Decision of the EEA Joint Committee

No 29/2004

of 19 March 2004

amending Annex XIV (Competition) to the EEA Agreement

THE EEA JOINT COMMITTEE,

Having regard to the Agreement on the European Economic Area, as adjusted by the Protocol adjusting the Agreement on the European Economic Area, hereinafter referred to as "the Agreement", and in particular Article 98 thereof,

Whereas:

(1) Annex XIV to the Agreement was amended by Decision of the EEA Joint Committee No 153/2003 of 7 November 2003(1).

(2) Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices(2) was incorporated into the Agreement through Decision of the EEA Joint Committee No 18/2000(3).

(3) Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector(4) was incorporated into the Agreement through Decision of the EEA Joint Committee No 136/2002(5).

(4) There is a need for an adaptation text with regard to Article 8 of Regulation (EC) No 2790/1999 and Article 7 of Regulation (EC) No 1400/2002,

HAS DECIDED AS FOLLOWS:

Article 1

Annex XIV to the Agreement shall be amended as follows:

1. The following shall be inserted in point 2 (Commission Regulation (EC) No 2790/1999):

"(c) The following shall be added at the end of Article 8:'Pursuant to the provisions of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, the EFTA Surveillance Authority may by recommendation declare that, where parallel networks of similar vertical restraints cover more than 50 % of a relevant market in the EFTA States, this Regulation shall not apply to vertical agreements containing specific restraints relating to that market.

A recommendation pursuant to paragraph 1 shall be addressed to the EFTA State or EFTA States comprising the relevant market in question. The Commission shall be informed of the issuance of such a recommendation.

Within three months from the issuance of a recommendation pursuant to paragraph 1, all EFTA States addressees shall notify the EFTA Surveillance Authority whether they accept the recommendation. If the three-month deadline expires without a response, this shall be understood as an acceptance of the EFTA State not responding in time.

If an EFTA State addressee of the recommendation either accepts the recommendation or does not respond in time, a legal obligation according to the Agreement to implement the recommendation within three months from its issuance shall be bestowed upon it.

If within the three-month deadline, an EFTA State addressee notifies the EFTA Surveillance Authority that it does not accept its recommendation, the EFTA Surveillance Authority shall notify the Commission of this response. Should the Commission disagree with the position of the EFTA State in question, Article 92(2) of the Agreement shall apply.

The EFTA Surveillance Authority and the Commission shall exchange information and consult each other in the application of this provision.

Where parallel networks of similar vertical restraints cover more than 50 % of a relevant market within the territory of the EEA Agreement, the two surveillance authorities can initiate cooperation with the aim of adopting separate measures. If the two surveillance authorities agree on a relevant market and the appropriateness of adopting a measure pursuant to this provision, the Commission shall adopt a regulation addressed to the Community Member States and the EFTA Surveillance Authority a recommendation of corresponding substance to the EFTA State or EFTA States comprising the relevant market in question.'"

2. The following shall be inserted in point 4b (Commission Regulation (EC) No 1400/2002):

"(c) The following shall be added at the end of Article 7:'Pursuant to the provisions of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, the EFTA Surveillance Authority may by recommendation declare that, where parallel networks of similar vertical restraints cover more than 50 % of a relevant market in the EFTA States, this Regulation shall not apply to vertical agreements containing specific restraints relating to that market.

A recommendation pursuant to paragraph 1 shall be addressed to the EFTA State or EFTA States comprising the relevant market in question. The Commission shall be informed of the issuance of such a recommendation.

Within three months from the issuance of a recommendation pursuant to paragraph 1, all EFTA States addressees shall notify the EFTA Surveillance Authority whether they accept the recommendation. If the three-month deadline expires without a response, this shall be understood as an acceptance of the EFTA State not responding in time.

If an EFTA State addressee of the recommendation either accepts the recommendation or does not respond in time, a legal obligation according to the Agreement to implement the recommendation within three-month from its issuance shall be bestowed upon it.

If within the three-month deadline, an EFTA State addressee notifies the EFTA Surveillance Authority that it does not accept its recommendation, the EFTA Surveillance Authority shall notify the Commission of this response. Should the Commission disagree with the position of the EFTA State in question, Article 92(2) of the Agreement shall apply.

The EFTA Surveillance Authority and the Commission shall exchange information and consult each other in the application of this provision.

Where parallel networks of similar vertical restraints cover more than 50 % of a relevant market within the territory of the EEA Agreement, the two surveillance authorities can initiate cooperation with the aim of adopting separate measures. If the two surveillance authorities agree on a relevant market and the appropriateness of adopting a measure pursuant to this provision, the Commission shall adopt a regulation addressed to the Community Member States and the EFTA Surveillance Authority a recommendation of corresponding substance to the EFTA State or EFTA States comprising the relevant market in question.'"

Article 2

This Decision shall enter into force on 20 March 2004, provided that all the notifications pursuant to Article 103(1) of the Agreement have been made to the EEA Joint Committee(6).

Article 3

This Decision shall be published in the EEA Section of, and in the EEA Supplement to, the Official Journal of the European Union.

Done at Brussels, 19 March 2004.

For the EEA Joint Committee

The President

P. Westerlund

(1) OJ L 41, 12.2.2004, p. 45.

(2) OJ L 336, 29.12.1999, p. 21.

(3) OJ L 103, 12.4.2001, p. 36.

(4) OJ L 203, 1.8.2002, p. 30.

(5) OJ L 336, 12.12.2002, p. 38.

(6) No constitutional requirements indicated.