PROTOCOL 23 concerning the cooperation between the surveillance authorities (Article 58)

GENERAL PRINCIPLES

Article 1

The EFTA Surveillance Authority and the EC Commission shall exchange information and consult each other on general policy issues at the request of either of the surveillance authorities.

The EFTA Surveillance Authority and the EC Commission, in accordance with their internal rules, respecting Article 56 of the Agreement and Protocol 22 and the autonomy of both sides in their decisions, shall cooperate in the handling of individual cases falling under Article 56(1)(b) and (c), (2), second sentence and (3), as provided for in the provisions below.

For the purposes of this Protocol, the term 'territory of a surveillance authority` shall mean for the EC Commission the territory of the EC Member States to which the Treaty establishing the European Economic Community or the Treaty establishing the European Coal and Steel Community, as the case may be, applies, upon the terms laid down in those Treaties, and for the EFTA Surveillance Authority the territories of the EFTA States to which the Agreement applies.

THE INITIAL PHASE OF THE PROCEEDINGS

Article 2

In cases falling under Article 56(1)(b) and (c), (2), second sentence and (3) of the Agreement, the EFTA Surveillance Authority and the EC Commission shall without undue delay forward to each other notifications and complaints to the extent that it is not apparent that these have been addressed to both surveillance authorities. They shall also inform each other when opening ex officio procedures.

The surveillance authority which has received information as provided for in the first subparagraph may present its comments thereon within 40 working days of its receipt.

Article 3

The competent surveillance authority shall, in cases falling under Article 56(1)(b) and (c), (2), second sentence and (3) of the Agreement, consult the other surveillance authority when:

- publishing its intention to give a negative clearance,

- publishing its intention to take a decision in application of Article 53(3), or

- addressing to the undertakings or associations of undertakings concerned its statement of objections.

The other surveillance authority may deliver its comments within the time limits set out in the abovementioned publication or statement of objections.

Observations received from the undertakings concerned or third parties shall be transmitted to the other surveillance authority.

Article 4

In cases falling under Article 56(1)(b) and (c), (2), second sentence and (3) of the Agreement, the competent surveillance authority shall transmit to the other surveillance authority the administrative letters by which a file is closed or a complaint rejected.

Article 5

In cases falling under Article 56(1)(b) and (c), (2), second sentence and (3) of the Agreement, the competent surveillance authority shall invite the other surveillance authority to be represented at hearings of the undertakings concerned. The invitation shall also extend to the States falling within the competence of the other surveillance authority.

ADVISORY COMMITTEES

Article 6

In cases falling under Article 56(1)(b) and (c), (2), second sentence and (3) of the Agreement, the competent surveillance authority shall, in due time, inform the other surveillance authority of the date of the meeting of the Advisory Committee and transmit the relevant documentation.

All documents forwarded for that purpose from the other surveillance authority shall be presented to the Advisory Committee of the surveillance authority which is competent to decide on a case in accordance with Article 56 together with the material sent out by that surveillance authority.

Each surveillance authority and the States falling within its competence shall be entitled to be present in the Advisory Committees of the other surveillance authority and to express their views therein; they shall not have, however, the right to vote.

REQUEST FOR DOCUMENTS AND TH ERIGHT TO MAKE OBSERVATIONS

Article 7

In cases falling under Article 56(1)(b) and (c), (2), second sentence and (3) of the Agreement, the surveillance authority which is not competent to decide on a case in accordance with Article 56 may request at all stages of the proceedings copies of the most important documents lodged with the competent surveillance authority for the purpose of establishing the existence of infringements of Articles 53 and 54 or of obtaining a negative clearance or exemption, and may furthermore, before a final decision is taken, make any observations it considers appropriate.

ADMINISTRATIVE ASSISTANCE

Article 8

1. When sending a request for information to an undertaking or association of undertakings located within the territory of the other surveillance authority, the competent surveillance authority, as defined in Article 56 of the Agreement, shall at the same time forward a copy of the request to the other surveillance authority.

2. Where an undertaking or association of undertakings does not supply the information requested within the time limit fixed by the competent surveillance authority, or supplies incomplete information, the competent surveillance authority shall by decision require the information to be supplied. In the case of undertakings or associations of undertakings located within the territory of the other surveillance authority, the competent surveillance authority shall forward a copy of that decision to the other surveillance authority.

3. At the request of the competent surveillance authority, as defined in Article 56 of the Agreement, the other surveillance authority shall, in accordance with its internal rules, undertake investigations within its territory in cases where the competent surveillance authority so requesting considers it to be necessary.

4. The competent surveillance authority is entitled to be represented and take an active part in investigations carried out by the other surveillance authority in respect of paragraph 3.

5. All information obtained during such investigations on request shall be transmitted to the surveillance authority which requested the investigations immediately after their finalization.

6. Where the competent surveillance authority, in cases falling under Article 56(1)(b) and (c), (2), second sentence and (3) of the Agreement, carries out investigations within its territory, it shall inform the other surveillance authority of the fact that such investigations have taken place and, on request, transmit to that authority the relevant results of the investigations.

Article 9

1. Information acquired as a result of the application of this Protocol shall be used only for the purpose of procedures under Articles 53 and 54 of the Agreement.

2. The EC Commission, the EFTA Surveillance Authority, the competent authorities of the EC Member States and the EFTA States, and their officials and other servants shall not disclose information acquired by them as a result of the application of this Protocol and of the kind covered by the obligation of professional secrecy.

3. Rules on professional secrecy and restricted use of information provided for in the Agreement or in the legislation of the Contracting Parties shall not prevent exchange of information as set out in this Protocol.

Article 10

1. Undertakings shall, in cases of notifications of agreements, address the notification to the competent surveillance authority in accordance with Article 56 of the Agreement. Complaints may be addressed to either surveillance authority.

2. Notifications or complaints addressed to the surveillance authority which, pursuant to Article 56, is not competent to decide on a given case shall be transferred without delay to the competent surveillance authority.

3. If, in the preparation or initiation of ex officio proceedings, it becomes apparent that the other surveillance authority is competent to decide on a case in accordance with Article 56 of the Agreement, this case shall be transferred to the competent surveillance authority.

4. Once a case is transmitted to the other surveillance authority as provided for in paragraphs 2 and 3, a retransmission of the case may not take place. A transmission of a case may not take place after the publishing of the intention to give a negative clearance, the publishing of the intention to take a decision in application of Article 53(3) of the Agreement, the addressing to undertakings or associations of undertakings concerned of the statement of objections or the sending of a letter informing the applicant that there are insufficient grounds for pursuing the complaint.

Article 11

The date of submission of an application or notification shall be the date on which it is received by the EC Commission or the EFTA Surveillance Authority, regardless of which of these is competent to decide on the case under Article 56 of the Agreement. Where, however, the application or notification is sent by registered post, it shall be deemed to have been received on the date shown on the postmark of the place of posting.

LANGUAGES

Article 12

Undertakings shall be entitled to address and be addressed by the EFTA Surveillance Authority and the EC Commission in an official language of an EFTA State or the European Community which they choose as regards notifications, applications and complaints. This shall also cover all instances of a proceeding, whether it be opened on notification, application or complaint or ex officio by the competent surveillance authority.