# Official Journal C 320/2010

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2010.320.eng |
| --- | --- |
| Official Journal
  of the European Union | C 320 |
| | |
| English edition | Information and Notices | Volume 5325 November 2010 |

ISSN 1725-2423

doi:10.3000/17252423.C_2010.320.eng

Official Journal

of the European Union

C 320

English edition

Information and Notices

Volume 5325 November 2010

---

| Notice No | Contents | page |
| --- | --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2010/C 320/01 | Non-opposition to a notified concentration (Case COMP/M.5890 — Heinzel/Europapier) (
  1
  ) | 1 |
| 2010/C 320/02 | Non-opposition to a notified concentration (Case COMP/M.5948 — Banco Santander/Rainbow) (
  1
  ) | 1 |

Notice No

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2010/C 320/01

Non-opposition to a notified concentration (Case COMP/M.5890 — Heinzel/Europapier) (
  1
  )

1

1

2010/C 320/02

Non-opposition to a notified concentration (Case COMP/M.5948 — Banco Santander/Rainbow) (
  1
  )

1

1

| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2010/C 320/03 | Euro exchange rates | 2 |
| 2010/C 320/04 | List of public holidays for 2012 for the institutions of the European Union | 3 |
| | NOTICES CONCERNING THE EUROPEAN ECONOMIC AREA |
| | EFTA Surveillance Authority |
| 2010/C 320/05 | Information communicated by the EFTA States regarding State aid granted under the Act referred to in point 1 j of Annex XV of the EEA Agreement (Commission Regulation (EC) No 800/2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General Block Exemption Regulation)) | 4 |
| 2010/C 320/06 | Invitation to submit comments pursuant to Article 1(2) in Part I of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice on state aid issues concerning additional payments to Hurtigruten in Norway | 6 |
| 2010/C 320/07 | Information communicated by the EFTA States regarding State aid granted under the Act referred to in point 1 j of Annex XV of the EEA Agreement (Commission Regulation (EC) No 800/2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General Block Exemption Regulation)) | 18 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2010/C 320/03

Euro exchange rates

2

2010/C 320/04

List of public holidays for 2012 for the institutions of the European Union

3

NOTICES CONCERNING THE EUROPEAN ECONOMIC AREA

EFTA Surveillance Authority

2010/C 320/05

Information communicated by the EFTA States regarding State aid granted under the Act referred to in point 1 j of Annex XV of the EEA Agreement (Commission Regulation (EC) No 800/2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General Block Exemption Regulation))

4

2010/C 320/06

Invitation to submit comments pursuant to Article 1(2) in Part I of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice on state aid issues concerning additional payments to Hurtigruten in Norway

6

2010/C 320/07

Information communicated by the EFTA States regarding State aid granted under the Act referred to in point 1 j of Annex XV of the EEA Agreement (Commission Regulation (EC) No 800/2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General Block Exemption Regulation))

18

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | EFTA Court |
| 2010/C 320/08 | Request for an Advisory Opinion from the EFTA Court by Oslo tingrett dated 26 March 2010 in the case of Periscopus AS v Oslo Børs ASA and Erik Must AS (Case E-1/10) | 19 |
| 2010/C 320/09 | Judgment of the Court of 7 May 2010 in Case E-8/09 — EFTA Surveillance Authority v The Republic of Iceland (Failure by a Contracting Party to fulfil its obligations — Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC on the approximation of the laws of the Member States relating to lifts — Judgment by default) | 20 |
| 2010/C 320/10 | Action brought on 23 August 2010 by Aleris Ungplan AS against the EFTA Surveillance Authority (Case E-13/10) | 21 |
| 2010/C 320/11 | Action brought on 2 September 2010 by Konkurrenten.no AS against the EFTA Surveillance Authority (Case E-14/10) | 22 |
| 2010/C 320/12 | Action brought on 14 September 2010 by Posten Norge AS against the EFTA Surveillance Authority (Case E-15/10) | 23 |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY |
| | European Commission |
| 2010/C 320/13 | Prior notification of a concentration (Case COMP/M.6043 — Mubadala/UTC/Lockheed Martin/Ammroc) — Candidate case for simplified procedure (
  1
  ) | 24 |
| 2010/C 320/14 | Prior notification of a concentration (Case COMP/M.6026 — CRH/BauKing) — Candidate case for simplified procedure (
  1
  ) | 25 |
| 2010/C 320/15 | Prior notification of a concentration (Case COMP/M.5962 — SSI/QP/Oryx) — Candidate case for simplified procedure (
  1
  ) | 26 |
| 2010/C 320/16 | Prior notification of a concentration (Case COMP/M.6062 — Coop/transGourmet) — Candidate case for simplified procedure (
  1
  ) | 27 |
| 2010/C 320/17 | Prior notification of a concentration (Case COMP/M.5971 — PPC/Urbaser/JV) — Candidate case for simplified procedure (
  1
  ) | 28 |

V   Announcements

COURT PROCEEDINGS

EFTA Court

2010/C 320/08

Request for an Advisory Opinion from the EFTA Court by Oslo tingrett dated 26 March 2010 in the case of Periscopus AS v Oslo Børs ASA and Erik Must AS (Case E-1/10)

19

2010/C 320/09

Judgment of the Court of 7 May 2010 in Case E-8/09 — EFTA Surveillance Authority v The Republic of Iceland (Failure by a Contracting Party to fulfil its obligations — Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC on the approximation of the laws of the Member States relating to lifts — Judgment by default)

(Failure by a Contracting Party to fulfil its obligations — Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC on the approximation of the laws of the Member States relating to lifts — Judgment by default)

20

2010/C 320/10

Action brought on 23 August 2010 by Aleris Ungplan AS against the EFTA Surveillance Authority (Case E-13/10)

21

2010/C 320/11

Action brought on 2 September 2010 by Konkurrenten.no AS against the EFTA Surveillance Authority (Case E-14/10)

22

2010/C 320/12

Action brought on 14 September 2010 by Posten Norge AS against the EFTA Surveillance Authority (Case E-15/10)

23

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

2010/C 320/13

Prior notification of a concentration (Case COMP/M.6043 — Mubadala/UTC/Lockheed Martin/Ammroc) — Candidate case for simplified procedure (
  1
  )

1

24

2010/C 320/14

Prior notification of a concentration (Case COMP/M.6026 — CRH/BauKing) — Candidate case for simplified procedure (
  1
  )

1

25

2010/C 320/15

Prior notification of a concentration (Case COMP/M.5962 — SSI/QP/Oryx) — Candidate case for simplified procedure (
  1
  )

1

26

2010/C 320/16

Prior notification of a concentration (Case COMP/M.6062 — Coop/transGourmet) — Candidate case for simplified procedure (
  1
  )

1

27

2010/C 320/17

Prior notification of a concentration (Case COMP/M.5971 — PPC/Urbaser/JV) — Candidate case for simplified procedure (
  1
  )

1

28

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

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(1)   Text with EEA relevance

1

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

EN

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II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 25.11.2010 | EN | Official Journal of the European Union | C 320/1 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/1

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Non-opposition to a notified concentration

(Case COMP/M.5890 — Heinzel/Europapier)

(Text with EEA relevance)

2010/C 320/01

On 7 October 2010, 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:

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

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/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 (http://eur-lex.europa.eu/en/index.htm) under document number 32010M5890. EUR-Lex is the on-line access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32010M5890. EUR-Lex is the on-line access to the European law.

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| 25.11.2010 | EN | Official Journal of the European Union | C 320/1 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/1

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Non-opposition to a notified concentration

(Case COMP/M.5948 — Banco Santander/Rainbow)

(Text with EEA relevance)

2010/C 320/02

On 15 October 2010, 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:

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

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/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 (http://eur-lex.europa.eu/en/index.htm) under document number 32010M5948. EUR-Lex is the on-line access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32010M5948. EUR-Lex is the on-line access to the European law.

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 25.11.2010 | EN | Official Journal of the European Union | C 320/2 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/2

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Euro exchange rates (1)

24 November 2010

2010/C 320/03

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,3339 |
| JPY | Japanese yen | 111,28 |
| DKK | Danish krone | 7,4548 |
| GBP | Pound sterling | 0,84380 |
| SEK | Swedish krona | 9,2923 |
| CHF | Swiss franc | 1,3276 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 8,1445 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 24,688 |
| EEK | Estonian kroon | 15,6466 |
| HUF | Hungarian forint | 275,58 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,7094 |
| PLN | Polish zloty | 3,9743 |
| RON | Romanian leu | 4,3060 |
| TRY | Turkish lira | 1,9755 |
| AUD | Australian dollar | 1,3632 |
| CAD | Canadian dollar | 1,3556 |
| HKD | Hong Kong dollar | 10,3485 |
| NZD | New Zealand dollar | 1,7546 |
| SGD | Singapore dollar | 1,7476 |
| KRW | South Korean won | 1 532,62 |
| ZAR | South African rand | 9,4755 |
| CNY | Chinese yuan renminbi | 8,8762 |
| HRK | Croatian kuna | 7,4110 |
| IDR | Indonesian rupiah | 11 959,96 |
| MYR | Malaysian ringgit | 4,1881 |
| PHP | Philippine peso | 58,800 |
| RUB | Russian rouble | 41,8130 |
| THB | Thai baht | 40,076 |
| BRL | Brazilian real | 2,3070 |
| MXN | Mexican peso | 16,5844 |
| INR | Indian rupee | 60,9700 |

Currency

Exchange rate

USD

US dollar

1,3339

JPY

Japanese yen

111,28

DKK

Danish krone

7,4548

GBP

Pound sterling

0,84380

SEK

Swedish krona

9,2923

CHF

Swiss franc

1,3276

ISK

Iceland króna

NOK

Norwegian krone

8,1445

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

24,688

EEK

Estonian kroon

15,6466

HUF

Hungarian forint

275,58

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,7094

PLN

Polish zloty

3,9743

RON

Romanian leu

4,3060

TRY

Turkish lira

1,9755

AUD

Australian dollar

1,3632

CAD

Canadian dollar

1,3556

HKD

Hong Kong dollar

10,3485

NZD

New Zealand dollar

1,7546

SGD

Singapore dollar

1,7476

KRW

South Korean won

1 532,62

ZAR

South African rand

9,4755

CNY

Chinese yuan renminbi

8,8762

HRK

Croatian kuna

7,4110

IDR

Indonesian rupiah

11 959,96

MYR

Malaysian ringgit

4,1881

PHP

Philippine peso

58,800

RUB

Russian rouble

41,8130

THB

Thai baht

40,076

BRL

Brazilian real

2,3070

MXN

Mexican peso

16,5844

INR

Indian rupee

60,9700

---

(1)  Source: reference exchange rate published by the ECB.

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| 25.11.2010 | EN | Official Journal of the European Union | C 320/3 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/3

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List of public holidays for 2012 for the institutions of the European Union

2010/C 320/04

PUBLIC HOLIDAYS FOR 2012

| 2 January | Monday, the day following New Year’s Day |
| --- | --- |
| 5 April | Maundy Thursday/Holy Thursday |
| 6 April | Good Friday |
| 9 April | Easter Monday |
| 1 May | Tuesday, Labour Day |
| 9 May | Wednesday, Anniversary of the Declaration made by President Robert Schuman in 1950 |
| 17 May | Thursday, Ascension Day |
| 18 May | Friday, the day following Ascension Day |
| 28 May | Whit Monday |
| 15 August | Wednesday, Assumption Day |
| 1 November | Thursday, All Saints’ Day |
| 2 November | Friday, All Souls’ Day |
| 24 December until 31 December | Monday (6 end-of-year days) Monday |
| TOTAL | 18 days |

2 January

Monday, the day following New Year’s Day

5 April

Maundy Thursday/Holy Thursday

6 April

Good Friday

9 April

Easter Monday

1 May

Tuesday, Labour Day

9 May

Wednesday, Anniversary of the Declaration made by President Robert Schuman in 1950

17 May

Thursday, Ascension Day

18 May

Friday, the day following Ascension Day

28 May

Whit Monday

15 August

Wednesday, Assumption Day

1 November

Thursday, All Saints’ Day

2 November

Friday, All Souls’ Day

24 December until 31 December

Monday (6 end-of-year days) Monday

TOTAL

18 days

Luxembourg: same days apply as in Brussels

Work will resume as normal on Thursday 3 January 2013.

Without prejudice to the schedule of public holidays for 2013, Wednesday 2 January 2013 will be a holiday.

The Commission reserves the right to modify these provisions, should the needs of service so require.

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NOTICES CONCERNING THE EUROPEAN ECONOMIC AREA

EFTA Surveillance Authority

| 25.11.2010 | EN | Official Journal of the European Union | C 320/4 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/4

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Information communicated by the EFTA States regarding State aid granted under the Act referred to in point 1 j of Annex XV of the EEA Agreement (Commission Regulation (EC) No 800/2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General Block Exemption Regulation))

2010/C 320/05

PART I

| Aid No | GBER 1/10/R&D |
| --- | --- |
| EFTA State | Norway |
| Granting authority | Name | Innovasjon Norge |
| Address | Innovasjon Norge |
| Postboks 448 sentrum |
| 0104 Oslo |
| NORWAY |

Aid No

GBER 1/10/R&D

EFTA State

Norway

Granting authority

Name

Innovasjon Norge

Address

Innovasjon Norge

Postboks 448 sentrum

0104 Oslo

NORWAY

Webpage

http://www.innovasjonnorge.no

Title of the aid measure

Research, Development and Innovation Scheme for Regional Development

National legal basis (Reference to the relevant national official publication)

Annual Grant offer letter:

http://www.regjeringen.no/upload/KRD/Vedlegg/REGA/tilskuddsbrev/Tilskuddsbrev2010/Innovasjon_Norge_Oppdragsbrev2010.pdf

Regulation 14.11.2008 No 1213, cf. EEA-agreement annex XV No 1j

Web link to the full text of the aid measure

http://www.regjeringen.no/upload/KRD/Vedlegg/REGA/Retningslinjer/Retningslinjer_2010.pdf

and

http://www.regjeringen.no/upload/KRD/Vedlegg/REGA/Div%20publisering%202010/Retningslinjer%20kap%20%20552%20post%2072%20220110.pdf

Type of measure

Scheme

X

Amendment of an existing aid measure

93-155 and 375/98

EFTA Surveillance Authority aid number

Duration

Scheme

28.3.2010 to 31.12.2013

Economic sector(s) concerned

All economic sectors eligible to receive aid

X

Type of beneficiary

SME

X

Budget

Annual overall amount of the budget planned under the scheme

NOK 300 (in millions)

Aid instrument (Article 5)

Grant

X

Loan

X

PART II

| General Objectives (list) | Objectives (list) | Maximum aid intensity in % or Maximum aid amount in NOK | SME-bonuses in % |
| --- | --- | --- | --- |
| Aid for research, development and innovation
  (Articles 30-37) | Aid for research and development projects
  (Article 31) | Fundamental research
  (Article 31(2)(a)) | ... % | |
| Industrial research
  (Article 31(2)(b)) | 50 % | 10 % (Medium Sized Enterprises)/20 % (Small Enterprises)/additional 15 % added, up to a maximum aid intensity of 80 % if conditions in Article 31(4)(b) (i/ii/iii) are met |
| Experimental development
  (Article 31(2)(c)) | 25 % | 10 % (Medium Sized Enterprises)/20 % (Small Enterprises)/additional 15 % added, up to a maximum aid intensity of 80 % if conditions in Article 31(4)(b) (i/ii/iii) are met |
| Aid for technical feasibility studies
  (Article 32) | 40 % (preparatory for experimental development)/65 % (preparatory to industrial research) | 10 % |
| Aid for industrial property rights costs for SMEs
  (Article 33) | 60 % (industrial research)
  35 % (experimental development)
  Medium sized enterprises
  70 % (industrial research)
  45 % (experimental research)
  Small sized enterprises | |
| Aid for innovation advisory services and for innovation support services
  (Article 36) | Maximum Aid intensity: 75 %
  Maximum Aid amount: EUR 200 000 | |
| Aid for the loan of highly qualified personnel
  (Article 37) | 50 % | |

General Objectives (list)

Objectives (list)

Maximum aid intensity in % or Maximum aid amount in NOK

SME-bonuses in %

Aid for research, development and innovation

(Articles 30-37)

Aid for research and development projects

(Article 31)

Fundamental research

(Article 31(2)(a))

... %

Industrial research

(Article 31(2)(b))

50 %

10 % (Medium Sized Enterprises)/20 % (Small Enterprises)/additional 15 % added, up to a maximum aid intensity of 80 % if conditions in Article 31(4)(b) (i/ii/iii) are met

Experimental development

(Article 31(2)(c))

25 %

10 % (Medium Sized Enterprises)/20 % (Small Enterprises)/additional 15 % added, up to a maximum aid intensity of 80 % if conditions in Article 31(4)(b) (i/ii/iii) are met

Aid for technical feasibility studies

(Article 32)

40 % (preparatory for experimental development)/65 % (preparatory to industrial research)

10 %

Aid for industrial property rights costs for SMEs

(Article 33)

60 % (industrial research)

35 % (experimental development)

Medium sized enterprises

70 % (industrial research)

45 % (experimental research)

Small sized enterprises

Aid for innovation advisory services and for innovation support services

(Article 36)

Maximum Aid intensity: 75 %

Maximum Aid amount: EUR 200 000

Aid for the loan of highly qualified personnel

(Article 37)

50 %

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| 25.11.2010 | EN | Official Journal of the European Union | C 320/6 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/6

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Invitation to submit comments pursuant to Article 1(2) in Part I of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice on state aid issues concerning additional payments to Hurtigruten in Norway

2010/C 320/06

By means of Decision No 325/10/COL of 14 July 2010, 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 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice. The Norwegian authorities have been informed by means of a copy of the decision.

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

| EFTA Surveillance Authority |
| --- |
| Registry |
| Rue Belliard 35 |
| 1040 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

EFTA Surveillance Authority

Registry

Rue Belliard 35

1040 Bruxelles/Brussel

BELGIQUE/BELGIË

The comments will be communicated to the Norwegian authorities. The identity of the interested party submitting the comments may be withheld following a request in writing stating the reasons for the request.

SUMMARY

Background

Hurtigruten ASA operates maritime transport services consisting of the combined transport of persons and goods along the Norwegian costal line from Bergen to Kirkenes, serving 34 ports of call on a daily basis throughout the year. The Hurtigruten Agreement regulates the operation of the service for the period 1 January 2005 to 31 December 2012. For these services, the Norwegian authorities pay a total compensation of NOK 1 899,7 million for the eight years of duration of the agreement, expressed in 2005 prices.

Renegotiation of the Hurtigruten Agreement

Article 8 of the Hurtigruten Agreement contains a revision clause, whereby both parties may initiate a renegotiation procedure. Following a renegotiation of the Hurtigruten Agreement, concluded on 27 October 2008, the public service compensation to Hurtigruten was increased by way of three different measures:

| 1. | by reimbursement of 90 % of the so-called NOx tax for 2007 and 90 % of the NOx contributions for January to June 2008 to the so-called NOx Fund by NOK 59 million in total. The reimbursement is intended to continue for the remaining duration of the Hurtigruten Agreement; |
| --- | --- |

1.

by reimbursement of 90 % of the so-called NOx tax for 2007 and 90 % of the NOx contributions for January to June 2008 to the so-called NOx Fund by NOK 59 million in total. The reimbursement is intended to continue for the remaining duration of the Hurtigruten Agreement;

| 2. | by granting additional NOK 66 million ‘general compensation’ for 2008, due to the weak financial situation of Hurtigruten resulting from a general increase in costs for the service provided. This would be provided annually until the Hurtigruten Agreement expires 31 December 2012 provided the financial situation of the company does not significantly improve, and; |
| --- | --- |

2.

by granting additional NOK 66 million ‘general compensation’ for 2008, due to the weak financial situation of Hurtigruten resulting from a general increase in costs for the service provided. This would be provided annually until the Hurtigruten Agreement expires 31 December 2012 provided the financial situation of the company does not significantly improve, and;

| 3. | by reducing the number of ships from 11 to 10 in the winter season (5 months) until the Hurtigruten Agreement expires without applying the deduction provisions of the Hurtigruten Agreement. This arrangement reduces the service provided by Hurtigruten and is intended to continue in the remaining duration of the Hurtigruten Agreement. |
| --- | --- |

3.

by reducing the number of ships from 11 to 10 in the winter season (5 months) until the Hurtigruten Agreement expires without applying the deduction provisions of the Hurtigruten Agreement. This arrangement reduces the service provided by Hurtigruten and is intended to continue in the remaining duration of the Hurtigruten Agreement.

Assessment of the measure

The presence of state aid

The Authority considers that state aid is involved in the additional payments stemming from the renegotiated agreement. Contrary to the arguments of the Norwegian authorities, the Authority considers that the original public tender procedure does not necessarily cover the amendments under assessment. It is in the Authority’s view important whether the revision clause provided for a clear, transparent price adjustment based on objective criteria or whether it simply left subsequent adjustments to be addressed in new negotiations. The clause does not give Hurtigruten a right to increased compensation but merely a right to initiate renegotiations in case of new and unforeseen public law requirements or significant increases in the costs of delivering the service and does not specify in any greater detail what events may trigger renegotiations. According to general public procurement principles substantial adjustments to the contract will normally require a new tender procedure. For these reasons, it is the preliminary view of the Authority that the increase in the compensation is not as such determined through a public procurement procedure within the meaning of the Altmark case law. Thus, in the Authority’s view, the additional payments constitute state aid within the meaning of Article 61(1) of the EEA Agreement.

Compatibility of the aid

The Authority has doubts that the measure can be justified as public service compensation under article 59(2) EEA, or, alternatively, as argued by the Norwegian authorities, as an emergency measure to ensure a continuous service until a new tender procedure could take place.

The Authority must verify that the increase in the public service compensation did not exceed the net extra costs of discharging the public service task entrusted to Hurtigruten. On the basis of the documentation submitted, the Authority has doubts as to whether the mentioned NOx compensation solely corresponds to increased costs in discharging the public service obligations. In that regard the Authority has taken note of that Hurtigruten’s activities, also for the 11 vessels providing the public service, are not only confined to providing the public service but also to commercial services such as roundtrips, excursions and cruises. As only the costs associated with the public service can be taken into consideration the Authority has doubts as to whether as much as 90 % of the increased costs stemming from the NOx tax regime can be attributable to the provision of the public service in question.

Regarding the ‘general compensation’ for 2008, the Norwegian authorities have not provided a detailed breakdown of the general compensation in terms of increased costs for specific elements included in the public service obligation to counteract the alleged weak financial position of the company.

Finally, the Authority has doubts how the reduction in the service in terms of number of ships during winter time may correspond to increased costs in discharging the public service obligation.

As regards the justification ground based on an emergency acquisition of a service in order to ensure a continuous service until a new tender procedure could be arranged, the Authority doubts that such arguments could justify any overcompensation to Hurtigruten since a new public tender procedure was only announced 20 months after the end of renegotiations.

Finally, the Norwegian authorities have referred to the measure as a rescue and restructuring measure within the meaning of Article 61(3)(c) and the relevant Authority Guidelines but they have neither notified the potential rescue aid nor followed up with a proper restructuring plan.

Conclusion

In light of the above 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 notice in the Official Journal of the European Union.

EFTA SURVEILLANCE AUTHORITY DECISION

No 325/10/COL

of 14 July 2010

to initiate the formal investigation procedure with regard to the additional payments to Hurtigruten

(Norway)

THE EFTA SURVEILLANCE AUTHORITY (the Authority),

Having regard to the Agreement on the European Economic Area (the EEA Agreement), in particular to Articles 59(2), 61 to 63 and Protocol 26,

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

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

Having regard to the Authority’s State Aid Guidelines on application and interpretation of Articles 61 and 62 of the EEA Agreement, in particular the Chapter on aid for maritime transport and the Chapter on aid for rescuing and restructuring firms in difficulty (1), and Council Regulation (EEC) No 3577/92 applying the principle of freedom to provide services to maritime transport (maritime cabotage) within the Member States (2),

Whereas:

I.   FACTS

1.   Procedure

By letter dated 28 November 2008 (Event No 500143), the Norwegian authorities informed the Authority about the renegotiation of the agreement between the Norwegian authorities and Hurtigruten ASA on acquisition of transport services between Bergen and Kirkenes in Norway.

By letter dated 18 February 2009 (Event No 502277), the Authority requested additional information from the Norwegian authorities. By letter dated 3 April 2009 (Event No 514420), the Norwegian authorities replied to the information request.

The Authority and the Norwegian authorities discussed the case in a meeting held in Oslo on 16 September 2009. The Norwegian authorities submitted additional information by letters dated 8 March 2010 (Event No 549465) and 1 July 2010 (Event No 562652).

2.   Background

Hurtigruten ASA operates maritime transport services consisting of the combined transport of persons and goods along the Norwegian costal line from Bergen to Kirkenes, serving 34 ports of call on a daily basis throughout the year.

Image

For the period 1 January 2002 until 31 December 2004 the two maritime companies, Ofotens og Vesteraalens Dampskipsselskap ASA and Troms Fylkes Dampskipsselskap (the Hurtigruten companies) were entrusted with the provision of the service. A draft agreement with the Hurtigruten companies was notified to the Authority by the Norwegian authorities in July 2000 and an annual compensation of NOK 170 million for 2002-04 was approved by the Authority on 19 December 2001 (3).

The operation of the service for the period 1 January 2005 to 31 December 2012 was the subject of a tender procedure initiated in June 2004. The Hurtigruten companies were the only bidders and signed a contract with the Norwegian authorities on 17 December 2004 (the Hurtigruten Agreement). The Hurtigruten companies merged in March 2006 to form the entity now operating the service, Hurtigruten ASA (Hurtigruten).

Under the Hurtigruten Agreement, Hurtigruten provides for daily services at 34 predetermined ports of call throughout the year, based on a fixed schedule, capacity based on the requirement to operate the route with 11 predetermined vessels and maximum prices as regards the distance passenger routes. Hurtigruten is free to set its prices for roundtrips, cabins, catering and transport of cars and goods.

For the services covered by the Hurtigruten Agreement, the Norwegian authorities pay a total compensation of NOK 1 899,7 million for the eight years of duration of the agreement, expressed in 2005 prices:

| For 2005 | NOK 217,5 million |
| --- | --- |
| For 2006 | NOK 247,5 million |
| For 2007 | NOK 247,5 million |
| For 2008 | NOK 240,0 million |
| For 2009 | NOK 236,8 million |
| For 2010 | NOK 236,8 million |
| For 2011 | NOK 236,8 million |
| For 2012 | NOK 236,8 million |

For 2005

NOK 217,5 million

For 2006

NOK 247,5 million

For 2007

NOK 247,5 million

For 2008

NOK 240,0 million

For 2009

NOK 236,8 million

For 2010

NOK 236,8 million

For 2011

NOK 236,8 million

For 2012

NOK 236,8 million

The payments are calculated according to a price index clause, taking into account the price of marine gas oil, salary costs in the marine sector and NIBOR.

In addition to the service covered by the Hurtigruten Agreement, Hurtigruten is a commercial operator and offers round trips, excursions, and catering on the route Bergen–Kirkenes. Moreover, in connection with this route, Hurtigruten also provides transport services in Geiranger fjord, outside the scope of the Hurtigruten Agreement. Furthermore, Hurtigruten operates a number of different cruises in different European states, Russia, Antarctica, Spitsbergen and Greenland. Hurtigruten is obliged to keep separate accounts for the services included in the Hurtigruten Agreement and other activities.

The Hurtigruten Agreement has not, as such, been subject to an assessment under State aid rules by the Authority since it was not notified.

On 30 June 2010, the Norwegian authorities initiated a tender procedure on the route between Bergen and Kirkenes for the period of eight years as of 1 January 2013 at the latest. The tender invites for bids for alternative frequencies. This decision does not deal with such future contract(s) with operator(s) chosen by this tender procedure.

3.   Renegotiation of the Hurtigruten Agreement

Article 8 of the Hurtigruten Agreement contains a revision clause, whereby both parties may initiate a renegotiation procedure; in the Authority’s translation:

‘Official acts that entail considerable changes of cost as well as radical changes of prices of input factors that the parties could not reasonably foresee, are grounds for either of the contracting parties to demand a renegotiation about extraordinary adjustments of the State's remuneration, changes in the service delivered or other measures. In such negotiations, the other party shall be entitled to access all necessary documentation.’ (4)

The renegotiation of the Hurtigruten Agreement was concluded on 27 October 2008 and increased the public service compensation to Hurtigruten by way of three different measures:

| 1. | by reimbursement of 90 % of the so-called NOx tax for 2007 and 90 % of the NOx contributions for January to June 2008 to the so-called NOx Fund by NOK 59 million in total. The reimbursement is intended to continue for the remaining duration of the Hurtigruten Agreement; |
| --- | --- |

1.

by reimbursement of 90 % of the so-called NOx tax for 2007 and 90 % of the NOx contributions for January to June 2008 to the so-called NOx Fund by NOK 59 million in total. The reimbursement is intended to continue for the remaining duration of the Hurtigruten Agreement;

| 2. | by granting additional NOK 66 million ‘general compensation’ for 2008, due to the weak financial situation of Hurtigruten resulting from a general increase in costs for the service provided. This would be provided annually until the Hurtigruten Agreement expires 31 December 2012 provided the financial situation of the company does not significantly improve, and; |
| --- | --- |

2.

by granting additional NOK 66 million ‘general compensation’ for 2008, due to the weak financial situation of Hurtigruten resulting from a general increase in costs for the service provided. This would be provided annually until the Hurtigruten Agreement expires 31 December 2012 provided the financial situation of the company does not significantly improve, and;

| 3. | by reducing the number of ships from 11 to 10 in the winter season (five months) until the Hurtigruten Agreement expires without applying the deduction provisions of the Hurtigruten Agreement. This arrangement reduces the service provided by Hurtigruten and is intended to continue in the remaining duration of the Hurtigruten Agreement. |
| --- | --- |

3.

by reducing the number of ships from 11 to 10 in the winter season (five months) until the Hurtigruten Agreement expires without applying the deduction provisions of the Hurtigruten Agreement. This arrangement reduces the service provided by Hurtigruten and is intended to continue in the remaining duration of the Hurtigruten Agreement.

In accordance with the revised agreement and the subsequent budgetary allocation of the Norwegian Parliament, NOK 125 million was paid to Hurtigruten in December 2008 as an additional compensation for 2007 and 2008. According to the information at hand, the breakdown of the additional payments which already have taken place, following the renegotiation is as follows:

| | NOx tax/NOx Fund
  reimbursement | General compensation |
| --- | --- | --- |
| For 2007 | NOK 53,4 million | |
| For 2008 1st half | NOK 5,4 million | |
| For 2008 2nd half | NOK 7,2 million | NOK 66 million |
| For 2009 1st half | NOK 5,9 million | |
| For 2009 2nd half and 2010 1st, 2nd and 3rd quarter | NOK 19 million | |
| Total payments | NOK 90,9 million | NOK 66 million |

NOx tax/NOx Fund

reimbursement

General compensation

For 2007

NOK 53,4 million

For 2008 1st half

NOK 5,4 million

For 2008 2nd half

NOK 7,2 million

NOK 66 million

For 2009 1st half

NOK 5,9 million

For 2009 2nd half and 2010 1st, 2nd and 3rd quarter

NOK 19 million

Total payments

NOK 90,9 million

NOK 66 million

According to information available to the Authority, no ‘general compensation’ has so far been paid out for 2009.

In addition, effective as from 16 November 2008 Hurtigruten was authorised to reduce the number of ships from 11 to 10 in the winter season without any deduction in the public service compensation. According to the information provided by the Norwegian authorities, this reduction corresponds to a further NOK 11,3 million in additional compensation in the winter season 2008 to 2009, calculated on the basis of the deduction in compensation the Hurtigruten would otherwise have to pay under a clause in the Hurtigruten Agreement for reduced service. This arrangement was also in force in the winter season 2009 to 2010 but calculations have not been provided for this period.

According to the Norwegian authorities, the revised agreement results in 26 % increase of the contribution for the year 2008. However, the Authority notes that reimbursement for the contribution to the NOx Fund for second half of 2008 is not included in that figure.

4.   Comments by the Norwegian authorities

Comments by the Norwegian authorities

The Norwegian authorities put forward the view that the increased compensation does not constitute State aid. They argue that on the basis of the renegotiation clause mentioned above, Hurtigruten was entitled to demand a renegotiation and the authorities acted as a rational market operator during the renegotiation process.

Alternatively, the Norwegian authorities are of the view that the measures are public service compensation under Article 59(2) of the EEA Agreement, and as such compatible with the EEA Agreement. The Norwegian authorities also maintain that the measures taken in October 2008 were emergency measures taken in the acute difficult economic situation of Hurtigruten in 2008, in order to ensure continuous service in the interim period until a new tendering procedure could be finalised.

The Norwegian authorities finally submit that Hurtigruten was a firm in difficulty within the meaning of the State Aid Guidelines and they argue that the measures meet the requirements for restructuring aid under Article 61(3)(c) of the EEA Agreement and the Guidelines for aid for rescuing and restructuring firms in difficulty.

II.   ASSESSMENT

ASSESSMENT

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

The presence of State aid within the meaning of Article 61(1) EEA Agreement

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.’

The Authority will in the following give its preliminary assessment of whether the increased compensation for Hurtigruten represents State aid within the meaning of Article 61 of the EEA Agreement. The Authority will assess whether there are State resources involved, whether the compensation confers an economic advantage to Hurtigruten and whether the measures distort competition and have an effect on trade between the Contracting Parties.

1.1.   State resources

State resources

The increased compensation to Hurtigruten by way of reimbursed NOx tax/NOx Fund contribution and the additional ‘general compensation’ provided are financed trough budgetary allocations from the national budget (5) and thus involve State resources within the meaning of Article 61(1) EEA.

5

Furthermore, the reduction from 11 to 10 vessels during the winter season without a corresponding decrease in the compensation implies that the service is reduced but not the payment. Consequently, State resources within the meaning of Article 61(1) EEA are involved.

1.2.   Economic advantage

Economic advantage

The reimbursement of 90 % of the general NOx tax and later the annual NOx Fund contribution, which transport companies emitting NOx should normally pay, gives Hurtigruten an advantage by relieving it of charges that would normally be borne from its budget. The measure appears moreover to be selective in that it only favours Hurtigruten.

The same assessment applies to the ‘general compensation’ which gave Hurtigruten a financial benefit the company would not have enjoyed in the normal course of its business.

Regarding the reduction in the number of vessels, Hurtigruten thereby reduced its operating costs by being allowed to provide a more limited service than originally foreseen under the Hurtigruten Agreement while the amount of compensation was not accordingly reduced. This reduction in the costs thus confers a selective economic advantage to Hurtigruten.

The Norwegian authorities have however, with reference to the above mentioned Article 8 of the Hurtigruten Agreement, argued that the increased compensation was made within the scope of the original agreement and that it therefore does not constitute State aid. In that regard they claim to have followed the so-called Altmark criteria (6) since the agreement, including the mentioned Article 8 formed part of the public procurement procedure in 2004. Therefore, in the Norwegian authorities’ view, the increase in the compensation negotiated in 2008 was also covered by that procurement procedure.

Altmark

6

The Authority has taken note of the fact that the Hurtigruten Agreement was awarded on the basis of a public procurement procedure. The revision clause formed part of that public tender procedure, i.e. it was not inserted subsequently. However, in the Authority’s preliminary view, that does not necessarily mean that any exercise of that provision later in the contract period, may be assessed as covered by the original tender procedure. Whether the amendments to the contract should be considered as new measures or adjustments within the scope of the tendered contract should rather be assessed in the light of the wording of the contract and general procurement principles. It is in the Authority’s view important whether the clause provided for a clear, transparent price adjustment based on objective criteria or whether it simply left subsequent adjustments to be addressed in new negotiations.

It follows from the mentioned Article 8 that both parties may initiate a renegotiation procedure in the event of new regulations or requirements from public authorities which lead to significant changes in costs as well as radical changes in the price of production factors, which were not foreseeable by the parties.

The Authority observes firstly that the clause does not give Hurtigruten a right to increased compensation but merely a right to initiate renegotiations in case of new and unforeseen public law requirements or significant increases in the costs of delivering the service.

Secondly, the clause does not specify in any greater detail what events may trigger renegotiations. It is also silent with regard to consequences for the contract remuneration should such events occur. On this basis, even though the contract was tendered out, it appears unlikely that the potential contractors would have been able to foresee what consequences the mentioned events could have had for the remuneration for the services. In the absence of clear, transparent provisions regarding adjustments of the compensation, the Authority finds it difficult to follow the argument that the increase in compensation in 2008 was as such covered by the public tender in 2004.

The Authority also finds support for its view in general public procurement principles according to which more substantial adjustments to the contract normally will require a new tender procedure (7). In this regard, the Authority notes that the revised contract increased the compensation with what appears to correspond to more than 30 % for 2008.

7

Thirdly, the Authority recalls its Decision 660/07/COL, in which the Authority assessed a similar argument, that an increase in social security contributions to Hurtigruten was within the scope of the previous Hurtigruten contract and thereby covered by the Authority’s Decision 417/01/COL (8). In response to this argument the Authority stated:

8

The Authority would like to point out that annual compensation of NOK 170 million, expressed in 1999-prices, under the Hurtigruten Agreement had been approved by the Authority. In contrast, the Authority’s decision did not deal with Section 10 of the Hurtigruten Agreement as such, and nothing in the Authority’s decision suggested that any future amendments of the Hurtigruten Agreement based on this clause would, as argued by the Norwegian authorities, automatically be considered to be in compliance with the State aid provisions of the EEA Agreement.

Section 10 of the Agreement merely allows for the possibility of amending the contract due to unforeseen substantial changes of circumstances. It does not prescribe an automatic increase in the compensation to the Hurtigruten companies in the event of raised costs, but merely opens up the possibility for both parties to the Hurtigruten Agreement to request a renegotiation procedure without prescribing the result of such renegotiations. Furthermore, the provision does not explicitly mention augmentation of costs as a result of a tax increase as a reason for renegotiation, let alone as a fact that would require an automatic adjustment of the agreement by the exact amount flowing from the tax increase. A change in the tax situation of one contracting party is normally not a factor that the other party is obliged to bear. Hence, even if the original Hurtigruten Agreement in its entirety was notified to the Authority in 2000 and approved in 2001, the Authority could not reasonably have been expected to foresee all possible effects of the provision, and the Authority’s silence about the provision in its 2001 Decision cannot be held to imply that all uses of the provision were hereinafter automatically acceptable from a State aid point of view.

It is the view of the Authority that the existence of the contractual provision needs to be distinguished from the separate question of whether the chosen readaptation complies with the EEA Agreement, and in particular with the State aid provisions. [...]

On this basis, it is the preliminary view of the Authority that the increase in the compensation is not as such determined through a public procurement procedure within the meaning of the Altmark case referred to above.

Altmark

As mentioned above under Section I.4, the Norwegian authorities have argued that they acted in a manner similar to a rational market operator during the renegotiation process. It is not clear to the Authority whether this is a separate submission or whether it merely refers to the way in which the authorities conducted the renegotiations and limited the compensation to what was strictly necessary. The Authority considers in any event that there is no scope for applying the private market investor principle to an EEA State’s acquisition of a public service.

Against this background, the preliminary conclusion of the Authority is that the measures under assessment gave Hurtigruten an advantage beyond the Hurtigruten Agreement agreed in 2004.

1.3.   Distortion of competition and effect on trade between Contracting Parties

Distortion of competition and effect on trade between Contracting Parties

The market for domestic maritime services (maritime cabotage) was opened to EEA-wide competition in 1998. The compensation may have an effect on potential competition, including those from foreign operators. The compensation payment is thus liable to affect competition and trade.

Moreover, Hurtigruten is also engaged in the tourism sector, in particular through the offer of cruise/round trips along the Norwegian coast. On this market, other operators offer cruise trips along the coast,for example between Bergen and Kirkenes. The compensation granted can therefore also have an effect on this market.

1.4.   Conclusion on the presence of State aid

Conclusion on the presence of State aid

On the basis of the information set out above, the Authority has reached the preliminary conclusion that the additional payments in favour of Hurtigruten under assessment constitute State aid within the meaning of Article 61(1) of the EEA Agreement.

2.   Procedural requirements

Procedural requirements

The Norwegian authorities did not notify the renegotiation of the Hurtigruten Agreement to the Authority. The Authority therefore concludes that the Norwegian authorities have not respected their obligations pursuant to Article 1(3) of Part I of Protocol 3.

3.   Compatibility of the aid

Compatibility of the aid

In the following, the Authority will assess the potential justification grounds put forward by the Norwegian authorities, i.e. that the measure can be justified as public service compensation under Article 59(2) EEA, or, alternatively, as an emergency measure to ensure a continuous service until a new tender procedure could take place. Finally the Norwegian authorities have referred to the measure as a rescue and restructuring measure within the meaning of Article 61(3)(c) and the relevant Authority Guidelines.

It follows from Article 4 of the Maritime cabotage regulation and Section 9 of the Authority’s Guidelines on Maritime transport that EFTA States may impose public service obligations or conclude public service contracts for certain maritime transport services provided that the compensation fulfils the rules of the EEA Agreement and the procedure governing State aid.

According to Article 59(2) EEA: ‘undertakings entrusted with the operation of services of general economic interest ... shall be subject to the rules contained in this Agreement, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary of the interests of the Contracting Parties’.

It follows from this provision that the service in question must be a service of general economic interest and be clearly defined as such by the EFTA State. Moreover, the undertaking in question must be officially entrusted by the EFTA State with the provision of that service. The amount of compensation shall not exceed what is necessary to cover the costs incurred in discharging the public service obligations including a reasonable profit.

As the Authority has already pointed out, it did not assess the Hurtigruten Agreement currently in force in order to determine whether it fulfilled all the conditions required by EEA law (9). However, based on its approval of the preceding and mainly similar Hurtigruten contract in 2001, the Authority does not consider it necessary in the present opening decision to question either the definition of the service of general economic interest public service at issue or the fact that such a service was entrusted to Hurtigruten through the agreement in 2004.

9

However, the Authority must also verify that the increase in the public service compensation did not exceed the net extra costs of discharging the public service task entrusted to Hurtigruten.

In that regard the Authority notes that the increased compensation in 2008 was granted partly with reference to the introduction of the NOx tax and partly with reference to the weak financial situation of Hurtigruten.

As regards the NOx tax, the Norwegian authorities have in response to the Authority’s questions submitted extensive material regarding the calculations of the increased costs stemming from the NOx tax and later the contributions to the NOx Fund (10). To some extent, the authorities have also documented increased fuel costs for Hurtigruten.

10

However, on the basis of this documentation the Authority has doubts as to whether the mentioned NOx compensation solely corresponds to increased costs in discharging the public service obligations. In that regard, the Authority has taken note of that Hurtigruten’s activities, also for the 11 vessels providing the public service, are not only confined to providing the public service but also to commercial services such as roundtrips, excursions and cruises. As only the costs associated with the public service can be taken into consideration the Authority has doubts as to whether as much as 90 % of the increased costs stemming from the NOx tax regime can be attributable to the provision of the public service in question.

Moreover, as far as the ‘general compensation’ for 2008 is concerned, the Norwegian authorities granted the aid with a reference to the weak financial position of Hurtigruten resulting from a general increase in costs for the service provided. The Authority has so far not seen a detailed breakdown of the general compensation in terms of increased costs for specific elements included in the public service obligation. Moreover, as mentioned above, the Authority recalls that Hurtigruten also carries out commercial activities outside the scope of the public service in question. The Authority has so far not received documentation clearly explaining how the general increase in costs and the compensation thereto was solely linked to the provision of the public service. To the contrary, the PricewaterhouseCoopers report 14 October 2008 and the BDO Noraudit report 23 March 2009 (11), to which the Norwegian authorities refer, seem to indicate the opposite. They count for NOK 64,8 million in increased bunker fuel price in the first three quarters of 2008 compared with first three quarters of 2007 (12), fuel prices decreasing again in fourth quarter 2008. As pointed out in the BDO Noraudit report, page 14, it is questionable that the calculations of increased fuel prices in 2008 were based on marine gas oil (MGO) prices although Hurtigruten in fact uses fuel of different quality category, IF40, which is much less expensive. BDO Noraudit concludes on page 15 in its report, that the amount of the ‘general compensation’ corresponding to NOK 66 million is not directly linked to the price development of bunker fuel in first half of 2008. The Authority notes that BDO Noraudit points out in its concluding remarks on page 23 in the report that the fact that Hurtigruten does not keep sufficiently separate accounts between the operations following from the public service obligation and other services provided by means of the same vessels, makes the analyse of the public service compensation difficult.

11

12

Finally, the Authority has doubts how the reduction in the service in terms of number of ships during winter time may correspond to increased costs in discharging the public service obligation. The Norwegian authorities have hitherto not linked this increase in compensation to any specific extra costs that would have to be compensated.

As regards the justification ground based on an emergency acquisition of a service in order to ensure a continuous service until a new tender procedure could be arranged, the Authority would in principle not exclude that such circumstances in a given case could justify acquisition of a public service without the normally applicable strong requirements for verification of compensation limited to the net extra costs. While keeping certain transport infrastructure open may be of vital importance for a state the amount of aid would, in such a case, be limited to the extent necessary by a new public tender being arranged as soon as practically possible. However, in the case at hand, a new tender was only announced in June 2010 for the acquisition of transport services as from 1 January 2013. Indeed, this entails that Hurtigruten may provide the service for the exact same time period as foreseen in the 2004 Hurtigruten Agreement. In other words, as the emergency acquisition was not followed up with the initiation of a new tender process immediately after, the Authority doubts that such arguments could justify any overcompensation to Hurtigruten. The Authority is not aware of any particular circumstance that may explain why it was impossible to initiate a new public tender procedure before 20 months had lapsed since the finalisation of the renegotiation procedure.

Finally, the Norwegian authorities have argued that the aid is compatible as restructuring aid under Article 61(3)(c) and the Authority’s Guidelines on rescuing and restructuring aid. In 2010, the Norwegian authorities submitted a memorandum explaining why Hurtigruten was a firm in difficulties and describing various restructuring measures in favour of the company. However, they neither notified the potential rescue aid nor followed up with a proper restructuring plan. For these reasons, the Authority has doubts whether the measures under assessment can be considered as restructuring aid within the meaning of the guidelines and invites the Norwegian authorities to provide any documentation deemed necessary for such an assessment.

4.   Conclusion

Conclusion

Based on the information submitted by the Norwegian authorities, the Authority preliminary concludes that the additional payments to the Hurtigruten companies (reimbursement of the NOx tax/NOx Fund contribution, a general compensation payment of NOK 66 million in 2008 as well as the release in winter of one of the 11 ships allocated to the route) constitute State aid within the meaning of Article 61(1) of the EEA Agreement.

The Authority has doubts that these measures comply with Article 59(2) or Article 61(3) of the EEA Agreement, in conjunction with the requirements laid down in the Authority’s State Aid Guidelines on Maritime Transport and/or Guidelines on rescuing and restructuring firms in difficulty. The Authority, therefore, doubts that the above measures are compatible with the functioning of the EEA Agreement.

Consequently, and in accordance Article 4(4) of Part II of Protocol 3, the Authority is obliged to open the formal investigation procedure provided for in Article 1(2) of Part I of Protocol 3. The decision to open a formal investigation procedure is without prejudice to the final decision of the Authority, which may conclude that the measures in question are compatible with the functioning of the EEA Agreement.

In light of the foregoing considerations, the Authority, acting under the procedure laid down in Article 1(2) of Part I of Protocol 3, invites the Norwegian authorities to submit their comments within one month of the date of receipt of this Decision.

In light of the foregoing considerations, within one month of receipt of this decision, the Authority request the Norwegian authorities to provide all documents, information and data needed for assessment of the compatibility of the revised Hurtigruten Agreement.

The Authority requests the Norwegian authorities to forward a copy of this decision to the potential aid recipient of the aid immediately.

The Authority must remind the Norwegian authorities that, according to Article 14 of Part II of Protocol 3, any incompatible aid unlawfully granted to the beneficiaries will have to be recovered, unless (exceptionally) this recovery would be contrary to a general principal of EEA law,

HAS ADOPTED THIS DECISION:

Article 1

The formal investigation procedure provided for in Article 1(2) of Part I of Protocol 3 is opened into the additional payments to Hurtigruten (reimbursement of the NOx tax/NOx Fund contribution, a general compensation payment of NOK 66 million in 2008 as well as the release in winter of one of the 11 ships allocated to the route) implemented by the Norwegian authorities.

Article 2

The Norwegian authorities are invited, pursuant to Article 6(1) of Part II of Protocol 3, to submit their comments on the opening of the formal investigation procedure within one month from the notification of this Decision.

Article 3

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

Article 4

This Decision is addressed to the Kingdom of Norway.

Article 5

Only the English language version of this decision is authentic.

Done at Brussels, on 14 July 2010.

For the EFTA Surveillance Authority

Per SANDERUD

President

Sverrir HAUKUR

College Member

---

(1)  Available at: http://www.eftasurv.int/state-aid/legal-framework/state-aid-guidelines/

1

(2)  OJ L 30, 5.2.1998, incorporated as point 53a in Annex XIII to the EEA Agreement.

2

(3)  Decision 417/01/COL.

3

(4)  In the Hurtigruten Agreement: Offentlige pålegg som medfører betydelige kostnadsendringer samt radikale endringer av priser på innsatsfaktorer som partene ikke med rimelighet kunne forutse, gir hver av partene rett til a kreve forhandlinger om ekstraordinære reguleringer av statens godtgjørelse, endring av produksjonen eller andre tiltak. Motparten har i slike forhandlinger krav på all nødvendig dokumentasjon.

4

Offentlige pålegg som medfører betydelige kostnadsendringer samt radikale endringer av priser på innsatsfaktorer som partene ikke med rimelighet kunne forutse, gir hver av partene rett til a kreve forhandlinger om ekstraordinære reguleringer av statens godtgjørelse, endring av produksjonen eller andre tiltak. Motparten har i slike forhandlinger krav på all nødvendig dokumentasjon

(5)  St.prp. nr. 24 (2008-2009), Innst. S. nr. 92 (2008-2009), Prop. 50 S (2009-2010), Innst. 74 S (2009-2010) and Prop. 125 S (2009-2010).

5

(6)  Case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg [2003] ECR I-7747, paragraphs 88-93.

6

Altmark Trans GmbH and Regierungspräsidium Magdeburg

(7)  Case C-454/06 Pressetext Nachrichtenagentur GmbH, [2008] ECR p. I-4401, par. 59-60 and 70.

7

Pressetext Nachrichtenagentur GmbH

(8)  The increase in the remuneration was based on Article 10 of the 2001 Hurtigruten contract which in content was similar to the mentioned Article 8 of the present contract.

8

(9)  Judgment of the Court of First Instance of 27 February 1997, Case T-106/96 FFSA and others v Commission, [1997] ECR II-229 and Judgment of the EFTA Court of 3 March 1999, Case E-4/97 Norwegian Bankers’ Association v. EFTA Surveillance Authority, [1999] EFTA Court Report p. 1 (Husbanken case).

9

FFSA and others

Commission

Norwegian Bankers’ Association

EFTA Surveillance Authority

(10)  See EFTA Surveillance Authority Decision No 501/08/COL.

10

(11)  These reports were submitted by the Norwegian authorities with letter dated 3 April 2009 (Event No 514420).

11

(12)  Page 18 in the BDO Noraudit report. The figure NOK 64,8 million corresponds to 98 % of the increase in bunker fuel price, for vessels used on the route Bergen–Kirkenes, for the first three quarters of 2008 compared with first three quarters of 2007. The calculated increase in bunker fuel price on the route is reduced by 2 % which corresponds to the fuel costs related to the transport in Geiranger fjord which falls outside the Hurtigruten Agreement.

12

---

| 25.11.2010 | EN | Official Journal of the European Union | C 320/18 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/18

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Information communicated by the EFTA States regarding State aid granted under the Act referred to in point 1 j of Annex XV of the EEA Agreement (Commission Regulation (EC) No 800/2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General Block Exemption Regulation))

2010/C 320/07

PART I

| Aid No | GBER 7/10/R&D |
| --- | --- |
| EFTA State | Norway |
| Granting authority | Finnmark fylkeskommune |
| Henry Karlsens plass 1 |
| 9815 Vadsø |
| NORWAY |
| http://www.ffk.no |

Aid No

GBER 7/10/R&D

EFTA State

Norway

Granting authority

Finnmark fylkeskommune

Henry Karlsens plass 1

9815 Vadsø

NORWAY

http://www.ffk.no

Title of the aid measure

Development aid 2010 for Hermetikken Næringshage AS

National legal basis (Reference to the relevant national official publication)

Decision from Finnmark County Council

Ad hoc aid

X

| Hermetikken Næringshage AS |
| --- |
| 9800 Vadsø |
| NORWAY |

Hermetikken Næringshage AS

9800 Vadsø

NORWAY

Date of granting

Ad hoc aid

17.6.2010

Economic sector(s) concerned

All economic sectors eligible to receive aid

X

Type of beneficiary

SME

X

Overall amount of the ad hoc aid awarded to the undertaking

NOK 0,20 (in millions)

Aid instrument (Article 5)

Grant

X

PART II

| General Objectives (list) | Objectives (list) | Maximum aid intensity in % or Maximum aid amount in NOK | SME-bonuses in % |
| --- | --- | --- | --- |
| Aid for research, development and innovation (Articles 30-37) | Aid for research and development projects (Article 31) | Fundamental research (Article 31(2)(a)) | ... % | |
| Industrial research (Article 31(2)(b)) | ... % | |
| Experimental development (Article 31(2)(c)) | 3,96 % | |

General Objectives (list)

Objectives (list)

Maximum aid intensity in % or Maximum aid amount in NOK

SME-bonuses in %

Aid for research, development and innovation (Articles 30-37)

Aid for research and development projects (Article 31)

Fundamental research (Article 31(2)(a))

... %

Industrial research (Article 31(2)(b))

... %

Experimental development (Article 31(2)(c))

3,96 %

---

V Announcements

COURT PROCEEDINGS

EFTA Court

| 25.11.2010 | EN | Official Journal of the European Union | C 320/19 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/19

---

Request for an Advisory Opinion from the EFTA Court by Oslo tingrett dated 26 March 2010 in the case of Periscopus AS v Oslo Børs ASA and Erik Must AS

(Case E-1/10)

2010/C 320/08

A request has been made to the EFTA Court by a letter of 26 March 2010 from Oslo tingrett (Oslo District Court), which was received at the Court Registry on 31 March 2010, for an Advisory Opinion in the case of Periscopus AS v Oslo Børs ASA and Erik Must AS, on the following question:

Is it in accordance with Article 5(4) second subparagraph of Directive 2004/25/EC of the European Parliament and of the Council to order an offeror making a public bid to offer a bid price that exceeds the price that the offeror paid or agreed to during the six-month period preceding the time when the obligation to make an offer arose, considering that the market price at the time at which the obligation to make a bid arose is higher than the price that the offeror would otherwise be obliged to offer pursuant to the (Norwegian) Securities Trading Act?

---

| 25.11.2010 | EN | Official Journal of the European Union | C 320/20 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/20

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JUDGMENT OF THE COURT

of 7 May 2010

in Case E-8/09

EFTA Surveillance Authority v The Republic of Iceland

(Failure by a Contracting Party to fulfil its obligations — Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC on the approximation of the laws of the Member States relating to lifts — Judgment by default)

2010/C 320/09

In Case E-8/09, EFTA Surveillance Authority v The Republic of Iceland — Application for a declaration that by failing to adopt, or to notify the EFTA Surveillance Authority of, the measures necessary to implement the Act referred to at point 5 of Chapter III of Annex II to the EEA Agreement, i.e. Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC on the approximation of the laws of the Member States relating to lifts, as adapted to the EEA Agreement by way of Protocol 1 thereto, within the time limit prescribed, the Republic of Iceland has failed to fulfil its obligations under that Act and Article 7 of the EEA Agreement, the Court, composed of Carl Baudenbacher, President, Thorgeir Örlygsson (Judge-Rapporteur), and Henrik Bull, Judges, gave judgment on 7 May 2010, the operative part of which is as follows:

The Court hereby:

| 1. | declares that, by failing to adopt, within the time limit prescribed, the measures necessary to implement Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC, as adapted to the EEA Agreement by way of Protocol 1 thereto, the Republic of Iceland has failed to fulfil its obligations under the Directive and under Article 7 of the EEA Agreement; |
| --- | --- |

1.

declares that, by failing to adopt, within the time limit prescribed, the measures necessary to implement Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC, as adapted to the EEA Agreement by way of Protocol 1 thereto, the Republic of Iceland has failed to fulfil its obligations under the Directive and under Article 7 of the EEA Agreement;

| 2. | orders the Republic of Iceland to bear the costs of the proceedings. |
| --- | --- |

2.

orders the Republic of Iceland to bear the costs of the proceedings.

---

| 25.11.2010 | EN | Official Journal of the European Union | C 320/21 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/21

---

Action brought on 23 August 2010 by Aleris Ungplan AS against the EFTA Surveillance Authority

(Case E-13/10)

2010/C 320/10

An action against the EFTA Surveillance Authority was brought before the EFTA Court on 23 August 2010 by Aleris Ungplan AS, represented by Jon Midthjell, advokat, Advokatfirmaet Midthjell AS, Grev Wedels plass 5, 0151 Oslo, NORWAY.

The applicant requests the EFTA Court:

| 1. | to annul EFTA Surveillance Authority Decision No 248/10/COL concerning Cases Nos 66111 and 66744 of 21 June 2010; |
| --- | --- |

1.

to annul EFTA Surveillance Authority Decision No 248/10/COL concerning Cases Nos 66111 and 66744 of 21 June 2010;

| 2. | to order the EFTA Surveillance Authority to pay the costs of these proceedings. |
| --- | --- |

2.

to order the EFTA Surveillance Authority to pay the costs of these proceedings.

Legal and factual background and pleas in law adduced in support:

| — | The Applicant, Aleris Ungplan AS, is a private provider of youth services in Norway. Aleris Ungplan AS is a wholly owned subsidiary of the Aleris Group which has its headquarter in Stockholm, Sweden. |
| --- | --- |

—

The Applicant, Aleris Ungplan AS, is a private provider of youth services in Norway. Aleris Ungplan AS is a wholly owned subsidiary of the Aleris Group which has its headquarter in Stockholm, Sweden.

| — | The Applicant lodged a complaint with the EFTA Surveillance Authority alleging that the exclusion of all youth care providers except for non-profit organisations from two public procurements relating to youth care services in Norway was contrary to the EEA Agreement. |
| --- | --- |

—

The Applicant lodged a complaint with the EFTA Surveillance Authority alleging that the exclusion of all youth care providers except for non-profit organisations from two public procurements relating to youth care services in Norway was contrary to the EEA Agreement.

| — | With the contested decision, the EFTA Surveillance Authority closed the case, considering that the exclusions were not contrary to the EEA Agreement. |
| --- | --- |

—

With the contested decision, the EFTA Surveillance Authority closed the case, considering that the exclusions were not contrary to the EEA Agreement.

| — | The Applicant claims that the EFTA Surveillance Authority:






  — | failed to uphold the principle of non-discrimination of Article 2 of Directive 2004/18/EC and the rules applicable to public procurement under EEA law, and |
| --- | --- | --- |

—

The Applicant claims that the EFTA Surveillance Authority:

—

failed to uphold the principle of non-discrimination of Article 2 of Directive 2004/18/EC and the rules applicable to public procurement under EEA law, and

| — | failed to sufficiently state the reasons for its decision. |
| --- | --- |

—

failed to sufficiently state the reasons for its decision.

---

| 25.11.2010 | EN | Official Journal of the European Union | C 320/22 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/22

---

Action brought on 2 September 2010 by Konkurrenten.no AS against the EFTA Surveillance Authority

(Case E-14/10)

2010/C 320/11

An action against the EFTA Surveillance Authority was brought before the EFTA Court on 2 September 2010 by Konkurrenten.no AS, represented by Jon Midthjell, advokat, Advokatfirmaet Midthjell AS, Grev Wedels plass 5, 0151 Oslo, NORWAY.

The applicant requests the EFTA Court:

| 1. | to annul EFTA Surveillance Authority Decision No 254/10/COL of 21 June 2010 (AS Oslo Sporveier and AS Sporveisbussene); |
| --- | --- |

1.

to annul EFTA Surveillance Authority Decision No 254/10/COL of 21 June 2010 (AS Oslo Sporveier and AS Sporveisbussene);

| 2. | to order the Defendant to pay the costs. |
| --- | --- |

2.

to order the Defendant to pay the costs.

Legal and factual background and pleas in law adduced in support:

| — | The Applicant, Konkurrenten.no AS, is a privately owned operator in the Norwegian express bus market. |
| --- | --- |

—

The Applicant, Konkurrenten.no AS, is a privately owned operator in the Norwegian express bus market.

| — | On 11 August 2006, the Applicant lodged a complaint with the EFTA Surveillance Authority alleging that the City of Oslo has granted aid to AS Oslo Sporveier (now: Ruter AS) and its subsidiary, AS Sporveisbussene (now: Unibuss AS), in violation of Article 61 of the EEA Agreement. |
| --- | --- |

—

On 11 August 2006, the Applicant lodged a complaint with the EFTA Surveillance Authority alleging that the City of Oslo has granted aid to AS Oslo Sporveier (now: Ruter AS) and its subsidiary, AS Sporveisbussene (now: Unibuss AS), in violation of Article 61 of the EEA Agreement.

| — | With the contested decision, the EFTA Surveillance Authority closed the case. It considered that State aid contrary to Articles 61(1) and 49 of the EEA Agreement and Regulation (EC) No 1370/2007 had been granted. It further considered that the aid was existing aid pursuant to Article 1(b)(i) and (v) of Part II of Protocol 3 to the Surveillance and Court Agreement, and that it was terminated in 2008. It concluded that no further action was required. |
| --- | --- |

—

With the contested decision, the EFTA Surveillance Authority closed the case. It considered that State aid contrary to Articles 61(1) and 49 of the EEA Agreement and Regulation (EC) No 1370/2007 had been granted. It further considered that the aid was existing aid pursuant to Article 1(b)(i) and (v) of Part II of Protocol 3 to the Surveillance and Court Agreement, and that it was terminated in 2008. It concluded that no further action was required.

| — | The Applicant claims that the EFTA Surveillance Authority:






  — | erred by assessing the aid between 2000 and 2008 as existing aid, given that a new licence to run local bus transport in the City of Oslo was issued at the end of 1999, and infringed its duty to open the formal investigation procedure, |
| --- | --- | --- |

—

The Applicant claims that the EFTA Surveillance Authority:

—

erred by assessing the aid between 2000 and 2008 as existing aid, given that a new licence to run local bus transport in the City of Oslo was issued at the end of 1999, and infringed its duty to open the formal investigation procedure,

| — | erred by assessing the aid between 1997 and 2000 as existing aid, given the liberalisation of the market for bus transport, and infringed its duty to open the formal investigation procedure, and |
| --- | --- |

—

erred by assessing the aid between 1997 and 2000 as existing aid, given the liberalisation of the market for bus transport, and infringed its duty to open the formal investigation procedure, and

| — | failed to sufficiently state the reasons for its decision. |
| --- | --- |

—

failed to sufficiently state the reasons for its decision.

---

| 25.11.2010 | EN | Official Journal of the European Union | C 320/23 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/23

---

Action brought on 14 September 2010 by Posten Norge AS against the EFTA Surveillance Authority

(Case E-15/10)

2010/C 320/12

An action against the EFTA Surveillance Authority was brought before the EFTA Court on 14 September 2010 by Posten Norge AS, represented by Siri Teigum, advokat, and Frode Elgesem, advokat, Advokatfirmaet Thommessen AS, Haakon VIIs gate 10, 0116 Oslo, NORWAY.

The Applicant claims that the EFTA Court should:

| — | annul the contested decision, |
| --- | --- |

—

annul the contested decision,

| — | annul or substantially reduce the fine, |
| --- | --- |

—

annul or substantially reduce the fine,

| — | order the EFTA Surveillance Authority to pay the costs. |
| --- | --- |

—

order the EFTA Surveillance Authority to pay the costs.

Legal and factual background and pleas in law adduced in support:

| — | The Applicant, Posten Norge AS, operates the national postal service in Norway which covers mail, parcels and financial services. Its sole owner continues to be the Norwegian State. The majority of Posten Norge AS’ services (90 %) are exposed to competition. |
| --- | --- |

—

The Applicant, Posten Norge AS, operates the national postal service in Norway which covers mail, parcels and financial services. Its sole owner continues to be the Norwegian State. The majority of Posten Norge AS’ services (90 %) are exposed to competition.

| — | By its decision of 14 July 2010 in case No 34250 ‘Norway Post/Privpak’, the EFTA Surveillance Authority found that Posten Norge AS committed a single and continuous infringement of Article 54 of the EEA Agreement from 20 September 2000 until 31 March 2006 in the market for business-to-consumer parcel services with over-the-counter delivery in Norway by pursuing an exclusivity strategy with preferential treatment when establishing and maintaining its Post-in-Shop network. Consequently, a fine of EUR 12,89 million was imposed. |
| --- | --- |

—

By its decision of 14 July 2010 in case No 34250 ‘Norway Post/Privpak’, the EFTA Surveillance Authority found that Posten Norge AS committed a single and continuous infringement of Article 54 of the EEA Agreement from 20 September 2000 until 31 March 2006 in the market for business-to-consumer parcel services with over-the-counter delivery in Norway by pursuing an exclusivity strategy with preferential treatment when establishing and maintaining its Post-in-Shop network. Consequently, a fine of EUR 12,89 million was imposed.

| — | The Applicant claims that the decision must be annulled as:






  — | the EFTA Surveillance Authority erred in the interpretation and application of Article 54 of the EEA Agreement, by holding that any detrimental effect for the rivals’ ability to compete is sufficient to establish abuse, |
| --- | --- | --- |

—

The Applicant claims that the decision must be annulled as:

—

the EFTA Surveillance Authority erred in the interpretation and application of Article 54 of the EEA Agreement, by holding that any detrimental effect for the rivals’ ability to compete is sufficient to establish abuse,

| — | the EFTA Surveillance Authority has not proven that Posten Norge AS has infringed the competition rules in this case, in particular, it has not substantiated that the exclusivity strategy prevented new entrants from competing effectively, limited their access to the leading grocery store, kiosk and petrol station chains in a manner that constituted abuse, or did result in actual anticompetitive effects, |
| --- | --- |

—

the EFTA Surveillance Authority has not proven that Posten Norge AS has infringed the competition rules in this case, in particular, it has not substantiated that the exclusivity strategy prevented new entrants from competing effectively, limited their access to the leading grocery store, kiosk and petrol station chains in a manner that constituted abuse, or did result in actual anticompetitive effects,

| — | in any event, the behaviour of Posten Norge AS was objectively justified. |
| --- | --- |

—

in any event, the behaviour of Posten Norge AS was objectively justified.

| — | In the alternative the Applicant contends that the fine must be substantially reduced as the EFTA Surveillance Authority:






  — | erred in assessing the duration of the alleged infringement, |
| --- | --- | --- |

—

In the alternative the Applicant contends that the fine must be substantially reduced as the EFTA Surveillance Authority:

—

erred in assessing the duration of the alleged infringement,

| — | failed to correctly assess the gravity of the infringement, |
| --- | --- |

—

failed to correctly assess the gravity of the infringement,

| — | failed to conclude the administrative proceedings within reasonable time, which alone must lead to a reduction of the fine by at least 50 %. |
| --- | --- |

—

failed to conclude the administrative proceedings within reasonable time, which alone must lead to a reduction of the fine by at least 50 %.

---

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

| 25.11.2010 | EN | Official Journal of the European Union | C 320/24 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/24

---

Prior notification of a concentration

(Case COMP/M.6043 — Mubadala/UTC/Lockheed Martin/Ammroc)

Candidate case for simplified procedure

(Text with EEA relevance)

2010/C 320/13

| 1. | On 12 November 2010 the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Mubadala Development Company PJSC (‘Mubadala’, Abu Dhabi), Sikorsky Aircraft Corporation (‘Sikorsky’, USA, belonging to the United Technologies (‘UTC’) group), and Lockheed Martin Corporation (‘Lockheed’, USA) acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of Advanced Military Maintenance, Repair and Overhaul Center LLC (‘Ammroc’, United Arab Emirates) by way of purchase of shares in a newly created company constituting a joint venture. |
| --- | --- |

1.

On 12 November 2010 the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Mubadala Development Company PJSC (‘Mubadala’, Abu Dhabi), Sikorsky Aircraft Corporation (‘Sikorsky’, USA, belonging to the United Technologies (‘UTC’) group), and Lockheed Martin Corporation (‘Lockheed’, USA) acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of Advanced Military Maintenance, Repair and Overhaul Center LLC (‘Ammroc’, United Arab Emirates) by way of purchase of shares in a newly created company constituting a joint venture.

| 2. | The business activities of the undertakings concerned are:






  — | UTC: high technology products and services for the building systems and aerospace industries worldwide, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

UTC: high technology products and services for the building systems and aerospace industries worldwide,

| — | Mubadala: global investing in a wide range of strategic sectors, including energy, utilities, real estate, public-private partnerships, aerospace, basic industries and services, |
| --- | --- |

—

Mubadala: global investing in a wide range of strategic sectors, including energy, utilities, real estate, public-private partnerships, aerospace, basic industries and services,

| — | Lockheed: aeronautics, electronic systems, information systems and space systems, |
| --- | --- |

—

Lockheed: aeronautics, electronic systems, information systems and space systems,

| — | Ammroc JV: maintenance, repair and overhaul (“MRO”) services for military fixed wing and rotary wing aircraft as well as related modification and upgrade services, supply chain management services and maintenance contract management services. |
| --- | --- |

—

Ammroc JV: maintenance, repair and overhaul (“MRO”) services for military fixed wing and rotary wing aircraft as well as related modification and upgrade services, supply chain management services and maintenance contract management services.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.6043 — Mubadala/UTC/Lockheed Martin/Ammroc, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.6043 — Mubadala/UTC/Lockheed Martin/Ammroc, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘EC Merger Regulation’).

(2)  OJ C 56, 5.3.2005, p. 32 (‘Notice on a simplified procedure’).

---

| 25.11.2010 | EN | Official Journal of the European Union | C 320/25 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/25

---

Prior notification of a concentration

(Case COMP/M.6026 — CRH/BauKing)

Candidate case for simplified procedure

(Text with EEA relevance)

2010/C 320/14

| 1. | On 16 November 2010, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which CRH Deutschland GmbH (‘CRH’, Germany), belonging to the group CRH Plc Group (Ireland), acquires within the meaning of Article 3(1)(b) of the Merger Regulation control of the whole of BauKing AG (‘BauKing’, Germany) by way of purchase of shares. |
| --- | --- |

1.

On 16 November 2010, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which CRH Deutschland GmbH (‘CRH’, Germany), belonging to the group CRH Plc Group (Ireland), acquires within the meaning of Article 3(1)(b) of the Merger Regulation control of the whole of BauKing AG (‘BauKing’, Germany) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | for CRH: production and distribution of building materials and products for the construction industry, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for CRH: production and distribution of building materials and products for the construction industry,

| — | for BauKing: Do-it-yourself outlets and builders’ merchants. |
| --- | --- |

—

for BauKing: Do-it-yourself outlets and builders’ merchants.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.6026 — CRH/BauKing, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.6026 — CRH/BauKing, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘EC Merger Regulation’).

(2)  OJ C 56, 5.3.2005, p. 32 (‘Notice on a simplified procedure’).

---

| 25.11.2010 | EN | Official Journal of the European Union | C 320/26 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/26

---

Prior notification of a concentration

(Case COMP/M.5962 — SSI/QP/Oryx)

Candidate case for simplified procedure

(Text with EEA relevance)

2010/C 320/15

| 1. | On 18 November 2010, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which undertakings Sasol Synfuels International (Pty) Limited (‘SSI’, South-Africa), which belongs to Sasol Group (‘Sasol Group’, South-Africa), and Qatar Petroleum (‘QP’, The State of Qatar) acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control over Oryx GTL Limited (‘Oryx’, The State of Qatar). |
| --- | --- |

1.

On 18 November 2010, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which undertakings Sasol Synfuels International (Pty) Limited (‘SSI’, South-Africa), which belongs to Sasol Group (‘Sasol Group’, South-Africa), and Qatar Petroleum (‘QP’, The State of Qatar) acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control over Oryx GTL Limited (‘Oryx’, The State of Qatar).

| 2. | The business activities of the undertakings concerned are:






  — | for Sasol Group: production of oil, synthetic fuel components, natural gas and petrochemicals, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for Sasol Group: production of oil, synthetic fuel components, natural gas and petrochemicals,

| — | for SSI: business development company mandated to implement coal-to-liquids and gas-to-liquids projects globally, |
| --- | --- |

—

for SSI: business development company mandated to implement coal-to-liquids and gas-to-liquids projects globally,

| — | for QP: all phases of oil and gas industry including exploration, development, production, processing, transportation and storage of crude oil, natural gas, natural gas liquids, liquefied natural gas, refined products, petrochemicals and fertilizers, |
| --- | --- |

—

for QP: all phases of oil and gas industry including exploration, development, production, processing, transportation and storage of crude oil, natural gas, natural gas liquids, liquefied natural gas, refined products, petrochemicals and fertilizers,

| — | for Oryx: production of diesel, naphtha and LPG. |
| --- | --- |

—

for Oryx: production of diesel, naphtha and LPG.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.5962 — SSI/QP/Oryx, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.5962 — SSI/QP/Oryx, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘EC Merger Regulation’).

(2)  OJ C 56, 5.3.2005, p. 32 (‘Notice on a simplified procedure’).

---

| 25.11.2010 | EN | Official Journal of the European Union | C 320/27 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/27

---

Prior notification of a concentration

(Case COMP/M.6062 — Coop/transGourmet)

Candidate case for simplified procedure

(Text with EEA relevance)

2010/C 320/16

| 1. | On 18 November 2010, the Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Coop Genossenschaft (‘Coop’, Switzerland) acquires within the meaning of Article 3(1)(b) of the Merger Regulation control of the whole of the undertaking transGourmet Holding SE (‘transGourmet’, Germany) by way of purchase of shares. |
| --- | --- |

1.

On 18 November 2010, the Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Coop Genossenschaft (‘Coop’, Switzerland) acquires within the meaning of Article 3(1)(b) of the Merger Regulation control of the whole of the undertaking transGourmet Holding SE (‘transGourmet’, Germany) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | Coop is the holding company of the Swiss Coop Group, to which various production, trading and service companies belong. Coop operates supermarkets, hypermarkets, restaurants and petrol stations. It carries out wholesale activities outside Switzerland. The company also produces and sells meat products, seafood and convenience meals, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

Coop is the holding company of the Swiss Coop Group, to which various production, trading and service companies belong. Coop operates supermarkets, hypermarkets, restaurants and petrol stations. It carries out wholesale activities outside Switzerland. The company also produces and sells meat products, seafood and convenience meals,

| — | transGourmet operates in the wholesale food sector in Germany, Poland, Romania, France, Switzerland and Russia. It is currently a joint venture of the Rewe Group and Coop. |
| --- | --- |

—

transGourmet operates in the wholesale food sector in Germany, Poland, Romania, France, Switzerland and Russia. It is currently a joint venture of the Rewe Group and Coop.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.6062 — Coop/transGourmet, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.6062 — Coop/transGourmet, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘EC Merger Regulation’).

(2)  OJ C 56, 5.3.2005, p. 32 (‘Notice on a simplified procedure’).

---

| 25.11.2010 | EN | Official Journal of the European Union | C 320/28 |
| --- | --- | --- | --- |

25.11.2010

EN

Official Journal of the European Union

C 320/28

---

Prior notification of a concentration

(Case COMP/M.5971 — PPC/Urbaser/JV)

Candidate case for simplified procedure

(Text with EEA relevance)

2010/C 320/17

| 1. | On 17 November 2010, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Urbaser SA (‘Urbaser’, Spain), controlled by ACS Group (‘ACS’, Spain) and Public Power Corporation SA (‘PPC’, Greece), acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of a newly constituted joint venture in Greece, by way of purchase of shares. |
| --- | --- |

1.

On 17 November 2010, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Urbaser SA (‘Urbaser’, Spain), controlled by ACS Group (‘ACS’, Spain) and Public Power Corporation SA (‘PPC’, Greece), acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of a newly constituted joint venture in Greece, by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | for Urbaser: treatment and management of waste in several countries worldwide, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for Urbaser: treatment and management of waste in several countries worldwide,

| — | for PPC: mining and generation, transmission, distribution and supply of electricity in Greece. |
| --- | --- |

—

for PPC: mining and generation, transmission, distribution and supply of electricity in Greece.

| 3. | The joint venture will be active in Greece in the treatment and management of waste, in the urban and industrial waste water treatment as well as potentially in the generation of electricity through and/or related to waste management. |
| --- | --- |

3.

The joint venture will be active in Greece in the treatment and management of waste, in the urban and industrial waste water treatment as well as potentially in the generation of electricity through and/or related to waste management.

| 4. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice. |
| --- | --- |

4.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

| 5. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.5971 — PPC/Urbaser/JV, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

5.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.5971 — PPC/Urbaser/JV, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘EC Merger Regulation’).

(2)  OJ C 56, 5.3.2005, p. 32 (‘Notice on a simplified procedure’).

---