevent the Commission from rejecting a complaint for lack of Community interest, as the case-law of the Court of Justice of the European Communities has acknowledged it may do, even if no other competition authority has indicated its intention of dealing with the case.’ Like Regulation 1/2003, Chapter II provides for the possibility for a competition authority to suspend or close a case on the ground that another authority is dealing with it or has already dealt with it. In line with recital 18 of Regulation 1/2003 as quoted above, the EFTA Surveillance Authority is of the opinion that it may reject a complaint for lack of any sufficiently strong interest under the EEA Agreement and that this is possible even if no other competition authority has indicated its intention of dealing with the case.

(11)  For cases initiated following a leniency application see paragraphs 37 et subseq.

(12)  Information submitted according to Article 11(3) of Chapter II will also be forwarded to the Commission in accordance with the Authority's obligations under Article 2(2) of Protocol 23 to the EEA Agreement.

(13)  See EFTA Surveillance Authority notice on complaints, not yet published.

(14)  Article 10(2) of Protocol 23 to the EEA Agreement ensures that information exchanged pursuant to that Protocol is also covered by the obligation on professional secrecy.

(15)  See Case 85/87 Dow Benelux, [1989] ECR 3137 (recitals 17-20).

(16)  See Case 374/87 Orkem [1989] ECR 3283 and Case T-112/98 Mannesmannröhren-Werke AG [2001] ECR II-729.

(17)  Following the entry into force of the Agreement amending Protocol 4 to the Agreement of the EFTA States on the establishment of a Surveillance Authority and a Court of Justice of 3 December 2004 on 1 July 2005, Chapter III of Protocol 4 to the Surveillance and Court Agreement reflects Commission Regulation (EC) No 773/2004 of 7 April 2004, OJ L 123, 27.4.2004, p. 18-24,

(18)OJ C 10, 16.1.2003, p. 13 and EEA Supplement to the OJ No 3, 16.1.2003, p. 1 (Notice on immunity from fines and reduction of fines in cartel cases)

(19)  In this Notice, the term ‘leniency programme’ is used to describe all programmes (including the EFTA Surveillance Authority's programme) which offer either full immunity or a significant reduction in the penalties which would otherwise have been imposed on a participant in a cartel, in exchange for the freely volunteered disclosure of information on the cartel which satisfies specific criteria prior to or during the investigative stage of the case. The term does not cover reductions in the penalty granted for other reasons. The EFTA Surveillance Authority will publish on its website a list of those authorities that operate a leniency programme.

(20)  See paragraphs 8 to 15 above.

(21)  Article 15 of Chapter II empowers NCAs and the EFTA Surveillance Authority to submit written and, with the permission of the Court, oral submissions in court proceedings for the application of Articles 53 and 54 of the EEA Agreement. This is a very important tool for ensuring consistent application of EEA rules. In exercising this power NCAs and the Authority will cooperate closely.

(22)  This ultimate responsibility for developing policy and safeguarding consistency when it comes to the application of EEA competition law is shared with the Commission in accordance with the rules on attribution of competence in Article 56 of the EEA Agreement.

(23)  These tasks are shared with the Commission in accordance with the rules of competence in Article 56 of the EEA Agreement.

(24)  See Case C-344/98 Masterfoods Ltd [2000] ECR I-11369.

(25)  The Court of Justice of the European Communities has defined that concept in the case 48/72 — SA Brasserie de Haecht, [1973] ECR 77: ‘the initiation of a procedure within the meaning of Article 9 of Regulation No 17 implies an authoritative act of the Commission, evidencing its intention of taking a decision.’

(26)  The previous decisions by the Commission should also be taken into account by the competition authorities.

(27)  In accordance with Article 14(2) of Chapter II, where horizontal issues such as guidelines and recommendations are being discussed, EFTA States can appoint an additional representative competent in competition matters and who does not necessarily belong to the competition authority.

(28)  See e.g. points 2 and 4b of Annex XIV to the EEA Agreement, as amended by EEA Joint Committee Decision 29/2004, OJ L 127, 29.4.2004, p. 137, EEA Supplement No 22, 29.4.2004, p. 16. (Amending Annex XIV (Competition) to the EEA Agreement — Addition to adaptations to Commission Regulation (EC) 2790/1999 and Commission Regulation (EC) No 1400/2002).

(29)OJ C 307, 26.10.2000, p. 6 and EEA Supplement to the OJ No 61, 21.12.2000, p. 5.

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ANNEX

STATEMENT REGARDING THE EFTA SURVEILLANCE AUTHORITY NOTICE ON COOPERATION WITHIN THE NETWORK OF COMPETITION AUTHORITIES

In order to cooperate closely with a view to protecting competition within the EEA in the interest of consumers, the undersigned competition authority:

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