EN Official Journal of the European Union C 250/16

Communication from the EFTA Surveillance Authority Notice on the rules for access to the EFTA Surveillance Authority file in Cases pursuant to Articles 53, 54 and 57 of the EEA Agreement

(2007/C 250/06)

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

B. The European Commission (hereafter the ‘Commission’) has issued a notice entitled ‘Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004’ (1). That non-binding act sets out the principles which the Commission follows for allowing access to the Commission file in accordance with Article 27(1) and (2) of Council Regulation (EC) No 1/2003 (2), Article 15(1) of Commission Regulation (EC) No 773/2004 (3), Article 18(1) and (3) of the Council Regulation (EC) No 139/2004 (4) and Article 17(1) of Commission Regulation (EC) No 802/2004 (5).

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

I. INTRODUCTION AND SUBJECT-MATTER OF THE NOTICE

1. Access to the EFTA Surveillance Authority file is one of the procedural guarantees intended to apply the principle of equality of arms and to protect the rights of the defence. Access to the file is provided for in Article 27(1) and (2) of Chapter II of Protocol 4 to the Surveillance and Court Agreement (hereafter ‘Chapter II’) (6), Article 15(1) of Chapter III of Protocol 4 to the Surveillance and Court Agreement (hereafter ‘Chapter III’) (7) and Article 18(1) and (3) of Chapter XIII of Protocol 4 to the Surveillance and Court Agreement (8) (hereafter ‘Chapter XIII’) (9). In accordance with these provisions, before taking decisions on the basis of Articles 7, 8, 23 and 24(2) of Chapter III and Articles 6(3), 7(3), 8(2) to (6), 14 and 15 of Chapter XIII, the Authority shall give the persons, undertakings or associations of undertakings, as the case may be, an opportunity of making known their views on the objections against them and they shall be entitled to have access to the Authority's file in order to fully respect their rights of defence in the proceedings. The present Notice provides the framework for the exercise of the right set out in these provisions. It does not cover the possibility of the provision of documents in the context of other proceedings. This Notice is without prejudice to the interpretation of such provisions by the EFTA Court, the Court of Justice and the Court of First Instance of the European Communities.

2. This specific right outlined above is distinct from the Authority's general rules on access to documents (10), which is subject to different criteria and exceptions and pursues a different purpose.

3. The term access to the file is used in this Notice exclusively to mean the access granted to the persons, undertakings or association of undertakings to whom the EFTA Surveillance Authority has addressed a statement of objections. This Notice clarifies who has access to the file for this purpose.

4. The same term, or the term access to documents, is also used in the above-mentioned Chapters in respect of complainants or other involved parties. These situations are, however, distinct from that of the addressees of a statement of objections and therefore do not fall under the definition of access to the file for the purposes of this Notice. These related situations are dealt with in a separate section of the notice.

5. This Notice also explains to which information access is granted, when access takes place and what are the procedures for implementing access to the file.

6. The rules on access to file set out in this Notice take account of the amended versions of Chapter II, Chapter III and Chapter XIII (11), as well as the EFTA Surveillance Authority Decision No 177/02/COL of 30 October 2002 on the terms of reference of Hearing Officers in certain competition proceedings (12). It also takes into account the recent case law of the Court of Justice and the Court of First Instance of the European Communities (13) and the practice developed by the EFTA Surveillance Authority, as well as the practice developed by Commission since the adoption of the Commission's 1997 Notice on access to file (14).

II. SCOPE OF ACCESS TO THE FILE

A. Who is entitled to access to the file?

7. Access to the file pursuant to the provisions mentioned in paragraph 1 is intended to enable the effective exercise of the rights of defence against the objections brought forward by the EFTA Surveillance Authority. For this purpose, both in cases under Articles 53 and 54 of the EEA Agreement and in cases under Article 57 of the EEA Agreement, access is granted, upon request, to the persons, undertakings or associations of undertakings (15), as the case may be, to which the Authority addresses its objections (16) (hereinafter, ‘the parties’).

B. To which documents is access granted?

1. The content of the EFTA Surveillance Authority file

8. The ‘EFTA Surveillance Authority file’ in a competition investigation (hereafter also referred to as ‘the file’) consists of all documents (17), which have been obtained, produced and/or assembled by the EFTA Surveillance Authority Competition and State Aid Directorate, during the investigation.

9. In the course of investigation under Articles 20, 21 and 22(2) of Chapter II and Articles 12 and 13 of Chapter XIII, the EFTA Surveillance Authority may collect a number of documents, some of which may, following a more detailed examination, prove to be unrelated to the subject matter of the case in question. Such documents may be returned to the undertaking from which those have been obtained. Upon return, these documents will no longer constitute part of the file.

2. Accessible documents

10. The parties must be able to acquaint themselves with the information in the EFTA Surveillance Authority's file, so that, on the basis of this information, they can effectively express their views on the preliminary conclusions reached by the Authority in its objections. For this purpose they will be granted access to all documents making up the Authority file, as defined in paragraph 8, with the exception of internal documents, business secrets of other undertakings, or other confidential information (18).

11. Results of a study commissioned in connection with proceedings are accessible together with the terms of reference and the methodology of the study. Precautions may however be necessary in order to protect intellectual property rights.

3. Non-accessible documents

3.1. Internal documents

3.1.1 General principles

12. Internal documents can be neither incriminating nor exculpatory (19). They do not constitute part of the evidence on which the EFTA Surveillance Authority can rely in its assessment of a case. Thus, the parties will not be granted access to internal documents in the Authority file (20). Given their lack of evidential value, this restriction on access to internal documents does not prejudice the proper exercise of the parties' right of defence (21).

13. There is no obligation on the EFTA Surveillance Authority to draft any minutes of meetings (22) with any person or undertaking. If the Authority chooses to make notes of such meetings, such documents constitute the Authority's own interpretation of what was said at the meetings, for which reason they are classified as internal documents. Where, however, the person or undertaking in question has agreed the minutes, such minutes will be made accessible after deletion of any business secrets or other confidential information. Such agreed minutes constitute part of the evidence on which the Authority can rely in its assessment of a case (23).

14. In the case of a study commissioned in connection with proceedings, correspondence between the EFTA Surveillance Authority and its contractor containing evaluation of the contractor's work or relating to financial aspects of the study, are considered internal documents and will thus not be accessible.

3.1.2 Correspondence with other public authorities

15. A particular case of internal documents is the EFTA Surveillance Authority's correspondence with other public authorities and the internal documents received from such authorities. Examples of such non-accessible documents include: — correspondence between the Authority and the competition authorities of the EFTA States, or between the latter (24), — correspondence between the Authority and other public authorities of the EFTA States (25), — correspondence between the Authority, the Commission and public authorities of EU Member States, — correspondence between the Authority and public authorities of other countries, including their competition authorities.

16. In certain exceptional circumstances, access is granted to documents originating from the EFTA States, the Commission or EU Member States, after deletion of any business secrets or other confidential information. The EFTA Surveillance Authority will consult the entity submitting the document prior to granting access to identify business secrets or other confidential information. This is the case where the documents originating from the EFTA States contain allegations brought against the parties, which the EFTA Surveillance Authority must examine, or form part of the evidence in the investigative process, in a way similar to documents obtained from private parties. These considerations apply, in particular, as regards: — documents and information exchanged pursuant to Article 12 of Chapter II, and information provided to the Authority pursuant to Article 18(6) of Chapter II, — complaints lodged by an EFTA State under Article 7(2) of Chapter II. Access will also be granted to documents originating from EEA States or the Commission in so far as they are relevant to the parties' defence with regard to the exercise of competence by the EFTA Surveillance Authority (26).

3.2. Confidential information

17. The EFTA Surveillance Authority file may also include documents containing two categories of information, namely business secrets and other confidential information, to which access may be partially or totally restricted (27). Access will be granted, where possible, to non-confidential versions of the original information. Where confidentiality can only be assured by summarising the relevant information, access will be granted to a summary. All other documents are accessible in their original form.

3.2.1 Business secrets

18. In so far as disclosure of information about an undertaking's business activity could result in a serious harm to the same undertaking, such information constitutes business secrets (28). Examples of information that may qualify as business secrets include: technical and/or financial information relating to an undertaking's know-how, methods of assessing costs, production secrets and processes, supply sources, quantities produced and sold, market shares, customer and distributor lists, marketing plans, cost and price structure and sales strategy.

3.2.2 Other confidential information

19. The category ‘other confidential information’ includes information other than business secrets, which may be considered as confidential, insofar as its disclosure would significantly harm a person or undertaking. Depending on the specific circumstances of each case, this may apply to information provided by third parties about undertakings which are able to place very considerable economic or commercial pressure on their competitors or on their trading partners, customers or suppliers. It is legitimate to refuse to reveal to such undertakings certain letters received from their customers, since their disclosure might easily expose the authors to the risk of retaliatory measures (29). Therefore the notion of other confidential information may include information that would enable the parties to identify complainants or other third parties where those have a justified wish to remain anonymous.

20. The category of other confidential information also includes military secrets.

3.2.3 Criteria for the acceptance of requests for confidential treatment.

21. Information will be classified as confidential where the person or undertaking in question has made a claim to this effect and such claim has been accepted by the EFTA Surveillance Authority (30).

22. Claims for confidentiality must relate to information which is within the scope of the above descriptions of business secrets or other confidential information. The reasons for which information is claimed to be a business secret or other confidential information must be substantiated (31). Confidentiality claims can normally only pertain to information obtained by the EFTA Surveillance Authority from the same person or undertaking and not to information from any other source.

23. Information relating to an undertaking but which is already known outside the undertaking (in case of a group, outside the group), or outside the association to which it has been communicated by that undertaking, will not normally be considered confidential (32). Information that has lost its commercial importance, for instance due to the passage of time, can no longer be regarded as confidential. As a general rule, the EFTA Surveillance Authority presumes that information pertaining to the parties' turnover, sales, market-share data and similar information which is more than 5 years old is no longer confidential (33).

24. In proceedings under Articles 53 and 54 of the EEA Agreement, the qualification of a piece of information as confidential is not a bar to its disclosure if such information is necessary to prove an alleged infringement (‘inculpatory document’) or could be necessary to exonerate a party (‘exculpatory document’). In this case, the need to safeguard the rights of the defence of the parties through the provision of the widest possible access to the EFTA Surveillance Authority file may outweigh the concern to protect confidential information of other parties (34). It is for the Authority to assess whether those circumstances apply to any specific situation. This calls for an assessment of all relevant elements, including: — the relevance of the information in determining whether or not an infringement has been committed, and its probative value, — whether the information is indispensable, — the degree of sensitivity involved (to what extent would disclosure of the information harm the interests of the person or undertaking in question), — the preliminary view of the seriousness of the alleged infringement. Similar considerations apply to proceedings under Article 57 of the EEA Agreement when the disclosure of information is considered necessary by the EFTA Surveillance Authority for the purpose of the procedure (35).

25. Where the EFTA Surveillance Authority intends to disclose information, the person or undertaking in question shall be granted the possibility to provide a non-confidential version of the documents where that information is contained, with the same evidential value as the original documents (36).

C. When is access to the file granted?

26. Prior to the notification of the EFTA Surveillance Authority's statement of objections pursuant to the provisions mentioned in paragraph 1, the parties have no right of access to the file.

1. In antitrust proceedings under Articles 53 and 54 of the EEA Agreement

27. Access to the file will be granted upon request and, normally, on a single occasion, following the notification of the EFTA Surveillance Authority's objections to the parties, in order to ensure the principle of equality of arms and to protect their rights of defence. As a general rule, therefore, no access will be granted to other parties' replies to the Authority's objections. A party will, however, be granted access to documents received after notification of the objections at later stages of the administrative procedure, where such documents may constitute new evidence — whether of an incriminating or of an exculpatory nature —, pertaining to the allegations concerning that party in the EFTA Surveillance Authority's statement of objections. This is particularly the case where the Authority intends to rely on new evidence.

2. In proceedings under Article 57 of the EEA Agreement

28. In accordance with Article 18(1) and (3) of Chapter XIII (37), the notifying parties will be given access to the EFTA Surveillance Authority's file upon request at every stage of the procedure following the notification of the Authority's objections up to the consultation of the Advisory Committee. In contrast, this Notice does not address the possibility of the provision of documents before the Authority states its objections to undertakings under Article 57 of the EEA Agreement and Chapter XIII.

III. PARTICULAR QUESTIONS REGARDING COMPLAINANTS AND OTHER INVOLVED PARTIES

29. The present section relates to situations where the EFTA Surveillance Authority may or has to provide access to certain documents contained in its file to the complainants in antitrust proceedings and other involved parties in merger proceedings. Irrespective of the wording used in the antitrust and merger implementing regulations (38), these two situations are distinct — in terms of scope, timing, and rights — from access to the file, as defined in the preceding section of this Notice.

A. Provision of documents to complainants in antitrust proceedings

30. Complainants do not have the same rights and guarantees as the parties under investigation (39). Therefore complainants cannot claim a right of access to the file as established for parties.

31. However, a complainant who, pursuant to Article 7(1) of Chapter III, has been informed of the EFTA Surveillance Authority's intention to reject its complaint (40), may request access to the documents on which the Authority has based its provisional assessment (41). The complainant will be provided access to such documents on a single occasion, following the issuance of the letter informing the complainant of the Authority's intention to reject its complaint.

32. Complainants do not have a right of access to business secrets or other confidential information which the EFTA Surveillance Authority has obtained in the course of its investigation (42).

B. Provision of documents to other involved parties in merger proceedings

33. Access to the file in merger proceedings shall also be given, upon request, to other involved parties who have been informed of the objections in so far as this is necessary for the purposes of preparing their comments (43).

34. Such other involved parties are parties to the proposed concentration other than the notifying parties, such as the seller and the undertaking which is the target of the concentration (44).

IV. PROCEDURE FOR IMPLEMENTING ACCESS TO THE FILE

A. Preparatory procedure

35. Any person which submits information or comments in one of the situations listed hereunder, or subsequently submits further information to the EFTA Surveillance Authority in the course of the same procedures, has an obligation to clearly identify any material which it considers to be confidential, giving reasons, and provide a separate non-confidential version by the date set by the Authority for making its views known (45): (a) In antitrust proceedings — an addressee of an Authority's statement of objections making known its views on the objections (46), — a complainant making known its views on an Authority statement of objections (47), — any other natural or legal person, which applies to be heard and shows a sufficient interest, or which is invited by the Authority to express its views, making known its views in writing or at an oral hearing (48), — a complainant making known his views on an Authority letter informing him on the Authority's intention to reject the complaint (49). (b) In merger proceedings — notifying parties or other involved parties making known their views on Authority objections adopted with a view to take a decision with regard to a request for a derogation from suspension of a concentration and which adversely affects one or more of those parties, or on a provisional decision adopted in the matter (50), — notifying parties to whom the Authority has addressed a statement of objections, other involved parties who have been informed of those objections or parties to whom the Authority has addressed objections with a view to inflict a fine or a periodic penalty payment, submitting their comments on the objections (51), — third persons who apply to be heard, or any other natural or legal person invited by the Authority to express their views, making known their views in writing or at an oral hearing (52), — any person which supplies information pursuant to Article 11 of Chapter XIII.

36. Moreover, the EFTA Surveillance Authority may require undertakings (53), in all cases where they produce or have produced documents, to identify the documents or parts of documents, which they consider to contain business secrets or other confidential information belonging to them, and to identify the undertakings with regard to which such documents are to be considered confidential (54).

37. For the purposes of quickly dealing with confidentiality claims referred to in paragraph 36 above, the EFTA Surveillance Authority may set a time-limit within which the undertakings shall: (i) substantiate their claim for confidentiality with regard to each individual document or part of document; (ii) provide the Authority with a non-confidential version of the documents, in which the confidential passages are deleted (55). In antitrust proceedings the undertakings in question shall also provide within the said time-limit a concise description of each piece of deleted information (56).

38. The non-confidential versions and the descriptions of the deleted information must be established in a manner that enables any party with access to the file to determine whether the information deleted is likely to be relevant for its defence and therefore whether there are sufficient grounds to request the EFTA Surveillance Authority to grant access to the information claimed to be confidential.

B. Treatment of confidential information

39. In antitrust proceedings, if undertakings fail to comply with the provisions set out in paragraphs 35 to 37 above, the EFTA Surveillance Authority may assume that the documents or statements concerned do not contain confidential information (57). The Authority may consequently assume that the undertaking has no objections to the disclosure of the documents or statements concerned in their entirety.

40. In both antitrust proceedings and in proceedings under Article 57 of the EEA Agreement, should the person or undertaking in question meet the conditions set out in paragraphs 35 to 37 above, to the extent they are applicable, the EFTA Surveillance Authority will either: — provisionally accept the claims which seem justified, or — inform the person or undertaking in question that it does not agree with the confidentiality claim in whole or in part, where it is apparent that the claim is unjustified.

41. The EFTA Surveillance Authority may reverse its provisional acceptance of the confidentiality claim in whole or in part at a later stage.

42. Where the EFTA Surveillance Authority's Competition and State Aid Directorate does not agree with the confidentiality claim from the outset or where it takes the view that the provisional acceptance of the confidentiality claim should be reversed, and thus intends to disclose information, it will grant the person or undertaking in question an opportunity to express its views. In such cases, the Competition and State Aid Directorate will inform the person or undertaking in writing of its intention to disclose information, give its reasons and set a time-limit within which such person or undertaking may inform it in writing of its views. If, following submission of those views, a disagreement on the confidentiality claim persists, the matter will be dealt with by the Hearing Officer according to the applicable EFTA Surveillance Authority terms of reference of Hearing Officers (58).

43. Where there is a risk that an undertaking which is able to place very considerable economic or commercial pressure on its competitors or on its trading partners, customers or suppliers will adopt retaliatory measures against those, as a consequence of their collaboration in the investigation carried out by the EFTA Surveillance Authority (59), the Authority will protect the anonymity of the authors by providing access to a non-confidential version or summary of the responses in question (60). Requests for anonymity in such circumstances, as well as requests for anonymity according to point 81 of the Authority Notice on the handling of complaints (61) will be dealt with according to paragraphs 40 to 42 above.

C. Provision of access to file

44. The EFTA Surveillance Authority may determine that access to the file shall be granted in one of the following ways, taking due account of the technical capabilities of the parties: — by means of a CD-ROM(s) or any other electronic data storage device as may become available in the future, — through copies of the accessible file in paper form sent to them by mail, — by inviting them to examine the accessible file on the Authority's premises. The Authority may choose any combination of these methods.

45. In order to facilitate access to the file, the parties will receive an enumerative list of documents setting out the content of the EFTA Surveillance Authority file, as defined in paragraph 8 above.

46. Access is granted to evidence as contained in the EFTA Surveillance Authority file, in its original form: the Authority is under no obligation to provide a translation of documents in the file (62).

47. If a party considers that, after having obtained access to the file, it requires knowledge of specific non-accessible information for its defence, it may submit a reasoned request to that end to the EFTA Surveillance Authority. If the services of the Competition and State Aid Directorate are not in a position to accept the request and if the party disagrees with that view, the matter will be resolved by the Hearing Officer, in accordance with the applicable terms of reference of Hearing Officers (63).

48. Access to the file in accordance with this Notice is granted on the condition that the information thereby obtained may only be used for the purposes of judicial or administrative proceedings for the application of competition rules in the EEA Agreement at issue in the related administrative proceedings (64). Should the information be used for a different purpose, at any point in time, with the involvement of an outside counsel, the EFTA Surveillance Authority may report the incident to the bar of that counsel, with a view to disciplinary action.

49. With the exception of paragraphs 45 and 47, this section C applies equally to the grant of access to documents to complainants (in antitrust proceedings) and to other involved parties (in merger proceedings).

(1) OJ C 325, 22.12.2005, p. 7.

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(3) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).

(4) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p. 1).

(5) Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.4.2004, p. 1). Corrected in the OJ L 172, 6.5.2004, p. 9.

(6) Following the Agreement amending Protocol 4 to the Agreement of the EFTA States on the establishment of a Surveillance Authority and a Court of Justice of 24 September 2004, which entered into force on 20 May 2005, Chapter II of Protocol 4 to the Surveillance and Court Agreement reflects to a large extent in the EFTA pillar Regulation (EC) No 1/2003.

(7) Following the entry into force of the Agreement amending Protocol 4 to the Agreement of the EFTA States on the establishment of a Surveillance Authority and a Court of Justice of 3 December 2004 on 1 July 2005, Chapter III of Protocol 4 to the Surveillance and Court Agreement reflects Regulation (EC) No 773/2004.

(8) Following the Agreement of 4 June 2004 amending Protocol 4 to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice, which entered into force 20 May 2005, Article 4(4) to (5) and Articles 6 to 24 of Chapter XIII correspond to identically numbered Articles of Regulation (EC) No 139/2004. (Articles 1 to 3, 4(1) to (3) and 5 of that Regulation are to be found in the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EC) No 139/2004)).

(9) Access to file is also provided for in Article 17(1) of Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.4.2004, p. 1). Corrected in the OJ L 172, 6.5.2004, p. 9 (hereafter the ‘Commission Merger Implementing Regulation’). This Commission Regulation is presently expected to be incorporated into the EEA Agreement and the Surveillance and Court Agreement. As it is foreseen that Protocol 4 to the Surveillance and Court Agreement, when amended, will contain provisions corresponding to those of the Commission Merger Implementing regulation, the EFTA Surveillance Authority will in the following also take account of, and make references to, the Commission Merger Implementing Regulation.

(10) See the EFTA Surveillance Authority's Information Guidelines at:

http://www.eftasurv.int/information/dbaFile449.html

(11) As well as the Commission Merger Implementing Regulation, see note 9 above.

(12) OJ L 80, 27.3.2003, p. 27 and EEA Supplement to the OJ No 16, 27.3.2003, p. 2.

(13) In particular Joint Cases T-25/95 et al., Cimenteries CBR SA et al. v Commission [2000] ECR II-0491. Article 6 of the EEA Agreement provides that, without prejudice to future developments of case-law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two treaties, shall in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of the EEA Agreement. As regards relevant rulings by the Court of Justice given after the date of signature of the EEA Agreement, it follows from Article 3(2) of the Surveillance and Court Agreement that the EFTA Surveillance Authority and the EFTA Court shall pay due account to the principles laid down by these rulings.

(14) Commission Notice on the internal rules of procedure for processing requests for access to the file in Cases under Articles 85 and 86 (now 81 and 82) of the EC Treaty, Articles 65 and 66 of the ECSC Treaty and Council Regulation (EEC) No 4064/89 (OJ C 23, 23.1.1997, p. 3). As stated in Article 58 of the EEA Agreement and Protocol 23 thereto, the Authority and the Commission are to co-operate with a view to inter alia promoting a homogenous implementation, application and interpretation of the EEA Agreement. Although the Commission's Decisions are not binding on the Authority, the Authority will thus endeavour to take due account of the case practice of the Commission.

(15) In the remainder of this Notice, the term ‘undertaking’ includes both undertakings and associations of undertakings. The term ‘person’ encompasses natural and legal persons. Many entities are legal persons and undertakings at the same time; in this case, they are covered by both terms. The same applies where a natural person is an undertaking within the meaning of Articles 53 and 54 of the EEA Agreement. In Merger proceedings, account must also be taken of persons referred to in Article 3(1)(b) of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EC) No 139/2004), even when they are natural persons. Where entities without legal personality which are also not undertakings become involved in EFTA Surveillance Authority competition proceedings, the Authority applies, where appropriate, the principles set out in this Notice mutatis mutandis.

(16) Cf. Article 15(1) of Chapter III, Article 18(3) of Chapter XIII and Article 17(1) of the Commission Implementing Regulation, see note 9 above.

(17) In this Notice the term ‘document’ is used for all forms of information support, irrespective of the storage medium. This covers also any electronic data storage device as may be or become available.

(18) Cf. Article 27(2) of Chapter II, Articles 15(2) and 16(1) of Chapter III, and Article 17(3) of the Commission Merger Implementing Regulation see note 9 above. Those exceptions are also mentioned in Case T-7/89, Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 54. The Court of First Instance of the European Communities has ruled that it does not belong to the Commission alone to decide which documents in the file may be useful for the purposes of the defence (Cf. Case T-30/91, Solvay v Commission [1995] ECR II-1775, paragraphs 81-86, and Case T-36/91, ICI v Commission [1995] ECR II-1847, paragraphs 91-96).

(19) Examples of internal documents are drafts, opinions, memos or notes from the Authority's Directorates or other public authorities concerned.

(20) Cf. Article 27(2) of Chapter II, Article 15(2) of Chapter III, and Article 17(3) of the Commission Merger Implementing Regulation, see note 9 above.

(21) Cf. paragraph 1 above.

(22) See in this respect judgment of 30 September 2003 in Joined Cases T-191/98 and T-212/98 to T-214/98, Atlantic Container Line and others v Commission (TACA) [2003] ECR II-3275, paragraphs 349-359.

(23) Statements recorded pursuant to Article 19 or Article 20(2)(e) of Chapter II or Article 13(2)(e) of Chapter XIII will also normally belong to the accessible documents (see paragraph 10 above).

(24) Cf. Article 27(2) of Chapter II, Article 15(2) of Chapter III, Article 17(3) of the Commission Merger Implementing Regulation, see note 9 above. In this Notice the term ‘EFTA States’ includes the EFTA States that are parties to the EEA Agreement.

(25) See in this respect Order of the Court of First Instance in Cases T-134/94, et al. NMH Stahlwerke and Others v Commission [1997] ECR II-2293, paragraph 36, and Case T-65/89, BPB Industries and British Gypsum [1993] ECR II-389, paragraph 33.

(26) In the merger control area, this may apply in particular to submissions by an EFTA State under Article 9(2) of Chapter XIII with regard to a case referral.

(27) Cf. Article 16(1) of Chapter III and Article 17(3) of the Commission Merger Implementing Regulation, see note 9 above; Case T-7/89, Hercules Chemicals NV v Commission [1991] ECR II-1711, paragraph 54; Case T-23/99, LR AF 1998 A/S v Commission [2002] ECR II-1705, paragraph 170.

(28) Judgment of 18 September 1996 in Case T-353/94, Postbank NV v Commission [1996] ECR II-921, paragraph 87.

(29) The Community Courts have pronounced upon this question related to the corresponding Community provisions both in cases of alleged abuse of a dominant position (Article 82 of the EC Treaty) (Case T-65/89, BPB Industries and British Gypsum [1993] ECR II-389; and Case C-310/93P, BPB Industries and British Gypsum [1995] ECR I-865), and in merger Cases (Case T-221/95, Endemol v Commission [1999] ECR II-1299, paragraph 69, and Case T-5/02, Laval v Commission [2002] ECR II-4381, paragraph 98 et seq.).

(30) See paragraph 40 below.

(31) See paragraph 35 below.

(32) However, business secrets or other confidential information which are given to a trade or professional association by its members do not lose their confidential nature with regard to third parties and may therefore not be passed on to complainants. Cf. Joined Cases 209 to 215 and 218/78, Fedetab [1980] ECR 3125, paragraph 46.

(33) See paragraphs 35-38 below on asking undertakings to identify confidential information.

(34) Cf. Article 27(2) of Chapter II and Article 15(3) of Chapter III.

(35) Article 18(1) of the Commission Merger Implementing Regulation, see note 9 above.

(36) Cf. paragraph 42 below.

(37) And Article 17(1) of the Commission Merger Implementing Regulation, see note 9 above.

(38) Cf. Article 8(1) of Chapter III, which speaks about ‘access to documents’ to complainants and Article 17(2) of the Commission Merger Implementing Regulation, see note 9 above, which speaks about ‘access to file’ to other involved parties ‘in so far as this is necessary for the purposes of preparing their comments’.

(39) See in this respect Case T-17/93, Matra-Hachette SA v Commission [1994] ECR II-595, paragraph 34. The Court of First Instance of the European Communities ruled that the rights of third parties, as laid down by Article 19 of the Council Regulation No 17 of 6 February 1962 (now replaced by Article 27 of Regulation (EC) No 1/2003), were limited to the right to participate in the administrative procedure.

(40) By means of a letter issued in accordance with Article 7(1) of Chapter III.

(41) Cf. Article 8(1) of Chapter III.

(42) Cf. Article 8(1) of Chapter III.

(43) See Article 18(4) of Chapter II and Article 17(2) of the Commission Implementing Regulation, see note 9 above.

(44) Cf. Article 11(b) of the Commission Merger Implementing Regulation, see note 9 above.

(45) Cf. Article 16(2) of the Chapter III and Article 18(2) of the Commission Merger Implementing Regulation, see note 9 above.

(46) Pursuant to Article 10(2) of Chapter III.

(47) Pursuant to Article 6(1) of the Chapter III.

(48) Pursuant to Article 13(1) and (3) of Chapter III.

(49) Pursuant to Article 7(1) of Chapter III.

(50) Article 12 of the Commission Merger Implementing Regulation, see note 9 above.

(51) Article 13 of the Commission Merger Implementing Regulation, see note 9 above.

(52) Pursuant to Article 16 of the Commission Merger Implementing Regulation, see note 9 above.

(53) In merger proceedings the principles set out in the present and subsequent paragraphs also apply to the persons referred to in Article 3(1)(b) of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EC) No 139/2004).

(54) Cf. Article 16(3) of Chapter III and Article 18(3) of the Commission Merger Implementing Regulation, see note 9 above. This also applies to documents gathered by the EFTA Surveillance Authority in an inspection pursuant to Article 13 of Chapter XIII and Articles 20 and 21 of Chapter II.

(55) Cf. Article 16(3) of Chapter III and Article 18(3) of the Commission Merger Implementing Regulation, see note 9 above.

(56) Cf. Article 16(3) of Chapter III.

(57) Cf. Article 16 of Chapter III.

(58) Cf. Article 9 of Decision No 177/02/COL of 30 October 2002 (OJ L 80, 27.3.2003, p. 27) and EEA Supplement to the OJ No 16, 27.3.2003, p. 2.

(59) Cf. paragraph 19 above.

(60) Cf. Case T-5/02, Tetra Laval v Commission [2002] ECR II-4381, paragraph 98, 104 and 105.

(61) EFTA Surveillance Authority Notice on the handling of complaints by the EFTA Surveillance Authority under Articles 53 and 54 of the EEA Agreement, not yet published.

(62) See in this respect. Case T-25/95, et al. Cimenteries, paragraph 635.

(63) Cf. Article 8 of Decision No 177/02/COL of 30 October 2002 (OJ L 80, 27.03.2003, p. 27) and EEA Supplement to the OJ No 16, 27.3.2003, p. 2.

(64) Cf. Articles 15(4) and 8(2) of Chapter III, respectively, and Article 17(4) of the Commission Merger Implementing Regulation, see note 9 above.