# Official Journal C 305/2006

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 305 |
| | |
| English edition | Information and Notices | Volume 4914 December 2006 |

ISSN 1725-2423

Official Journal

of the European Union

C 305

English edition

Information and Notices

Volume 4914 December 2006

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Commission |
| 2006/C 305/1 | Euro exchange rates | 1 |
| 2006/C 305/2 | Information on complaint 2005/4347 | 2 |
| 2006/C 305/3 | Summary information on State aid granted in conformity with Commission Regulation (EC) No 1595/2004 of 8 September 2004 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises active in the production, processing and marketing of fisheries products (
  1
  ) | 3 |
| 2006/C 305/4 | Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections (
  1
  ) | 8 |
| 2006/C 305/5 | Commission notice pursuant to Article 4(1)(a) of Council Regulation (EEC) No 2408/92 — Imposition of a public service obligation on scheduled air services within Italy (
  1
  ) | 13 |
| 2006/C 305/6 | Guidelines on the end-use for industrial manufacture for the application of certain tariff quotas for fishery products originating in Norway and in Iceland (
  1
  ) | 16 |
| 2006/C 305/7 | Non-opposition to a notified concentration (Case COMP/M.4455 — Schmolz + Bickenbach/Swiss Steel) (
  1
  ) | 17 |
| 2006/C 305/8 | Non-opposition to a notified concentration (Case COMP/M.4449 — KKR/SIF (Tarkett)) (
  1
  ) | 17 |
| 2006/C 305/9 | Non-opposition to a notified concentration (Case COMP/M.4239 — Plastic Omnium/Inopart) (
  1
  ) | 18 |
| | EUROPEAN ECONOMIC AREA |
| | EFTA Surveillance Authority |
| 2006/C 305/0 | EFTA Surveillance Authority Notice on the co-operation between the EFTA Surveillance Authority and the courts of the EFTA States in the application of Articles 53 and 54 of the EEA Agreement | 19 |
| 2006/C 305/1 | Notification from the Norwegian authorities concerning regionally differentiated social security contributions — The EFTA Surveillance Authority has decided not to raise objections against the notified measure | 32 |
| 2006/C 305/2 | Values of thresholds in the field of public procurement | 33 |
| 2006/C 305/3 | EFTA Surveillance Authority Notice on informal guidance relating to novel questions concerning Articles 53 and 54 of the EEA Agreement that arise in individual cases (guidance letters) | 34 |
| 2006/C 305/4 | Authorisation of State aid pursuant to Article 61 of the EEA Agreement and Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement — EFTA Surveillance Authority decision not to raise objections | 38 |
| 2006/C 305/5 | Invitation to submit comments pursuant to Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement on State aid with regard to the application of Article 3 of the Norwegian VAT Compensation Act | 39 |

Notice No

Contents

page

I   Information

Commission

2006/C 305/1

Euro exchange rates

1

2006/C 305/2

Information on complaint 2005/4347

2

2006/C 305/3

Summary information on State aid granted in conformity with Commission Regulation (EC) No 1595/2004 of 8 September 2004 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises active in the production, processing and marketing of fisheries products (
  1
  )

1

3

2006/C 305/4

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections (
  1
  )

1

8

2006/C 305/5

Commission notice pursuant to Article 4(1)(a) of Council Regulation (EEC) No 2408/92 — Imposition of a public service obligation on scheduled air services within Italy (
  1
  )

1

13

2006/C 305/6

Guidelines on the end-use for industrial manufacture for the application of certain tariff quotas for fishery products originating in Norway and in Iceland (
  1
  )

1

16

2006/C 305/7

Non-opposition to a notified concentration (Case COMP/M.4455 — Schmolz + Bickenbach/Swiss Steel) (
  1
  )

1

17

2006/C 305/8

Non-opposition to a notified concentration (Case COMP/M.4449 — KKR/SIF (Tarkett)) (
  1
  )

1

17

2006/C 305/9

Non-opposition to a notified concentration (Case COMP/M.4239 — Plastic Omnium/Inopart) (
  1
  )

1

18

EUROPEAN ECONOMIC AREA

EFTA Surveillance Authority

2006/C 305/0

EFTA Surveillance Authority Notice on the co-operation between the EFTA Surveillance Authority and the courts of the EFTA States in the application of Articles 53 and 54 of the EEA Agreement

19

2006/C 305/1

Notification from the Norwegian authorities concerning regionally differentiated social security contributions — The EFTA Surveillance Authority has decided not to raise objections against the notified measure

32

2006/C 305/2

Values of thresholds in the field of public procurement

33

2006/C 305/3

EFTA Surveillance Authority Notice on informal guidance relating to novel questions concerning Articles 53 and 54 of the EEA Agreement that arise in individual cases (guidance letters)

34

2006/C 305/4

Authorisation of State aid pursuant to Article 61 of the EEA Agreement and Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement — EFTA Surveillance Authority decision not to raise objections

38

2006/C 305/5

Invitation to submit comments pursuant to Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement on State aid with regard to the application of Article 3 of the Norwegian VAT Compensation Act

39

| | III   Notices |
| --- | --- |
| | Commission |
| 2006/C 305/6 | Call addressed to individuals for the establishment of a database of prospective independent experts to assist the Commission's services for tasks in connection with the Seventh RTD Framework Programme | 52 |
| 2006/C 305/7 | Call addressed to organisations to propose lists of prospective independent experts to assist the Commission's services for tasks in connection with the Seventh RTD Framework Programme | 54 |

III   Notices

Commission

2006/C 305/6

Call addressed to individuals for the establishment of a database of prospective independent experts to assist the Commission's services for tasks in connection with the Seventh RTD Framework Programme

52

2006/C 305/7

Call addressed to organisations to propose lists of prospective independent experts to assist the Commission's services for tasks in connection with the Seventh RTD Framework Programme

54

| | |
| --- | --- |
| | (1)   Text with EEA relevance |

---

(1)   Text with EEA relevance

1

| EN | |
| --- | --- |

EN

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I Information

Commission

| 14.12.2006 | EN | Official Journal of the European Union | C 305/1 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/1

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Euro exchange rates (1)

13 December 2006

(2006/C 305/01)

1 euro=

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,3265 |
| JPY | Japanese yen | 155,34 |
| DKK | Danish krone | 7,4534 |
| GBP | Pound sterling | 0,67280 |
| SEK | Swedish krona | 9,0407 |
| CHF | Swiss franc | 1,5951 |
| ISK | Iceland króna | 91,76 |
| NOK | Norwegian krone | 8,1520 |
| BGN | Bulgarian lev | 1,9558 |
| CYP | Cyprus pound | 0,5781 |
| CZK | Czech koruna | 27,880 |
| EEK | Estonian kroon | 15,6466 |
| HUF | Hungarian forint | 253,48 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,6973 |
| MTL | Maltese lira | 0,4293 |
| PLN | Polish zloty | 3,8008 |
| RON | Romanian leu | 3,4247 |
| SIT | Slovenian tolar | 239,68 |
| SKK | Slovak koruna | 34,775 |
| TRY | Turkish lira | 1,8919 |
| AUD | Australian dollar | 1,6811 |
| CAD | Canadian dollar | 1,5273 |
| HKD | Hong Kong dollar | 10,3094 |
| NZD | New Zealand dollar | 1,9172 |
| SGD | Singapore dollar | 2,0421 |
| KRW | South Korean won | 1 223,76 |
| ZAR | South African rand | 9,2630 |
| CNY | Chinese yuan renminbi | 10,3819 |
| HRK | Croatian kuna | 7,3579 |
| IDR | Indonesian rupiah | 12 031,36 |
| MYR | Malaysian ringgit | 4,7018 |
| PHP | Philippine peso | 65,536 |
| RUB | Russian rouble | 34,7980 |
| THB | Thai baht | 46,783 |

Currency

Exchange rate

USD

US dollar

1,3265

JPY

Japanese yen

155,34

DKK

Danish krone

7,4534

GBP

Pound sterling

0,67280

SEK

Swedish krona

9,0407

CHF

Swiss franc

1,5951

ISK

Iceland króna

91,76

NOK

Norwegian krone

8,1520

BGN

Bulgarian lev

1,9558

CYP

Cyprus pound

0,5781

CZK

Czech koruna

27,880

EEK

Estonian kroon

15,6466

HUF

Hungarian forint

253,48

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,6973

MTL

Maltese lira

0,4293

PLN

Polish zloty

3,8008

RON

Romanian leu

3,4247

SIT

Slovenian tolar

239,68

SKK

Slovak koruna

34,775

TRY

Turkish lira

1,8919

AUD

Australian dollar

1,6811

CAD

Canadian dollar

1,5273

HKD

Hong Kong dollar

10,3094

NZD

New Zealand dollar

1,9172

SGD

Singapore dollar

2,0421

KRW

South Korean won

1 223,76

ZAR

South African rand

9,2630

CNY

Chinese yuan renminbi

10,3819

HRK

Croatian kuna

7,3579

IDR

Indonesian rupiah

12 031,36

MYR

Malaysian ringgit

4,7018

PHP

Philippine peso

65,536

RUB

Russian rouble

34,7980

THB

Thai baht

46,783

---

(1)

Source: reference exchange rate published by the ECB.

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| 14.12.2006 | EN | Official Journal of the European Union | C 305/2 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/2

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Information on complaint 2005/4347

(2006/C 305/02)

On 18 October 2006, the Commission sent Italy a further letter of formal notice regarding complaint 2005/4347. For more details, see the Italian version on the Internet:

http://ec.europa.eu/community_law/complaints/multiple_complaints/doc/2-2005-4347_it.pdf

---

| 14.12.2006 | EN | Official Journal of the European Union | C 305/3 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/3

---

Summary information on State aid granted in conformity with Commission Regulation (EC) No 1595/2004 of 8 September 2004 on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises active in the production, processing and marketing of fisheries products

(Text with EEA relevance)

(2006/C 305/03)

Aid No: XF 5/06

Explanatory notes: Under Decree No 43/2006 of the Estonian Minister for Agriculture, compensation is paid to recognised producer organisations for part of their start-up and administrative costs. There is provision in the national budget for a sum of EEK 2 450 000 (EUR 156 584) in aid. Producer organisations recognised under the Fisheries Market Organisation Act in the course of the previous calendar year may apply for this aid

Member State: Republic of Estonia

Title of aid scheme: Start-up aid for associations of producers of fisheries products

Legal basis: Eesti Vabariigi Põllumajandusministri 2006. aasta määrus nr 43, ‘Kalandustoodete tootjate ühenduse tegevuse alustamise toetuse taotlemise ja taotluse menetlemise kord’

Annual expenditure planned under the scheme: The scheme provides EEK 2 450 000 (EUR 156 584) in start-up aid to producer organisations

Maximum aid intensity: Start-up aid for producer organisations is granted under Article 15(1) of Council Regulation (EC) No 2792/1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (OJ L 337, 30.121999, p 10-28). Under this Regulation the maximum amount of aid is 60 % of the start-up and administrative costs in the first year, 40 % in the second year and 20 % in the third, but not more than 3 %, 2 % and 1 % respectively of the total value of the members' products

Date of implementation: The application round begins 8 May. The competent authority (Põllumajanduse Registrite ja Informatsiooni Amet — the Estonian Agricultural Registers and Information Board) will have 40 working days from the date of receipt to process applications, after which the compensation will be paid

Duration of scheme: Duration of the scheme: until 31 December 2006

Objective of aid: The objective of the aid is to help SMEs by compensating producer organisations for part of their start-up and administrative costs.

The aid scheme is based on Article 4 of Commission Regulation (EC) No 1595/2004, the eligible costs are the start-up and administrative expenses set out in Article 4(1) of Commission Regulation (EC) No 908/2000 laying down detailed rules for calculating aid granted by Member States to producer organisations in the fisheries and aquaculture sector (OJ L 105, 2.5.2000, pp. 15-17)

Sector(s) concerned: Fisheries and aquaculture

Name and address of the granting authority:

| Põllumajanduse Registrite ja Informatsiooni Amet |
| --- |
| Narva mnt. 3 |
| EE-51009 Tartu |

Põllumajanduse Registrite ja Informatsiooni Amet

Narva mnt. 3

EE-51009 Tartu

Website: https://www.riigiteataja.ee/ert/act.jsp?id=1017124

Aid No: XF 8/06

Explanatory notes: Under Regulation 81 of 2006 of the Minister of Agriculture of the Republic of Estonia, compensation is granted in part for the interest on long-term loans (with a deadline for repayment of over one year) from credit or financial institutions or the interest paid as part of a financial leasing payment taken out by a producer of fisheries products to develop fish farming, inland fishing activities or fishing ports and which was paid by the producer of fisheries products in the year preceding the application for interest subsidy. The national budget provides the sum of EEK 1 500 000 (EUR 95 867,50) for this compensation, allocated to all applicants on a proportional basis, based on the interest percentage points paid by the applicants in the previous calendar year. This compensation is available to small and medium-sized enterprises that have a professional fishing licence for inland fishing for 2006, work in aquaculture or own a fishing port

Member State: Republic of Estonia

Title of aid scheme: Procedure for applying for interest subsidy for producers of fisheries products and for processing such applications

Legal basis: Eesti Vabariigi Põllumajandusministri 2006. aasta määrus nr 81, ‘Kalandustoodete tootjate ühenduse tegevuse alustamise toetuse taotlemise ja taotluse menetlemise kord’

Annual expenditure planned under the scheme: The scheme provides for EEK 1 500 000 (EUR 95 867,50) in aid to producers of fisheries products

Maximum aid intensity: The maximum aid intensity is set at the end of the application round in a decree issued by the Minister of Agriculture. The amount of aid is decided in proportion to the amount of interest paid by the applicants in 2005 on long-term loans or as part of a financial leasing payment. The amount of aid given is up to ten percentage points

Date of implementation: The application round ends on 24 August 2006 and the competent authority (Põllumajanduse Registrite ja Informatsiooni Amet — the Estonian Agricultural Registers and Information Board) has 45 working days from that date to process applications, after which the compensation will be paid

Duration of scheme: Duration of the scheme: 31 December 2006

Objective of aid: The objective of the aid is to help SMEs by compensating them wholly or in part for interest paid in 2005 on long-term loans (with a deadline for repayment of over one year) or as part of a financial leasing payment.

The aid scheme is based on Articles 9 and 11 (Commission Regulation 1595/2004); the eligible expenditure is interest paid on long-term loans or as part of a financial leasing payment

Sector(s) concerned: Inland fisheries, aquaculture and owners of fishing ports

Name and address of the granting authority:

| Põllumajanduse Registrite ja Informatsiooni Amet |
| --- |
| Narva mnt. 3 |
| EE-51009 Tartu |

Põllumajanduse Registrite ja Informatsiooni Amet

Narva mnt. 3

EE-51009 Tartu

Web address: http://www.riigiteataja.ee/ert/act.jsp?id=1046970

Aid No: XF 9/06

Member State: Finland

Title of aid scheme or name of company receiving an individual aid: Pro Kala ry

Legal basis: Laki valtion tulo- ja menoarviosta (423/1988); tuki myönnetään eduskunnan maa- ja metsätalousministeriölle valtion vuosittaisessa tulo- ja menoarviossa antaman yleisen valtuutuksen perusteella kalatalouden edellytysten edistämiseen tarkoitetulta alamomentilta.

Tuen myöntämisessä, valvonnassa ja takaisinperinnässä noudatetaan valtionavustuslakia (688/2001)

Annual expenditure planned under the scheme or overall amount of individual aid granted to the company: No more than EUR 80 000 will be granted in order to carry out a promotional campaign

Maximum aid intensity: Up to 100 % of eligible costs

Date of implementation: No earlier than 4 August 2006

Duration of scheme or individual aid award: June 2008

Objective of aid: The objective of the aid is to promote fish in the hotel, restaurant and catering services sector. The objective is to increase fish consumption which would improve the operating conditions of businesses throughout the sector

Indicate which one of [Article(s) 4 to 12] is used and the eligible costs covered by the scheme or individual aid: Article 7 of Regulation (EC) No 1595/2004 (Article 14 of Regulation (EC) No 2792/1999 and Annex III.3 thereto).

Eligible expenditure includes the cost of carrying out hospitality sector campaigns and seminars under the promotional campaign plan

Sector(s) concerned: The scheme applies to the fisheries sector as a whole

Name and address of the granting authority:

| Maa- ja metsätalousministeriö |
| --- |
| Kala- ja riistaosasto |
| PL 30 |
| FIN-00023 Valtioneuvosto |

Maa- ja metsätalousministeriö

Kala- ja riistaosasto

PL 30

FIN-00023 Valtioneuvosto

Web address: http://www.mmm.fi/fi/index/etusivu/kalastus_riista_porot/elinkeinokalatalous/elinkeinokalatalouden_tuki.html

The Web-pages of the Ministry are under construction

Aid No: XF 10/06

Member State: Finland

Title of aid scheme or name of company receiving an individual aid: Suomen Kalakauppiasliitto ry

Legal basis: Laki valtion tulo- ja menoarviosta (423/1988); tuki myönnetään eduskunnan maa- ja metsätalousministeriölle valtion vuosittaisessa tulo- ja menoarviossa antaman yleisen valtuutuksen perusteella kalatalouden edellytysten edistämiseen tarkoitetulta alamomentilta.

Tuen myöntämisessä, valvonnassa ja takaisinperinnässä noudatetaan valtionavustuslakia (688/2001)

Annual expenditure planned under the scheme or overall amount of individual aid granted to the company: No more than EUR 15 000 will be granted in order to carry out a promotional campaign

Maximum aid intensity: Up to 100 % of eligible costs

Date of implementation: No earlier than 4 August 2006

Duration of scheme or individual aid award: June 2008

Objective of aid: The objective of the aid is to promote fish in the restaurant and fish-sales sectors. The objective is to increase fish consumption which would improve the operating conditions of businesses throughout the sector

Indicate which one of [Article(s) 4 to 12] is used and the eligible costs covered by the scheme or individual aid: Article 7 of Regulation (EC) No 1595/2004 (Article 14 of Regulation (EC) No 2792/1999 and Annex III.3 thereto).

Eligible expenditure includes the costs incurred on the competition ‘The Best Fish Counters in the Nordic Countries’ in accordance with the promotional campaign plan

Sector(s) concerned: The scheme applies to the fisheries sector as a whole, in particular marketing

Name and address of the granting authority:

| Maa- ja metsätalousministeriö |
| --- |
| Kala- ja riistaosasto |
| PL 30 |
| FIN-00023 Valtioneuvosto |

Maa- ja metsätalousministeriö

Kala- ja riistaosasto

PL 30

FIN-00023 Valtioneuvosto

Web address: http://www.mmm.fi/fi/index/etusivu/kalastus_riista_porot/elinkeinokalatalous/elinkeinokalatalouden_tuki.html

The Web-pages of the Ministry are under construction

Aid No: XF 11/06

Member State: Finland

Title of aid scheme or name of company receiving an individual aid: Pro Kala ry

Legal basis: Laki valtion tulo- ja menoarviosta (423/1988); tuki myönnetään eduskunnan maa- ja metsätalousministeriölle valtion vuosittaisessa tulo- ja menoarviossa antaman yleisen valtuutuksen perusteella kalatalouden edellytysten edistämiseen tarkoitetulta alamomentilta.

Tuen myöntämisessä, valvonnassa ja takaisinperinnässä noudatetaan valtionavustuslakia (688/2001)

Annual expenditure planned under the scheme or overall amount of individual aid granted to the company: No more than EUR 8 000 will be granted as a one-off aid payment

Maximum aid intensity: Up to 100 % of eligible costs

Date of implementation: No earlier than 4 August 2006

Duration of scheme or individual aid award: December 2006

Objective of aid: Support for the internationalisation of SME workers and others working in the sector (fact-finding trip to Island)

Indicate which one of [Article(s) 4 to 12] is used and the eligible costs covered by the scheme or individual aid: Article 7 of Regulation (EC) No 1595/2004 (Article 14 of Regulation (EC) No 2792/1999 and Annex III.3 thereto).

Eligible expenditure includes the general costs incurred in organising the trip: costs of the trip leader and interpreter, bus hire, lecture fees, rental of meeting rooms and other common services.

The individual travel costs for those taking part in the trip will not be covered by the aid. The aid does not cover the beneficiary's operating costs

Sector(s) concerned: The scheme applies to the fisheries sector as a whole

Name and address of the granting authority:

| Maa- ja metsätalousministeriö |
| --- |
| Kala- ja riistaosasto |
| PL 30 |
| FIN-00023 Valtioneuvosto |

Maa- ja metsätalousministeriö

Kala- ja riistaosasto

PL 30

FIN-00023 Valtioneuvosto

Web address: http://www.mmm.fi/fi/index/etusivu/kalastus_riista_porot/elinkeinokalatalous/elinkeinokalatalouden_tuki.html

The Web-pages of the Ministry are under construction

Aid No: XF 12/06

Explanatory remarks: As part of the transitional process which the Netherlands has set in motion for the North Sea cutter fleet, the Minister for Agriculture, Nature and Food Quality has decided to launch a number of pilot projects on ‘more careful fishing’. During these projects, fishermen will perform scientifically-assisted experiments relating to fishing methods that are more energy-efficient, sustainable and selective. No subsidy is planned during this pilot project for investments in equipment such as nets, gear or engines, or investments directly related to a vessel's fishing activities. The subsidy granted by the authority consists of a guaranteed amount to the masters/owners taking part in a pilot project

Member State: The Netherlands

Title of aid scheme or name of company receiving individual aid: The aid will be awarded to the Federation of Fishery Associations, the principal body implementing the pilot project ‘more careful fishing/outrigging’

Legal basis: Artikel 2 en 5 van de Kaderwet LNV-subsidies juncto artikel 4:23 van de Algemene wet bestuursrecht

Annual expenditure planned or overall amount of aid granted to the company: One-off payment of EUR 150 000, one-fifth of which is earmarked for the technical/scientific support

Maximum aid intensity: The maximum amount of aid for the groups implementing the pilot project plus the costs for the scientific support is EUR 150 000, with a maximum of EUR 30 000 for the scientific support

Date of implementation: As from 14 August 2006

Duration of scheme or individual aid award: The pilot project will run until the end of October 2006. Payment is expected to take place in November-December 2006

Objective of aid: The activities to be conducted by the fishing companies as part of the pilot project ‘more careful fishing/adaptation of fishing gear’ are intended to provide experience with methods of fishing which have not been used hitherto by Dutch fishermen. These involve experiments which consistute an alternative to traditional trawling operations and could be introduced more widely within the industry. The investment risks for companies have until now been reason enough for them not to invest in new fishing methods. Now that the government wishes to act as guarantor to support the fishermen who will carry out the tests as part of the transitional process for the North Sea cutter fleet to fishing methods that are more energy-efficient, sustainable and selective, the fishermen concerned are prepared to carry out the project. In this pilot project, a group of five fishermen who are members of the Federation of Fishery Assocations will for a limited period of time (August to October 2002 inclusive) experiment with a floating vessel which operates off the seabed. This should have a direct positive impact on catches of immature fish and fish quality. Other circular trawlheads and adapted beam designs to produce lower resistance as well as less contact with the seabed will also be tried out.

The pilot project should provide information about how to cut costs, lower the number of discards, and reduce contact with the seabed

Relevant Articles of Regulation No 1595/2004: The guarantee to the participants in the pilot project is based on Article 4 of Regulation 1595/2004, which refers to Article 15 of the FIFG. The latter Article states that Member States may encourage operations of collective interest with a broader scope than operations normally undertaken by private businesses. The FIFG states that these activities may be carried out with the active contribution of members of the trade themselves or by organisations acting on behalf of the producers and serving to attain the objectives of the CFP

Sector(s) concerned: Concerns support for fishermen working in the sea fisheries sector

Name and address of the granting authority:

| Ministerie van Landbouw, Natuur en Voedselkwaliteit |
| --- |
| Directie Visserij |
| Postbus 20401 |
| 2500 EK 's Gravenhage |
| Nederland |

Ministerie van Landbouw, Natuur en Voedselkwaliteit

Directie Visserij

Postbus 20401

2500 EK 's Gravenhage

Nederland

Web address: www.hetlnvloket.nl. Please then use the search function

Other information: Person to contact: Directie Visserij,Mr Frans Vroegop

Aid No: XF 13/06

Explanatory remarks: As part of the transitional process which the Netherlands has set in motion for the North Sea cutter fleet, the Minister for Agriculture, Nature and Food Quality has decided to launch a number of pilot projects on 'more careful fishing'. During these projects, fishermen will, for a maximumof three months, perform scientifically-assisted experiments relating to fishing methods that are more energy-efficient, sustainable and selective. No subsidy is planned during this pilot project for investments in equipment such as nets, gear or engines, or investments directly related to a vessel's fishing activities. The subsidy granted by the authority consists of a guaranteed amount to the masters/owners taking part in a pilot project

Member State: The Netherlands

Title of aid scheme or name of company receiving individual aid: The aid will be awarded to the Dutch Fishermen's Federation, the principal body implementing the pilot project ‘more careful fishing/outrigging’

Legal basis: Artikel 2 en 5 van de Kaderwet LNV-subsidies juncto artikel 4:23 van de Algemene wet bestuursrecht

Annual expenditure planned or overall amount of aid granted to the company: One-off payment of EUR 150 000, one-fifth of which is earmarked for the technical/scientific support

Maximum aid intensity: The maximum amount of aid for the groups implementing the pilot project plus the costs for the scientific support is EUR 150 000, with a maximum of EUR 30 000 for the scientific support

Date of implementation: As from 14 August 2006

Duration of scheme or individual aid award: The pilot project will run until the end of October 2006. Payment is expected to take place in November-December 2006

Objective of aid: The activities to be conducted by the fishing companies as part of the pilot project ‘more careful fishing/outrigging’ are intended to provide experience with methods of fishing which have not been used hitherto by Dutch fishermen. These involve experiments which consistute an alternative to traditional trawling operations and could be introduced more widely within the industry. The investment risks for companies have until now been reason enough for them not to invest in new fishing methods. Now that the government wishes to act as guarantor for a short period of time to support the fishermen who will carry out the tests as part of the transitional process for the North Sea cutter fleet to fishing methods that are more energy-efficient, sustainable and selective, the fishermen concerned are prepared to carry out the project. In this pilot project, a group of four fishermen who are members of the Dutch Fishermen's Federation will for a limited period of time (August to October 2002 inclusive) experiment with outrigging, which is a new method of fishing for the Netherlands. This method of fishing is an alternative to beam trawling. Fishing is carried out using so-called ‘Perfect’ kites but, unlike with regular kite or twin rig fishing, the net is directly attached to the seabed. In addition to cutting costs, reducing the number of discards is an important subcomponent of this pilot project

Relevant Articles of Regulation No 1595/2004: The guarantee to the participants in the pilot project is based on Article 4 of Regulation 1595/2004, which refers to Article 15 of the FIFG. The latter Article states that Member States may encourage operations of collective interest with a broader scope than operations normally undertaken by private businesses. The FIFG states that these activities may be carried out with the active contribution of members of the trade themselves or by organisations acting on behalf of the producers and serving to attain the objectives of the CFP

Sector(s) concerned: Concerns support for fishermen working in the sea fisheries sector

Name and address of the granting authority:

| Ministerie van Landbouw, Natuur en Voedselkwaliteit |
| --- |
| Directie Visserij |
| Postbus 20401 |
| 2500 EK 's Gravenhage |
| Nederland |

Ministerie van Landbouw, Natuur en Voedselkwaliteit

Directie Visserij

Postbus 20401

2500 EK 's Gravenhage

Nederland

Web address: www.hetlnvloket.nl. Please then use the search function

Other information: Person to contact: Directie Visserij, Mr Frans Vroegop

---

| 14.12.2006 | EN | Official Journal of the European Union | C 305/8 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/8

---

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty

Cases where the Commission raises no objections

(Text with EEA relevance)

(2006/C 305/04)

| Date of adoption of the decision | 20.9.2006 |
| --- | --- |
| Reference number of the aid | N 268/06 |
| Member State | Spain |
| Region | Cataluña |
| Title | Subvención para la producción de largometrajes cinematográficos que sean la ópera prima o el segundo largometraje de un nuevo realizador |
| Legal basis | Resolución CLT/247/2006, de 2 de febrero, por la que se convoca concurso público para la concesión de subvenciones para la producción de largometrajes cinematográficos que sean la ópera prima o el segundo largometraje de un nuevo realizador (DOGC 4571, de 13.2.2006) |
| Type of measure | Aid scheme |
| Objective | Culture |
| Form of aid | Direct grant |
| Budget | Annual budget: EUR 0,5 million; Overall budget: EUR 3,5 million |
| Intensity | 18 % |
| Duration | 31 December 2010 |
| Economic sectors | Recreational, cultural sporting activities, Media |
| Name and address of the granting authority | Institut Català de les Industries Culturals (ICIC) |
| C/Rambla Sta. Mònica, 8 |
| E-08001 Barcelona |

Date of adoption of the decision

20.9.2006

Reference number of the aid

N 268/06

Member State

Spain

Region

Cataluña

Title

Subvención para la producción de largometrajes cinematográficos que sean la ópera prima o el segundo largometraje de un nuevo realizador

Legal basis

Resolución CLT/247/2006, de 2 de febrero, por la que se convoca concurso público para la concesión de subvenciones para la producción de largometrajes cinematográficos que sean la ópera prima o el segundo largometraje de un nuevo realizador (DOGC 4571, de 13.2.2006)

Type of measure

Aid scheme

Objective

Culture

Form of aid

Direct grant

Budget

Annual budget: EUR 0,5 million; Overall budget: EUR 3,5 million

Intensity

18 %

Duration

31 December 2010

Economic sectors

Recreational, cultural sporting activities, Media

Name and address of the granting authority

Institut Català de les Industries Culturals (ICIC)

C/Rambla Sta. Mònica, 8

E-08001 Barcelona

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 20.9.2006 |
| --- | --- |
| Reference number of the aid | N 269/06 |
| Member State | Spain |
| Region | Cataluña |
| Title | Subvenciones a empresas de producción independientes para la realización de documentales, destinados a ser emitidos por televisión. |
| Legal basis | Resolución CLT/246/2006, de 2 de febrero, por la que se abre convocatoria para la concesión de subvenciones a empresas de producción independientes para la realización de documentales, destinados a ser emitidos por televisión. (DOGC de 13.2.2006). |
| Type of measure | Aid scheme |
| Objective | Culture |
| Form of aid | Direct grant |
| Budget | Annual budget: EUR 0,3 million; Overall budget: EUR 2 million |
| Intensity | 17 % |
| Duration | 31 December 2010 |
| Economic sectors | Recreational, cultural sporting activities, Media |
| Name and address of the granting authority | Institut Català de les Industries Culturals (ICIC) |
| C/Rambla Sta. Mònica, 8 |
| E-08001 Barcelona |

Date of adoption of the decision

20.9.2006

Reference number of the aid

N 269/06

Member State

Spain

Region

Cataluña

Title

Subvenciones a empresas de producción independientes para la realización de documentales, destinados a ser emitidos por televisión.

Legal basis

Resolución CLT/246/2006, de 2 de febrero, por la que se abre convocatoria para la concesión de subvenciones a empresas de producción independientes para la realización de documentales, destinados a ser emitidos por televisión. (DOGC de 13.2.2006).

Type of measure

Aid scheme

Objective

Culture

Form of aid

Direct grant

Budget

Annual budget: EUR 0,3 million; Overall budget: EUR 2 million

Intensity

17 %

Duration

31 December 2010

Economic sectors

Recreational, cultural sporting activities, Media

Name and address of the granting authority

Institut Català de les Industries Culturals (ICIC)

C/Rambla Sta. Mònica, 8

E-08001 Barcelona

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 4.7.2006 |
| --- | --- |
| Reference number of the aid | N 281/06 |
| Member State | Slovakia |
| Title | ALEF Film & Media group s.r.o. |
| Legal basis | a) | Zákon č. 523/2004 Z. z. o rozpočtových pravidlách verejnej správy a o zmene a doplnení niektorých zákonov |

Date of adoption of the decision

4.7.2006

Reference number of the aid

N 281/06

Member State

Slovakia

Title

ALEF Film & Media group s.r.o.

Legal basis

a)

Zákon č. 523/2004 Z. z. o rozpočtových pravidlách verejnej správy a o zmene a doplnení niektorých zákonov

| b) | Zákon č. 231/1999 Z. z. o štátnej pomoci v znení zákona č. 203/2004 – § 4 ods. 1, písm. d) |
| --- | --- |

b)

Zákon č. 231/1999 Z. z. o štátnej pomoci v znení zákona č. 203/2004 – § 4 ods. 1, písm. d)

| c) | Výnos MK SR – 12947/05-110/30493 zo 16. novembra 2005 o poskytovaní dotácií v pôsobnosti MK SR |
| --- | --- |

c)

Výnos MK SR – 12947/05-110/30493 zo 16. novembra 2005 o poskytovaní dotácií v pôsobnosti MK SR

Type of measure

Individual aid

Objective

Culture

Form of aid

Direct grant

Budget

Annual budget: SKK 2,5 million; Overall budget: SKK 44,11 million

Intensity

6 %

Duration

31 December 2006

Economic sectors

Recreational, cultural sporting activities

Name and address of the granting authority

| Ministerstvo kultúry Slovenskej republiky, |
| --- |
| Námestie SNP č. 33, |
| SK-813 31 Bratislava 1 |

Ministerstvo kultúry Slovenskej republiky,

Námestie SNP č. 33,

SK-813 31 Bratislava 1

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 4.7.2006 |
| --- | --- |
| Reference number of the aid | N 282/06 |
| Member State | Slovakia |
| Title | TaO Productions s.r.o. |
| Legal basis | a) | Zákon č. 523/2004 Z. z. o rozpočtových pravidlách verejnej správy a o zmene a doplnení niektorých zákonov |

Date of adoption of the decision

4.7.2006

Reference number of the aid

N 282/06

Member State

Slovakia

Title

TaO Productions s.r.o.

Legal basis

a)

Zákon č. 523/2004 Z. z. o rozpočtových pravidlách verejnej správy a o zmene a doplnení niektorých zákonov

| b) | Zákon č. 231/1999 Z. z. o štátnej pomoci v znení zákona č. 203/2004 – § 4 ods. 1, písm. d) |
| --- | --- |

b)

Zákon č. 231/1999 Z. z. o štátnej pomoci v znení zákona č. 203/2004 – § 4 ods. 1, písm. d)

| c) | Výnos MK SR – 12947/05-110/30493 zo 16. novembra 2005 o poskytovaní dotácií v pôsobnosti MK SR |
| --- | --- |

c)

Výnos MK SR – 12947/05-110/30493 zo 16. novembra 2005 o poskytovaní dotácií v pôsobnosti MK SR

Type of measure

Individual aid

Objective

Culture

Form of aid

Direct grant

Budget

Annual budget: SKK 5 million; Overall budget: SKK 64 million

Intensity

8 %

Duration

31 December 2006

Economic sectors

Recreational, cultural sporting activities

Name and address of the granting authority

| Ministerstvo kultúry Slovenskej republiky, |
| --- |
| Námestie SNP č. 33, |
| SK-813 31 Bratislava 1 |

Ministerstvo kultúry Slovenskej republiky,

Námestie SNP č. 33,

SK-813 31 Bratislava 1

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 27.11.2002 |
| --- | --- |
| Reference number of the aid | N 526/02 |
| Member State | Italy |
| Region | Provincia autonoma di Trento |
| Title | Misure agevolative in favore degli impianti a fune per l'anno 2002 |
| Legal basis | Deliberazione della giunta provinciale n. 1354 del 14 giugno 2002, concernente provvidenze per gli impianti a fune e le piste da sci |
| Type of measure | Aid scheme |
| Objective | Sectoral development |
| Form of aid | Direct grant |
| Budget | Annual budget: EUR 5000 million; Overall budget: EUR 5000 million |
| Intensity | 40 % |
| Duration | 1 January 2002 — 31 December 2002 |
| Economic sectors | Recreational, cultural sporting activities |
| Name and address of the granting authority | Provincia autonoma di Trento |
| Piazza Dante 15, |
| I-38100 Trento |

Date of adoption of the decision

27.11.2002

Reference number of the aid

N 526/02

Member State

Italy

Region

Provincia autonoma di Trento

Title

Misure agevolative in favore degli impianti a fune per l'anno 2002

Legal basis

Deliberazione della giunta provinciale n. 1354 del 14 giugno 2002, concernente provvidenze per gli impianti a fune e le piste da sci

Type of measure

Aid scheme

Objective

Sectoral development

Form of aid

Direct grant

Budget

Annual budget: EUR 5000 million; Overall budget: EUR 5000 million

Intensity

40 %

Duration

1 January 2002 — 31 December 2002

Economic sectors

Recreational, cultural sporting activities

Name and address of the granting authority

Provincia autonoma di Trento

Piazza Dante 15,

I-38100 Trento

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 21.1.2004 |
| --- | --- |
| Reference number of the aid | N 567/03 |
| Member State | Belgium |
| Title | Belgacom |
| Legal basis | Loi concernant la reprise par l'État belge des obligations de pension légales de la société anonyme de droit public Belgacom vis à vis de son personnel statutaire/Wetsontwerp houdende overname door de Belgische Staat van de wettelijke pensioenverplichtingen van de naamloze vennootschap van publiek recht Belgacom ten opzichte van haar statutair personeel |
| Type of measure | Aid scheme |
| Intensity | Measure does not constitute aid |
| Economic sectors | Post and telecommunications |
| Name and address of the granting authority | l'État belge |

Date of adoption of the decision

21.1.2004

Reference number of the aid

N 567/03

Member State

Belgium

Title

Belgacom

Legal basis

Loi concernant la reprise par l'État belge des obligations de pension légales de la société anonyme de droit public Belgacom vis à vis de son personnel statutaire/Wetsontwerp houdende overname door de Belgische Staat van de wettelijke pensioenverplichtingen van de naamloze vennootschap van publiek recht Belgacom ten opzichte van haar statutair personeel

Type of measure

Aid scheme

Intensity

Measure does not constitute aid

Economic sectors

Post and telecommunications

Name and address of the granting authority

l'État belge

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 24.10.2006 |
| --- | --- |
| Reference number of the aid | N 615/06 |
| Member State | Slovakia |
| Title | Individuálna pomoc na audiovizuálnu tvorbu v prospech spoločnosti D.N.A. |
| Legal basis | a) | Zákon č. 523/2004 Z. z. o rozpočtových pravidlách verejnej správy a o zmene a doplnení niektorých zákonov |

Date of adoption of the decision

24.10.2006

Reference number of the aid

N 615/06

Member State

Slovakia

Title

Individuálna pomoc na audiovizuálnu tvorbu v prospech spoločnosti D.N.A.

Legal basis

a)

Zákon č. 523/2004 Z. z. o rozpočtových pravidlách verejnej správy a o zmene a doplnení niektorých zákonov

| b) | Zákon č. 231/1999 Z. z. o štátnej pomoci v znení zákona č. 203/2004 – § 4 ods. 1, písm. d) |
| --- | --- |

b)

Zákon č. 231/1999 Z. z. o štátnej pomoci v znení zákona č. 203/2004 – § 4 ods. 1, písm. d)

| c) | Výnos MK SR – 12947/05-110/30493 zo 16. novembra 2005 o poskytovaní dotácií v pôsobnosti MK SR |
| --- | --- |

c)

Výnos MK SR – 12947/05-110/30493 zo 16. novembra 2005 o poskytovaní dotácií v pôsobnosti MK SR

Type of measure

Individual aid

Objective

Culture

Form of aid

Direct grant

Budget

Overall budget: SKK 7 million

Intensity

41 %

Duration

31 December 2006

Economic sectors

Recreational, cultural sporting activities, Media

Name and address of the granting authority

| Ministerstvo kultúry SR, |
| --- |
| Nám. SNP č. 33, |
| SK-813 31 Bratislava |

Ministerstvo kultúry SR,

Nám. SNP č. 33,

SK-813 31 Bratislava

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 24.10.2006 |
| --- | --- |
| Reference number of the aid | N 618/06 |
| Member State | Slovakia |
| Title | Individuálna pomoc na audiovizuálnu tvorbu v prospech spoločnosti FÁMA s. r. o. |
| Legal basis | a) | Zákon č. 523/2004 Z. z. o rozpočtových pravidlách verejnej správy a o zmene a doplnení niektorých zákonov |

Date of adoption of the decision

24.10.2006

Reference number of the aid

N 618/06

Member State

Slovakia

Title

Individuálna pomoc na audiovizuálnu tvorbu v prospech spoločnosti FÁMA s. r. o.

Legal basis

a)

Zákon č. 523/2004 Z. z. o rozpočtových pravidlách verejnej správy a o zmene a doplnení niektorých zákonov

| b) | Zákon č. 231/1999 Z. z. o štátnej pomoci v znení zákona č. 203/2004 – § 4 ods. 1, písm. d) |
| --- | --- |

b)

Zákon č. 231/1999 Z. z. o štátnej pomoci v znení zákona č. 203/2004 – § 4 ods. 1, písm. d)

| c) | Výnos MK SR – 12947/05-110/30493 zo 16. novembra 2005 o poskytovaní dotácií v pôsobnosti MK SR |
| --- | --- |

c)

Výnos MK SR – 12947/05-110/30493 zo 16. novembra 2005 o poskytovaní dotácií v pôsobnosti MK SR

Type of measure

Individual aid

Objective

Culture

Form of aid

Direct grant

Budget

Overall budget: SKK 5 million

Intensity

14 %

Duration

31 December 2006

Economic sectors

Recreational, cultural sporting activities, Media

Name and address of the granting authority

| Ministerstvo kultúry SR |
| --- |
| Nám. SNP č. 33 |
| SK-813 31 Bratislava |

Ministerstvo kultúry SR

Nám. SNP č. 33

SK-813 31 Bratislava

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 22.3.2006 |
| --- | --- |
| Reference number of the aid | NN 84/04 et N 95/04 |
| Member State | France |
| Title | Régimes d'aide au cinéma et à l'audiovisuel |
| Legal basis | Décret no 99-130 du 24 février 1999; décret no 98-35 du 14 janvier 1998, décret no 95-110 du 2 février 1995; loi no 85-695 du 11 juillet 1985 |
| Type of measure | Aid scheme |
| Objective | Support measures in the cinema and audiovisual sectors |
| Form of aid | various |
| Budget | Annual budget: EUR 550 million |
| Intensity | various |
| Duration | 31 December 2011 |
| Economic sectors | Recreational, cultural sporting activities |
| Name and address of the granting authority | various |

Date of adoption of the decision

22.3.2006

Reference number of the aid

NN 84/04 et N 95/04

Member State

France

Title

Régimes d'aide au cinéma et à l'audiovisuel

Legal basis

Décret no 99-130 du 24 février 1999; décret no 98-35 du 14 janvier 1998, décret no 95-110 du 2 février 1995; loi no 85-695 du 11 juillet 1985

Type of measure

Aid scheme

Objective

Support measures in the cinema and audiovisual sectors

Form of aid

various

Budget

Annual budget: EUR 550 million

Intensity

various

Duration

31 December 2011

Economic sectors

Recreational, cultural sporting activities

Name and address of the granting authority

various

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

---

| 14.12.2006 | EN | Official Journal of the European Union | C 305/13 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/13

---

Commission notice pursuant to Article 4(1)(a) of Council Regulation (EEC) No 2408/92

Imposition of a public service obligation on scheduled air services within Italy

(Text with EEA relevance)

(2006/C 305/05)

Pursuant to Article 4(1)(a) of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes, the Italian Government has decided, in accordance with the decisions taken at an interdepartmental conference with the Region of Sicily, to impose a public service obligation on scheduled air services on the following routes:

1.   Routes concerned

| | Pantelleria — Palermo and vice versa |
| --- | --- |

Pantelleria — Palermo and vice versa

| | Lampedusa — Palermo and vice versa |
| --- | --- |

Lampedusa — Palermo and vice versa

| | Lampedusa — Catania and vice versa |
| --- | --- |

Lampedusa — Catania and vice versa

| | Lampedusa — Rome and vice versa |
| --- | --- |

Lampedusa — Rome and vice versa

| | Pantelleria — Rome and vice versa |
| --- | --- |

Pantelleria — Rome and vice versa

In accordance with Annex II to Regulation (EEC) No 2408/92, Rome as a destination is to be understood as the Rome airport system, comprising Rome-Fiumicino and Rome-Ciampino.

| 1.1. | By virtue of Article 9 of Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports, as amended by Commission Regulation (EC) No 793/2004, the competent authorities may reserve certain slots for the operation of services under the terms specified in this notice. |
| --- | --- |

1.1.

By virtue of Article 9 of Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports, as amended by Commission Regulation (EC) No 793/2004, the competent authorities may reserve certain slots for the operation of services under the terms specified in this notice.

| 1.2. | The above routes must be accepted in their entirety and as a whole by the carriers concerned. |
| --- | --- |

1.2.

The above routes must be accepted in their entirety and as a whole by the carriers concerned.

| 1.3. | ENAC will verify whether the accepting carriers possess the requisite structure and meet the minimum requirements for access to the service in order to meet the objectives pursued by the imposition of the public service obligation. |
| --- | --- |

1.3.

ENAC will verify whether the accepting carriers possess the requisite structure and meet the minimum requirements for access to the service in order to meet the objectives pursued by the imposition of the public service obligation.

2.   Details of the public service obligation

2.1.   Minimum frequencies

(a)   Pantelleria — Palermo and vice versa

The minimum frequencies are as follows:

| — | at least one flight per day in each direction throughout the year using a 44-seater aircraft; |
| --- | --- |

—

at least one flight per day in each direction throughout the year using a 44-seater aircraft;

| — | at least one flight per day in each direction throughout the year using a 120-seater aircraft; |
| --- | --- |

—

at least one flight per day in each direction throughout the year using a 120-seater aircraft;

| — | between 1 May and 30 October, in addition to these two flights, there are to be three flights per week in each direction, on Friday, Saturday and Sunday, using a 44-seater aircraft. |
| --- | --- |

—

between 1 May and 30 October, in addition to these two flights, there are to be three flights per week in each direction, on Friday, Saturday and Sunday, using a 44-seater aircraft.

(b)   Lampedusa — Palermo and vice versa

The minimum frequencies are as follows:

| — | at least one flight per day in each direction throughout the year using a 44-seater aircraft; |
| --- | --- |

—

at least one flight per day in each direction throughout the year using a 44-seater aircraft;

| — | at least one flight per day in each direction throughout the year using a 120-seater aircraft; |
| --- | --- |

—

at least one flight per day in each direction throughout the year using a 120-seater aircraft;

| — | between 1 May and 30 October, in addition to these two flights, there are to be three flights per week in each direction, on Friday, Saturday and Sunday, using a 44-seater aircraft. |
| --- | --- |

—

between 1 May and 30 October, in addition to these two flights, there are to be three flights per week in each direction, on Friday, Saturday and Sunday, using a 44-seater aircraft.

(c)   Lampedusa — Catania and vice versa

The minimum frequencies are as follows:

| — | between 31 October and 30 April, at least three flights per week in each direction using a 44-seater aircraft; |
| --- | --- |

—

between 31 October and 30 April, at least three flights per week in each direction using a 44-seater aircraft;

| — | between 1 May and 30 October, at least one flight per day in each direction using a 44-seater aircraft. |
| --- | --- |

—

between 1 May and 30 October, at least one flight per day in each direction using a 44-seater aircraft.

(d)   Lampedusa — Rome and vice versa

The minimum frequency is as follows:

| — | between 1 October and 31 May, at least two flights per week in each direction using a 120-seater aircraft. |
| --- | --- |

—

between 1 October and 31 May, at least two flights per week in each direction using a 120-seater aircraft.

(e)   Pantelleria — Rome and vice versa

The minimum frequency is as follows:

| — | between 1 October and 31 May, at least one flight per week in each direction using a 120-seater aircraft. |
| --- | --- |

—

between 1 October and 31 May, at least one flight per week in each direction using a 120-seater aircraft.

If an aircraft normally used to carry out public service operations is not operational, an alternative aircraft must be provided within four hours.

The whole capacity of each aircraft must be made available for sale under the public service obligation arrangements.

2.2.   Timetables

Between Pantelleria and Palermo there must be at least:

| — | one flight leaving between 8 a.m. and 10 a.m.; |
| --- | --- |

—

one flight leaving between 8 a.m. and 10 a.m.;

| — | one flight leaving between 3 p.m. and 5 p.m. |
| --- | --- |

—

one flight leaving between 3 p.m. and 5 p.m.

Between Palermo and Pantelleria there must be at least:

| — | one flight leaving between 8 a.m. and 10 a.m.; |
| --- | --- |

—

one flight leaving between 8 a.m. and 10 a.m.;

| — | one flight leaving between 3 p.m. and 5 p.m. |
| --- | --- |

—

one flight leaving between 3 p.m. and 5 p.m.

Between Lampedusa and Palermo there must be at least:

| — | one flight leaving between 7 a.m. and 10 a.m.; |
| --- | --- |

—

one flight leaving between 7 a.m. and 10 a.m.;

| — | one flight leaving between 6 p.m. and 9 p.m. |
| --- | --- |

—

one flight leaving between 6 p.m. and 9 p.m.

Between Palermo and Lampedusa there must be at least:

| — | one flight leaving between 7 a.m. and 10 a.m.; |
| --- | --- |

—

one flight leaving between 7 a.m. and 10 a.m.;

| — | one flight leaving between 6 p.m. and 9 p.m. |
| --- | --- |

—

one flight leaving between 6 p.m. and 9 p.m.

Between Lampedusa and Catania and vice versa, Lampedusa and Rome and vice versa and Pantelleria and Rome and vice versa, timetables must allow connections with the network of scheduled national and international air services from Catania and Rome respectively.

2.3   Aircraft used and capacity offered

The services from Pantelleria to Palermo and vice versa and from Lampedusa to Palermo and vice versa must be operated using pressurised twin-prop or twin-jet aircraft with a minimum capacity of 44 seats per flight and by aircraft with a minimum capacity of 120 seats per flight as specified in points 2.1(a) and 2.1(b) respectively.

The services from Lampedusa to Catania and vice versa must be operated using pressurised twin-prop or twin-jet aircraft with a minimum capacity of 44 seats per flight as specified in point 2.1(c).

The Lampedusa-Rome and Pantelleria-Rome services must be operated using aircraft with a minimum capacity of 120 seats per flight as specified in points 2.1(d) and 2.1(e) respectively.

If the market so requires, extra capacity must be provided through supplementary flights, which will not give rise to extra compensation or result in the application of fares different from those specified at 2.4 below.

On all the above services there will be a reserve of three seats to be used for urgent medical or health cases or to meet the requirements of official bodies. Of these three seats, two may not be booked or sold until 24 hours before departure and one until 12 hours before departure.

Flights carried out using aircraft with a minimum capacity of 120 seats must offer adequate guarantees for the transport of persons with disabilities (WCHR, WCHS, WCHC) and of stretchers, coffins and, if necessary, goods.

The carrier which accepts the public service obligation must, subject to safety considerations which may justify denied boarding, make every effort to facilitate the carriage, on the aircraft used, of passengers with disabilities and passengers with reduced mobility.

2.4.   Fares

| (a) | The maximum fares to be charged on each route are as follows:






  Pantelleria — Palermo or vice versa: | EUR 29 |
| --- | --- | --- |
| Lampedusa — Palermo or vice versa: | EUR 31 |
| Lampedusa — Catania or vice versa: | EUR 31 |
| Lampedusa — Rome or vice versa: | EUR 60 |
| Pantelleria — Rome or vice versa: | EUR 60 |

(a)

The maximum fares to be charged on each route are as follows:

Pantelleria — Palermo or vice versa:

EUR 29

Lampedusa — Palermo or vice versa:

EUR 31

Lampedusa — Catania or vice versa:

EUR 31

Lampedusa — Rome or vice versa:

EUR 60

Pantelleria — Rome or vice versa:

EUR 60

All the fares indicated are exclusive of VAT and net of airport taxes and charges — no form of surcharge may be applied.

All passengers who travel on these routes will be entitled to the above fares.

At least one method of distributing and selling tickets must be provided which is entirely free of charge and imposes no other costs on passengers.

| (b) | Every year the competent authorities will adjust the maximum fares in line with the rate of inflation of the previous year calculated on the basis of the ISTAT/FOI general consumer price index. Adjustments will be notified to all carriers operating the routes in question and to the European Commission for publication in the Official Journal of the European Union. |
| --- | --- |

(b)

Every year the competent authorities will adjust the maximum fares in line with the rate of inflation of the previous year calculated on the basis of the ISTAT/FOI general consumer price index. Adjustments will be notified to all carriers operating the routes in question and to the European Commission for publication in the Official Journal of the European Union.

| (c) | If the average euro/US dollar exchange rate and/or the average cost of fuel the varies by more than 5 % over the half-year, the fares must be adjusted in proportion to such variation and to the share of flight costs represented by fuel. |
| --- | --- |

(c)

If the average euro/US dollar exchange rate and/or the average cost of fuel the varies by more than 5 % over the half-year, the fares must be adjusted in proportion to such variation and to the share of flight costs represented by fuel.

Any fare adjustments will be made every six months by the Minister for Transport, in agreement with the President of the Region of Sicily. In the event of an increase in excess of the indicated percentage, the Joint Technical Committee will initiate the procedure for deciding on an adjustment upon receiving notice from the carriers operating the routes concerned. In the event of a decrease, the procedure will be initiated automatically. During the abovementioned examination procedure, the carriers operating the routes concerned must be given an opportunity to comment.

Any adjustment to fares will take effect as from the six-month period following that in which it is decided.

Adjustments will be notified to all carriers operating on the routes and to the European Commission for publication in the Official Journal of the European Union.

2.5.   Continuity of service

For the purpose of guaranteeing the continuity, regularity and punctuality of the service, the carrier which accepts the public service obligation must undertake to:

| — | operate the service for a period of at least 12 consecutive months and give at least 6 months' prior notice of suspension; |
| --- | --- |

—

operate the service for a period of at least 12 consecutive months and give at least 6 months' prior notice of suspension;

| — | align its conduct vis-à-vis users with the principles set out in the Charter of Passengers' Rights in order to comply with the relevant national, Community and international rules; |
| --- | --- |

—

align its conduct vis-à-vis users with the principles set out in the Charter of Passengers' Rights in order to comply with the relevant national, Community and international rules;

| — | provide a performance security of EUR 800 000,00 for the purpose of guaranteeing the correct performance and continuation of the service. This must take the form of an insurance bond to ENAC (the Italian National Civil Aviation Authority), which may use it to ensure the continuation of the public service obligation arrangements; |
| --- | --- |

—

provide a performance security of EUR 800 000,00 for the purpose of guaranteeing the correct performance and continuation of the service. This must take the form of an insurance bond to ENAC (the Italian National Civil Aviation Authority), which may use it to ensure the continuation of the public service obligation arrangements;

| — | operate at least 98 % of the flights scheduled each year, with a maximum cancellation margin of 2 % for reasons directly attributable to the carrier, excepting force majeure; |
| --- | --- |

—

operate at least 98 % of the flights scheduled each year, with a maximum cancellation margin of 2 % for reasons directly attributable to the carrier, excepting force majeure;

| — | pay the regulatory body EUR 3 000,00 in respect of each flight cancelled in excess of the 2 % annual cancellation limit. Sums received in this connection will be allocated to the territorial continuity heading of the budget of Sicily; |
| --- | --- |

—

pay the regulatory body EUR 3 000,00 in respect of each flight cancelled in excess of the 2 % annual cancellation limit. Sums received in this connection will be allocated to the territorial continuity heading of the budget of Sicily;

| — | guarantee that flights are operated to within 30 minutes of the established timetable (punctuality index); |
| --- | --- |

—

guarantee that flights are operated to within 30 minutes of the established timetable (punctuality index);

| — | compensate each passenger for any delay of more than 30 minutes by giving a credit of EUR 15,00 to be used in the purchase of a subsequent ticket. |
| --- | --- |

—

compensate each passenger for any delay of more than 30 minutes by giving a credit of EUR 15,00 to be used in the purchase of a subsequent ticket.

The abovementioned rules will not apply to cancelled flights and flights delayed due to weather conditions, industrial action or events beyond the responsibility and/or control of the carrier.

The penalties under this section may be combined with those under Legislative Decree No 69 of 27 January 2006 laying down provisions governing penalties for contravention of Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.

---

| 14.12.2006 | EN | Official Journal of the European Union | C 305/16 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/16

---

Guidelines on the end-use ‘for industrial manufacture’ for the application of certain tariff quotas for fishery products originating in Norway and in Iceland

(Text with EEA relevance)

(2006/C 305/06)

Within Council Regulation (EC) No 1920/2004 amending Regulation (EC) No 992/95 opening and providing for the administration of Community tariff quotas for certain agricultural and fishery products originating in Norway and within Council Regulation (EC) No 1921/2004 amending Regulation (EC) No 499/96 opening and providing for the administration of Community tariff quotas for certain fishery products and live horses originating in Iceland, tariff quotas with order numbers 09.0752, 09.0754, 09.0756, 09.0760, 09.0763, 09.0778 and 09.0792 are opened for certain fishery products ‘for industrial manufacture’. The Regulations do not specify the term ‘for industrial manufacture’.

In order to ensure a uniform application of these Community tariff quotas the Commission, having heard the views of the Customs Code Committee, Economic tariff questions section, provides the hereafter indicated guidelines.

| 1) | For the application of the tariff quotas with order numbers 09.0752, 09.0754, 09.0760, 09.0763, 09.0778 and 09.0792, the term ‘for industrial manufacture’ should be understood as following:
  ‘The tariff quotas shall apply to products intended to undergo any operation, except where they are intended to undergo exclusively one or more of the following operations: cleaning, gutting, tailing, heading, cutting, sampling, sorting, labelling, packing, chilling, freezing, deep freezing, thawing and separation.
  However, the tariff quotas shall apply to products intended to undergo the following cutting operations: dicing, filleting, production of flaps, cutting of frozen blocks or splitting of frozen interleaved fillet blocks.
  The tariff quotas do not apply for products intended to undergo operations qualifying for the tariff quotas where such operations are carried out at retail or catering level.
  The concession on the customs duties within the tariff quotas shall apply only to fish intended for human consumption.’ |
| --- | --- |

1)

For the application of the tariff quotas with order numbers 09.0752, 09.0754, 09.0760, 09.0763, 09.0778 and 09.0792, the term ‘for industrial manufacture’ should be understood as following:

‘The tariff quotas shall apply to products intended to undergo any operation, except where they are intended to undergo exclusively one or more of the following operations: cleaning, gutting, tailing, heading, cutting, sampling, sorting, labelling, packing, chilling, freezing, deep freezing, thawing and separation.

However, the tariff quotas shall apply to products intended to undergo the following cutting operations: dicing, filleting, production of flaps, cutting of frozen blocks or splitting of frozen interleaved fillet blocks.

The tariff quotas do not apply for products intended to undergo operations qualifying for the tariff quotas where such operations are carried out at retail or catering level.

The concession on the customs duties within the tariff quotas shall apply only to fish intended for human consumption.’

| 2) | For the application of the tariff quota with order number 09.0756, the term ‘for industrial manufacture’ should be understood as following:
  ‘The tariff quota shall apply to products intended to undergo any operation, except where they are intended to undergo exclusively one or more of the following operations: cleaning, gutting, tailing, heading, cutting, sampling, sorting, labelling, packing, chilling, freezing, deep freezing, thawing and separation.
  However, the tariff quota shall apply to products intended to undergo the following cutting operations: dicing, filleting, cutting of frozen blocks or splitting of frozen interleaved fillet blocks.
  The tariff quota does not apply for products intended to undergo operations qualifying for the tariff quota where such operations are carried out at retail or catering level.
  The concession on the customs duties within the tariff quota shall apply only to fish intended for human consumption.’ |
| --- | --- |

2)

For the application of the tariff quota with order number 09.0756, the term ‘for industrial manufacture’ should be understood as following:

‘The tariff quota shall apply to products intended to undergo any operation, except where they are intended to undergo exclusively one or more of the following operations: cleaning, gutting, tailing, heading, cutting, sampling, sorting, labelling, packing, chilling, freezing, deep freezing, thawing and separation.

However, the tariff quota shall apply to products intended to undergo the following cutting operations: dicing, filleting, cutting of frozen blocks or splitting of frozen interleaved fillet blocks.

The tariff quota does not apply for products intended to undergo operations qualifying for the tariff quota where such operations are carried out at retail or catering level.

The concession on the customs duties within the tariff quota shall apply only to fish intended for human consumption.’

---

| 14.12.2006 | EN | Official Journal of the European Union | C 305/17 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/17

---

Non-opposition to a notified concentration

(Case COMP/M.4455 — Schmolz + Bickenbach/Swiss Steel)

(Text with EEA relevance)

(2006/C 305/07)

On 29 November 2006, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in German and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website under document number 32006M4455. EUR-Lex is the on-line access to European law. (http://eur-lex.europa.eu) |
| --- | --- |

—

in electronic form on the EUR-Lex website under document number 32006M4455. EUR-Lex is the on-line access to European law. (http://eur-lex.europa.eu)

---

| 14.12.2006 | EN | Official Journal of the European Union | C 305/17 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/17

---

Non-opposition to a notified concentration

(Case COMP/M.4449 — KKR/SIF (Tarkett))

(Text with EEA relevance)

(2006/C 305/08)

On 7 December 2006, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website under document number 32006M4449. EUR-Lex is the on-line access to European law. (http://eur-lex.europa.eu) |
| --- | --- |

—

in electronic form on the EUR-Lex website under document number 32006M4449. EUR-Lex is the on-line access to European law. (http://eur-lex.europa.eu)

---

| 14.12.2006 | EN | Official Journal of the European Union | C 305/18 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/18

---

Non-opposition to a notified concentration

(Case COMP/M.4239 — Plastic Omnium/Inopart)

(Text with EEA relevance)

(2006/C 305/09)

On 27 October 2006, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website under document number 32006M4239. EUR-Lex is the on-line access to European law. (http://eur-lex.europa.eu) |
| --- | --- |

—

in electronic form on the EUR-Lex website under document number 32006M4239. EUR-Lex is the on-line access to European law. (http://eur-lex.europa.eu)

---

EUROPEAN ECONOMIC AREA

EFTA Surveillance Authority

| 14.12.2006 | EN | Official Journal of the European Union | C 305/19 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/19

---

EFTA Surveillance Authority Notice on the co-operation between the EFTA Surveillance Authority and the courts of the EFTA States in the application of Articles 53 and 54 of the EEA Agreement

(2006/C 305/10)

| A. | The present notice is issued pursuant to the rules of the Agreement on the European Economic Area (hereafter the ‘EEA Agreement’) and the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (hereafter the ‘Surveillance and Court Agreement’). |
| --- | --- |

A.

The present notice is issued pursuant to the rules of the Agreement on the European Economic Area (hereafter the ‘EEA Agreement’) and the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (hereafter the ‘Surveillance and Court Agreement’).

| B. | The European Commission (hereafter the ‘Commission’) has issued a notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC (1). This non-binding act contains principles and rules which the Commission follows in the field of competition. It also explains the ways in which cooperation between the Commission and the courts of the EU Member States is envisaged to take place. |
| --- | --- |

B.

The European Commission (hereafter the ‘Commission’) has issued a notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC (1). This non-binding act contains principles and rules which the Commission follows in the field of competition. It also explains the ways in which cooperation between the Commission and the courts of the EU Member States is envisaged to take place.

| C. | The EFTA Surveillance Authority considers the above-mentioned act to be EEA relevant. In order to maintain equal conditions of competition and to ensure a uniform application of the EEA competition rules throughout the European Economic Area, the Authority adopts the present notice under the power conferred upon it by Article 5(2)(b) of the Surveillance and Court Agreement. |
| --- | --- |

C.

The EFTA Surveillance Authority considers the above-mentioned act to be EEA relevant. In order to maintain equal conditions of competition and to ensure a uniform application of the EEA competition rules throughout the European Economic Area, the Authority adopts the present notice under the power conferred upon it by Article 5(2)(b) of the Surveillance and Court Agreement.

| D. | In particular, the purpose of this notice is to spell out how the EFTA Surveillance Authority intends to cooperate with the national courts of the EFTA States (2) in the application of Articles 53 and 54 of the EEA Agreement in individual cases (3); always taking account of the independence of national courts. |
| --- | --- |

D.

In particular, the purpose of this notice is to spell out how the EFTA Surveillance Authority intends to cooperate with the national courts of the EFTA States (2) in the application of Articles 53 and 54 of the EEA Agreement in individual cases (3); always taking account of the independence of national courts.

I.   THE SCOPE OF THE NOTICE

| 1. | The present notice addresses the co-operation between the EFTA Surveillance Authority and the courts of the EFTA States, when the latter apply Articles 53 and 54 of the EEA Agreement. For the purpose of this notice, the ‘courts of the EFTA States’ (hereinafter ‘national courts’) are those courts and tribunals within an EFTA State that can apply Articles 53 and 54 of the EEA Agreement and that are authorised pursuant to Article 34 of the Surveillance and Court Agreement to request an advisory opinion from the EFTA Court on the interpretation of the EEA Agreement and the Surveillance and Court Agreement. (4) |
| --- | --- |

1.

The present notice addresses the co-operation between the EFTA Surveillance Authority and the courts of the EFTA States, when the latter apply Articles 53 and 54 of the EEA Agreement. For the purpose of this notice, the ‘courts of the EFTA States’ (hereinafter ‘national courts’) are those courts and tribunals within an EFTA State that can apply Articles 53 and 54 of the EEA Agreement and that are authorised pursuant to Article 34 of the Surveillance and Court Agreement to request an advisory opinion from the EFTA Court on the interpretation of the EEA Agreement and the Surveillance and Court Agreement. (4)

| 2. | The national courts may be called upon to apply Articles 53 or 54 of the EEA Agreement in lawsuits between private parties, such as actions relating to contracts or actions for damages. They may also act as public enforcer or as review court. A national court may indeed be designated as a competition authority of an EFTA State (hereinafter ‘the national competition authority’) pursuant to Article 40(1) of Chapter II of Protocol 4 of the Surveillance and Court Agreement (hereafter ‘Chapter II’) on the implementation of the rules on competition laid down in Articles 53 and 54 of the EEA Agreement (5). In that case, the co-operation between the national courts and the EFTA Surveillance Authority is not only covered by the present notice, but also by the notice on the co-operation within the EFTA network of competition authorities (6). |
| --- | --- |

2.

The national courts may be called upon to apply Articles 53 or 54 of the EEA Agreement in lawsuits between private parties, such as actions relating to contracts or actions for damages. They may also act as public enforcer or as review court. A national court may indeed be designated as a competition authority of an EFTA State (hereinafter ‘the national competition authority’) pursuant to Article 40(1) of Chapter II of Protocol 4 of the Surveillance and Court Agreement (hereafter ‘Chapter II’) on the implementation of the rules on competition laid down in Articles 53 and 54 of the EEA Agreement (5). In that case, the co-operation between the national courts and the EFTA Surveillance Authority is not only covered by the present notice, but also by the notice on the co-operation within the EFTA network of competition authorities (6).

II.   THE APPLICATION OF EEA COMPETITION RULES BY NATIONAL COURTS

A.   THE COMPETENCE OF NATIONAL COURTS TO APPLY EEA COMPETITION RULES

To the extent that national courts have jurisdiction to deal with a case (7), they have the power to apply Articles 53 and 54 of the EEA Agreement (8). Moreover, it should be remembered that Articles 53 and 54 of the EEA Agreement are a matter of public policy and are essential to the accomplishment of the objectives of the EEA Agreement, one of which is to ensure the establishment of a system ensuring that competition is not distorted and that the competition rules are respected (9).

| 3. | According to the Court of Justice of the European Communities, where, by virtue of domestic law, national courts must raise of their own motion points of law based on binding domestic rules which have not been raised by the parties, such an obligation also exists where binding Community rules, such as the competition rules, are concerned. The position is the same if domestic law confers on national courts discretion to apply of their own motion binding rules of law: national courts must apply the competition rules, even when the party with an interest in application of those provisions has not relied on them, where domestic law allows such application by the national court. However, Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim (10). The EFTA Surveillance Authority considers that national courts of the EFTA States have a similar obligation where such EEA rules have been implemented (11). |
| --- | --- |

3.

According to the Court of Justice of the European Communities, where, by virtue of domestic law, national courts must raise of their own motion points of law based on binding domestic rules which have not been raised by the parties, such an obligation also exists where binding Community rules, such as the competition rules, are concerned. The position is the same if domestic law confers on national courts discretion to apply of their own motion binding rules of law: national courts must apply the competition rules, even when the party with an interest in application of those provisions has not relied on them, where domestic law allows such application by the national court. However, Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim (10). The EFTA Surveillance Authority considers that national courts of the EFTA States have a similar obligation where such EEA rules have been implemented (11).

| 4. | Depending on the functions attributed to them under national law, national courts may be called upon to apply Articles 53 and 54 of the EEA Agreement in administrative, civil or criminal proceedings (12). In particular, where a natural or legal person asks the national court to safeguard his individual rights, national courts play a specific role in the enforcement of Articles 53 and 54 of the EEA Agreement, which is different from the enforcement in the public interest by the EFTA Surveillance Authority or by national competition authorities (13). Indeed, national courts can give effect to Articles 53 and 54 of the EEA Agreement by finding contracts to be void or by awards of damages. |
| --- | --- |

4.

Depending on the functions attributed to them under national law, national courts may be called upon to apply Articles 53 and 54 of the EEA Agreement in administrative, civil or criminal proceedings (12). In particular, where a natural or legal person asks the national court to safeguard his individual rights, national courts play a specific role in the enforcement of Articles 53 and 54 of the EEA Agreement, which is different from the enforcement in the public interest by the EFTA Surveillance Authority or by national competition authorities (13). Indeed, national courts can give effect to Articles 53 and 54 of the EEA Agreement by finding contracts to be void or by awards of damages.

| 5. | National courts can apply Articles 53 and 54 of the EEA Agreement, without it being necessary to apply national competition law in parallel. However, where a national court applies national competition law to agreements, decisions by associations of undertakings or concerted practices which may affect trade between Contracting Parties to the EEA Agreement within the meaning of Article 53(1) of the EEA Agreement (14) or to any abuse prohibited by Article 54 of the EEA Agreement, they also have to apply the EEA competition rules to those agreements, decisions or practices (15). |
| --- | --- |

5.

National courts can apply Articles 53 and 54 of the EEA Agreement, without it being necessary to apply national competition law in parallel. However, where a national court applies national competition law to agreements, decisions by associations of undertakings or concerted practices which may affect trade between Contracting Parties to the EEA Agreement within the meaning of Article 53(1) of the EEA Agreement (14) or to any abuse prohibited by Article 54 of the EEA Agreement, they also have to apply the EEA competition rules to those agreements, decisions or practices (15).

| 6. | Chapter II does not only empower the national courts to apply the EEA competition rules. The parallel application of national competition law to agreements, decisions of associations of undertakings and concerted practices which affect trade between Contracting Parties to the EEA Agreement may not lead to a different outcome from that of the EEA competition rules. Article 3(2) of Chapter II provides that agreements, decisions or concerted practices which do not infringe Article 53(1) of the EEA Agreement or which fulfil the conditions of Article 53(3) of the EEA Agreement cannot be prohibited either under national competition law (16). On the other hand, it is foreseen in the EEA Agreement that any conflicts which may arise when national and EEA law are applied simultaneously are to be resolved so that EEA law takes precedence. Agreements, decisions or concerted practices that violate Article 53(1) and do not fulfil the conditions of Article 53(3) EEA may thus not be upheld under national law (17). As to the parallel application of national competition law and Article 54 of the EEA Agreement in the case of unilateral conduct, Article 3 of Chapter II does not provide for a similar convergence obligation. However, in case of conflicting provisions, national courts should be required to disapply any provision of national law which contravenes an implemented EEA rule, regardless of whether that national law provision was adopted before or after the EEA rule (18). |
| --- | --- |

6.

Chapter II does not only empower the national courts to apply the EEA competition rules. The parallel application of national competition law to agreements, decisions of associations of undertakings and concerted practices which affect trade between Contracting Parties to the EEA Agreement may not lead to a different outcome from that of the EEA competition rules. Article 3(2) of Chapter II provides that agreements, decisions or concerted practices which do not infringe Article 53(1) of the EEA Agreement or which fulfil the conditions of Article 53(3) of the EEA Agreement cannot be prohibited either under national competition law (16). On the other hand, it is foreseen in the EEA Agreement that any conflicts which may arise when national and EEA law are applied simultaneously are to be resolved so that EEA law takes precedence. Agreements, decisions or concerted practices that violate Article 53(1) and do not fulfil the conditions of Article 53(3) EEA may thus not be upheld under national law (17). As to the parallel application of national competition law and Article 54 of the EEA Agreement in the case of unilateral conduct, Article 3 of Chapter II does not provide for a similar convergence obligation. However, in case of conflicting provisions, national courts should be required to disapply any provision of national law which contravenes an implemented EEA rule, regardless of whether that national law provision was adopted before or after the EEA rule (18).

| 7. | Apart from the application of Articles 53 and 54 of the EEA Agreement, national courts are also competent to apply acts incorporated into the EEA Agreement, rulings of the EFTA Court and decisions of the EFTA Surveillance Authority. National courts may thus have to enforce Authority decisions (19) or acts incorporated into the EEA Agreement applying Article 53(3) of the EEA Agreement to certain categories of agreements, decisions or concerted practices, as well as Commission decisions. When applying these EEA competition rules, national courts act within the framework of EEA law and in so doing, should also take account of the general principles of EEA law (20). |
| --- | --- |

7.

Apart from the application of Articles 53 and 54 of the EEA Agreement, national courts are also competent to apply acts incorporated into the EEA Agreement, rulings of the EFTA Court and decisions of the EFTA Surveillance Authority. National courts may thus have to enforce Authority decisions (19) or acts incorporated into the EEA Agreement applying Article 53(3) of the EEA Agreement to certain categories of agreements, decisions or concerted practices, as well as Commission decisions. When applying these EEA competition rules, national courts act within the framework of EEA law and in so doing, should also take account of the general principles of EEA law (20).

| 8. | The application of Articles 53 and 54 of the EEA Agreement by national courts often depends on complex economic and legal assessments (21). When applying EEA competition rules, national courts should follow established principles of EEA law (22), as well as acts incorporated into the EEA Agreement applying Article 53(3) of the EEA Agreement to certain categories of agreements, decisions or concerted practices (23). Furthermore, the application of Articles 53 and 54 of the EEA Agreement by the EFTA Surveillance Authority in a specific case binds the national courts when they apply EEA competition rules in the same case in parallel with or subsequent to the Authority (24). Similarly, national courts are required to respect the application of Articles 53 and 54 of the EEA Agreement by the Commission in a specific case when they apply EEA competition rules in the same case in parallel with or subsequent to the Commission. Finally, and without prejudice to the ultimate interpretation of the EEA Agreement by the EFTA Court and the Community Courts, national courts may find guidance in Authority or Commission decisions and acts incorporated into the EEA Agreement which present elements of analogy with the case they are dealing with, as well as in Authority notices and guidelines relating to the application of Articles 53 and 54 EEA (25). |
| --- | --- |

8.

The application of Articles 53 and 54 of the EEA Agreement by national courts often depends on complex economic and legal assessments (21). When applying EEA competition rules, national courts should follow established principles of EEA law (22), as well as acts incorporated into the EEA Agreement applying Article 53(3) of the EEA Agreement to certain categories of agreements, decisions or concerted practices (23). Furthermore, the application of Articles 53 and 54 of the EEA Agreement by the EFTA Surveillance Authority in a specific case binds the national courts when they apply EEA competition rules in the same case in parallel with or subsequent to the Authority (24). Similarly, national courts are required to respect the application of Articles 53 and 54 of the EEA Agreement by the Commission in a specific case when they apply EEA competition rules in the same case in parallel with or subsequent to the Commission. Finally, and without prejudice to the ultimate interpretation of the EEA Agreement by the EFTA Court and the Community Courts, national courts may find guidance in Authority or Commission decisions and acts incorporated into the EEA Agreement which present elements of analogy with the case they are dealing with, as well as in Authority notices and guidelines relating to the application of Articles 53 and 54 EEA (25).

B.   PROCEDURAL ASPECTS OF THE APPLICATION OF THE EEA COMPETITION RULES BY NATIONAL COURTS

| 9. | The procedural conditions for the enforcement of EEA competition rules by national courts and the sanctions they can impose in case of an infringement of those rules, are largely covered by national law. However, to some extent, EEA law also determines the conditions in which the EEA competition rules are enforced. The Surveillance and Court Agreement enables national courts to avail themselves of certain instruments, e.g. to ask for the EFTA Surveillance Authority's opinion on questions concerning the application of the EEA competition rules (26). They may also create rules that have an obligatory impact on proceedings before them, e.g. allowing the Authority and national competition authorities to submit written observations (27). These EEA law provisions should prevail over national rules (28). |
| --- | --- |

9.

The procedural conditions for the enforcement of EEA competition rules by national courts and the sanctions they can impose in case of an infringement of those rules, are largely covered by national law. However, to some extent, EEA law also determines the conditions in which the EEA competition rules are enforced. The Surveillance and Court Agreement enables national courts to avail themselves of certain instruments, e.g. to ask for the EFTA Surveillance Authority's opinion on questions concerning the application of the EEA competition rules (26). They may also create rules that have an obligatory impact on proceedings before them, e.g. allowing the Authority and national competition authorities to submit written observations (27). These EEA law provisions should prevail over national rules (28).

| 10. | In the absence of EEA law provisions on procedures and sanctions related to the enforcement of EEA competition rules by national courts, the latter apply national procedural law and — to the extent that they are competent to do so — impose sanctions provided for under national law. However, the application of these national provisions must be compatible with the general principles of EEA law. In this regard, it is useful to recall the case law of the EFTA Court and the Court of Justice of the European Communities, according to which:






  (a) | where there is an infringement of EEA law, national law must provide for sanctions which are effective, proportionate and dissuasive (29); |
| --- | --- | --- |

10.

In the absence of EEA law provisions on procedures and sanctions related to the enforcement of EEA competition rules by national courts, the latter apply national procedural law and — to the extent that they are competent to do so — impose sanctions provided for under national law. However, the application of these national provisions must be compatible with the general principles of EEA law. In this regard, it is useful to recall the case law of the EFTA Court and the Court of Justice of the European Communities, according to which:

(a)

where there is an infringement of EEA law, national law must provide for sanctions which are effective, proportionate and dissuasive (29);

| (b) | where the infringement of EEA law causes harm to an individual, the latter should under certain conditions be able to ask the national court for damages (30); |
| --- | --- |

(b)

where the infringement of EEA law causes harm to an individual, the latter should under certain conditions be able to ask the national court for damages (30);

| (c) | the rules on procedures and sanctions which national courts apply to enforce EEA law






  — | must not make such enforcement excessively difficult or practically impossible (the principle of effectiveness) (31) and they |
| --- | --- | --- |

(c)

the rules on procedures and sanctions which national courts apply to enforce EEA law

—

must not make such enforcement excessively difficult or practically impossible (the principle of effectiveness) (31) and they

| — | must not be less favourable than the rules applicable to the enforcement of equivalent national law (the principle of equivalence) (32). |
| --- | --- |

—

must not be less favourable than the rules applicable to the enforcement of equivalent national law (the principle of equivalence) (32).

On the basis that implemented EEA rules are to take precedence over national law (33), a national court may not apply national rules that are incompatible with these principles.

C.   PARALLEL OR CONSECUTIVE APPLICATION OF EEA COMPETITION RULES BY THE EFTA SURVEILLANCE AUTHORITY AND BY NATIONAL COURTS

| 11. | A national court may be applying EEA competition law to an agreement, decision, concerted practice or unilateral behaviour affecting trade between Contracting Parties at the same time as the EFTA Surveillance Authority (34) or subsequent to the Authority (35). The following points outline some of the obligations national courts have to respect in those circumstances. |
| --- | --- |

11.

A national court may be applying EEA competition law to an agreement, decision, concerted practice or unilateral behaviour affecting trade between Contracting Parties at the same time as the EFTA Surveillance Authority (34) or subsequent to the Authority (35). The following points outline some of the obligations national courts have to respect in those circumstances.

| 12. | Where a national court comes to a decision before the EFTA Surveillance Authority, it must avoid adopting a decision that would conflict with a decision contemplated by the Authority` (36). To that effect, the national court may ask the Authority whether it has initiated proceedings regarding the same agreements, decisions or practices (37) and if so, about the progress of proceedings and the likelihood of a decision in that case (38). The national court may, if it considers it necessary for reasons of legal certainty, also consider staying its proceedings until the Authority has reached a decision (39). The Authority, for its part, will endeavour to give priority to cases for which it has decided to initiate proceedings within the meaning of Article 2(1) of Chapter III of the Surveillance and Court Agreement (hereafter ‘Chapter III’) and that are the subject of national proceedings stayed in this way, in particular when the outcome of a civil dispute depends on them. However, where the national court cannot reasonably doubt the contemplated decision of the Authority or where the Authority has already decided on a similar case, the national court may decide on the case pending before it in accordance with that contemplated or earlier decision without it being necessary to ask the Authority for the information mentioned above or to await the Authority's decision. |
| --- | --- |

12.

Where a national court comes to a decision before the EFTA Surveillance Authority, it must avoid adopting a decision that would conflict with a decision contemplated by the Authority` (36). To that effect, the national court may ask the Authority whether it has initiated proceedings regarding the same agreements, decisions or practices (37) and if so, about the progress of proceedings and the likelihood of a decision in that case (38). The national court may, if it considers it necessary for reasons of legal certainty, also consider staying its proceedings until the Authority has reached a decision (39). The Authority, for its part, will endeavour to give priority to cases for which it has decided to initiate proceedings within the meaning of Article 2(1) of Chapter III of the Surveillance and Court Agreement (hereafter ‘Chapter III’) and that are the subject of national proceedings stayed in this way, in particular when the outcome of a civil dispute depends on them. However, where the national court cannot reasonably doubt the contemplated decision of the Authority or where the Authority has already decided on a similar case, the national court may decide on the case pending before it in accordance with that contemplated or earlier decision without it being necessary to ask the Authority for the information mentioned above or to await the Authority's decision.

| 13. | Where the EFTA Surveillance Authority reaches a decision in a particular case before the national court, the latter cannot take a decision running counter to that of the Authority. The binding effect of the decision of the Authority is of course without prejudice to the interpretation of EEA law by the EFTA Court. Therefore, if the national court doubts the legality of the Authority's decision, it cannot avoid the binding effects of that decision without a ruling to the contrary by the EFTA Court (40). Consequently, if a national court intends to take a decision that runs counter to that of the Authority, it must refer a question to the EFTA Court for an advisory opinion (Article 34 of the Surveillance and Court Agreement). The latter will then decide on the compatibility of the decision of the Authority with EEA law. However, if the Authority's decision is challenged before the EFTA Court pursuant to Article 36 of the Surveillance and Court Agreement and the outcome of the dispute before the national court depends on the validity of the Authority's decision, the national court should stay its proceedings pending final judgment in the action for annulment by the EFTA Court unless it considers that, in the circumstances of the case, a reference to the EFTA Court requesting an opinion on the validity of the Authority's decision (Article 34 of the Surveillance and Court Agreement) is warranted (41). |
| --- | --- |

13.

Where the EFTA Surveillance Authority reaches a decision in a particular case before the national court, the latter cannot take a decision running counter to that of the Authority. The binding effect of the decision of the Authority is of course without prejudice to the interpretation of EEA law by the EFTA Court. Therefore, if the national court doubts the legality of the Authority's decision, it cannot avoid the binding effects of that decision without a ruling to the contrary by the EFTA Court (40). Consequently, if a national court intends to take a decision that runs counter to that of the Authority, it must refer a question to the EFTA Court for an advisory opinion (Article 34 of the Surveillance and Court Agreement). The latter will then decide on the compatibility of the decision of the Authority with EEA law. However, if the Authority's decision is challenged before the EFTA Court pursuant to Article 36 of the Surveillance and Court Agreement and the outcome of the dispute before the national court depends on the validity of the Authority's decision, the national court should stay its proceedings pending final judgment in the action for annulment by the EFTA Court unless it considers that, in the circumstances of the case, a reference to the EFTA Court requesting an opinion on the validity of the Authority's decision (Article 34 of the Surveillance and Court Agreement) is warranted (41).

| 14. | When a national court stays proceedings, e.g. awaiting the Authority's decision (situation described in point 12 of this notice) or pending final judgment by the EFTA Court in an action for annulment or in a request for an advisory opinion (situation described in point 13), it is incumbent on it to examine whether it is necessary to order interim measures in order to safeguard the interests of the parties (42). |
| --- | --- |

14.

When a national court stays proceedings, e.g. awaiting the Authority's decision (situation described in point 12 of this notice) or pending final judgment by the EFTA Court in an action for annulment or in a request for an advisory opinion (situation described in point 13), it is incumbent on it to examine whether it is necessary to order interim measures in order to safeguard the interests of the parties (42).

III.   THE CO-OPERATION BETWEEN THE EFTA SURVEILLANCE AUTHORITY AND NATIONAL COURTS

| 15. | Other than the co-operation mechanism between the national courts and the EFTA Court under Article 34 of the Surveillance and Court Agreement, the main body of the EEA Agreement and the Surveillance and Court Agreement do not explicitly provide for co-operation between the national courts and the EFTA Surveillance Authority. However, Article 3 of the EEA Agreement, which is modelled on, and to a great extent reproduces Article 10 of the EC Treaty, obliges the Contracting Parties to take all appropriate measures to facilitate the achievement of the obligations arising out of the EEA Agreement. The Community Courts have found that Article 10 of the EC Treaty imposes on the European institutions and the Member States mutual duties of loyal co-operation with a view to attaining the objectives of the EC Treaty. Article 10 EC thus implies that the Commission must assist national courts when they apply Community law (43). The Authority considers that it is under a similar obligation of loyal co-operation vis-à-vis national courts of EFTA States, by virtue of the corresponding Article 3 of the EEA Agreement and Article 2 of the Surveillance and Court Agreement. Equally, national courts may be obliged to assist the Authority in the fulfilment of its tasks (44). |
| --- | --- |

15.

Other than the co-operation mechanism between the national courts and the EFTA Court under Article 34 of the Surveillance and Court Agreement, the main body of the EEA Agreement and the Surveillance and Court Agreement do not explicitly provide for co-operation between the national courts and the EFTA Surveillance Authority. However, Article 3 of the EEA Agreement, which is modelled on, and to a great extent reproduces Article 10 of the EC Treaty, obliges the Contracting Parties to take all appropriate measures to facilitate the achievement of the obligations arising out of the EEA Agreement. The Community Courts have found that Article 10 of the EC Treaty imposes on the European institutions and the Member States mutual duties of loyal co-operation with a view to attaining the objectives of the EC Treaty. Article 10 EC thus implies that the Commission must assist national courts when they apply Community law (43). The Authority considers that it is under a similar obligation of loyal co-operation vis-à-vis national courts of EFTA States, by virtue of the corresponding Article 3 of the EEA Agreement and Article 2 of the Surveillance and Court Agreement. Equally, national courts may be obliged to assist the Authority in the fulfilment of its tasks (44).

| 16. | It is also appropriate to recall the co-operation between national courts and national authorities, in particular national competition authorities, for the application of Articles 53 and 54 of the EEA Agreement. While the co-operation between these national authorities is primarily governed by national rules, Article 15(3) of Chapter II provides for the possibility for national competition authorities to submit observations before the national courts of their EFTA State. Points 31 and 33 to 35 of this notice are mutatis mutandis applicable to those submissions. |
| --- | --- |

16.

It is also appropriate to recall the co-operation between national courts and national authorities, in particular national competition authorities, for the application of Articles 53 and 54 of the EEA Agreement. While the co-operation between these national authorities is primarily governed by national rules, Article 15(3) of Chapter II provides for the possibility for national competition authorities to submit observations before the national courts of their EFTA State. Points 31 and 33 to 35 of this notice are mutatis mutandis applicable to those submissions.

A.   THE EFTA SURVEILLANCE AUTHORITY AS AMICUS CURIAE

| 17. | In order to assist national courts in the application of EEA competition rules, the EFTA Surveillance Authority is committed to help national courts where the latter find such help necessary to be able to decide on a case. Article 15 of Chapter II refers to the most frequent types of such assistance: the transmission of information (points 21 to 26 below) and the Authority's opinions (points 27 to 30 below), both at the request of a national court and the possibility for the Authority to submit observations (points 31 to 35 below). Since Chapter II provides for these types of assistance, it cannot be limited by any EFTA States' rule. However, in the absence of EEA procedural rules to this effect and to the extent that they are necessary to facilitate these forms of assistance, EFTA States must adopt the appropriate procedural rules to allow both the national courts and the Authority to make full use of the possibilities Chapter II offers (45). |
| --- | --- |

17.

In order to assist national courts in the application of EEA competition rules, the EFTA Surveillance Authority is committed to help national courts where the latter find such help necessary to be able to decide on a case. Article 15 of Chapter II refers to the most frequent types of such assistance: the transmission of information (points 21 to 26 below) and the Authority's opinions (points 27 to 30 below), both at the request of a national court and the possibility for the Authority to submit observations (points 31 to 35 below). Since Chapter II provides for these types of assistance, it cannot be limited by any EFTA States' rule. However, in the absence of EEA procedural rules to this effect and to the extent that they are necessary to facilitate these forms of assistance, EFTA States must adopt the appropriate procedural rules to allow both the national courts and the Authority to make full use of the possibilities Chapter II offers (45).

| 18. | The national court may send its request for assistance in writing to





  EFTA Surveillance Authority |
| --- | --- |
| rue Belliard 35 |
| B-1040 Brussels |

18.

The national court may send its request for assistance in writing to

EFTA Surveillance Authority

rue Belliard 35

B-1040 Brussels

or send it electronically to

registry@eftasurv.int

| 19. | It should be recalled that whatever form the co-operation with national courts takes, the EFTA Surveillance Authority will respect the independence of national courts. As a consequence, the assistance offered by the Authority does not bind the national court. The Authority has also to make sure that it respects its duty of professional secrecy and that it safeguards its own functioning and independence (46). In fulfilling its duty under Article 3 of the EEA Agreement and Article 2 of the Surveillance and Court Agreement, of assisting national courts in the application of EEA competition rules, the Authority is committed to remaining neutral and objective in its assistance. Indeed, the Authority's assistance to national courts is part of its duty to defend the public interest. It has therefore no intention to serve the private interests of the parties involved in the case pending before the national court. As a consequence, the Authority will not hear any of the parties about its assistance to the national court. In case the Authority has been contacted by any of the parties in the case pending before the court on issues which are raised before the national court, it will inform the national court thereof, independent of whether these contacts took place before or after the national court's request for co-operation. |
| --- | --- |

19.

It should be recalled that whatever form the co-operation with national courts takes, the EFTA Surveillance Authority will respect the independence of national courts. As a consequence, the assistance offered by the Authority does not bind the national court. The Authority has also to make sure that it respects its duty of professional secrecy and that it safeguards its own functioning and independence (46). In fulfilling its duty under Article 3 of the EEA Agreement and Article 2 of the Surveillance and Court Agreement, of assisting national courts in the application of EEA competition rules, the Authority is committed to remaining neutral and objective in its assistance. Indeed, the Authority's assistance to national courts is part of its duty to defend the public interest. It has therefore no intention to serve the private interests of the parties involved in the case pending before the national court. As a consequence, the Authority will not hear any of the parties about its assistance to the national court. In case the Authority has been contacted by any of the parties in the case pending before the court on issues which are raised before the national court, it will inform the national court thereof, independent of whether these contacts took place before or after the national court's request for co-operation.

| 20. | The EFTA Surveillance Authority will publish a summary concerning its co-operation with national courts pursuant to this notice in its annual report. It may also make its opinions and observations available on its website. |
| --- | --- |

20.

The EFTA Surveillance Authority will publish a summary concerning its co-operation with national courts pursuant to this notice in its annual report. It may also make its opinions and observations available on its website.

1.   The EFTA Surveillance Authority's duty to transmit information to national courts

| 21. | The duty for the EFTA Surveillance Authority to assist national courts in the application of EEA competition law is mainly reflected in the obligation for the Authority to transmit information it holds to national courts. A national court may, e.g., ask the Authority for documents in its possession or for information of a procedural nature to enable it to discover whether a certain case is pending before the Authority, whether the Authority has initiated a procedure or whether it has already taken a position. A national court may also ask the Authority when a decision is likely to be taken, so as to be able to determine the conditions for any decision to stay proceedings or whether interim measures need to be adopted (47). |
| --- | --- |

21.

The duty for the EFTA Surveillance Authority to assist national courts in the application of EEA competition law is mainly reflected in the obligation for the Authority to transmit information it holds to national courts. A national court may, e.g., ask the Authority for documents in its possession or for information of a procedural nature to enable it to discover whether a certain case is pending before the Authority, whether the Authority has initiated a procedure or whether it has already taken a position. A national court may also ask the Authority when a decision is likely to be taken, so as to be able to determine the conditions for any decision to stay proceedings or whether interim measures need to be adopted (47).

| 22. | In order to ensure the efficiency of the co-operation with national courts, the EFTA Surveillance Authority will endeavour to provide the national court with the requested information within one month from the date it receives the request. Where the Authority has to ask the national court for further clarification of its request or where the Authority has to consult those who are directly affected by the transmission of the information, that period starts to run from the moment that it receives the required information. |
| --- | --- |

22.

In order to ensure the efficiency of the co-operation with national courts, the EFTA Surveillance Authority will endeavour to provide the national court with the requested information within one month from the date it receives the request. Where the Authority has to ask the national court for further clarification of its request or where the Authority has to consult those who are directly affected by the transmission of the information, that period starts to run from the moment that it receives the required information.

| 23. | In transmitting information to national courts, the EFTA Surveillance Authority has to uphold the guarantees given to natural and legal persons by Article 122 of the EEA Agreement and Article 14 of the Surveillance and Court Agreement (48). Article 14 of the Surveillance and Court Agreement prevents members, officials and other servants of the Authority from disclosing information covered by the obligation of professional secrecy. Article 122 of the EEA Agreement requires representatives, delegates and experts of the Contracting Parties, as well as officials and other servants, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components. This obligation is also spelt out by Article 28 of Chapter II. The information covered by professional secrecy may be both confidential information and business secrets. Business secrets are information of which not only disclosure to the public but also mere transmission to a person other than the one that provided the information might seriously harm the latter's interests (49). |
| --- | --- |

23.

In transmitting information to national courts, the EFTA Surveillance Authority has to uphold the guarantees given to natural and legal persons by Article 122 of the EEA Agreement and Article 14 of the Surveillance and Court Agreement (48). Article 14 of the Surveillance and Court Agreement prevents members, officials and other servants of the Authority from disclosing information covered by the obligation of professional secrecy. Article 122 of the EEA Agreement requires representatives, delegates and experts of the Contracting Parties, as well as officials and other servants, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components. This obligation is also spelt out by Article 28 of Chapter II. The information covered by professional secrecy may be both confidential information and business secrets. Business secrets are information of which not only disclosure to the public but also mere transmission to a person other than the one that provided the information might seriously harm the latter's interests (49).

| 24. | The combined reading of Articles 3 and 122 of the EEA Agreement and 14 of the Surveillance and Court Agreement does not lead to an absolute prohibition for the EFTA Surveillance Authority to transmit information which is covered by the obligation of professional secrecy to national courts. As confirmed by the case law of the Community Courts with regard to the Commission's duty of loyal co-operation, the Authority in the same way considers that the duty of loyal co-operation requires the Authority to provide the national court with whatever information the latter asks for, even information covered by professional secrecy. However, in offering its co-operation to the national courts, the Authority may not in any circumstances undermine the guarantees laid down in Article 122 of the EEA Agreement and Article 14 of the Surveillance and Court Agreement. |
| --- | --- |

24.

The combined reading of Articles 3 and 122 of the EEA Agreement and 14 of the Surveillance and Court Agreement does not lead to an absolute prohibition for the EFTA Surveillance Authority to transmit information which is covered by the obligation of professional secrecy to national courts. As confirmed by the case law of the Community Courts with regard to the Commission's duty of loyal co-operation, the Authority in the same way considers that the duty of loyal co-operation requires the Authority to provide the national court with whatever information the latter asks for, even information covered by professional secrecy. However, in offering its co-operation to the national courts, the Authority may not in any circumstances undermine the guarantees laid down in Article 122 of the EEA Agreement and Article 14 of the Surveillance and Court Agreement.

| 25. | Consequently, before transmitting information covered by professional secrecy to a national court, the EFTA Surveillance Authority will remind the court of its obligation under EEA law to uphold the rights which Article 122 of the EEA Agreement and Article 14 of the Surveillance and Court Agreement confers on natural and legal persons and it will ask the court whether it can and will guarantee protection of confidential information and business secrets. If the national court cannot offer such guarantee, the Authority shall not transmit the information covered by professional secrecy to the national court (50). Only when the national court has offered a guarantee that it will protect the confidential information and business secrets, will the Authority transmit the information requested, indicating those parts which are covered by professional secrecy and which parts are not and can therefore be disclosed. |
| --- | --- |

25.

Consequently, before transmitting information covered by professional secrecy to a national court, the EFTA Surveillance Authority will remind the court of its obligation under EEA law to uphold the rights which Article 122 of the EEA Agreement and Article 14 of the Surveillance and Court Agreement confers on natural and legal persons and it will ask the court whether it can and will guarantee protection of confidential information and business secrets. If the national court cannot offer such guarantee, the Authority shall not transmit the information covered by professional secrecy to the national court (50). Only when the national court has offered a guarantee that it will protect the confidential information and business secrets, will the Authority transmit the information requested, indicating those parts which are covered by professional secrecy and which parts are not and can therefore be disclosed.

| 26. | There are further exceptions to the disclosure of information by the EFTA Surveillance Authority to national courts. Particularly, the Authority may refuse to transmit information to national courts for overriding reasons relating to the need to safeguard the interests of the EEA or to avoid any interference with its functioning and independence, in particular by jeopardizing the accomplishment of the tasks entrusted to it (51). Therefore, Authority will not transmit to national courts information voluntarily submitted by a leniency applicant without the consent of that applicant. |
| --- | --- |

26.

There are further exceptions to the disclosure of information by the EFTA Surveillance Authority to national courts. Particularly, the Authority may refuse to transmit information to national courts for overriding reasons relating to the need to safeguard the interests of the EEA or to avoid any interference with its functioning and independence, in particular by jeopardizing the accomplishment of the tasks entrusted to it (51). Therefore, Authority will not transmit to national courts information voluntarily submitted by a leniency applicant without the consent of that applicant.

2.   Request for an opinion on questions concerning the application of EEA competition rules

| 27. | When called upon to apply EEA competition rules to a case pending before it, a national court may first seek guidance in the case law of the EFTA Court, in EEA legislation, EFTA Surveillance Authority decisions, notices and guidelines applying Articles 53 and 54 of the EEA Agreement (52), as well as the relevant case-law and decisions of the Community Courts and the Commission applying EEA-law and corresponding Community law. Where these tools do not offer sufficient guidance, the national court may ask the Authority for its opinion on questions concerning the application of EEA competition rules. The national court may ask the Authority or its opinion on economic, factual and legal matters (53). The latter is of course without prejudice to the possibility or the obligation for the national court to ask the EFTA Court for an advisory opinion regarding the interpretation or the validity of EEA law in accordance with Article 34 of the Surveillance and Court Agreement. |
| --- | --- |

27.

When called upon to apply EEA competition rules to a case pending before it, a national court may first seek guidance in the case law of the EFTA Court, in EEA legislation, EFTA Surveillance Authority decisions, notices and guidelines applying Articles 53 and 54 of the EEA Agreement (52), as well as the relevant case-law and decisions of the Community Courts and the Commission applying EEA-law and corresponding Community law. Where these tools do not offer sufficient guidance, the national court may ask the Authority for its opinion on questions concerning the application of EEA competition rules. The national court may ask the Authority or its opinion on economic, factual and legal matters (53). The latter is of course without prejudice to the possibility or the obligation for the national court to ask the EFTA Court for an advisory opinion regarding the interpretation or the validity of EEA law in accordance with Article 34 of the Surveillance and Court Agreement.

| 28. | In order to enable the EFTA Surveillance Authority to provide the national court with a useful opinion, it may request the national court for further information (54). In order to ensure the efficiency of the co-operation with national courts, the Authority will endeavour to provide the national court with the requested opinion within four months from the date it receives the request. Where the Authority has requested the national court for further information in order to enable it to formulate its opinion, that period starts to run from the moment that it receives the additional information. |
| --- | --- |

28.

In order to enable the EFTA Surveillance Authority to provide the national court with a useful opinion, it may request the national court for further information (54). In order to ensure the efficiency of the co-operation with national courts, the Authority will endeavour to provide the national court with the requested opinion within four months from the date it receives the request. Where the Authority has requested the national court for further information in order to enable it to formulate its opinion, that period starts to run from the moment that it receives the additional information.

| 29. | When giving its opinion, the EFTA Surveillance Authority will limit itself to providing the national court with the factual information or the economic or legal clarification asked for, without considering the merits of the case pending before the national court. Moreover, the opinion of the Authority does not legally bind the national court. |
| --- | --- |

29.

When giving its opinion, the EFTA Surveillance Authority will limit itself to providing the national court with the factual information or the economic or legal clarification asked for, without considering the merits of the case pending before the national court. Moreover, the opinion of the Authority does not legally bind the national court.

| 30. | In line with what has been said in point 19 of this notice, the EFTA Surveillance Authority will not hear the parties before formulating its opinion to the national court. The latter will have to deal with the Authority's opinion in accordance with the relevant national procedural rules, which have to respect the general principles of EEA law. |
| --- | --- |

30.

In line with what has been said in point 19 of this notice, the EFTA Surveillance Authority will not hear the parties before formulating its opinion to the national court. The latter will have to deal with the Authority's opinion in accordance with the relevant national procedural rules, which have to respect the general principles of EEA law.

3.   The EFTA Surveillance Authority's submission of observations to the national court

| 31. | According to Article 15(3) of Chapter II, the national competition authorities and the EFTA Surveillance Authority may submit observations on issues relating to the application of Articles 53 or 54 of the EEA Agreement to a national court which is called upon to apply those provisions. Chapter II distinguishes between written observations, which the national competition authorities and the Authority may submit on their own initiative, and oral observations, which can only be submitted with the permission of the national court (55). |
| --- | --- |

31.

According to Article 15(3) of Chapter II, the national competition authorities and the EFTA Surveillance Authority may submit observations on issues relating to the application of Articles 53 or 54 of the EEA Agreement to a national court which is called upon to apply those provisions. Chapter II distinguishes between written observations, which the national competition authorities and the Authority may submit on their own initiative, and oral observations, which can only be submitted with the permission of the national court (55).

| 32. | Chapter II specifies that the EFTA Surveillance Authority will only submit observations when the coherent application of Articles 53 or 54 of the EEA Agreement so requires. That being the objective of its submission, the Authority will limit its observations to an economic and legal analysis of the facts underlying the case pending before the national court. |
| --- | --- |

32.

Chapter II specifies that the EFTA Surveillance Authority will only submit observations when the coherent application of Articles 53 or 54 of the EEA Agreement so requires. That being the objective of its submission, the Authority will limit its observations to an economic and legal analysis of the facts underlying the case pending before the national court.

| 33. | In order to enable the EFTA Surveillance Authority to submit useful observations, national courts may be asked to transmit or ensure the transmission to the Authority of a copy of all documents that are necessary for the assessment of the case. In line with Article 15(3), second subparagraph, of Chapter II, the EFTA Surveillance Authority will only use those documents for the preparation of its observations (56). |
| --- | --- |

33.

In order to enable the EFTA Surveillance Authority to submit useful observations, national courts may be asked to transmit or ensure the transmission to the Authority of a copy of all documents that are necessary for the assessment of the case. In line with Article 15(3), second subparagraph, of Chapter II, the EFTA Surveillance Authority will only use those documents for the preparation of its observations (56).

| 34. | Since Chapter II does not provide for a procedural framework within which the observations are to be submitted, the EFTA States' procedural rules and practices determine the relevant procedural framework. Where an EFTA State has not yet established the relevant procedural framework, the national court has to determine which procedural rules are appropriate for the submission of observations in the case pending before it. |
| --- | --- |

34.

Since Chapter II does not provide for a procedural framework within which the observations are to be submitted, the EFTA States' procedural rules and practices determine the relevant procedural framework. Where an EFTA State has not yet established the relevant procedural framework, the national court has to determine which procedural rules are appropriate for the submission of observations in the case pending before it.

| 35. | The procedural framework should respect the principles set out in point 10 of this notice. That implies amongst others that the procedural framework for the submission of observations on issues relating to the application of Articles 53 or 54 of the EEA Agreement






  (a) | has to be compatible with the general principles of EEA law, in particular the fundamental rights of the parties involved in the case; |
| --- | --- | --- |

35.

The procedural framework should respect the principles set out in point 10 of this notice. That implies amongst others that the procedural framework for the submission of observations on issues relating to the application of Articles 53 or 54 of the EEA Agreement

(a)

has to be compatible with the general principles of EEA law, in particular the fundamental rights of the parties involved in the case;

| (b) | cannot make the submission of such observations excessively difficult or practically impossible (the principle of effectiveness) (57); and |
| --- | --- |

(b)

cannot make the submission of such observations excessively difficult or practically impossible (the principle of effectiveness) (57); and

| (c) | cannot make the submission of such observations more difficult than the submission of observations in court proceedings where equivalent national law is applied (the principle of equivalence). |
| --- | --- |

(c)

cannot make the submission of such observations more difficult than the submission of observations in court proceedings where equivalent national law is applied (the principle of equivalence).

B.   THE NATIONAL COURTS FACILITATING THE ROLE OF THE EFTA SURVEILLANCE AUTHORITY IN THE ENFORCEMENT OF EEA COMPETITION RULES

| 36. | Since the duty of loyal co-operation also implies that EFTA States' authorities assist the EFTA Surveillance Authority with a view to attaining the objectives of the EEA Agreement (58), Chapter II provides for three examples of such assistance: (1) the transmission of documents necessary for the assessment of a case in which the Authority would like to submit observations (see point 33), (2) the transmission of judgements applying Articles 53 or 54 of the EEA Agreement; and (3) the role of national courts in the context of an Authority inspection. |
| --- | --- |

36.

Since the duty of loyal co-operation also implies that EFTA States' authorities assist the EFTA Surveillance Authority with a view to attaining the objectives of the EEA Agreement (58), Chapter II provides for three examples of such assistance: (1) the transmission of documents necessary for the assessment of a case in which the Authority would like to submit observations (see point 33), (2) the transmission of judgements applying Articles 53 or 54 of the EEA Agreement; and (3) the role of national courts in the context of an Authority inspection.

1.   The transmission of judgements of national courts applying Articles 53 or 54 of the EEA Agreement

| 37. | According to Article 15(2) of Chapter II, EFTA States shall send to the EFTA Surveillance Authority a copy of any written judgement of national courts applying Articles 53 or 54 of the EEA Agreement without delay after the full written judgment is notified to the parties. The transmission of national judgments on the application of Articles 53 or 54 of the EEA Agreement and the resulting information on proceedings before national courts primarily enable the Authority to become aware in a timely fashion of cases for which it might be appropriate to submit observations where one of the parties lodges an appeal against the judgment. |
| --- | --- |

37.

According to Article 15(2) of Chapter II, EFTA States shall send to the EFTA Surveillance Authority a copy of any written judgement of national courts applying Articles 53 or 54 of the EEA Agreement without delay after the full written judgment is notified to the parties. The transmission of national judgments on the application of Articles 53 or 54 of the EEA Agreement and the resulting information on proceedings before national courts primarily enable the Authority to become aware in a timely fashion of cases for which it might be appropriate to submit observations where one of the parties lodges an appeal against the judgment.

2.   The role of national courts in the context of an EFTA Surveillance Authority inspection

| 38. | Finally, national courts may play a role in the context of an EFTA Surveillance Authority inspection of undertakings and associations of undertakings. The role of the national courts depends on whether the inspections are conducted in business premises or in non-business premises. |
| --- | --- |

38.

Finally, national courts may play a role in the context of an EFTA Surveillance Authority inspection of undertakings and associations of undertakings. The role of the national courts depends on whether the inspections are conducted in business premises or in non-business premises.

| 39. | With regard to the inspection of business premises, national legislation may require authorisation from a national court to allow a national enforcement authority to assist the EFTA Surveillance Authority in case of opposition of the undertaking concerned. Such authorisation may also be sought as a precautionary measure. When dealing with the request, the national court has the power to control that the Authority's inspection decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national court may ask the Authority, directly or through the national competition authority, for detailed explanations in particular on the grounds the Authority has for suspecting infringement of Articles 53 and 54 of the EEA Agreement, as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned (59). |
| --- | --- |

39.

With regard to the inspection of business premises, national legislation may require authorisation from a national court to allow a national enforcement authority to assist the EFTA Surveillance Authority in case of opposition of the undertaking concerned. Such authorisation may also be sought as a precautionary measure. When dealing with the request, the national court has the power to control that the Authority's inspection decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national court may ask the Authority, directly or through the national competition authority, for detailed explanations in particular on the grounds the Authority has for suspecting infringement of Articles 53 and 54 of the EEA Agreement, as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned (59).

| 40. | With regard to the inspection of non-business premises, Chapter II requires the authorisation from a national court before an EFTA Surveillance Authority decision ordering such an inspection can be executed. In that case, the national court may control that the Authority's inspection decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard in particular to the seriousness of the suspected infringement, to the importance of the evidence sought, to the involvement of the undertaking concerned and to the reasonable likelihood that business books and records relating to the subject matter of the inspection are kept in the premises for which the authorisation is requested. The national court may ask the Authority, directly or through the national competition authority, for detailed explanations on those elements that are necessary to allow its control of the proportionality of the coercive measures envisaged (60). |
| --- | --- |

40.

With regard to the inspection of non-business premises, Chapter II requires the authorisation from a national court before an EFTA Surveillance Authority decision ordering such an inspection can be executed. In that case, the national court may control that the Authority's inspection decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard in particular to the seriousness of the suspected infringement, to the importance of the evidence sought, to the involvement of the undertaking concerned and to the reasonable likelihood that business books and records relating to the subject matter of the inspection are kept in the premises for which the authorisation is requested. The national court may ask the Authority, directly or through the national competition authority, for detailed explanations on those elements that are necessary to allow its control of the proportionality of the coercive measures envisaged (60).

| 41. | In both cases referred to in points 39 and 40, the national court may not call into question the lawfulness of the EFTA Surveillance Authority's decision or the necessity for the inspection nor can it demand that it be provided with information in the Authority's file (61). Furthermore, the duty of loyal co-operation requires the national court to take its decision within an appropriate timeframe that allows the Authority to effectively conduct its inspection (62). |
| --- | --- |

41.

In both cases referred to in points 39 and 40, the national court may not call into question the lawfulness of the EFTA Surveillance Authority's decision or the necessity for the inspection nor can it demand that it be provided with information in the Authority's file (61). Furthermore, the duty of loyal co-operation requires the national court to take its decision within an appropriate timeframe that allows the Authority to effectively conduct its inspection (62).

IV.   FINAL PROVISIONS

| 42. | This notice is issued in order to assist national courts in the application of Articles 53 and 54 of the EEA Agreement. It does not bind the national courts, nor does it affect the rights and obligations of the EFTA States and natural or legal persons under EEA law. |
| --- | --- |

42.

This notice is issued in order to assist national courts in the application of Articles 53 and 54 of the EEA Agreement. It does not bind the national courts, nor does it affect the rights and obligations of the EFTA States and natural or legal persons under EEA law.

| 43. | This notice replaces the 1995 notice on co-operation between national courts and the EFTA Surveillance Authority in applying Articles 53 and 54 of the EEA Agreement (63). |
| --- | --- |

43.

This notice replaces the 1995 notice on co-operation between national courts and the EFTA Surveillance Authority in applying Articles 53 and 54 of the EEA Agreement (63).

---

(1)  OJ C 101, 27.4.2004, p. 54.

(2)  For the purpose of this notice, any reference to the EFTA States means the EFTA States in respect of which the EEA Agreement has entered into force.

(3)  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.

(4)  For the criteria to determine which entities can be regarded as courts or tribunals within the meaning of Article 34 of the Surveillance and Court Agreement, see e.g. judgment of the EFTA Court, Case E-1/94 Ravintoloitsijain Liiton Kustannus Oy Restamark, EFTA Court Report [1994-1995], p. 15, and judgment of the Court of Justice of the European Communities, Case C-516/99 Schmid [2002] ECR I-4573, para 34: ‘The Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent’. As regards the case law of the Community Courts, Article 6 of the EEA Agreement provides that, without prejudice to future developments of case-law, the provisions of this 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.

(5)  Following 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, which entered into force on 19.5.2005, Chapter II of Protocol 4 of the Surveillance and Court Agreement reflects to a large extent in the EFTA pillar Council Regulation (EC) No 1/2003 (OJ L 1, 4.1.2003, p. 1).

(6)  EFTA Surveillance Authority Notice on cooperation within the EFTA Network of Competition Authorities, not yet published.

(7)  The jurisdiction of a national court depends on national, relevant EEA and international rules of jurisdiction.

(8)  See Article 6 of Chapter II.

(9)  See Article 1(2)(e) of the EEA Agreement, pursuant to which the establishment of a system ensuring that competition is not distorted and that the rules on competition are equally respected is necessary to attain the objectives of the EEA Agreement, Case E-8/00 Landsorganisasjonen i Norge with Norsk Kommuneforbund, EFTA Court Report [2002], p. 114, para. 40.

(10)  Joined cases C-430/93 and C-431/93 van Schijndel [1995] ECR I-4705, 13 to 15 and 22.

(11)  The situation is different as regards non-implemented EEA rules. It follows from Article 7 and Protocol 35 to the EEA Agreement that EEA law does not entail a transfer of legislative powers. Protocol 35 to the EEA Agreement obliges the EFTA States to ensure, if necessary by a separate statutory provision, that in cases of conflict between implemented EEA rules and other statutory provisions the EEA rules prevail. Therefore, EEA law does not require that individuals and economic operators can rely directly on non-implemented EEA rules before national courts. At the same time, however, it is inherent in the general objective of the EEA Agreement of establishing a dynamic and homogenous market, in the ensuing emphasis on the judicial defence and enforcement of the rights of individuals, as well as in the public international law principle of effectiveness, that national courts will consider any relevant element of EEA law, whether implemented or not, when interpreting national law, Case E-4/01 Karl K. Karlsson, EFTA Court Report [2002], p 240, para. 28.

(12)  According to the last sentence of recital 8 of Regulation (EC) No 1/2003, the regulation does not apply to national laws which impose criminal sanctions on natural persons except to the extent that such sanctions are the means whereby competition rules applying to undertakings are enforced. The EFTA Surveillance Authority considers that similarly, Chapter II does not apply to national laws in the EFTA States which impose criminal sanctions on natural persons except to the extent that such sanctions are the means whereby competition rules applying to undertakings are enforced.

(13)  Case T-24/90 Automec [1992] ECR II-2223, para. 85.

(14)  For further clarification of the effect on trade concept, see the notice on this issue (OJ not yet published).

(15)  Article 3(1) of Chapter II.

(16)  See also the notice on the application of Article 53(3) of the EEA Agreement (OJ not yet published).

(17)  See in this respect case E-1/94 Restamark, footnote 4 above and case 14/68 Walt Wilhelm [1969] ECR 1 and joined cases 253/78 and 1 to 3/79 Giry and Guerlain [1980] ECR 2327, 15 to 17.

(18)  See in this respect case E-1/94 Restamark, footnote 4 above, and case C-198/01, Consorzio Industrie Fiammiferi (CIF) [2003] 49. See also footnote 11 above.

(19)  E.g. a national court may be asked to enforce an EFTA Surveillance Authority decision taken pursuant to Articles 7 to 10, 23 and 24 of Chapter II.

(20)  See e.g. case 5/88 Wachauf [1989] ECR 2609, 19.

(21)  Joined cases C-215/96 and C-216/96 Bagnasco [1999] ECR I-135, 50.

(22)  See footnote 4 of this notice.

(23)  Case 63/75 Fonderies Roubaix [1976] ECR 111, 9 to 11 and case C-234/89 Delimitis [1991] ECR I-935, 46.

(24)  On the parallel or consecutive application of EEA competition rules by national courts and the Authority, see also points 11 to 14.

(25)  Case 66/86 Ahmed Saeed Flugreisen [1989] ECR 803, 27 and case C-234/89 Delimitis [1991] ECR I-935, 50. A list of EFTA Surveillance Authority guidelines and notices in the field of competition policy, as well as acts incorporated into the EEA Agreement applying Article 53(3) of the EEA Agreement to certain categories of agreements, decisions or concerted practices, are annexed to this notice.

(26)  On the possibility for national courts to ask the EFTA Surveillance Authority for an opinion, see further in points 27 to 30.

(27)  On the submission of observations, see further in points 31 to 35 of this notice.

(28)  See point 3 of this notice and footnote 11 thereto.

(29)  Case 68/88 Commission v Greece [1989] ECR 2965, 23 to 25.

(30)  On damages in case of an infringement by an EFTA State and on the conditions of such liability, see Case E-9/97 Erla Maria Sveinbjörnsdóttir, EFTA Court Report [1995], p 95, para 66 and Case E-4/01 Karl K. Karlsson hf, footnote 11 above. On damages in case of an infringement by an undertaking, see case C-453/99 Courage and Crehan [2001] ECR 6297, 26 and 27. On damages in case of an infringement by a Member State or by an authority which is an emanation of the State and on the conditions of such state liability, see e.g. joined cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357, 33 to 36; case C-271/91 Marshall v Southampton and South West Hampshire Area Health Authority [1993] ECR I-4367, 30 and 34 to 35; joined cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029; case C-392/93 British Telecommunications [1996] ECR I-1631, 39 to 46 and joined cases C-178/94, C-179/94 and C-188/94 to 190/94 Dillenkofer [1996] ECR I-4845, 22 to 26 and 72.

(31)  See e.g. Case E-4/01 Karl K. Karlsson hf,, footnote 11 above, 33; case 33/76 Rewe [1976] ECR 1989, 5; case 45/76 Comet [1976] ECR 2043, 12 and case 79/83 Harz [1984] ECR 1921, 18 and 23.

(32)  See e.g. Case E-4/01 Karl K. Karlsson hf,, footnote 11 above 33; case 33/76 Rewe [1976] ECR 1989, 5; case 158/80 Rewe [1981] ECR 1805, 44; case 199/82 San Giorgio [1983] ECR 3595, 12 and case C-231/96 Edis [1998] ECR I-4951, 36 and 37.

(33)  See point 6 and footnote 11 above.

(34)  Article 11(6), juncto Article 40(3) and (4) of Chapter II should prevent a parallel application of Articles 53 or 54 of the EEA Agreement by the EFTA Surveillance Authority and a national court only when the latter has been designated as a national competition authority.

(35)  When exercising their powers under Articles 53 and 54 of the EEA Agreement, national courts must in addition, take account of the powers of the Commission in order to avoid decisions which would conflict with those taken or envisaged by the Commission, Case C-234/89, Delimitis [1991] ECR I-935, 47.

(36)  Article 16(1) of Chapter II.

(37)  The Authority makes the initiation of its proceedings with a view to adopting a decision pursuant to Articles 7-10 of Chapter II (see Article 2(2) of Chapter III ). According to the European Court of Justice, the initiation of proceedings implies an authoritative act of the Commission, evidencing its intention of taking a decision (case 48/72 Brasserie de Haecht [1973] ECR 77, 16).

(38)  Case C-234/89 Delimitis [1991] ECR I-935, 53, and joined cases C-319/93, C-40/94 and C-224/94 Dijkstra [1995] ECR I-4471, 34. See further on this issue point 21 of this notice.

(39)  See Article 16(1) of Chapter II and case C-234/89 Delimitis [1991] ECR I-935, 47 and case C-344/98 Masterfoods [2000] ECR I-11369, 51.

(40)  Case 314/85 Foto-Frost [1987] ECR 4199, 12 to 20.

(41)  See Article 16(1) of Chapter II and case C-344/98 Masterfoods [2000] ECR I-11369, 52 to 59.

(42)  Case C-344/98 Masterfoods [2000] ECR I-11369, 58.

(43)  Case C-2/88 Imm Zwartveld [1990] ECR I-3365, 16 to 22 and case C-234/89 Delimitis [1991] ECR I-935, 53.

(44)  C-94/00 Roquette Frères [2002] ECR 9011, 31.

(45)  On the compatibility of such national procedural rules with the general principles of EEA law, see points 9 and 10 of this notice.

(46)  On these duties, see e.g. points 23 to 26 of this notice.

(47)  Case C-234/89 Delimitis [1991] ECR I-935, 53, and joined cases C-319/93, C-40/94 and C-224/94 Dijkstra [1995] ECR I-4471, 34.

(48)  Case C-234/89 Delimitis [1991]ECR I-935, 53.

(49)  Case T-353/94 Postbank [1996] ECR II-921, 86 and 87 and case 145/83 Adams [1985] ECR 3539, 34.

(50)  Case C-2/88 Zwartveld [1990] ECR I-4405, 10 and 11 and case T-353/94 Postbank [1996] ECR II-921, 93.

(51)  Case C-2/88 Zwartveld [1990] ECR I-4405, 10 and 11; case C-275/00 First and Franex [2002] ECR I-10943, 49 and case T-353/94 Postbank [1996] ECR II-921, 93.

(52)  See point 8 of this notice.

(53)  Case C-234/89 Delimitis [1991] ECR I-935, 53, and joined cases C-319/93, C-40/94 and C-224/94 Dijkstra [1995] ECR I-4471, 34.

(54)  Compare with case 96/81 Commission v the Netherlands [1982] ECR 1791, 7 and case 272/86 Commission v Greece [1988] ECR 4875, 30.

(55)  According to Article 15(4) of Chapter II, this is without prejudice to wider powers to make observations before courts conferred on national competition authorities under national law.

(56)  See also Article 28(2) of Chapter II, which prevents the EFTA Surveillance Authority from disclosing the information it has acquired and which is covered by the obligation of professional secrecy.

(57)  Joined cases 46/87 and 227/88 Hoechst [1989] ECR, 2859, 33. See also Article 15(3) of Chapter II.

(58)  Case C-69/90 Commission v Italy [1991] ECR 6011, 15.

(59)  Article 20(6) to (8) of Chapter II and case C-94/00 Roquette Frères [2002] ECR 9011.

(60)  Article 21(3) of Chapter II.

(61)  Case C-94/00 Roquette Frères [2002] ECR 9011, 39 and 62 to 66.

(62)  See also ibidem, 91 and 92.

(63)  OJ C 112, 4.5.1995, p. 7.

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ANNEX

ACTS CORRESPONDING TO COMMUNITY BLOCK EXEMPTION REGULATIONS REFERRED TO IN ANNEX XIV TO THE EEA AGREEMENT AND EXPLANATORY NOTICES OF THE EFTA SURVEILLANCE AUTHORITY

This list is also available and updated on the website of the EFTA Surveillance Authority:

http://www.eftasurv.int/fieldsofwork/fieldcompetition/otherpublications/dbaFile1127.html

A.   Non-sector specific rules

1.   Notices of a general nature

| — | Notice on the definition of the relevant market for the purposes of competition law within the EEA (OJ L 200, 16.7.1998, p. 48 and EEA Supplement to the OJ 28, 16.7.1998, p. 3). |
| --- | --- |

—

Notice on the definition of the relevant market for the purposes of competition law within the EEA (OJ L 200, 16.7.1998, p. 48 and EEA Supplement to the OJ 28, 16.7.1998, p. 3).

| — | Notice on agreements of minor importance which do not appreciably restrict competition under Article 53(1) of the EEA Agreement (de minimis) (OJ C 67, 20.3.2003, p. 20 and EEA Supplement to the OJ 15, 20.3.2003, p. 11). |
| --- | --- |

—

Notice on agreements of minor importance which do not appreciably restrict competition under Article 53(1) of the EEA Agreement (de minimis) (OJ C 67, 20.3.2003, p. 20 and EEA Supplement to the OJ 15, 20.3.2003, p. 11).

| — | Guidelines on the effect on trade concept contained in Articles 53 and 54 of the EEA Agreement, not yet published. |
| --- | --- |

—

Guidelines on the effect on trade concept contained in Articles 53 and 54 of the EEA Agreement, not yet published.

| — | Guidelines on the application of Article 53(3) of the EEA Agreement, not yet published. |
| --- | --- |

—

Guidelines on the application of Article 53(3) of the EEA Agreement, not yet published.

| — | Notice on cooperation within the EFTA Network of Competition Authorities, not yet published. |
| --- | --- |

—

Notice on cooperation within the EFTA Network of Competition Authorities, not yet published.

| — | Notice on co-operation between national courts and the EFTA Surveillance Authority in applying Articles 53 and 54 of the EEA Agreement, not yet published. |
| --- | --- |

—

Notice on co-operation between national courts and the EFTA Surveillance Authority in applying Articles 53 and 54 of the EEA Agreement, not yet published.

| — | Notice on cooperation between national competition authorities and the EFTA Surveillance Authority in handling cases falling within the scope of Articles 53 and 54 of the EEA Agreement, not yet published. |
| --- | --- |

—

Notice on cooperation between national competition authorities and the EFTA Surveillance Authority in handling cases falling within the scope of Articles 53 and 54 of the EEA Agreement, not yet published.

2.   Vertical agreements

| — | Act corresponding to Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ L 336, 29.12.1999, p. 21) referred to in Chapter B, point 2 of Annex XIV of the EEA Agreement, replaced by EEA Joint Committee Decision No 18/2000,OJ L 103, 12.4.2001, p. 36 and EEA Supplement to the OJ 20, 12.4.2001, p. 179. |
| --- | --- |

—

Act corresponding to Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ L 336, 29.12.1999, p. 21) referred to in Chapter B, point 2 of Annex XIV of the EEA Agreement, replaced by EEA Joint Committee Decision No 18/2000,OJ L 103, 12.4.2001, p. 36 and EEA Supplement to the OJ 20, 12.4.2001, p. 179.

| — | Guidelines on Vertical Restraints (OJ C 122, 23.5.2002, p. 1 and EEA Supplement to the OJ 26, 23.5.2002, p. 7). |
| --- | --- |

—

Guidelines on Vertical Restraints (OJ C 122, 23.5.2002, p. 1 and EEA Supplement to the OJ 26, 23.5.2002, p. 7).

3.   Horizontal co-operation agreements

| — | Act corresponding to Commission Regulation (EC) No 2658/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to categories of specialization agreements (OJ L 304, 5.12.2000, p. 3) referred to in Chapter D, point 6 of Annex IX to the EEA Agreement, replaced by EEA Joint Committee Decision No 113/2000 OJ L 52, 22.2.2001, p. 38 and EEA Supplement to the OJ 9, 22.2.2001, p. 5. |
| --- | --- |

—

Act corresponding to Commission Regulation (EC) No 2658/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to categories of specialization agreements (OJ L 304, 5.12.2000, p. 3) referred to in Chapter D, point 6 of Annex IX to the EEA Agreement, replaced by EEA Joint Committee Decision No 113/2000 OJ L 52, 22.2.2001, p. 38 and EEA Supplement to the OJ 9, 22.2.2001, p. 5.

| — | Act corresponding to Commission Regulation (EC) 2659/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to categories of research and development agreements (OJ L 304, 5.12.2000, p. 7) referred to in Chapter D, point 7 of Annex IX to the EEA Agreement (replaced by EEA Joint Committee Decision No 113/2000 OJ L 52, 22.2.2001, p. 38 and EEA Supplement to the OJ 9, 22.2.2001, p. 5). |
| --- | --- |

—

Act corresponding to Commission Regulation (EC) 2659/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to categories of research and development agreements (OJ L 304, 5.12.2000, p. 7) referred to in Chapter D, point 7 of Annex IX to the EEA Agreement (replaced by EEA Joint Committee Decision No 113/2000 OJ L 52, 22.2.2001, p. 38 and EEA Supplement to the OJ 9, 22.2.2001, p. 5).

| — | Guidelines on the applicability of Article 53 of the EEA Agreement to horizontal co-operation agreements (OJ C 266, 31.10.2002, p. 1 and EEA Supplement to the OJ 55, 31.10.2002, p. 1). |
| --- | --- |

—

Guidelines on the applicability of Article 53 of the EEA Agreement to horizontal co-operation agreements (OJ C 266, 31.10.2002, p. 1 and EEA Supplement to the OJ 55, 31.10.2002, p. 1).

4.   Licensing agreements for the transfer of technology

| — | Act corresponding to Commission Regulation (EC) No 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements (OJ L 123, 27.4.2004, p. 11), referred to in Chapter C, Point 5 of Annex XIV of the EEA Agreement, inserted by EEA Joint Committee Decision 42/2005, not yet published. |
| --- | --- |

—

Act corresponding to Commission Regulation (EC) No 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements (OJ L 123, 27.4.2004, p. 11), referred to in Chapter C, Point 5 of Annex XIV of the EEA Agreement, inserted by EEA Joint Committee Decision 42/2005, not yet published.

B.   Sector specific rules

1.   Insurance

| — | Act corresponding to Regulation (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector (OJ L 53, 28.2.2003, p. 8) referred to in Chapter J, point 15b of Annex XIV of the EEA Agreement, inserted by EEA Joint Committee Decision No 82/2003 (OJ L 257, 9.10.2003, p. 37 and EEA Supplement to the OJ 51, 9.10.2003, p. 24). |
| --- | --- |

—

Act corresponding to Regulation (EC) No 358/2003 of 27 February 2003 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices in the insurance sector (OJ L 53, 28.2.2003, p. 8) referred to in Chapter J, point 15b of Annex XIV of the EEA Agreement, inserted by EEA Joint Committee Decision No 82/2003 (OJ L 257, 9.10.2003, p. 37 and EEA Supplement to the OJ 51, 9.10.2003, p. 24).

2.   Motor vehicles

| — | Act corresponding to Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (OJ L 203, 1.8.2002, p. 30) referred to in Chapter B, point 4b of Annex XIV of the EEA Agreement, inserted by EEA Joint Committee Decision no 136/2002 OJ L 336, 12.12.2002, p. 38 and EEA Supplement to the OJ 61, 12.12.2002, p. 31. |
| --- | --- |

—

Act corresponding to Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (OJ L 203, 1.8.2002, p. 30) referred to in Chapter B, point 4b of Annex XIV of the EEA Agreement, inserted by EEA Joint Committee Decision no 136/2002 OJ L 336, 12.12.2002, p. 38 and EEA Supplement to the OJ 61, 12.12.2002, p. 31.

3.   Telecommunications

| — | Guidelines on the application of EEA competition rules in the telecommunications sector (OJ L 153, 18.6.1994, p. 35 and EEA Supplement to the OJ 15, 18.6.1994, p. 34) |
| --- | --- |

—

Guidelines on the application of EEA competition rules in the telecommunications sector (OJ L 153, 18.6.1994, p. 35 and EEA Supplement to the OJ 15, 18.6.1994, p. 34)

4.   Transport

| — | Act corresponding to Regulation (EEC) No 1617/93 on the application of Article 81(3) of the Treaty to certain categories of agreements and concerted practices concerning joint planning and co-ordination of schedules, joint operations, consultations on passenger and cargo tariffs on scheduled air services and slot allocation at airports (OJ L 155, 26.6.1993, p. 18), referred to in Chapter G, point 11b of Annex XIV of the EEA Agreement, inserted by EEA Joint Committee decision No 7/1994 and amended by EEA Joint Committee decision No 65/1996, OJ L 71, 13.3,1997, p. 38 and EEA Supplement to the OJ 11, 13.3.1997, p. 41, and EEA Joint Committee decision No 87/1999, OJ L 296, 23.11.2000, p. 47 and EEA Supplement to the OJ 54, 23.11.2000, p. 268 (Icelandic) and Del 2, p. 232 (Norwegian), and by decision of the EEA Joint Committee No 96/2001, OJ L 251, 20.9.2001, p. 23 and EEA Supplement to the OJ 47, 20.9.2001, p. 10. |
| --- | --- |

—

Act corresponding to Regulation (EEC) No 1617/93 on the application of Article 81(3) of the Treaty to certain categories of agreements and concerted practices concerning joint planning and co-ordination of schedules, joint operations, consultations on passenger and cargo tariffs on scheduled air services and slot allocation at airports (OJ L 155, 26.6.1993, p. 18), referred to in Chapter G, point 11b of Annex XIV of the EEA Agreement, inserted by EEA Joint Committee decision No 7/1994 and amended by EEA Joint Committee decision No 65/1996, OJ L 71, 13.3,1997, p. 38 and EEA Supplement to the OJ 11, 13.3.1997, p. 41, and EEA Joint Committee decision No 87/1999, OJ L 296, 23.11.2000, p. 47 and EEA Supplement to the OJ 54, 23.11.2000, p. 268 (Icelandic) and Del 2, p. 232 (Norwegian), and by decision of the EEA Joint Committee No 96/2001, OJ L 251, 20.9.2001, p. 23 and EEA Supplement to the OJ 47, 20.9.2001, p. 10.

| — | Act corresponding to Regulation (EC) No 823/2000 of 19 April 2000 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia) (OJ L 100, 20.4.2000, p. 24), referred to in Chapter G, point 11c of Annex XIV to the EEA Agreement, inserted by EEA Joint Committee decision No 12/1996, OJ L 124, 23.5.1996, p. 13 and EEA Supplement to the OJ 22, 23.5.1996, p. 54, replaced by EEA Joint Committee decision No 49/2000, OJ L 237, 21.9.2000, p. 60 and EEA Supplement to the OJ 42, 21.9.2000, p. 3. |
| --- | --- |

—

Act corresponding to Regulation (EC) No 823/2000 of 19 April 2000 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia) (OJ L 100, 20.4.2000, p. 24), referred to in Chapter G, point 11c of Annex XIV to the EEA Agreement, inserted by EEA Joint Committee decision No 12/1996, OJ L 124, 23.5.1996, p. 13 and EEA Supplement to the OJ 22, 23.5.1996, p. 54, replaced by EEA Joint Committee decision No 49/2000, OJ L 237, 21.9.2000, p. 60 and EEA Supplement to the OJ 42, 21.9.2000, p. 3.

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| 14.12.2006 | EN | Official Journal of the European Union | C 305/32 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/32

---

Notification from the Norwegian authorities concerning regionally differentiated social security contributions

The EFTA Surveillance Authority has decided not to raise objections against the notified measure

(2006/C 305/11)

Date of adoption:

EFTA State: Norway

Case No: 59280

Title: Regionally differentiated social security contributions

Objective: Reduce or prevent depopulation in the least populated regions in Norway by stimulating employment in these regions

Legal basis: Article 1 of the yearly Resolution of the Parliament on rates for social security contributions etc, and Section 23-2 of Act No 19 of 28 February 1997 relating to the National Insurance Scheme (Folketrygdloven)

Budget: Approximately NOK 8Formula billion (approximately EUR 1 billion) annually

Duration: From 1 January 2007 to 31 December 2013

The authentic text of the decision, from which all confidential information has been removed, can be found at:

http://www.eftasurv.int/fieldsofwork/fieldstateaid/stateaidregistry/

---

| 14.12.2006 | EN | Official Journal of the European Union | C 305/33 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/33

---

Values of thresholds in the field of public procurement

(2006/C 305/12)

The values of thresholds applicable pursuant to the Act referred to at point 2 (1) of Annex XVI to the EEA Agreement (Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004, as amended by Commission Regulation (EC) No 2083/2005) and the Act referred to at point 4 (2) of Annex XVI to the EEA Agreement (Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004, as amended by Commission Regulation (EC) No 2083/2005) are the following:

| Euro | Icelandic krónur | Swiss Franken
  (Liechtenstein) | Norwegian kroner |
| --- | --- | --- | --- |
| 80 000 | 6 812 745 | 123 725 | 660 000 |
| 137 000 | 11 666 826 | 211 880 | 1 130 250 |
| 211 000 | 17 968 616 | 326 326 | 1 740 750 |
| 422 000 | 35 937 233 | 652 652 | 3 481 500 |
| 1 000 000 | 85 159 320 | 1 546 570 | 8 250 000 |
| 5 278 000 | 449 470 890 | 8 162 796 | 43 543 500 |

Euro

Icelandic krónur

Swiss Franken

(Liechtenstein)

Norwegian kroner

80 000

6 812 745

123 725

660 000

137 000

11 666 826

211 880

1 130 250

211 000

17 968 616

326 326

1 740 750

422 000

35 937 233

652 652

3 481 500

1 000 000

85 159 320

1 546 570

8 250 000

5 278 000

449 470 890

8 162 796

43 543 500

---

(1)  As amended by Decisions of the EEA Joint Committee No 68/2006 and No 69/2006, both of 2 June 2006, amending Annex XVI (Procurement) to the EEA Agreement.

(2)  Idem.

---

| 14.12.2006 | EN | Official Journal of the European Union | C 305/34 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/34

---

EFTA Surveillance Authority Notice on informal guidance relating to novel questions concerning Articles 53 and 54 of the EEA Agreement that arise in individual cases (guidance letters)

(2006/C 305/13)

| A. | The present notice is issued pursuant to the rules of the Agreement on the European Economic Area (hereafter the ‘EEA Agreement’) and the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (hereafter the ‘Surveillance and Court Agreement’). |
| --- | --- |

A.

The present notice is issued pursuant to the rules of the Agreement on the European Economic Area (hereafter the ‘EEA Agreement’) and the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (hereafter the ‘Surveillance and Court Agreement’).

| B. | The European Commission (hereafter the ‘Commission’) has issued a notice entitled ‘Commission Notice on informal guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidance letters)’ (1). That non-binding act contains principles and rules which the Commission follows in the field of competition. It also explains how the Commission intends to provide informal guidance to undertakings. |
| --- | --- |

B.

The European Commission (hereafter the ‘Commission’) has issued a notice entitled ‘Commission Notice on informal guidance relating to novel questions concerning Articles 81 and 82 of the EC Treaty that arise in individual cases (guidance letters)’ (1). That non-binding act contains principles and rules which the Commission follows in the field of competition. It also explains how the Commission intends to provide informal guidance to undertakings.

| C. | The EFTA Surveillance Authority considers the abovementioned act to be EEA relevant. In order to maintain equal conditions of competition and to ensure a uniform application of the EEA competition rules throughout the European Economic Area, the Authority adopts the present notice under the power conferred upon it by Article 5(2)(b) of the Surveillance and Court Agreement. It intends to follow the principles and rules laid down in this notice when applying the relevant EEA rules to a particular case (2). |
| --- | --- |

C.

The EFTA Surveillance Authority considers the abovementioned act to be EEA relevant. In order to maintain equal conditions of competition and to ensure a uniform application of the EEA competition rules throughout the European Economic Area, the Authority adopts the present notice under the power conferred upon it by Article 5(2)(b) of the Surveillance and Court Agreement. It intends to follow the principles and rules laid down in this notice when applying the relevant EEA rules to a particular case (2).

| D. | In particular, the purpose of this Notice is to spell out how the EFTA Surveillance Authority aims to provide informal guidance concerning its application of Articles 53 and 54 of the EEA Agreement in a particular case. |
| --- | --- |

D.

In particular, the purpose of this Notice is to spell out how the EFTA Surveillance Authority aims to provide informal guidance concerning its application of Articles 53 and 54 of the EEA Agreement in a particular case.

| E. | The present notice applies to cases where the Authority is the competent surveillance authority under Article 56 of the EEA Agreement. |
| --- | --- |

E.

The present notice applies to cases where the Authority is the competent surveillance authority under Article 56 of the EEA Agreement.

I.   CHAPTER II OF PART I OF PROTOCOL 4 TO THE SURVEILLANCE AND COURT AGREEMENT

| 1. | Chapter II of Part I of Protocol 4 to the Surveillance and Court Agreement (3) (hereafter ‘Chapter II’) sets up a new enforcement system for Articles 53 and 54 of the EEA Agreement in the EFTA pillar. While designed to restore the focus on the primary task of effective enforcement of the competition rules, Chapter II also creates legal certainty inasmuch as it provides that agreements (4) which fall under Article 53(1) but fulfil the conditions in Article 53(3) are valid and fully enforceable ab initio without a prior decision by a competition authority (Article 1 of Chapter II). |
| --- | --- |

1.

Chapter II of Part I of Protocol 4 to the Surveillance and Court Agreement (3) (hereafter ‘Chapter II’) sets up a new enforcement system for Articles 53 and 54 of the EEA Agreement in the EFTA pillar. While designed to restore the focus on the primary task of effective enforcement of the competition rules, Chapter II also creates legal certainty inasmuch as it provides that agreements (4) which fall under Article 53(1) but fulfil the conditions in Article 53(3) are valid and fully enforceable ab initio without a prior decision by a competition authority (Article 1 of Chapter II).

| 2. | The framework of Chapter II, while introducing a system where the EFTA Surveillance Authority, EFTA States' competition authorities and EFTA States' courts can apply Articles 53 and 54 in their entirety, limits risks of inconsistent application by a range of measures, thereby ensuring the primary aspect of legal certainty for companies, i.e. that the competition rules are applied in a consistent way throughout the territory covered by the EEA Agreement. |
| --- | --- |

2.

The framework of Chapter II, while introducing a system where the EFTA Surveillance Authority, EFTA States' competition authorities and EFTA States' courts can apply Articles 53 and 54 in their entirety, limits risks of inconsistent application by a range of measures, thereby ensuring the primary aspect of legal certainty for companies, i.e. that the competition rules are applied in a consistent way throughout the territory covered by the EEA Agreement.

| 3. | Undertakings are generally well placed to assess the legality of their actions in such a way as to enable them to take an informed decision on whether to go ahead with an agreement or practice and in what form. They are close to the facts and have at their disposal the framework of acts corresponding to Community block exemption regulations referred to in Annex XIV to the EEA Agreement (hereafter ‘block exemptions’), case law and case practice as well as extensive guidance in the EFTA Surveillance Authority's guidelines and notices (5). |
| --- | --- |

3.

Undertakings are generally well placed to assess the legality of their actions in such a way as to enable them to take an informed decision on whether to go ahead with an agreement or practice and in what form. They are close to the facts and have at their disposal the framework of acts corresponding to Community block exemption regulations referred to in Annex XIV to the EEA Agreement (hereafter ‘block exemptions’), case law and case practice as well as extensive guidance in the EFTA Surveillance Authority's guidelines and notices (5).

| 4. | Alongside the reform of the rules implementing Articles 53 and 54 brought about by Chapter II and the existing block exemptions, EFTA Surveillance Authority notices and guidelines have been revised with a view to further assist self-assessment by economic operators. The Authority has also produced guidelines on the application of Article 53(3) (6). This allows undertakings in the vast majority of cases to reliably assess their agreements with regard to Article 53. Furthermore, the Authority will impose more than symbolic fines (7) only in cases where it is established, either in horizontal instruments or in the case law and practice that a certain behaviour constitutes an infringement. |
| --- | --- |

4.

Alongside the reform of the rules implementing Articles 53 and 54 brought about by Chapter II and the existing block exemptions, EFTA Surveillance Authority notices and guidelines have been revised with a view to further assist self-assessment by economic operators. The Authority has also produced guidelines on the application of Article 53(3) (6). This allows undertakings in the vast majority of cases to reliably assess their agreements with regard to Article 53. Furthermore, the Authority will impose more than symbolic fines (7) only in cases where it is established, either in horizontal instruments or in the case law and practice that a certain behaviour constitutes an infringement.

| 5. | Where cases, despite the above elements, give rise to genuine uncertainty because they present novel or unresolved questions for the application of Articles 53 and 54, individual undertakings may wish to seek informal guidance from the EFTA Surveillance Authority. Where it considers it appropriate and subject to its enforcement priorities, the Authority may provide such guidance on novel questions concerning the interpretation of Articles 53 and/or 54 in a written statement (guidance letter). The present Notice sets out details of this instrument. |
| --- | --- |

5.

Where cases, despite the above elements, give rise to genuine uncertainty because they present novel or unresolved questions for the application of Articles 53 and 54, individual undertakings may wish to seek informal guidance from the EFTA Surveillance Authority. Where it considers it appropriate and subject to its enforcement priorities, the Authority may provide such guidance on novel questions concerning the interpretation of Articles 53 and/or 54 in a written statement (guidance letter). The present Notice sets out details of this instrument.

II.   FRAMEWORK FOR ASSESSING WHETHER TO ISSUE A GUIDANCE LETTER

| 6. | Chapter II confers powers on the EFTA Surveillance Authority to effectively prosecute infringements of Articles 53 and 54 and to impose sanctions (8). One major objective of Chapter II is to ensure efficient enforcement of the EEA competition rules by removing the former notification system and thus allowing the Authority to focus its enforcement policy on the most serious infringements. |
| --- | --- |

6.

Chapter II confers powers on the EFTA Surveillance Authority to effectively prosecute infringements of Articles 53 and 54 and to impose sanctions (8). One major objective of Chapter II is to ensure efficient enforcement of the EEA competition rules by removing the former notification system and thus allowing the Authority to focus its enforcement policy on the most serious infringements.

| 7. | While Chapter II is without prejudice to the ability of the EFTA Surveillance Authority to issue informal guidance to individual undertakings, as set out in this Notice, this ability should not interfere with the primary objective of Chapter II, which is to ensure effective enforcement. The Authority may therefore only provide informal guidance to individual undertakings in so far as this is compatible with its enforcement priorities. |
| --- | --- |

7.

While Chapter II is without prejudice to the ability of the EFTA Surveillance Authority to issue informal guidance to individual undertakings, as set out in this Notice, this ability should not interfere with the primary objective of Chapter II, which is to ensure effective enforcement. The Authority may therefore only provide informal guidance to individual undertakings in so far as this is compatible with its enforcement priorities.

| 8. | Subject to point 7, the EFTA Surveillance Authority, seized of a request for a guidance letter, will consider whether it is appropriate to process it. Issuing a guidance letter may only be considered if the following cumulative conditions are fulfilled:






  a) | The substantive assessment of an agreement or practice with regard to Articles 53 and/or 54 of the EEA Agreement, poses a question of application of the law for which there is no clarification in the existing EEA legal framework including the case law of the EFTA Court and the Community Courts, nor publicly available general guidance or precedent in the decision-making practice or previous guidance letters of the EFTA Surveillance Authority or the Commission (9). |
| --- | --- | --- |

8.

Subject to point 7, the EFTA Surveillance Authority, seized of a request for a guidance letter, will consider whether it is appropriate to process it. Issuing a guidance letter may only be considered if the following cumulative conditions are fulfilled:

a)

The substantive assessment of an agreement or practice with regard to Articles 53 and/or 54 of the EEA Agreement, poses a question of application of the law for which there is no clarification in the existing EEA legal framework including the case law of the EFTA Court and the Community Courts, nor publicly available general guidance or precedent in the decision-making practice or previous guidance letters of the EFTA Surveillance Authority or the Commission (9).

| b) | A prima facie evaluation of the specificities and background of the case suggests that the clarification of the novel question through a guidance letter is useful, taking into account the following elements:






  — | the economic importance from the point of view of the consumer of the goods or services concerned by the agreement or practice, and/or |
| --- | --- | --- |

b)

A prima facie evaluation of the specificities and background of the case suggests that the clarification of the novel question through a guidance letter is useful, taking into account the following elements:

—

the economic importance from the point of view of the consumer of the goods or services concerned by the agreement or practice, and/or

| — | the extent to which the agreement or practice corresponds or is liable to correspond to more widely spread economic usage in the marketplace, and/or |
| --- | --- |

—

the extent to which the agreement or practice corresponds or is liable to correspond to more widely spread economic usage in the marketplace, and/or

| — | the extent of the investments linked to the transaction in relation to the size of the companies concerned and the extent to which the transaction relates to a structural operation such as the creation of a non-full function joint venture. |
| --- | --- |

—

the extent of the investments linked to the transaction in relation to the size of the companies concerned and the extent to which the transaction relates to a structural operation such as the creation of a non-full function joint venture.

| c) | It is possible to issue a guidance letter on the basis of the information provided, i.e. no further fact-finding is required. |
| --- | --- |

c)

It is possible to issue a guidance letter on the basis of the information provided, i.e. no further fact-finding is required.

| 9. | Furthermore, the EFTA Surveillance Authority will not consider a request for a guidance letter in either of the following circumstances:






  — | the questions raised in the request are identical or similar to issues raised in a case pending before the EFTA Court, the Court of Justice or the Court of First Instance of the European Communities; |
| --- | --- | --- |

9.

Furthermore, the EFTA Surveillance Authority will not consider a request for a guidance letter in either of the following circumstances:

—

the questions raised in the request are identical or similar to issues raised in a case pending before the EFTA Court, the Court of Justice or the Court of First Instance of the European Communities;

| — | the agreement or practice to which the request refers is subject to proceedings pending with the Authority, an EFTA State court or an EFTA State competition authority. |
| --- | --- |

—

the agreement or practice to which the request refers is subject to proceedings pending with the Authority, an EFTA State court or an EFTA State competition authority.

| 10. | The EFTA Surveillance Authority will not consider hypothetical questions and will not issue guidance letters on agreements or practices that are no longer being implemented by the parties. Undertakings may however present a request for a guidance letter to the Authority in relation to questions raised by an agreement or practice that they envisage, i.e. before the implementation of that agreement or practice. In this case the transaction must have reached a sufficiently advanced stage for a request to be considered. |
| --- | --- |

10.

The EFTA Surveillance Authority will not consider hypothetical questions and will not issue guidance letters on agreements or practices that are no longer being implemented by the parties. Undertakings may however present a request for a guidance letter to the Authority in relation to questions raised by an agreement or practice that they envisage, i.e. before the implementation of that agreement or practice. In this case the transaction must have reached a sufficiently advanced stage for a request to be considered.

| 11. | A request for a guidance letter is without prejudice to the power of the EFTA Surveillance Authority to open proceedings in accordance with Chapter II with regard to the facts presented in the request. |
| --- | --- |

11.

A request for a guidance letter is without prejudice to the power of the EFTA Surveillance Authority to open proceedings in accordance with Chapter II with regard to the facts presented in the request.

III.   INDICATIONS ON HOW TO REQUEST GUIDANCE

| 12. | A request can be presented by an undertaking or undertakings which have entered into or intend to enter into an agreement or practice that could fall within the scope of Articles 53 and/or 54 of the EEA Agreement with regard to questions of interpretation raised by such agreement or practice. |
| --- | --- |

12.

A request can be presented by an undertaking or undertakings which have entered into or intend to enter into an agreement or practice that could fall within the scope of Articles 53 and/or 54 of the EEA Agreement with regard to questions of interpretation raised by such agreement or practice.

| 13. | A request for a guidance letter should be addressed to the following address:





  EFTA Surveillance Authority |
| --- | --- |
| Competition and State Aid Directorate |
| Rue Belliard 35 |
| B-1040 Bruxelles/Brussel |

13.

A request for a guidance letter should be addressed to the following address:

EFTA Surveillance Authority

Competition and State Aid Directorate

Rue Belliard 35

B-1040 Bruxelles/Brussel

| 14. | There is no form. A memorandum should be presented which clearly states:






  — | the identity of all undertakings concerned as well as a single address for contacts with the EFTA Surveillance Authority; |
| --- | --- | --- |

14.

There is no form. A memorandum should be presented which clearly states:

—

the identity of all undertakings concerned as well as a single address for contacts with the EFTA Surveillance Authority;

| — | the specific questions on which guidance is sought; |
| --- | --- |

—

the specific questions on which guidance is sought;

| — | full and exhaustive information on all points relevant for an informed evaluation of the questions raised, including pertinent documentation; |
| --- | --- |

—

full and exhaustive information on all points relevant for an informed evaluation of the questions raised, including pertinent documentation;

| — | a detailed reasoning, having regard to point 8 a), why the request presents (a) novel question(s); |
| --- | --- |

—

a detailed reasoning, having regard to point 8 a), why the request presents (a) novel question(s);

| — | all other information that permits an evaluation of the request in the light of the aspects explained in points 8 — 10 of this Notice, including in particular a declaration that the agreement or practice to which the request refers is not subject to proceedings pending before an EFTA State court or an EFTA State competition authority; |
| --- | --- |

—

all other information that permits an evaluation of the request in the light of the aspects explained in points 8 — 10 of this Notice, including in particular a declaration that the agreement or practice to which the request refers is not subject to proceedings pending before an EFTA State court or an EFTA State competition authority;

| — | where the request contains elements that are considered business secrets, a clear identification of these elements; |
| --- | --- |

—

where the request contains elements that are considered business secrets, a clear identification of these elements;

| — | any other information or documentation relevant to the individual case. |
| --- | --- |

—

any other information or documentation relevant to the individual case.

IV.   PROCESSING OF THE REQUEST

| 15. | The EFTA Surveillance Authority will in principle evaluate the request on the basis of the information provided. Notwithstanding point 8 c), the Authority may use additional information at its disposal from public sources, former proceedings or any other source and may ask the applicant(s) to provide supplementary information. The normal rules on professional secrecy apply to the information supplied by the applicant(s). |
| --- | --- |

15.

The EFTA Surveillance Authority will in principle evaluate the request on the basis of the information provided. Notwithstanding point 8 c), the Authority may use additional information at its disposal from public sources, former proceedings or any other source and may ask the applicant(s) to provide supplementary information. The normal rules on professional secrecy apply to the information supplied by the applicant(s).

| 16. | The EFTA Surveillance Authority may share the information submitted to it with the Commission and the EFTA States' competition authorities and receive input from them. It may discuss the substance of the request with the Commission or the EFTA States' competition authorities before issuing a guidance letter. |
| --- | --- |

16.

The EFTA Surveillance Authority may share the information submitted to it with the Commission and the EFTA States' competition authorities and receive input from them. It may discuss the substance of the request with the Commission or the EFTA States' competition authorities before issuing a guidance letter.

| 17. | Where no guidance letter is issued, the EFTA Surveillance Authority shall inform the applicant(s) accordingly. |
| --- | --- |

17.

Where no guidance letter is issued, the EFTA Surveillance Authority shall inform the applicant(s) accordingly.

| 18. | An undertaking can withdraw its request at any point in time. In any case, information supplied in the context of a request for guidance remains with the EFTA Surveillance Authority and can be used in subsequent procedures under Chapter II (cf. point 11 above). |
| --- | --- |

18.

An undertaking can withdraw its request at any point in time. In any case, information supplied in the context of a request for guidance remains with the EFTA Surveillance Authority and can be used in subsequent procedures under Chapter II (cf. point 11 above).

V.   GUIDANCE LETTERS

| 19. | A guidance letter sets out:






  — | a summary description of the facts on which it is based; |
| --- | --- | --- |

19.

A guidance letter sets out:

—

a summary description of the facts on which it is based;

| — | the principal legal reasoning underlying the understanding of the EFTA Surveillance Authority on novel questions relating to Articles 53 and/or 54 raised by the request. |
| --- | --- |

—

the principal legal reasoning underlying the understanding of the EFTA Surveillance Authority on novel questions relating to Articles 53 and/or 54 raised by the request.

| 20. | A guidance letter may be limited to part of the questions raised in the request. It may also include additional aspects to those set out in the request. |
| --- | --- |

20.

A guidance letter may be limited to part of the questions raised in the request. It may also include additional aspects to those set out in the request.

| 21. | Guidance letters will be posted on the EFTA Surveillance Authority's web-site, having regard to the legitimate interest of undertakings in the protection of their business secrets. Before issuing a guidance letter, the Authority will agree with the applicants on a public version. |
| --- | --- |

21.

Guidance letters will be posted on the EFTA Surveillance Authority's web-site, having regard to the legitimate interest of undertakings in the protection of their business secrets. Before issuing a guidance letter, the Authority will agree with the applicants on a public version.

VI.   THE EFFECTS OF GUIDANCE LETTERS

| 22. | Guidance letters are in the first place intended to help undertakings carry out themselves an informed assessment of their agreements and practices. |
| --- | --- |

22.

Guidance letters are in the first place intended to help undertakings carry out themselves an informed assessment of their agreements and practices.

| 23. | A guidance letter cannot prejudge the assessment of the same question by the EFTA Court or the Community Courts. |
| --- | --- |

23.

A guidance letter cannot prejudge the assessment of the same question by the EFTA Court or the Community Courts.

| 24. | Where an agreement or practice has formed the factual basis for a guidance letter, the EFTA Surveillance Authority is not precluded from subsequently examining that same agreement or practice in a procedure under Chapter II, in particular following a complaint. In that case, the Authority will take the previous guidance letter into account, subject in particular to changes in the underlying facts, to any new aspects raised by a complaint, to developments in the case law of the EFTA Court, Community Courts or wider changes of the Authority's policy. |
| --- | --- |

24.

Where an agreement or practice has formed the factual basis for a guidance letter, the EFTA Surveillance Authority is not precluded from subsequently examining that same agreement or practice in a procedure under Chapter II, in particular following a complaint. In that case, the Authority will take the previous guidance letter into account, subject in particular to changes in the underlying facts, to any new aspects raised by a complaint, to developments in the case law of the EFTA Court, Community Courts or wider changes of the Authority's policy.

| 25. | Guidance letters are not EFTA Surveillance Authority decisions and do not bind EFTA States' competition authorities or courts that have the power to apply Articles 53 and 54. However, it is open to EFTA States' competition authorities and courts to take account of guidance letters issued by the Authority as they see fit in the context of a case. |
| --- | --- |

25.

Guidance letters are not EFTA Surveillance Authority decisions and do not bind EFTA States' competition authorities or courts that have the power to apply Articles 53 and 54. However, it is open to EFTA States' competition authorities and courts to take account of guidance letters issued by the Authority as they see fit in the context of a case.

---

(1)  OJ C 101, 27.4.2004, pages 78-80.

(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)  When 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 has entered into force, 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).

(4)  In this Notice, the term ‘agreement’ is used for agreements, decisions by associations of undertakings and concerted practices. The term ‘practices’ refers to the conduct of dominant undertakings. The term ‘undertakings’ equally covers ‘associations of undertakings’

(5)  Most of the texts mentioned are available at

http://www.eftasurv.int/fieldsofwork/fieldcompetition/ or at http://europa.eu.int/comm/competition/index_en.html.

(6)  EFTA Surveillance Authority Notice — Guidelines on the application of Article 53(3) of the EEA Agreement, not yet published.

(7)  Symbolic fines will normally be set at EUR 1 000, cf. the EFTA Surveillance Authority's Guidelines on the method of setting fines imposed pursuant to the EEA competition rules, OJ C 10, 16.1.2003, p. 16 and EEA Supplement to the OJ No 3, 16.1.2003, p. 6.

(8)  Cf. in particular Articles 7 to 9, 12, 17-24 and 29 of Chapter II of Part I of Protocol 4 to the Surveillance and Court Agreement.

(9)  Article 6 of the EEA Agreement provides that, without prejudice to future developments of case-law, the provisions of this 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. As stated in Article 58 of the EEA Agreement and Protocol 23 thereto, the Authority and the Commission are to co-operate with a view to inter alia promoting a homogenous implementation, application and interpretation of the EEA Agreement. Although the Commission's Decisions and informal guidance letters are not binding on the Authority, the Authority will thus endeavour to take due account of the case practice of the Commission.

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| 14.12.2006 | EN | Official Journal of the European Union | C 305/38 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/38

---

Authorisation of State aid pursuant to Article 61 of the EEA Agreement and Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement

EFTA Surveillance Authority decision not to raise objections

(2006/C 305/14)

Date of adoption:

EFTA State: Norway

Aid No: Case 59434

Title: Scheme for research, development and innovation in the maritime industry (Maritime RDI).

Objective: The principal objective of the scheme is to strengthen competitiveness and increase the value added in the maritime industry through stimulating research, development and innovation in the industry.

Legal basis: St.prp. nr. 1 (2005-2006) Nærings- og hadelsdepartementet (the state budget, Ministry of Trade and Industry), chapter 2421, section 79 and the Mission Statement for Innovation Norway for 2006.

Budget/ Duration: The budget of the scheme for 2006 is NOK 20 million (approximately EUR 2,6 million). Annual budget's for the following years will be subject to annual parliamentary budget procedures. The duration of the scheme is six years.

The authentic text of the decision, from which all confidential information has been removed, can be found at:

http://www.eftasurv.int/fieldsofwork/fieldstateaid/stateaidregistry

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| 14.12.2006 | EN | Official Journal of the European Union | C 305/39 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/39

---

Invitation to submit comments pursuant to Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement on State aid with regard to the application of Article 3 of the Norwegian VAT Compensation Act

(2006/C 305/15)

By means of Decision No 225/06/COL of 19 June 2006, reproduced in the authentic language on the pages following this summary, the EFTA Surveillance Authority initiated proceedings pursuant to Article 1(2) in Part I of Protocol 3 of the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (Surveillance and Court Agreement). The Norwegian authorities have been informed by means of a copy of the decision.

The EFTA Surveillance Authority hereby gives the EFTA States, EU Member States and interested parties notice to submit their comments on the measure in question within one month from the publication of this notice to:

| EFTA Surveillance Authority |
| --- |
| Registry |
| 35, Rue Belliard |
| B-1040 Brussels |

EFTA Surveillance Authority

Registry

35, Rue Belliard

B-1040 Brussels

The comments will be communicated to the Norwegian authorities. Confidential treatment of the identity of the interested party submitting the comments may be requested in writing, stating the reasons for the request.

SUMMARY

PROCEDURE

By letter dated 16 October 2003, the Authority received a complaint in which it was alleged that several county municipal schools which provide specialised educational services in competition with private providers receive State aid through the application of the input tax compensation provided for in Article 3 of the Norwegian VAT Compensation Act.

After correspondence with the Norwegian authorities as well as with the complainant, the Authority has decided to open the formal investigation procedure with regard to this measure.

ASSESSMENT OF THE MEASURE

The Norwegian authorities introduced value added tax in 1970. Although there is a general liability to pay output tax on services since 2001, certain services, explicitly mentioned, are still exempted from VAT. Accordingly, undertakings carrying out an activity which does not fall within the scope of the VAT Act pay input tax on their purchases of goods and services but cannot charge output tax on their sales.

With effect from 1 January 2004, the Norwegian authorities adopted the VAT Compensation Act to mitigate distortions of competition resulting from the VAT Act for activities carried out by public authorities which are outside the VAT Act and cannot recover input tax.

According to Article 3 of the VAT Compensation Act, the Norwegian State compensates input tax paid by local and regional authorities, inter-municipal companies, private or non-profit undertakings carrying out statutory obligations of local or regional authorities and certain other institutions when buying goods and services from other registered undertakings. When public undertakings carry out activities within the scope of the VAT Act and consequently charge output tax, they can deduct input tax like other undertakings carrying out the same activities. On the other hand, when public undertakings carry out activities which fall outside the VAT Act, the VAT Compensation Act provides for the reimbursement of paid input tax. On their side, private competitors carrying out the same activities but which are not listed under the VAT Compensation Act are not compensated for paid input tax. Although the main objective of this Act was to create a level playing field between self supply and outsourcing by public entities, it has created a new distortion of competition when public entities produce services in competition with other private undertakings.

In the preliminary view of the Authority, the compensation granted under the VAT Compensation Act constitutes State aid within the meaning of Article 61(1) of the EEA Agreement. The State grants a selective advantage only to undertakings listed under the VAT Compensation Act which are in competition with other undertakings within the EEA.

If regarded as State aid, compensation for input tax would constitute operating aid. Therefore, the Authority has doubts as to whether any of the grounds for compatibility foreseen under Article 61(2) and (3) of the EEA Agreement could be applicable to the case at hand. Furthermore, the Authority preliminarily considers that Article 59(2) of the EEA Agreement does not seem to justify the compatibility of the VAT Compensation Act.

CONCLUSION

In the light of the foregoing considerations, the Authority decided to open the formal investigation procedure in accordance with Article 1(2) of the EEA Agreement. Interested parties are invited to submit their comments within one month from publication of this decision in the Official Journal of the European Union.

---

EFTA SURVEILLANCE AUTHORITY DECISION

No 225/06/COL

of 19 July 2006

to initiate the procedure provided for in Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement with regard to Article 3 of the Norwegian Act on compensation for value added tax (VAT)

(Norway)

THE EFTA SURVEILLANCE AUTHORITY (1),

Having regard to the Agreement on the European Economic Area (2), in particular to Articles 61 to 63 and Protocol 26 thereof,

Having regard to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (3), in particular to Article 24 thereof,

Having regard to Article 1(2) in Part I and Articles 4(4), 6 and 10 in Part II of Protocol 3 to the Surveillance and Court Agreement,

Whereas:

I.   FACTS

1   Procedure

By letter dated 16 October 2003, the Authority received a complaint in which it was alleged that several county municipal schools, which provide specialised educational services in competition with the complainant, receive State aid through the application of input tax compensation provided for in Article 3 of the Value Added Tax Compensation Act (4). According to the complainant, municipal schools that provide certain educational services falling outside the VAT system in competition with other undertakings, receive a compensation for the input VAT paid on goods and services purchased in relation to the services they provide on commercial basis, to which private competitors are not entitled. The letter was received and registered by the Authority on 20 October 2003(Doc. No. 03-7325 A).

After various telephone calls between the Authority and the complainant, the latter sent a letter dated 27 July 2004 providing additional information regarding the original complaint (Event No. 289514).

By letter dated 15 December 2004(Event No. 189295), the Authority informed the Norwegian authorities about the complaint and asked the Norwegian authorities for comments. Further, the Authority requested information and clarifications on the application of the input tax compensation in general and, more specifically, to the public undertakings referred to in the above-mentioned complaint.

By letter dated 17 January 2005 from the Mission of Norway to the European Union, forwarding two letters dated 14 January 2005, respectively from the Ministry of Modernisation and the Ministry of Finance, the Norwegian authorities provided answers to the Authority's questions on the application of input tax compensation in Article 3 of the VAT Compensation Act. The letter was received and registered by the Authority on 18 January 2005(Event No. 305693).

By letter dated 12 April 2005 from the Mission of Norway to the European Union, forwarding two letters dated 11 April 2005, respectively from the Ministry of Modernisation and the Ministry of Finance, the Norwegian authorities provided information in relation to the seven county municipal schools. The letter was received and registered by the Authority on 14 April 2005(Event No. 316494).

By letter dated 12 October 2005(Event No. 345123), the Authority sent a second information request to which the Norwegian authorities replied by letter dated 7 December 2005 from the Mission of Norway to the European Union, forwarding two letters dated 2 December 2005 and 30 November 2005 respectively from the Ministry of Modernisation and the Ministry of Finance. The letter was received and registered by the Authority on 8 December 2005(Event No. 353753).

2   Legal framework on VAT and VAT Compensation in Norway

First, on the basis of the information provided by the Norwegian authorities, the Authority will briefly describe the general VAT system in Norway, and the provisions of the VAT compensation basically aimed at local and regional authorities.

2.1   The VAT Act

2.1.1   General introduction

The Norwegian authorities introduced value added tax (5) in 1970 through the Value Added Tax Act of 19 June 1969 (6).

VAT is an indirect tax on consumption of goods and services. VAT is calculated at all stages of the supply chain and on imports of goods and services from abroad. The final consumer, not registered for VAT, absorbs VAT as part of the purchase price. The VAT due at each stage of the supply chain amounts to the difference between output tax and input tax. Output tax is, according to Article 4(1) of the VAT Act, a tax calculated and collected on sales of taxable goods and services. Input tax is, according to Article 4(2) of the VAT Act, a tax accrued on purchases of taxable goods and services. Taxable persons which are liable to output tax are entitled to deduct input tax for the goods and services acquired.

Until 1 July 2001, there was a general liability to pay output tax on supply of goods but only a limited number of services, specifically referred to in the VAT Act, were subject to output tax. From 1 July 2001 onwards, Norway introduced a general liability to pay output tax on supply of services. Certain services explicitly mentioned are still exempted from VAT.

2.1.2   Material scope of the VAT Act

VAT is paid on the sale of goods and services covered by the VAT Act.

Article 2 in Chapter I of the VAT Act provides a definition of goods and services within the meaning of the VAT Act:

‘By goods are meant physical objects, including real property. By goods are also meant electric power, water from waterworks, gas, heat and refrigeration. By a service is meant anything that can be supplied that is not regarded as goods as defined in the first sub-section. Also regarded as a service is a limited right to a physical object or real estate property, together with the total or partial utilisation of intangible property.’

Article 3 in Chapter I of the VAT Act defines a sale as follows:

| ‘— | The delivery of goods in return for a remuneration, including the delivery of goods produced on order or the delivery of goods in connection with the carrying out of services. |
| --- | --- |

‘—

The delivery of goods in return for a remuneration, including the delivery of goods produced on order or the delivery of goods in connection with the carrying out of services.

| — | The carrying out of services in return for remuneration. |
| --- | --- |

—

The carrying out of services in return for remuneration.

| — | The delivery of goods or the carrying out of services as total or partial return for goods or services received’. |
| --- | --- |

—

The delivery of goods or the carrying out of services as total or partial return for goods or services received’.

2.1.3   Deduction and refund (input tax)

It follows from the first sentence in Article 21 in Chapter VI of the VAT Act that, as a main rule, a registered person engaged in trade or business may deduct input tax on goods and services for use in an enterprise from the output tax charged on sales.

2.1.4   Transactions falling outside the scope of the VAT Act (7)

7

Articles 5, 5a and 5b in Chapter I of the VAT Act exempt certain transactions from the scope of application of the VAT Act. According to Article 5, sales by certain institutions, organisations etc (8) are not covered by the VAT Act (9). Furthermore, according to Article 5a, the VAT Act does not apply to the supply and letting of real estate or rights to real property. Finally, it follows from Article 5b that the supply of certain services, amongst others the supply of health and health related services, social services, educational services, financial services, services related to the exercise of public authority, services in the form of entitlement to attend theatre, opera, ballet, cinema and circus performances, exhibitions in galleries and museums, lottery services, services connected with the serving of foodstuffs in school and student canteens, etc, are not covered by the Act. The suppliers of such services are not permitted to charge output tax and, accordingly, do not get credit for input tax on purchases.

8

9

2.1.5   Liability to pay tax

According to Article 10(1) in Chapter III of the VAT Act, persons engaged in trade or business and liable to VAT registration, shall calculate and pay tax on sales of goods and services covered by the Act (10).

10

It follows from the above that any undertaking carrying out an activity which does not fall within the scope of the VAT Act pays input tax on its purchases of goods and services but cannot charge output tax on its sales.

However, when the State, municipalities and institutions which are owned or operated by the State or a municipality engage in activities falling within the scope of the VAT Act, they are subject to VAT in the same way as any other person engaged in trade or business on goods and services (11). These undertakings shall be registered in the VAT Register and calculate output tax on their sales. Accordingly, such undertakings are entitled to deduct input tax but only on goods and services which are sold to others.

11

Finally, as mentioned above, like any other undertaking, the State, municipalities and institutions owned or operated by the State may carry out activities which fall outside the scope of the VAT Act. When they carry out such activities which fall outside the VAT Act, they cannot charge output tax. Thus, they cannot, according to the VAT Act, recover input tax paid on their purchases of goods and services related to the said activity.

2.2   The VAT Compensation Act

2.2.1   General introduction

The VAT Compensation Act entered into force on 1 January 2004. According to Article 1, the objective of the VAT Compensation Act is to mitigate distortion of competition resulting from the VAT Act. According to the Norwegian authorities, the application of the VAT Act may result in distortions of competition for activities carried out by public authorities which are outside the scope of the VAT Act and which cannot accordingly recover input tax. This may influence decisions of public authorities when choosing between self supply of goods and services and purchase of goods and services liable for output tax from private service providers. By compensating public authorities for input tax on all goods and services, in general, the intention of the Norwegian authorities is to create a level playing field between self supply and outsourcing.

By introducing a general input tax compensation scheme in 2004 mainly for local and regional authorities, the Norwegian authorities replaced a limited input tax compensation scheme for local and regional authorities from 1995 (12). The old input tax compensation scheme was limited to services explicitly mentioned in the law. According to Article 2 of the old VAT Compensation Act, compensation of input tax covered only services such as laundry services, real estate construction work services and cleaning services.

12

2.2.2   Preparatory documents

a)   NOU 2003:3 (13)

13

In 2002, the Norwegian authorities appointed an expert committee (14) to consider solutions for making the VAT system neutral for public authorities in relation to procurement of goods and services.

14

The Rattsø Committee recommended introducing a compensation scheme for all input tax incurred by local and regional authorities when buying goods and services.

The Rattsø Committee outlined in its report possible new distortions of competition resulting from the proposed general input tax compensation scheme. According to the Rattsø Committee, a general input tax compensation scheme may imply new significant distortions of competition between municipalities carrying out economic activity and private undertakings when the activities carried out fall outside the scope of the VAT Act. This may apply, in the view of the Rattsø Committee, to the provision of services such as health and education. This means that entities falling within the scope of Article 2 of the VAT Compensation Act (15) are compensated for the input tax paid on all their purchases of goods and services whereas private undertakings providing the same services are not.

15

The Rattsø Committee made an assessment in Section 11.2.8 of its report on the proposed input tax compensation scheme in relation to the State aid rules of the EEA Agreement. The Rattsø Committee pointed out some concerns as to whether the compensation of input tax provided for in Article 3 of the VAT Compensation Act could constitute State aid within the meaning of Article 61(1) of the EEA Agreement (16).

16

b)   Ot.prp. nr. 1 (2003-2004) (17)

17

Based on the considerations of the Rattsø Committee, the Norwegian Government on 3 October 2003 presented a proposition for a new Act on VAT Compensation (18) for municipalities and counties. According to the proposition, public authorities would be compensated for input tax on all goods and services.

18

The proposition acknowledged that a general compensation scheme would involve distortions of competition between public and private providers of services which are outside the scope of the VAT Act. In order to alleviate these distortions, it was i.a. proposed that private and non profit enterprises performing health, education and social services imposed by law should be comprised by the compensation.

i.a.

2.2.3   Legal provisions

Article 2 of the VAT Compensation Act exhaustively lists the legal persons falling within the scope of the Act. The Article reads:

‘This act is applicable to:

‘This act is applicable to:

| a) | Local and regional authorities carrying out local or regional activities in which the local council or county council or another council under the Local Government Act (19) or other special local governmental legislation are the supreme body; |
| --- | --- |

a)

Local and regional authorities carrying out local or regional activities in which the local council or county council or another council under the Local Government Act (19) or other special local governmental legislation are the supreme body;

Local and regional authorities carrying out local or regional activities in which the local council or county council or another council under the Local Government Act (19

| b) | Intermunicipal companies established according to the Local Government Act (20) or other special local governmental legislation; |
| --- | --- |

b)

Intermunicipal companies established according to the Local Government Act (20) or other special local governmental legislation;

Intermunicipal companies established according to the Local Government Act (20

| c) | Private or non-profit undertakings in as far as they carry out health, educational or social services which are statutory obligations of local or regional authorities; |
| --- | --- |

c)

Private or non-profit undertakings in as far as they carry out health, educational or social services which are statutory obligations of local or regional authorities;

Private or non-profit undertakings in as far as they carry out health, educational or social services which are statutory obligations of local or regional authorities;

| d) | Day care institutions as mentioned in Article 6 of the Day Care Act (21); |
| --- | --- |

d)

Day care institutions as mentioned in Article 6 of the Day Care Act (21);

Day care institutions as mentioned in Article 6 of the Day Care Act (21

| e) | Joint Parish Council (Kirkelig fellesråd). |
| --- | --- |

e)

Joint Parish Council (Kirkelig fellesråd).

Joint Parish Council (Kirkelig fellesråd).

The undertakings shall be registered in the Central Coordinating Register for Legal Entities (Enhetsregisteret)’.

The undertakings shall be registered in the Central Coordinating Register for Legal Entities (Enhetsregisteret)’.

According to Article 3 of the VAT Compensation Act, the Norwegian State compensates input tax paid by legal persons falling within the scope of the VAT Compensation Act when buying goods and services from other registered undertakings.

When public undertakings carry out activities within the scope of the VAT Act and consequently charge output tax, they can deduct input tax like other undertakings carrying out the same activities (22). On the other hand, when public undertakings carry out activities which fall outside the VAT Act, the VAT Compensation Act provides for the reimbursement of paid input tax (23).

22

23

Pursuant to Article 4(2) of the VAT Compensation Act, compensation of input tax is not granted when the entity has the right to deduct input VAT according to the VAT Act Chapter VI.

Moreover, Article 5 of the VAT Compensation Act states that total amount of the input tax compensated according to Article 3 of the VAT Compensation Act shall as the main rule be financed by reductions in the annual State transfers to local and regional authorities.

Article 6(1) of the VAT Compensation Act requires legal persons entitled to compensation of input tax to periodically submit data to the County Tax Assessment Office (Fylkesskattekontoret) showing total amount of input tax paid. To qualify for compensation, paid input tax must amount to a minimum of NOK 20 000 within a calendar year (24).

24

2.3   Comments by the Norwegian authorities

In its correspondence with the Authority, the Norwegian authorities claim that the compensation of input tax foreseen under Article 3 of the VAT Compensation Act falls outside the scope of Article 61(1) of the EEA Agreement. The Norwegian authorities allege that when the scheme was introduced in 2004, municipal appropriations in the annual fiscal budget were reduced accordingly by the expected amount of input tax compensated. Therefore, the Norwegian authorities are of the opinion that the input tax compensation scheme is self-financing, and not financed through State resources from the fiscal budget (25).

25

Further, the Norwegian authorities justify the selective nature of Article 3 of the VAT Compensation Act by referring to the objective of the VAT Compensation Act. According to Article 1 of the VAT Compensation Act, the objective is to mitigate distortion of competition resulting from the general VAT system. By compensating the municipalities for input tax on all goods and services, the Norwegian authorities aim to create a level playing field between self-supply and outsourcing. Accordingly, the Norwegian authorities consider that the compensation of input tax provided for in Article 3 of the VAT Compensation Act falls within the nature and logic of the VAT system (26).

26

Nevertheless, the Norwegian authorities acknowledge that the general input tax compensation scheme may imply an economic advantage for public entities carrying out economic activities falling outside the scope of the VAT Act.

On page 3 of the letter dated 30 November 2005 from the Norwegian Ministry of Finance, the Norwegian authorities state the following:

‘The full compensation scheme does not include private undertakings which conduct health services, social services or educational services which the law does not require the municipalities to carry out. Input VAT related to these activities must therefore normally be borne by the private undertakings themselves. Consequently when private undertakings carry out such services their operating costs may exceed the operating costs of municipal participants offering the same services’.

Finally, according to the Norwegian authorities, the scope of the VAT Compensation Act was limited in order to prevent it from becoming too extensive and costly for the tax authorities. When the scheme was framed it was also assumed that the number of public authorities carrying out commercial activities in sectors outside the VAT system was insignificant (27).

27

II.   APPRECIATION

1.   The scope of the current State aid investigation

The current State aid investigation started with a complaint regarding the concrete application of the VAT Compensation Act to a number of public undertakings involved in the provision of specialised educational services on a commercial basis. The State aid assessment of the allegations brought forward by the complainant is however intrinsically linked to the analysis of the VAT Compensation Act. Therefore, in the present decision, the Authority carries out an assessment of the VAT Compensation Act as such in relation to the State aid rules of the EEA Agreement.

2.   State aid within the meaning of Article 61(1) of the EEA Agreement

2.1.   Introduction

Article 61(1) of the EEA Agreement reads as follows:

‘Save as otherwise provided in this Agreement, any aid granted by EC Member States, EFTA States or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Contracting Parties, be incompatible with the functioning of this Agreement.’

First, it must be noted that, as a general rule, the tax system of an EFTA State is not covered by the EEA Agreement. It must be understood that it is for each EFTA State to design and apply a tax system according to its own choices of policy. However, application of a tax measure, such as the input tax compensation provided for in Article 3 of the VAT Compensation Act, may have consequences that would bring it within the scope of Article 61(1) of the EEA Agreement. According to the case-law (28), Article 61(1) does not distinguish between measures of State intervention by reference to their causes or aims but defines them in relation to their effects.

28

Second, the question as to whether the measure at issue constitutes State aid arises only in so far as it concerns an economic activity (29), that is, an activity consisting of offering goods and services on a given market (30). A measure constitutes State aid only if it benefits an undertaking, a concept that, for the purposes of application of the rules on competition, encompasses, according to settled case-law, ‘every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed’
   (31).

29

30

‘every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed’

31

Third, aid may be granted to public undertakings as well as to private undertakings (32). A public undertaking, in order to be regarded as recipient of State aid does not necessarily need to have a legal identity separate from the State. The fact that an entity is governed by public law and is a non-profit making institution does not necessarily mean that it is not an ‘undertaking’ within the meaning of the State aid rules (33). As mentioned above, the criterion is whether the entity carries out activities of an economic nature (34). In the case at hand, the scope of the VAT Compensation Act is not limited to non-economic activities. While compensation for VAT paid for non-economic activities would not amount to State aid, compensation for input VAT in relation to activities of an economic nature may involve State aid.

32

33

34

The Authority will assess the VAT Compensation Act as a scheme. Following the definition laid down in Article 1(d) in Part II of Protocol 3 to the Surveillance and Court Agreement, an aid scheme is any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner. It also encompasses any act on the basis of which aid, which is not linked to a specific project, may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount. The measure under scrutiny concerns the compensation of input VAT to any legal person listed under Article 2 of the VAT Compensation Act which covers local and regional authorities, inter-municipal companies, private and non-profit undertakings carrying out statutory obligations on behalf of local authorities and certain other institutions. The compensation for input VAT is not an individual award of support to a single undertaking but a reoccurring event on a regular basis during an indefinite period of time in favour of an undefined number of beneficiaries. Hence, the notified measure has to be qualified as a scheme.

According to case law (35), the Authority would like to stress that it will assess the general characteristics of a scheme as such without examining each concrete application of the scheme in order to determine whether State aid is involved. The fact that support may also be granted to recipients which do not constitute undertakings does not alter this assessment.

35

2.2.   State resources

In order to constitute State aid within the meaning of Article 61(1) of the EEA Agreement, a measure must be granted by the State or through State resources.

The Authority considers that compensation granted under the VAT Compensation Act is granted by State resources since the compensation is granted by the State (36).

36

In the Authority's view it is not relevant for the assessment of whether the measure implies a drain on State resources, whether the central level of the State's cost of the compensation is counterbalanced by reduced transfer to the local and regional authorities as such. That the central level of the State finances is balanced by reducing internal block transfers between different levels of administration, does not alter this conclusion. In any case and although there is an aim to avoid reallocation of economic means between municipalities, reductions in transfers to individual municipalities are in principle independent of what they receive as compensation (37).

37

2.3.   Economic advantage

First, an aid measure must confer on the beneficiaries advantages that relieve them of charges that are normally borne from their budget.

A financial measure granted by the State or through State resources to an undertaking which would relieve it from costs which would normally have to be borne by its own budget constitutes an economic advantage (38). As a preliminary remark, as stated above, a public authority is only considered to be an undertaking when it carries out an economic activity.

38

The payment of input tax is an operating cost related to purchases in the normal course of an undertakings' economic activity, which is normally borne by the undertaking itself. To the extent that the Norwegian authorities compensate input tax on purchases of goods and services to undertakings not subject to VAT, but falling within the scope of Article 2 of the VAT Compensation Act, they grant those undertakings an economic advantage. The operating costs which those undertakings will have to put up with are reduced in accordance with the amount of input tax compensated. In respect of goods and services not subject to output tax (with no credit for input tax), the Norwegian authorities grant, in application of the VAT Compensation Act, an advantage to the undertakings entitled to input tax compensation compared to those undertakings falling outside the scope of Article 2 of the VAT Compensation Act, which are not compensated for input tax.

2.4.   Selectivity

Further, to constitute State aid within the meaning of Article 61(1) of the EEA Agreement, the measure must be selective in that it favours ‘certain undertakings or the production of certain goods’. It has first to be assessed whether the VAT Compensation constitutes a selective measure for being a derogation from the general VAT System. If confirmative, it has to be assessed whether the derogation nevertheless is justified due to the nature or general scheme of the tax system in question. The EFTA Court and European Court of Justice has held that any measure intended partially or wholly to exempt firms in a particular sector from the charges arising from the normal application of the general system, without there being any justification for this exemption on the basis of the nature and logic of the general system, constitutes State aid (39). A specific tax measure can only be justified by the internal logic of the tax system if it is consistent with it (40). Only if the measure is justified by the nature or logic of the general system does it constitute a general measure (41) and does not fall under Article 61(1) of the EEA Agreement. Hence, if the VAT Compensation is a derogation which can not be justified due to the nature or general scheme of the system, the measure would be regarded as selective.

‘certain undertakings or the production of certain goods’

39

40

41

The VAT is an indirect tax on the consumption of goods and services. As a rule, VAT is calculated at all stages of the supply chain and on the import of goods and services from abroad. The final consumer, who is not registered for VAT, absorbs VAT as part of the purchase price. Although in principle all sales or goods and services are liable to VAT, some supplies are exempt (i.e. without a credit for input tax) which means that such supplies fall entirely outside the scope of the VAT Act. Businesses that only have such supplies cannot register for VAT and are not entitled to deduct VAT (42).

42

The scope of the VAT Compensation Act is positively defined in that only legal persons falling within Article 2 of the VAT Compensation Act can be compensated for input tax on purchases. The advantage granted under the VAT Compensation Act for undertakings refunded for their input tax implies a relief from the obligation that follows from the general VAT system. These undertakings are placed in a more favourable financial position than others providing the same services or goods but which are not listed under the VAT Compensation Act (43).

43

The fact that the number of undertakings able to claim entitlement under the measure at issue may be very large or that they belong to different sectors of activity is, according to settled case law (44), not sufficient to call into question its selective nature and therefore to rule out its classification as State aid. Similarly, aid may concern a whole economic sector and still be covered by Article 61(1) of the EEA Agreement (45).

44

45

The next step is then to assess whether this compensation nevertheless is in line with the nature and logic of the VAT system. In order to determine whether it is consistent with the nature and logic of the general VAT system, the Authority must assess whether the input tax refund provided for in Article 3 of the VAT Compensation Act meets the objectives inherent in the VAT system itself, or whether it pursues other objectives outside the VAT system.

The Norwegian authorities State that, according to Article 1 of the VAT Compensation Act, the objective of the input tax compensation is to create a level playing field between self-supply and outsourcing. The objective pursued with the introduction of the VAT Compensation Act is to facilitate and encourage the choice by public entities between self supply and outsourcing of goods and services subject to VAT. The merit of the VAT Compensation Act is thus to create a level playing field between self supply and outsourcing by public entities. Although this objective is commendable, in the opinion of the Authority this can hardly be said to be in the nature and logic of the VAT system itself which is, as mentioned above, a tax on consumption. The VAT compensation is not a part of the VAT system, established in 1970, as such but a later separate measure to rectify some of the distortions created by the VAT system.

For the above mentioned reasons, in the preliminary opinion of the Authority the VAT compensation cannot be seen to be in the nature and logic of the VAT system. Hence, the input tax compensation as provided for in Article 3 of the VAT Compensation Act is selective in the meaning of Article 61(1) of the EEA Agreement.

2.5.   Distortion of competition

A measure must distort or threaten to distort competition for it to fall within the scope of Article 61(1) of the EEA Agreement.

Only public and private entities falling within the scope of Article 2 of the VAT Compensation Act benefit from input tax compensation. However, when these entities provide services falling outside the VAT system in competition with undertakings falling outside the scope of Article 2 of the VAT Compensation Act, the latter will have to put up with higher purchase costs although they carry out similar services. Although the input tax compensation has been aimed at mitigating distortions for municipal acquisitions, it has created a distortion of competition between public authorities carrying out economic activities and private undertakings carrying out the same economic activities in sectors outside the scope of the VAT Act. By way of example, public schools providing specialised educational services in competition with other private operators receive a compensation for the input VAT paid in relation to these services whereas the latter have to put up with this costs. Accordingly, due to the intervention of the State, the products offered by private operators could be more expensive and thus competition is distorted. In areas where both public and private operators are compensated the aid would still threaten to distort competition between national and other EEA operators.

Thus, regarding provision of services outside the scope of the VAT Act, the Authority is of the preliminary opinion that competition between undertakings is distorted.

2.6.   Effect on trade

A State aid measure falls within the scope of 61(1) of the EEA Agreement only in as far as it affects trade between the Contracting Parties to the EEA Agreement.

In the following, the Authority will assess whether the limitation of the scheme under assessment to certain legal persons and certain sectors hinders the aid from being capable of affecting trade between the Contracting Parties and hence brings it outside the scope of Article 61(1) of the EEA Agreement.

Whenever an aid measure strengthens the position of an undertaking compared to other undertakings competing in intra EEA trade, the latter must be regarded as affected by that aid (46).

46

This is so even if the beneficiary undertaking is itself not involved in cross-border activities (47). This is because domestic production may be maintained or increased with the result that undertakings established within the area covered by the EEA Agreement have less chance of exporting their products to the market in the EEA State granting aid (48).

47

48

Moreover, the character of the aid does not depend on the local or regional character of the services supplied or on the scale of the field of activity concerned (49). The local character of the activities of the beneficiaries of a measure constitutes one of the features to be taken into account in the assessment of whether there is an effect on trade but it is not sufficient to prevent the aid from having an effect on trade (50). According to settled case-law, the relatively small amount of aid, or the relatively small size of the undertaking which receives it, does not, as such, exclude the possibility that trade within the EEA might be affected (51).

49

50

51

In the assessment of the effect on trade, the Authority is not required to determine the actual effect of an aid scheme but to examine whether it is potentially liable to affect trade within the EEA (52). Thus, the criterion of the effect on trade has been traditionally interpreted in a non restrictive way to the effect that, in general terms, a measure is considered to be State aid if it is capable of affecting trade between the EEA States (53).

52

capable

53

In principle, the beneficiaries under the VAT compensation scheme can receive compensation for input VAT under the conditions of the scheme, regardless of whether aid to operators in these sectors would have an effect on trade. Since the VAT compensation arrangement is assessed as a scheme, the Authority must assess the general features of the scheme, as such, to ascertain whether it involves State aid within the meaning of Article 61(1) of the EEA Agreement. Case law of the ECJ has established that ‘in the case of an aid scheme, the Commission may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies.’
   (54). The EFTA Court has also endorsed this interpretation (55).

‘in the case of an aid scheme, the Commission may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies.’

54

55

Aid can be granted to undertakings operating in sectors open for competition with other undertakings in the EEA. The complaint received by the Authority illustrates that aid might be granted to undertakings operating in competition with other undertakings in the EEA. Undertakings established in neighbouring European countries provide specialised educational services in competition with Norwegian institutions which benefit from the application of the VAT Compensation Act.

Articles 5 and 5a in Chapter I of the VAT Act exempt certain transactions from the scope of application of the VAT Act. Furthermore, Article 5b of the same Act provides that the supply of certain services, amongst others the supply of health and health related services, social services, educational services, financial services, services related to the exercise of public authority, services in the form of entitlement to attend theatre, opera, ballet, cinema and circus performances, exhibitions in galleries and museums, lottery services, services connected with the serving of foodstuffs in school and student canteens, etc, are not covered by the Act. All theses services are hence outside the scope of the VAT system, but are in principle covered by the VAT Compensation act (56). Some of these sectors are partly or fully open for EEA-wide competition. Aid granted to undertakings in these sectors is thus capable of affecting trade between the Contracting Parties to the EEA Agreement.

56

For these reasons, and taking into account the Court's jurisprudence, the Authority preliminarily considers that the VAT Compensation Act is a general nationwide compensation scheme which is capable of affecting trade between the Contracting Parties to the EEA Agreement (57).

57

2.7.   Conclusion

Since all conditions set out in Article 61(1) of the EEA Agreement seem to be fulfilled, it is the preliminary view of the Authority that, in applying the input tax compensation as provided for in Article 3 of the VAT Compensation Act, the Norwegian authorities grant State aid to undertakings falling within the scope of Article 2 of the VAT Compensation Act.

3.   Procedural requirements

Pursuant to Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement, ‘the EFTA Surveillance Authority shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid (...). The State concerned shall not put its proposed measures into effect until the procedure has resulted in a final decision’.

the EFTA Surveillance Authority shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid (...). The State concerned shall not put its proposed measures into effect until the procedure has resulted in a final decision

The Norwegian authorities did not notify the introduction of the input tax compensation provided for in Article 3 of the VAT Compensation Act to the Authority. For the reasons mentioned above, the Authority is of the preliminary opinion that the VAT Compensation Act constitutes State aid within the meaning of Article 61(1) of the EEA Agreement. Thus, the Norwegian authorities should have notified the introduction of this measure to the Authority and should have awaited the Authority's decision before putting the scheme into effect. The Authority therefore preliminarily concludes that the Norwegian authorities have not respected their obligations pursuant to Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement.

4.   Compatibility of the aid

The Authority has doubts as to whether any of the grounds for compatibility foreseen under Article 61(2) and (3) of the EEA Agreement could be applicable to the case at hand.

The Authority is of the preliminary opinion that none of the derogations mentioned in Article 61(2) of the EEA Agreement can be applied to the case at hand.

Furthermore, the Authority has doubts whether the input tax compensation laid down in the VAT Compensation Act can be considered compatible on the basis of Article 61(3) of the EEA Agreement.

The input tax compensation cannot be considered within the framework of Article 61(3)(a) of the EEA Agreement since none of the Norwegian regions qualify for this provision, which requires an abnormally low standard of living or serious underemployment.

This compensation does not seem to promote the execution of an important project of common European interest or remedy a serious disturbance in the economy of a State, as it is requested for compatibility on the basis of Article 61(3)(b) of the EEA Agreement.

Concerning Article 61(3)(c) of the EEA Agreement, aid could be deemed compatible with the EEA Agreement if the aid facilitates the development of certain economic activities or of certain economic areas and where such aid does not adversely affect trading conditions to an extent contrary to the common interest. The aid scheme at hand does not seem to facilitate the development of certain economic activities or areas.

In addition, the Authority considers that a reduction in the running costs of an undertaking, such as the input tax, constitutes operating aid. This type of aid is, in principle, prohibited. The Authority does not know of any reason in the case at hand to deviate from this approach.

Aid can be compatible under the derogation in Article 59(2) of the EEA Agreement. However, the Authority preliminarily considers that Article 59(2) of the EEA Agreement does not seem to justify the compatibility of the VAT Compensation Act.

5.   Conclusion

Based on the information submitted by the Norwegian authorities, the Authority preliminarily considers that the input tax compensation as provided for in Article 3 of the VAT Compensation Act constitutes State aid within the meaning of Article 61(1) of the EEA Agreement.

Furthermore, the Authority has doubts that the input tax compensation can be considered compatible with the State aid rules of the EEA Agreement.

Consequently, and in accordance with Article 4(4) in Part II of Protocol 3 to the Surveillance and Court Agreement, the Authority is obliged to open the procedure provided for in Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement. The decision to open proceedings is without prejudice to the final decision of the Authority.

In light of the foregoing considerations, the Authority, acting under the procedure laid down in Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement, requests the Norwegian authorities to submit their comments within two months of the date of receipt of this Decision.

two months

In light of the foregoing considerations, the Authority requires the Norwegian authorities within two months of receipt of this decision to provide all documents, information and data needed for the assessment of the compatibility of the VAT Compensation Act with the State aid rules of the EEA Agreement.

two months

The Authority would like to remind the Norwegian authorities that, according to the provisions of Protocol 3 to the Surveillance and Court Agreement, any incompatible aid unlawfully put at the disposal of the beneficiaries will have to be recovered, unless this recovery would be contrary to a general principle of EEA law.

HAS ADOPTED THIS DECISION:

Article 1

The EFTA Surveillance Authority has decided to open the formal investigation procedure provided for in Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement against Norway regarding the input tax compensation as provided for in Article 3 of the VAT Compensation Act.

Article 2

The Norwegian authorities are requested, pursuant to Article 6(1) in Part II of Protocol 3 to the Surveillance and Court Agreement, to submit their comments on the opening of the formal investigation procedure within two months from the receipt of this Decision.

Article 3

The Norwegian authorities are required to provide within two months from notification of this decision, all documents, information and data needed for assessment of the compatibility of the aid measure.

Article 4

Other Contracting Parties to the EEA Agreement and interested parties shall be informed by the publishing of a meaningful summary and the full text of this Decision in the EEA Section of the Official Journal of the European Union and the EEA Supplement thereto, inviting them to submit comments within one month from the date of publication of this Decision.

Official Journal of the European Union

Article 5

This Decision is addressed to the Kingdom of Norway.

Article 6

Only the English version is authentic.

Done at Brussels, 19 July 2006

For the EFTA Surveillance Authority,

Bjørn T. GRYDELAND

President

Kristján A. STEFÁNSSON

College Member

---

(1)  Hereinafter referred to as the ‘Authority’.

1

(2)  Hereinafter referred to as the ‘EEA Agreement’.

2

(3)  Hereinafter referred to as the ‘Surveillance and Court Agreement’.

3

(4)  Act No 108 of 12 December 2003 on VAT compensation to local and regional authorities (Lov om kompensasjon av merverdiavgift for kommuner, fylkeskommuner mv). Hereinafter referred to as the ‘VAT Compensation Act’.

4

(5)  Hereinafter referred to as ‘VAT’.

5

(6)  Act No 66 of 19 June 1969 on Value Added Tax (Lov om merverdiavgift). Hereinafter referred to as the ‘VAT Act’.

6

(7)  Article 5 and following of the VAT Act needs to be distinguished from transactions covered by Articles 16 and 17 of the VAT Act, which cover the so-called zero-rated supply (Output tax equal to zero with credit for input tax). A zero-rated supply falls within the scope of the VAT Act, but no output tax is charged since the rate is zero. The provisions of the VAT Act apply in full for such supplies, including the regulations relating to deductions for input tax.

7

(8)  Reference is made to Article 5 of the VAT Act according to which sales by certain entities like museums, theatres, non profit associations, etc, fall outside the scope of the VAT Act.

8

(9)  Article 5(2) of the VAT Act states that the Ministry of Finance may issue regulations delimiting and supplementing the provisions in the first subsection and may stipulate that businesses referred to in the first subsection, 1(f) shall nevertheless calculate and pay output tax if the exemption brings about a significant distortion of competition in relation to other, registered businesses that supply equivalent goods and services.

9

(10)  See Chapter IV in connection with Chapter I of the VAT Act.

10

(11)  See Article 11 of the VAT Act.

11

(12)  Act No 9 of 17 February 1995 on VAT Compensation for local and regional authorities (Lov om kompensasjon for merverdiavgift til kommuner og fylkeskommuner mv.).

12

(13)  Norges Offentlige Utredinger (NOU) 2003: 3, Merverdiavgiften og kommunene, Konkurransevridninger mellom kommuner og private (hereinafter referred to as the ‘Rattsø report’).

13

(14)  Hereinafter referred to as ‘the Rattsø Committee’ or the ‘Committee’.

14

(15)  For the text of this article, see Section 2.2.3 below.

15

(16)  For the notion of state aid within the meaning of Article 61(1) of the EEA Agreement reference is made to Section II.3 below.

16

(17)  Odelstingsproposisjon nr. 1 (2003-2004) Skatte- og avgiftsopplegget 2004 — lovendringer.

17

(18)  Hereinafter referred to as ‘the proposition’.

18

(19)  Act No 107 of 25 September 1992 on Local Government (Lov om kommuner og fylkeskommuner).

19

(20)  Act No 107 of 25 September 1992 on Local Government (Lov om kommuner og fylkeskommuner).

20

(21)  Act No 64 of 17 June 2005 on Day Care Institutions (Lov om barnehager).

21

(22)  See Chapter VI of the VAT Act.

22

(23)  Article 3 in connection with Article 4 of the VAT Compensation Act.

23

(24)  See Article 6(2) of the VAT Compensation Act.

24

(25)  Page 3 of the letter from the Norwegian Ministry of Finance dated 14 January 2005. The opinion of the Norwegian authorities is repeated on page 2 of letter dated 30 November 2005 form the Norwegian Ministry of Finance.

25

(26)  Page 2 of the letter from the Norwegian Ministry of Finance dated 30 November 2005.

26

(27)  Page 3 of the letter from the Norwegian Ministry of Finance dated 30 November 2005.

27

(28)  Case E-6/98 The Government of Norway v EFTA Surveillance Authority [1999] EFTA Court Report, page 76, paragraph 34; Joined Cases E-5/04, E-6/04 and E-7/04 Fesil and Finnfjord, Pil and others and The Kingdom of Norway v EFTA Surveillance Authority [2005] Report of the EFTA Court, page 121, paragraph 76; Case 173/73 Italy v Commission [1974] ECR 709, paragraph 13; and Case C-241/94 France v Commission [1996] ECR I-4551, paragraph 20.

28

The Government of Norway v EFTA Surveillance Authority

Fesil and Finnfjord, Pil and others and The Kingdom of Norway v EFTA Surveillance Authority

Italy v Commission

France v Commission

(29)  The Authority would like to refer to the decision of the European Commission on case N630/2003, local museums in the region of Sardinia. In this decision, the Commission considered that the measures foreseen by the notified scheme were to support museum activities to be undertaken by natural and non-profit institutions and of such a scale that they could be considered as not being economic activities.

29

(30)  Joined cases C-180/98 to C-184/98 Pavlov and others [2000] ECR I-6451, paragraph 75.

30

Pavlov and others

(31)  Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21.

31

Höfner and Elser

(32)  Case C–387/92 Banco Exterior de España v Ayuntamiento de Valencia [1994] ECR I-877, paragraph 11.

32

Banco Exterior de España

Ayuntamiento de Valencia

(33)  Case C-244/94 Fédération Française des Sociétés d'Assurance et a. v Ministère de l'Agriculture et de la Pêche [1995] ECR I-4013, paragraph 21; and Case 78/76 Steinike & Weinlig v Germany [1977] ECR 595, paragraph 1.

33

Fédération Française des Sociétés d'Assurance et a. v Ministère de l'Agriculture et de la Pêche

Steinike & Weinlig v Germany

(34)  Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7 et seq.

34

Commission

Italy

(35)  Case E-6/98 The Government of Norway v EFTA Surveillance Authority [1999] EFTA Court Report, page 76, paragraph 57; Case C-66/02 Italy v Commission ECR [2005] not yet published, paragraph 91-92; Cases C-15/98 and C-105/99 Italy v Commission ECR [2000] I-8855, paragraph 51; and C-278/00 Greece v Commission, [2004] I-3997 paragraph 24.

35

The Government of Norway v EFTA Surveillance Authority

Italy

Commission

Italy

Commission

Greece

Commission

(36)  See also Case C-172/03 Wolfgang Heiser v Finanzamt Innsbruck [2005] ECR I-1627, paragraphs 27-28, where a deduction of VAT on input in a situation where there was no VAT on output was regarded to fulfil the criterion.

36

Wolfgang Heiser

Finanzamt Innsbruck

(37)  Cf. Ot. prp. Nr. 1 (2003-2004) Section 20.8.7.

37

(38)  Joined Cases E-5/04, E-6/04 and E-7/04 Fesil and Finnfjord, Pil and others and The Kingdom of Norway v EFTA Surveillance Authority [2005] Report of the EFTA Court, page 121, paragraphs 76 and 78-79; Case C-301/87 France v Commission [1990] ECR I-307, paragraph 41.

38

Fesil and Finnfjord, Pil and others and The Kingdom of Norway v EFTA Surveillance Authority

France

Commission

(39)  Case E-6/98 The Government of Norway v EFTA Surveillance Authority [1999] EFTA Court Report, page 76, paragraph 38; Joined Cases E-5/04, E-6/04 and E-7/04 Fesil and Finnfjord, Pil and others and The Kingdom of Norway v EFTA Surveillance Authority [2005] Report of the EFTA Court, page 121, paragraphs 76-89; Case 173/73 Italy v Commission [1974] ECR 709, paragraph 16.

39

The Government of Norway v EFTA Surveillance Authority

Fesil and Finnfjord, Pil and others and The Kingdom of Norway v EFTA Surveillance Authority

Italy

Commission

(40)  Case E-6/98 The Government of Norway v EFTA Surveillance Authority [1999] EFTA Court Report, page 76, paragraph 38; Joined Cases E-5/04, E-6/04 and E-7/04 Fesil and Finnfjord, Pil and others and The Kingdom of Norway v EFTA Surveillance Authority [2005] Report of the EFTA Court, page 121, paragraphs 84-85; Joined cases T-127/99, T-129/99 and T-148/99 Territorio Histórico de Alava et a v Commission [2002] ECR II-1275, paragraph 163.

40

The Government of Norway v EFTA Surveillance Authority

Fesil and Finnfjord, Pil and others and The Kingdom of Norway v EFTA Surveillance Authority

Territorio Histórico de Alava et a

Commission

(41)  Case C-143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementswerke [2001] ECR I-8365, paragraph 42; Case C-172/03 Wolfgang Heiser v Finanzamt Innsbruck [2005] ECR I-1627, paragraph 43.

41

Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementswerke

Wolfgang Heiser

Finanzamt Innsbruck

(42)  These exemptions must be differentiated from the supplies which are zero-rated (i.e. exempt with a credit for input tax). The provisions of the VAT Act apply in full to such supplies, including the regulations relating to deductions for input VAT.

42

(43)  Case C-387/92 Banco Exterior de España v Ayuntamiento de Valencia [1994] ECR I-877, paragraph 14.

43

Banco Exterior de España

Ayuntamiento de Valencia

(44)  Case C-172/03 Wolfgang Heiser v Finanzamt Innsbruck [2005] ECR I-1627, paragraph 42; Case C-409/00 Spain v Commission [2003] ECR I-1487 paragraph 48.

44

Wolfgang Heiser

Finanzamt Innsbruck

Spain

Commission

(45)  Case C-75/97 Belgium v Commission [1999] ECR I-3671 paragraph 33.

45

Belgium

Commission

(46)  Case E-6/98 The Government of Norway v EFTA Surveillance Authority [1999] EFTA Court Report, page 76, paragraph 59; Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 11.

46

The Government of Norway

EFTA Surveillance Authority

Philip Morris

Commission

(47)  Case T-55/99 CETM v Commission [2000] ECR II-3207, paragraph 86.

47

CETM

Commission

(48)  Case E-6/98 Norway v EFTA Surveillance Authority [1999] EFTA Court Report, page 76, paragraph 59; Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 27; Joined Cases C-278/92 to C-280/92 Spain v Commission [1994] ECR I-4103, paragraph 40; Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, paragraph 78.

48

Norway

EFTA Surveillance Authority

Italy

Commission

Spain

Commission

Altmark Trans and Regierungspräsidium Magdeburg

(49)  Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, paragraph 77; Case C-172/03 Wolfgang Heiser v Finanzamt Innsbruck [2005] ECR I-1627, paragraph 33; Case C-71/04 Administración del Estado v Xunta de Galicia [2005] not yet reported, paragraph 40.

49

Altmark Trans and Regierungspräsidium Magdeburg

Wolfgang Heiser

Finanzamt Innsbruck

Administración del Estado

Xunta de Galicia

(50)  Joined Cases T-298/97 to T-312/97 e.a. Alzetta a.o. v Commission [2000] ECR II-2319, paragraph 91.

50

Alzetta a.o.

Commission

(51)  Case C-71/04 Administración del Estado v Xunta de Galicia [2005] not yet reported, paragraph 41; Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, paragraph 81; Joined Cases C-34/01 to C-38/01 Enirisorse [2003] ECR I-14243, paragraph 28; Case C-142/87 Belgium v Commission (‘Tubemeuse’) [1990] ECR I-959, paragraph 43; Joined Cases C-278/92 to C-280/92 Spain v Commission [1994] ECR I-4103, paragraph 42.

51

Administración del Estado

Xunta de Galicia

Altmark Trans and Regierungspräsidium Magdeburg

Enirisorse

Belgium

Commission

Tubemeuse

Spain

Commission

(52)  Case C-298/00 P Italy v Commission [2004] ECR I-4087, paragraph 49; and Case C-372/97 Italy v Commission [2004] ECR I-3679, paragraph 44.

52

Italy

Commission

Italy

Commission

(53)  Joined Cases T-298/97-T-312/97 e.a. Alzetta a.o. v Commission [2000] ECR II-2319, paragraphs 76-78.

53

Alzetta a.o.

Commission

(54)  Case T-171/02 Regione autonoma della Sardegna v Commission [2005] not yet reported, paragraph 102; Case 248/84 Germany v Commission [1987] ECR 4013, paragraph 18; Case C-75/97 Belgium v Commission [1999] ECR I-3671, paragraph 48; and Case C-278/00 Greece v Commission [2004] ECR I-3997, paragraph 24.

54

Regione autonoma della Sardegna

Commission

Germany

Commission

Belgium

Commission

Greece

Commission

(55)  Case E-6/98 The Government of Norway v EFTA Surveillance Authority [1999] Report of the EFTA Court, page 76, paragraph 57.

55

The Government of Norway

EFTA Surveillance Authority

(56)  Article 4 of the VAT Compensation Act introduces some limitation of the possibility to be compensated.

56

(57)  The Authority and the European Commission have considered that local projects of limited scale, (see, amongst other examples, the Authority's Decision on the private day-care facilities on public sites with subsidised real estate leasehold fees in Oslo, Decision No 291/03/COL of 18 December 2003 or Commission's Decisions on cases N530/99 Restoration of Santa María de Retuerta Monastry or NN136/A/02 Ecomusée d'Alsace) do not affect trade. However, in the case of schemes with such a broad scope of application as the one at hand, the Authority has considered that the effect on trade cannot a priori be excluded (see in particular, the Authority's Decision No 298/05/COL on the proposal for regionally differentiated rates of social security contributions for certain economic sectors).

57

a priori

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III Notices

Commission

| 14.12.2006 | EN | Official Journal of the European Union | C 305/52 |
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14.12.2006

EN

Official Journal of the European Union

C 305/52

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Call addressed to individuals for the establishment of a database of prospective independent experts to assist the Commission's services for tasks in connection with the Seventh RTD Framework Programme

(2006/C 305/16)

| 1. | The Commission hereby invites applications from individuals with a view to establishing a database of independent experts who could be called on in connection with:






  — | the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007 to 2013) (1) and its specific programmes (the EC framework programme), |
| --- | --- | --- |

1.

The Commission hereby invites applications from individuals with a view to establishing a database of independent experts who could be called on in connection with:

—

the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007 to 2013) (1) and its specific programmes (the EC framework programme),

| — | the Seventh Framework Programme of the European Atomic Energy Community (Euratom) for nuclear research and training activities (2007 to 2011) (1) and its specific programmes (the Euratom framework programme), |
| --- | --- |

—

the Seventh Framework Programme of the European Atomic Energy Community (Euratom) for nuclear research and training activities (2007 to 2011) (1) and its specific programmes (the Euratom framework programme),

(collectively, ‘the Seventh Framework Programme’).

| 2. | The EC Framework Programme will be organised in five specific programmes, which shall cover the following:






  — | Cooperation |
| --- | --- | --- |

2.

The EC Framework Programme will be organised in five specific programmes, which shall cover the following:

—

Cooperation

| — | Ideas |
| --- | --- |

—

Ideas

| — | People |
| --- | --- |

—

People

| — | Capacities |
| --- | --- |

—

Capacities

| — | Non-nuclear actions of the Joint Research Centre. |
| --- | --- |

—

Non-nuclear actions of the Joint Research Centre.

The Euratom Framework programme will be organised in two specific programmes, which shall cover the following:

| — | Fusion energy research, nuclear fission and radiation protection |
| --- | --- |

—

Fusion energy research, nuclear fission and radiation protection

| — | Nuclear energy activities of the Joint Research Centre |
| --- | --- |

—

Nuclear energy activities of the Joint Research Centre

| 3. | Subject to the applicable criteria and procedures established by the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013) and by the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme of the European Atomic Energy Community and for the dissemination of research results (2007-2011) (collectively, ‘the rules’), the Commission will appoint independent experts:






  — | to assist in the evaluation of proposals in line with the various scientific, technological and socioeconomic aims of the Seventh Framework Programme. Evaluation work includes making recommendations on ways to gear research towards optimum achievement of the aims of the specific programme concerned, |
| --- | --- | --- |

3.

Subject to the applicable criteria and procedures established by the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013) and by the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme of the European Atomic Energy Community and for the dissemination of research results (2007-2011) (collectively, ‘the rules’), the Commission will appoint independent experts:

—

to assist in the evaluation of proposals in line with the various scientific, technological and socioeconomic aims of the Seventh Framework Programme. Evaluation work includes making recommendations on ways to gear research towards optimum achievement of the aims of the specific programme concerned,

| — | to assist in the monitoring of projects selected and funded by the Community, including, where necessary and as appropriate, the monitoring of projects funded by the Community under previous RTD framework programmes, |
| --- | --- |

—

to assist in the monitoring of projects selected and funded by the Community, including, where necessary and as appropriate, the monitoring of projects funded by the Community under previous RTD framework programmes,

| — | for other purposes where specific expertise might be required (e.g. monitoring of the implementation, evaluation and assessment of impacts of RTD programmes and policies). |
| --- | --- |

—

for other purposes where specific expertise might be required (e.g. monitoring of the implementation, evaluation and assessment of impacts of RTD programmes and policies).

| 4. | To this end, the Commission hereby invites individuals to apply as prospective independent experts in order to be included in its database of experts for the Seventh Framework Programme.
  [It must be noted, however, that the Commission is not bound to appoint only experts registered in this database. It may appoint independent experts from outside, where foreseen by and in accordance with the appointment procedures established by the rules.] |
| --- | --- |

4.

To this end, the Commission hereby invites individuals to apply as prospective independent experts in order to be included in its database of experts for the Seventh Framework Programme.

[It must be noted, however, that the Commission is not bound to appoint only experts registered in this database. It may appoint independent experts from outside, where foreseen by and in accordance with the appointment procedures established by the rules.]

| 5. | Prospective independent experts are expected to have skills and knowledge appropriate to the areas of activities in which they might be asked to assist.
  Prospective independent experts are also expected to have a high level of professional experience in the public or private sector in one or more of the following areas of activities:






  — | research in the relevant scientific and technological fields, |
| --- | --- | --- |

5.

Prospective independent experts are expected to have skills and knowledge appropriate to the areas of activities in which they might be asked to assist.

Prospective independent experts are also expected to have a high level of professional experience in the public or private sector in one or more of the following areas of activities:

—

research in the relevant scientific and technological fields,

| — | administration, management or evaluation of RTD projects, programmes or policies, |
| --- | --- |

—

administration, management or evaluation of RTD projects, programmes or policies,

| — | use of the results of RTD projects, technology transfer, innovation, and business cooperation, particularly with regard to SMEs. |
| --- | --- |

—

use of the results of RTD projects, technology transfer, innovation, and business cooperation, particularly with regard to SMEs.

| — | issues at the interface of science and society (e.g. education, communication, expertise, risk, ethics, etc.), |
| --- | --- |

—

issues at the interface of science and society (e.g. education, communication, expertise, risk, ethics, etc.),

| — | international cooperation in science and technology, |
| --- | --- |

—

international cooperation in science and technology,

| — | development of human resources. |
| --- | --- |

—

development of human resources.

Prospective independent experts must also have appropriate language skills.

| 6. | To ensure the independence of proposal evaluations and project monitoring and, where appropriate, other tasks, appointed independent experts will have to sign a declaration certifying that there is no conflict of interest at the time of appointment and that they undertake to inform the Commission if any conflict should arise in the course of providing their opinion or carrying out their duties. Throughout their work they shall demonstrate the appropriate devotion to duty and observe complete confidentiality of the information and documents brought to their attention. |
| --- | --- |

6.

To ensure the independence of proposal evaluations and project monitoring and, where appropriate, other tasks, appointed independent experts will have to sign a declaration certifying that there is no conflict of interest at the time of appointment and that they undertake to inform the Commission if any conflict should arise in the course of providing their opinion or carrying out their duties. Throughout their work they shall demonstrate the appropriate devotion to duty and observe complete confidentiality of the information and documents brought to their attention.

| 7. | Applications may only be submitted via the online electronic submission form available at the following website address: http://cordis.europa.eu/emmfp7.
  The application form must be completed in one of the official languages of the European Union. Early application is particularly encouraged, in order to allow the Commission to make use of the database of independent experts for its first proposal evaluation sessions under the Seventh Framework Programme, expected for March 2007. Applications will not be accepted after 31 July 2013.
  Applicants who are already registered in the database of independent experts drawn up for the implementation of the sixth framework programme and who wish to apply for the Seventh Framework Programme, are invited to reregister by visiting the Cordis web page at:
  http://cordis.europa.eu/research_openings/home.html.
  At this web page, they will be invited to transfer their data to the FP7 database and update their keywords and details of their professional experience.
  All completed details received will be included in the Commission's database of prospective independent experts established for the Seventh Framework Programme. The personal data collected in the context of the present call will be processed in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. |
| --- | --- |

7.

Applications may only be submitted via the online electronic submission form available at the following website address: http://cordis.europa.eu/emmfp7.

The application form must be completed in one of the official languages of the European Union. Early application is particularly encouraged, in order to allow the Commission to make use of the database of independent experts for its first proposal evaluation sessions under the Seventh Framework Programme, expected for March 2007. Applications will not be accepted after 31 July 2013.

Applicants who are already registered in the database of independent experts drawn up for the implementation of the sixth framework programme and who wish to apply for the Seventh Framework Programme, are invited to reregister by visiting the Cordis web page at:

http://cordis.europa.eu/research_openings/home.html.

At this web page, they will be invited to transfer their data to the FP7 database and update their keywords and details of their professional experience.

All completed details received will be included in the Commission's database of prospective independent experts established for the Seventh Framework Programme. The personal data collected in the context of the present call will be processed in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.

| 8. | For reasons of transparency and in line with the objectives of the European Research Area, the Commission may authorise access to its database of prospective independent experts by public research funding bodies from the Member States and the States associated to the framework programmes and by other Community programmes, on condition that the applicants concerned have given their prior agreement.
  In addition, in accordance with the procedures established by the rules, lists of independent experts appointed for the evaluation of proposals will be published at regular intervals on the Internet. |
| --- | --- |

8.

For reasons of transparency and in line with the objectives of the European Research Area, the Commission may authorise access to its database of prospective independent experts by public research funding bodies from the Member States and the States associated to the framework programmes and by other Community programmes, on condition that the applicants concerned have given their prior agreement.

In addition, in accordance with the procedures established by the rules, lists of independent experts appointed for the evaluation of proposals will be published at regular intervals on the Internet.

| 9. | The policy of the European Commission is one of equal opportunities for women and men. In this context, the Commission has set itself a target of having evaluation panels comprising, if possible, 40 % women. In order to achieve this target, it would particularly welcome applications from suitably qualified women. |
| --- | --- |

9.

The policy of the European Commission is one of equal opportunities for women and men. In this context, the Commission has set itself a target of having evaluation panels comprising, if possible, 40 % women. In order to achieve this target, it would particularly welcome applications from suitably qualified women.

---

(1)  Not yet published in the OJ. This call is published anticipating the adoption and entry into force of the Seventh Framework Programme. The call will, therefore, take full effect after the Seventh Framework Programme has entered into force and it could be verified that the provisions concerning individual experts for evaluation have not undergone any substantial change. The publication of the call, anticipating the adoption of the Seventh Framework Programme, shall not give rise to any claim against the Commission.

---

| 14.12.2006 | EN | Official Journal of the European Union | C 305/54 |
| --- | --- | --- | --- |

14.12.2006

EN

Official Journal of the European Union

C 305/54

---

Call addressed to organisations to propose lists of prospective independent experts to assist the Commission's services for tasks in connection with the Seventh RTD Framework Programme

(2006/C 305/17)

| 1. | The Commission hereby invites scientific, professional, industrial and general research institutions and learned societies and other organisations with an active interest in the performance of research and technological development (RTD) to submit lists of proposed independent experts who could be called on to assist in connection with:






  — | the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007 to 2013) (1) and its specific programmes (the EC framework programme), |
| --- | --- | --- |

1.

The Commission hereby invites scientific, professional, industrial and general research institutions and learned societies and other organisations with an active interest in the performance of research and technological development (RTD) to submit lists of proposed independent experts who could be called on to assist in connection with:

—

the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007 to 2013) (1) and its specific programmes (the EC framework programme),

| — | the Seventh Framework Programme of the European Atomic Energy Community (Euratom) for nuclear research and training activities (2007 to 2011) (1)and its specific programmes (the Euratom framework programme), |
| --- | --- |

—

the Seventh Framework Programme of the European Atomic Energy Community (Euratom) for nuclear research and training activities (2007 to 2011) (1)and its specific programmes (the Euratom framework programme),

(collectively, the Seventh Framework Programme).

| 2. | The EC Framework Programme will be organised in five specific programmes, which shall cover the following:






  — | Cooperation |
| --- | --- | --- |

2.

The EC Framework Programme will be organised in five specific programmes, which shall cover the following:

—

Cooperation

| — | Ideas |
| --- | --- |

—

Ideas

| — | People |
| --- | --- |

—

People

| — | Capacities |
| --- | --- |

—

Capacities

| — | Non-nuclear actions of the Joint Research Centre. |
| --- | --- |

—

Non-nuclear actions of the Joint Research Centre.

The Euratom Framework programme will be organised in two specific programmes, which shall cover the following:

| — | Fusion energy research, nuclear fission and radiation protection |
| --- | --- |

—

Fusion energy research, nuclear fission and radiation protection

| — | Nuclear energy activities of the Joint Research Centre |
| --- | --- |

—

Nuclear energy activities of the Joint Research Centre

| 3. | Subject to the applicable criteria and procedures established by the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013) and by the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme of the European Atomic Energy Community and for the dissemination of research results (2007-2011) (collectively, ‘the rules’), the Commission will appoint independent experts:






  — | to assist in the evaluation of proposals in line with the various scientific, technological and socioeconomic aims of the Seventh Framework Programme. Evaluation work includes making recommendations on ways to gear research towards optimum achievement of the aims of the specific programme concerned, |
| --- | --- | --- |

3.

Subject to the applicable criteria and procedures established by the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013) and by the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme of the European Atomic Energy Community and for the dissemination of research results (2007-2011) (collectively, ‘the rules’), the Commission will appoint independent experts:

—

to assist in the evaluation of proposals in line with the various scientific, technological and socioeconomic aims of the Seventh Framework Programme. Evaluation work includes making recommendations on ways to gear research towards optimum achievement of the aims of the specific programme concerned,

| — | to assist in the monitoring of projects selected and funded by the Community, including, where necessary and as appropriate, the monitoring of projects funded by the Community under previous RTD framework programmes, |
| --- | --- |

—

to assist in the monitoring of projects selected and funded by the Community, including, where necessary and as appropriate, the monitoring of projects funded by the Community under previous RTD framework programmes,

| — | for other purposes where specific expertise might be required (e.g. monitoring of the implementation, evaluation and assessment of impacts of RTD programmes and policies). |
| --- | --- |

—

for other purposes where specific expertise might be required (e.g. monitoring of the implementation, evaluation and assessment of impacts of RTD programmes and policies).

| 4. | To this end, the Commission hereby invites scientific, professional, industrial, general research institutions and/ or learned societies and other organisations with an active interest in the performance of RTD to submit lists of prospective independent experts in order to be included in its database of experts for the Seventh Framework Programme. The proposal of experts coming from institutions, organisations or countries different from the submitter's own institution/organisation is particularly encouraged.
  [It must however be noted that the Commission is not bound to appoint only experts registered in this database. It may appoint independent experts from outside, where foreseen by and in accordance with the appointment procedures established by the rules.] |
| --- | --- |

4.

To this end, the Commission hereby invites scientific, professional, industrial, general research institutions and/ or learned societies and other organisations with an active interest in the performance of RTD to submit lists of prospective independent experts in order to be included in its database of experts for the Seventh Framework Programme. The proposal of experts coming from institutions, organisations or countries different from the submitter's own institution/organisation is particularly encouraged.

[It must however be noted that the Commission is not bound to appoint only experts registered in this database. It may appoint independent experts from outside, where foreseen by and in accordance with the appointment procedures established by the rules.]

| 5. | Prospective independent experts are expected to have skills and knowledge appropriate to the areas of activities in which they might be asked to assist.
  Prospective independent experts are also expected to have a high level of professional experience in the public or private sector in one or more of the following areas of activity:






  — | research in the relevant scientific and technological fields, |
| --- | --- | --- |

5.

Prospective independent experts are expected to have skills and knowledge appropriate to the areas of activities in which they might be asked to assist.

Prospective independent experts are also expected to have a high level of professional experience in the public or private sector in one or more of the following areas of activity:

—

research in the relevant scientific and technological fields,

| — | administration, management or evaluation of RTD projects, programmes or policies, |
| --- | --- |

—

administration, management or evaluation of RTD projects, programmes or policies,

| — | use of the results of RTD projects, technology transfer, innovation, and business cooperation, particularly with regard to SMEs. |
| --- | --- |

—

use of the results of RTD projects, technology transfer, innovation, and business cooperation, particularly with regard to SMEs.

| — | issues at the interface of science and society (i.e. education, communication, expertise, risk, ethics, etc.), |
| --- | --- |

—

issues at the interface of science and society (i.e. education, communication, expertise, risk, ethics, etc.),

| — | international cooperation in science and technology, |
| --- | --- |

—

international cooperation in science and technology,

| — | development of human resources. |
| --- | --- |

—

development of human resources.

Prospective independent experts must also have appropriate language skills.

| 6. | To ensure the independence of proposal evaluations and project monitoring and, where appropriate other tasks, appointed independent experts will have to sign a declaration certifying that there is no conflict of interest at the time of appointment and that they undertake to inform the Commission if any conflict should arise in the course of providing their opinion or carrying out their duties. Throughout their work they shall have to demonstrate the appropriate devotion to duty and observe complete confidentiality of the information and documents brought to their attention. |
| --- | --- |

6.

To ensure the independence of proposal evaluations and project monitoring and, where appropriate other tasks, appointed independent experts will have to sign a declaration certifying that there is no conflict of interest at the time of appointment and that they undertake to inform the Commission if any conflict should arise in the course of providing their opinion or carrying out their duties. Throughout their work they shall have to demonstrate the appropriate devotion to duty and observe complete confidentiality of the information and documents brought to their attention.

| 7. | The abovementioned organisations are invited to register their interest by visiting the Cordis web page (http://cordis.europa.eu/emmfp7) set up for this purpose. From there, they will be able to log on in order to submit the lists of experts that they wish to recommend. Early registration of interest is particularly encouraged, in order to allow the Commission to make use of the lists of prospective experts for its first proposal evaluation sessions under the Seventh Framework Programme, expected for March 2007.
  The final closing date for submission of such lists is 31 July 2013.
  Each list of proposed experts must include:






  — | the full names and titles of the experts proposed, |
| --- | --- | --- |

7.

The abovementioned organisations are invited to register their interest by visiting the Cordis web page (http://cordis.europa.eu/emmfp7) set up for this purpose. From there, they will be able to log on in order to submit the lists of experts that they wish to recommend. Early registration of interest is particularly encouraged, in order to allow the Commission to make use of the lists of prospective experts for its first proposal evaluation sessions under the Seventh Framework Programme, expected for March 2007.

The final closing date for submission of such lists is 31 July 2013.

Each list of proposed experts must include:

—

the full names and titles of the experts proposed,

| — | the e-mail address of each of the experts, |
| --- | --- |

—

the e-mail address of each of the experts,

| — | the research area or group of research areas for which each expert is proposed. |
| --- | --- |

—

the research area or group of research areas for which each expert is proposed.

Lists of proposed prospective independent experts must be submitted in one of the official languages of the European Union.

Following receipt of these lists, the Commission shall contact the proposed independent experts, inform them of the recommendation and invite them to register their details in its database of prospective independent experts established for the Seventh Framework Programme.

The personal data collected in the context of the present call will be processed in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.

| 8. | For reasons of transparency and in line with the objectives of the European Research Area, the Commission may authorise access to its database of prospective independent experts by public research funding bodies from the Member States and the States associated to the framework programme and by other Community programmes, on condition that the prospective independent experts concerned have given their prior agreement.
  In addition, in accordance with the procedures established by the rules, lists of independent experts appointed for the evaluation of proposals will be published at regular intervals on the Internet. |
| --- | --- |

8.

For reasons of transparency and in line with the objectives of the European Research Area, the Commission may authorise access to its database of prospective independent experts by public research funding bodies from the Member States and the States associated to the framework programme and by other Community programmes, on condition that the prospective independent experts concerned have given their prior agreement.

In addition, in accordance with the procedures established by the rules, lists of independent experts appointed for the evaluation of proposals will be published at regular intervals on the Internet.

| 9. | The policy of the European Commission is one of equal opportunities for women and men. In this context, the Commission has set itself a target of having evaluation panels comprising, if possible, 40 % women. In order to achieve this target, it hereby invites organisations proposing lists of prospective independent experts to ensure a balanced participation of women and men in the lists. |
| --- | --- |

9.

The policy of the European Commission is one of equal opportunities for women and men. In this context, the Commission has set itself a target of having evaluation panels comprising, if possible, 40 % women. In order to achieve this target, it hereby invites organisations proposing lists of prospective independent experts to ensure a balanced participation of women and men in the lists.

---

(1)  Not yet published in the OJ. This call is published anticipating the adoption and entry into force of the Seventh Framework Programme. The call will, therefore, take full effect after the Seventh Framework Programme has entered into force and it could be verified that the provisions concerning individual experts for evaluation have not undergone any substantial change. The publication of the call, anticipating the adoption of the Seventh Framework Programme, shall not give rise to any claim against the Commission.

---