PROTOCOL 4 on the functions and powers of the EFTA Surveillance Authority in the field of competition

Table of contents with references to the corresponding EC Acts or provisions of the EEA Agreement

Page

PART I GENERAL RULES . 14

Chapter I Introduction . 14

Chapter II General procedural rules implementing Articles 53 and 54 of the EEA Agreement (see Regulation 17/62) . 14

Chapter III Form, content and other details concerning applications and notifications (see Regulation 27/62) . 20

Chapter IV Hearings provided for in Article 19 (1) and (2) of Chapter II (see Regulation 99/63) . 20

Chapter V Limitation periods in proceedings and the enforcement of sanctions under the rules relating to transport and competition as contained in Chapters II to IV and VI to XIV (see No Regulation (EEC) No 2988/74) . 22

PART II TRANSPORT . 23

Chapter VI Application of rules of competition to transport by rail, road and inland waterway (see Regulation (EEC) No 1017/68, Articles 6 and 10 to 31) 23

Chapter VII Form, content and other details of complaints pursuant to Article 10, applications pursuant to Article 12 and notifications pursuant to Article 14 (1) of Chapter VI (see Regulation (EEC) No 1629/69) . 29

Chapter VIII Hearings provided for in Article 26 (1) of Chapter VI (see Regulation (EEC) No 1630/69) . 30

Chapter IX Rules for the application of Articles 53 and 54 of the EEA Agreement to maritime transport (see Regulation (EEC) No 4056/86, Section II) . 31

Chapter X The obligation of communication, the form, content and other details of complaints and of applications, and the hearings provided for in Chapter IX (see Regulation (EEC) No 4260/88) . 37

Chapter XI Procedure for the application of the rules on competition to undertakings in the air transport sector (see Regulation (EEC) No 3975/87) . 39

Chapter XII Form, content and other details of complaints and of applications, and the hearings provided for in Chapter XI laying down the procedure for the application of the rules of competition to undertakings in the air transport sector (see Regulation (EEC) No 4261/88) . 45

PART III CONTROL OF CONCENTRATIONS . 47

Chapter XIII Rules relating to control of concentrations between undertakings (see Regulation (EEC) No 4064/89, Articles 6 to 25) . 47

Chapter XIV Detailed rules concerning notifications, time limits and hearings in the field of control of concentrations between undertakings (see Regulation (EEC) No 2367/90) . 55

PART IV COAL AND STEEL . 59

Chapter XV Rules applicable to undertakings in the field of coal and steel . 59

Section I General rules regarding agreements and concentrations (see Articles 65 (2), subparagraphs 3 to 5, (3), (4), subparagraphs 2 and (5) and 66 (2), subparagraphs 2 to 4, and (4) to 6, 47, 36 (1) and 82 of ECSC Treaty) 59

Section II Information to be furnished (Article 2 (4) of Section I) (see Decision 26/54) 62

Section III Limitation periods in proceedings and the enforcement of sanctions under Protocol 25 to the EEA Agreement and the present chapter (see Decision 715/78/EEC) . 63

Section IV Powers of officials and agents of the EFTA Surveillance Authority instructed to carry out the checks provided for in Protocol 25 to the EEA Agreement and in this chapter (see Decision 379/84/EEC) . 64

PART V TRANSITIONAL AND OTHER RULES . 64

Chapter XVI Transitional and other rules . 64

Section I Rules applicable to Chapters II to XII and XV (see Articles 5 et seq. of Protocol 21 to the EEA Agreement) . 64

Section II Rules applicable to Chapters XIII and XIV (see Article 25 (2) of Regulation (EEC) No 4064/89) . 66

APPENDICES

Appendix 7 List of certain technical agreements in the air transport sector, referred to in Article 2 of Chapter XI . 67

PART I GENERAL RULES

CHAPTER I Introduction

Article 1

This Protocol sets out provisions for the implementation of competition rules applicable to undertakings in the EEA Agreement, and in particular for the implementtion of Protocols 21 to 25 to that Agreement.

Article 2

1. Chapters II to V, XIII and XIV apply to all sectors covered by the EEA Agreement unless otherwise provided.

2. Chapters II to IV shall not apply to agreements, decisions or concerted practices in the transport sector which have as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport or the sharing of transport markets; nor shall they apply to the abuse of a dominant position, within the meaning of Article 54 of the EEA Agreement, within the transport market. Such cases are covered by Chapters VI to XII.

3. Chapters II to V, XIII and XIV shall not apply to cases covered by Chapter XV, on the conditions set out therein.

Article 3

Chapter XVI sets out the transitional rules applicable for Chapters II to XV.

Article 4

The EFTA Surveillance Authority may, in accordance with Article 49 of this Agreement, submit to the Governments of the EFTA States proposals for amendments to this Protocol including its Appendices.

CHAPTER II General procedural rules implementing Articles 53 and 54 of the EEA Agreement

Article 1

Basic provision

Without prejudice to Article 6 of this chapter and Article 3 of Chapter XVI, agremeents, decisions and concerted practices of the kind described in Article 53 (1) of the EEA Agreement and the abuse of a dominant position in the market, within the meaning of Article 54 of the EEA Agreement, shall be prohibited, no prior decision to that effect being required.

Article 2

Negative clearance

Upon application by the undertakings or associations of undertakings concerned, the EFTA Surveillance Authority may certify that, on the basis of the facts in its possession, there are no grounds pursuant to Article 53 (1) or Article 54 of the EEA Agreement for action on its part in respect of an agreement, decision or practice.

Article 3

Termination of infringements

1. Where the EFTA Surveillance Authority, upon application or upon its own initiative, finds that there is infringement of Article 53 or Article 54 of the EEA Agreement, it may by decision require the undertakings or associations of undertakings concerned to bring such infringement to an end.

2. Those entitled to make application are:

(a) EFTA States;

(b) natural or legal persons who claim a legitimate interest.

3. Without prejudice to the other provisions of this Protocol, the EFTA Surveillance Authority may, before taking a decision pursuant to paragraph 1, address to the undertakings or associations of undertakings concerned recommendations for termination of the infringement.

Article 4

Notification of new agreements, decisions and practices

1. Agreements, decisions and concerted practices of the kind described in Article 53 (1) of the EEA Agreement which come into existence after the entry into force of the EEA Agreement and in respect of which the parties seek application of Article 53 (3) of the EEA Agreement shall be notified to the EFTA Surveillance Authority pursuant to Article 56 of the EEA Agreement, the rules referred to in Articles 1 to 3 of Protocol 21 and the rules referred to in Protocol 23 to the EEA Agreement, as well as in Chapters III, VI, VII, IX, X, XI, XII and XV. Until they have been notified, no decision in application of Article 53 (3) may be taken.

2. Paragraph 1 shall not apply to agremeents, decisions and concerted practices where:

(a) the only parties thereto are undertakings from one EC Member State or from one EFTA State and the agreements, decisions or concerted practices do not relate either to imports or to exports between Contracting Parties to the EEA Agreement;

(b) not more than two undertakings are party thereto, and the agreements only:

(i) restrict the freedom of one party to the contract in determining the prices or conditions of business upon which the goods which he has obtained from the other party to the contract may be resold;

or

(ii) impose restrictions on the exercise of the rights of the assignee or user of industrial property rights - in particular patents, utility models, designs on trademarks - or of the person entitled under a contract to the assignment, or grant, of the right to use a method of manufacture or knowledge relating to the use and to the application of industrial processes;

(c) they have as their sole object:

(i) the development or uniform application of standards or types;

or

(ii) joint research or development;

or

(iii) specialization in the manufacture of products including agreements necessary for achieving this:

- where the products which are the subject of specialization do not, in a substantial part of the territory covered by this Agreement, represent more than 15 % of the volume of business done in identical products or those considered by consumers to be similar by reason of their characteristics, price and use,

and

- where the total annual turnover of the participating undertakings does not exceed ECU 200 million.

These agreements, decisions and concerted practices may be notified to the EFTA Surveillance Authority pursuant to Article 56 of the EEA Agreement, the rules referred to in Articles 1 to 3 of Protocol 21 and the rules referred to in Protocol 23 to the EEA Agreement, as well as in Chapters III, VI, VII, IX, X, XI, XII and XV.

Article 5

Notification of existing agreements, decisions and practices

(See Article 1 of Chapter XVI.)

Article 6

Decisions pursuant to Article 53 (3) of the EEA Agreement

1. Whenever the EFTA Surveillance Authority takes a decision pursuant to Article 53 (3) of the EEA Agreement, it shall specify therein the date from which the decision shall take effect. Such date shall not be earlier than the date of notification.

2. The second sentence of paragraph 1 shall not apply to agreements, decisions or concerted practices falling within Article 4 (2) of this chapter and Article 1 (2) of Chapter XVI, nor to those falling within Article 1 (1) of Chapter XVI which have been notified within the time limit specified in Article 1 (1) of Chapter XVI.

Article 7

Special provisions for existing agreements, decisions and practices

(See Article 3 of Chapter XVI.)

Article 8

Duration and revocation of decisions pursuant to Article 53 (3)

1. A decision in application of Article 53 (3) of the EEA Agreement shall be issued for a specified period and conditions and obligations may be attached thereto.

2. A decision may on application be renewed if the requirements of Article 53 (3) of the EEA Agreement continue to be satisfied.

3. The EFTA Surveillance Authority may revoke or amend its decision or prohibit specified acts by the parties:

(a) where there has been a change in any of the facts which were basic to the making of the decision;

(b) where the parties commit a breach of any obligation attached to the decision;

(c) where the decision is based on incorrect information or was induced by deceit;

(d) where the parties abuse the exemption from the provisions of Article 53 (1) of the EEA Agreement granted to them by the decision.

In cases to which subparagraphs (b), (c) or (d) apply, the decision may be revoked with retroactive effect.

Article 9

Powers

1. Subject to review of its decision by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, the EFTA Surveillance Authority shall have sole power to declare Article 53 (1) inapplicable pursuant to Article 53 (3) of the EEA Agreement on the conditions set out in Article 56 of the EEA Agreement.

2. The EFTA Surveillance Authority shall have power to apply Article 53 (1) and Article 54 of the EEA Agreement; this power may be exercised notwithstanding that the time limits specified in Articles 1 (1) and 3 (2) of Chapter XVI relating to notification have not expired.

3. As long as the EFTA Surveillance Authority has not initiated any procedure pursuant to Articles 2, 3 or 6, the authorities of the EFTA States shall remain competent to apply Article 53 (1) and Article 54; they shall remain competent in this respect notwithstanding that the time limits specified in Articles 1 (1) and 3 (2) of Chapter XVI relating to notification have not expired.

Article 10

Liaison with the authorities of the EFTA States

1. The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of the applications and notifications together with copies of the most important documents lodged with the EFTA Surveillance Authority for the purpose of establishing the existence of infringements of Articles 53 or 54 of the EEA Agreement or of obtaining negative clearance or a decision in application of Article 53 (3).

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of notifications, complaints and information on opening of ex officio procedures received from the EC Commission pursuant to Articles 2 and 10 of Protocol 23 to the EEA Agreement.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of documents received from the EC Commission pursuant to Article 7 of Protocol 23 to the EEA Agreement.

2. The EFTA Surveillance Authority shall carry out the procedure set out in the first subparagraph of paragraph 1 in close and constant liaison with the competent authorities of the EFTA States; such authorities shall have the right to express their views upon that procedure.

3. An Advisory Committee on Competition shall be consulted prior to the taking of any decision following upon a procedure under the first subparagraph of paragraph 1, and of any decision concerning the renewal, amendment or revocation of a decision pursuant to Article 53 (3) of the EEA Agreement.

The Advisory Committee shall be consulted prior to a proposal referred to in Article 22.

4. The Advisory Committee shall be composed of officials competent in the matter of restrictive practices and monopolies. Each EFTA State shall appoint an official to represent it who, if prevented from attending, may be replaced by another official.

The EC Commission and the EC Member States shall be entitled to be present in the Advisory Committee and to express their views therein. However, their representatives shall not have the right to vote.

5. The consultation shall take place at a joint meeting convened by the EFTA Surveillance Authority; such meeting shall be held not earlier than 14 days after dispatch of the notice convening it. The notice shall, in respect of each case to be examined, be accompanied by a summary of the case together with an indication of the most important documents, and a preliminary draft decision.

In view of the participation provided for in the second subparagraph of paragraph 4, the EC Commission shall receive an invitation to the meeting and the relevant information as provided for in Article 6 of Protocol 23 to the EEA Agreement.

6. The Advisory Committee may deliver an opinion notwithstanding that some of its members or their alternates are not present. A report of the outcome of the consultative proceedings shall be annexed to the draft decision. It shall not be made public.

Article 11

Requests for information

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by the provisions of this chapter, the EFTA Surveillance Authority may obtain all necessary information from the Governments and competent authorities of the EFTA States and from undertakings and associations of undertakings.

2. When sending a request for information to an undertaking or association of undertakings, the EFTA Surveillance Authority shall at the same time forward a copy of the request to the competent authority of the EFTA State in whose territory the seat of the undertaking or association of undertakings is situated.

3. In its request the EFTA Surveillance Authority shall state the legal basis and the purpose of the request and also the penalties provided for in Article 15 (1) (b) for supplying incorrect information.

4. The owners of the undertakings or their representatives and, in the case of legal persons, companies or firms, or of associations having no legal personality, the persons authorized to represent them by law or by their constitution, shall supply the information requested.

5. Where an undertaking or association of undertakings does not supply the information requested within the time limit fixed by the EFTA Surveillance Authority, or supplies incomplete information, the EFTA Surveillance Authority shall by decision require the information to be supplied. The decision shall specify what information is required, fix an appropriate time limit within which it is to be supplied and indicate the penalties provided for in Article 15 (1) (b) and Article 16 (1) (c) and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

6. The EFTA Surveillance Authority shall at the same time forward a copy of its decision to the competent authority of the EFTA State in whose territory the seat of the undertaking or association of undertakings is situated.

Article 12

Inquiry into sectors of the economy

1. If any sector of the economy the trend of trade, price movements, inflexibility of prices or other circumstances suggest that in the economic sector concerned competition is being restricted or distorted within the territory covered by the EEA Agreement, the EFTA Surveillance Authority may decide, in accordance with the provisions of Protocol 23 to the EEA Agreement, to conduct a general inquiry into that economic sector and in the course thereof may request undertakings in the sector concerned to supply the information necessary for giving effect to the principles formulated in Articles 53 and 54 of the EEA Agreement and for carrying out the duties entrusted to the EFTA Surveillance Authority.

2. The EFTA Surveillance Authority may in particular request every undertaking or association of undertakings in the economic sector concerned to communicate to it all agreements, decisions and concerted practices which are exempt from notification by virtue of Article 4 (2) of this chapter and Article 1 (2) of Chapter XVI.

3. When making inquiries pursuant to paragraph 2, the EFTA Surveillance Authority shall also request undertakings or groups of undertakings whose size suggests that they occupy a dominant position within the territory covered by the EEA Agreement or a substantial part thereof to supply to the EFTA Surveillance Authority such particulars of the structure of the undertakings and of their behaviour as are requisite to an appraisal of their position in the light of Article 54 of the EEA Agreement.

4. Article 10 (3) to (6) and Articles 11, 13 and 14 shall apply correspondingly.

Article 13

Investigations by the authorities of the EFTA States

1. At the request of the EFTA Surveillance Authority, the competent authorities of the EFTA States shall undertake the investigations which the EFTA Surveillance Authority considers to be necessary pursuant to Article 14 (1), or which it has ordered by decision pursuant to Article 14 (3). The officials of the competent authorities of the EFTA States responsible for conducting these investigations shall exercise their powers upon production of an authorization in writing issued by the competent authority of the EFTA State in whose territory the investigation is to be made. Such authorization shall specify the subject matter and purpose of the investigation.

2. If so requested by the EFTA Surveillance Authority or by the competent authority of the EFTA State in whose territory the investigation is to be made, the officials of the EFTA Surveillance Authority may assist the officials of such authority in carrying out their duties.

Article 14

Investigating powers of the EFTA Surveillance Authority

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by the provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by the provisions of this chapter, the EFTA Surveillance Authority may undertake all necessary investigations into undertakings and associations of undertakings in the territory of an EFTA State. To this end the officials authorized by the EFTA Surveillance Authority are empowered:

(a) to examine the books and other business records;

(b) to take copies of or extracts from the books and business records;

(c) to ask for oral explanations on the spot;

(d) to enter any premises, land and means of transport of undertakings.

2. The officials of the EFTA Surveillance Authority authorized for the purpose of these investigations shall exercise their powers upon production of an authorization in writing specifying the subject matter and purpose of the investigation and the penalties provided for in Article 15 (1) (c) in cases where production of the required books or other business records is incomplete. In good time before the investigation, the EFTA Surveillance Authority shall inform the competent authority of the EFTA State in whose territory the same is to be made of the investigation and of the identity of the authorized officials. The EFTA Surveillance Authority shall also provide such an authorization to representatives of the EC Commission who shall take part in the investigation in accordance with Article 8 (4) of Protocol 23 to the EEA Agreement.

3. Undertakings and associations of undertakings shall submit to investigations ordered by decision of the EFTA Surveillance Authority. The decision shall specify the subject matter and purpose of the investigation, appoint the date on which it is to begin and indicate the penalties provided for in Article 15 (1) (c) and Article 16 (1) (d) and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

4. The EFTA Surveillance Authority shall take decisions referred to in paragraph 3 after consultation with the competent authority of the EFTA State in whose territory the investigation is to be made.

5. Officials of the competent authority of the EFTA State in whose territory the investigation is to be made may, at the request of such authority or of the EFTA Surveillance Authority, assist the officials of the EFTA Surveillance Authority in carrying out their duties.

6. Where an undertaking opposes an investigation ordered pursuant to this Article, the EFTA State concerned shall afford the necessary assistance to the officials authorized by the EFTA Surveillance Authority to enable them to make their investigation.

7. EFTA States shall, after consultation with the EFTA Surveillance Authority, take the necessary measures to this end within six months of the entry into force of the EEA Agreement.

Article 15

Fines

1. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of from ECU 100 to 5 000 where, intentionally or negligently:

(a) they supply incorrect or misleading information in an application pursuant to Article 2 or in a notification pursuant to Article 4 of this chapter or Article 1 of Chapter XVI;

or

(b) they supply incorrect information in response to a request made pursuant to Article 11 (3) or (5) or to Article 12, or do not supply information within the time limit fixed by a decision taken pursuant to Article 11 (5);

or

(c) they produce the required books or other business records in incomplete form during investigations pursuant to Article 13 or 14, or refuse to submit to an investigation ordered by decision issued in implementation of Article 14 (3).

2. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of ECU from 1 000 to 1 000 000, or a sum in excess thereof but not exceeding 10 % of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently:

(a) they infringe Article 53 (1) or Article 54 of the EEA Agreement;

or

(b) they commit a breach of any obligation imposed pursuant to Article 8 (1).

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.

3. Article 10 (3) to (6) shall apply.

4. Decisions taken pursuant to paragraphs 1 and 2 shall not be of a criminal law nature.

5. The fines provided for in paragraph 2 (a) shall not be imposed in respect of acts taking place:

(a) after notification to the EFTA Surveillance Authority and before its decision in application of Article 53 (3) of the EEA Agreement, provided they fall within the limits of the activity described in the notification;

(b) before notification and in the course of agreements, decisions or concerted practices in existence at the date of entry into force of the EEA Agreement, provided that notification was effected within the time limits specified in Articles 1 (1) and 3 (2) of Chapter XVI.

6. Paragraph 5 shall not have effect where the EFTA Surveillance Authority has informed the undertakings concerned that after preliminary examination it is of the opinion that Article 53 (1) of the EEA Agreement applies and that application of Article 53 (3) is not justified.

Article 16

Periodic penalty payments

1. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings periodic penalty payments of from ECU 50 to 1 000 per day, calculated from the date appointed by the decision, in order to compel them:

(a) to put an end to an infringement of Articles 53 or 54 of the EEA Agreement, in accordance with a decision taken pursuant to Article 3 of this chapter;

(b) to refrain from any act prohibited under Article 8 (3);

(c) to supply complete and correct information which it has requested by decision taken pursuant to Article 11 (5);

(d) to submit to an investigation which it has ordered by decision taken pursuant to Article 14 (3).

2. Where the undertakings or associations of undertakings have satisfied the obligation which it was the purpose of the periodic penalty payment to enforce, the EFTA Surveillance Authority may fix the total amount of the periodic penalty payment at a lower figure than that which would arise under the original decision.

3. Article 10 (3) to (6) shall apply.

Article 17

Review by the EFTA Court

The EFTA Court, in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, shall have unlimited jurisdiction within the meaning of Article 35 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed.

Article 18

Ecu

For the purposes of applying Articles 15 to 17, 'ECU' means the ecu as defined by the competent authorities of the European Communities.

Article 19

Hearing of the parties and of third persons

1. Before taking decisions as provided for in Articles 2, 3, 6, 8, 15 and 16 of this chapter and in Article 3 of Chapter XVI, the EFTA Surveillance Authority shall give the undertakings or associations of undertakings concerned the opportunity of being heard on the matters to which the EFTA Surveillance Authority has taken objection.

2. If the EFTA Surveillance Authority or the competent authorities of the EFTA States consider it necessary, they may also hear other natural or legal persons. Applications to be heard on the part of such persons shall, where they show a sufficient interest, be granted.

3. Where the EFTA Surveillance Authority intends to give negative clearance pursuant to Article 2 or take a decision in application of Article 53 (3) of the EEA Agreement, it shall publish a summary of the relevant application or notification and invite all interested third parties to submit their observations within a time limit which it shall fix being not less than one month. Publication shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 20

Professional secrecy

1. Without prejudice to Article 9 (3) of Protocol 23 to the EEA Agreement, information acquired as a result of the application of Articles 11, 12, 13 and 14 of this chapter or of Article 58 of the EEA Agreement and Protocol 23 thereto shall be used only for the purpose of the relevant request or investigation.

2. Without prejudice to the provisions of Articles 19 and 21, the EFTA Surveillance Authority and the competent authorities of the EFTA States, their officials and other servants shall not disclose information acquired by them as a result of the application of this Protocol or Article 58 of the EEA Agreement and Protocol 23 thereto and of the kind covered by the obligation of professional secrecy. This obligation shall also apply to the representatives of the EC Commission and of the EC Member States who participate in the Advisory Committee pursuant to Article 10 (4) and in the hearing pursuant to Article 8 (2) of Chapter IV.

3. The provisions of paragraphs 1 and 2 shall not prevent publication of general information or surveys which do not contain information relating to particular undertakings or associations of undertakings.

Article 21

Publication of decisions

1. The EFTA Surveillance Authority shall publish the decisions which it takes pursuant to Articles 2, 3, 6 and 8 of this chapter and to Article 3 of Chapter XVI.

2. The publication shall state the names of the parties and the main content of the decision; it shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 22

Special provisions

The EFTA Surveillance Authority may submit to the attention of the EFTA States, for consultation within the Standing Committee in accordance with Article 2 of the Agreement on a Standing Committee of the EFTA States, proposals for exempting, in accordance with Article 53 (3) of the EEA Agreement, certain categories of agreement, decision and concerted practice from the prohibition set out in Article 53 (1) of that Agreement.

CHAPTER III Form, content and other details concerning applications and notifications

Article 1

Persons entitled to submit applications and notifications

1. Any undertaking which is party to agreements, decisions or practices of the kind described in Articles 53 and 54 of the EEA Agreement may submit an application pursuant to Article 2 of Chapter II or a notification pursuant to Article 4 of Chapter II and Article 1 of Chapter XVI. Where the application or notification is submitted by some, but not all, of the undertakings concerned, they shall give notice to the others.

2. Where applications and notifications pursuant to Articles 2, 3 (1), 3 (2) (b) and 4 of Chapter II and Article 1 of Chapter XVI are signed by representatives of undertakings, or associations of undertakings, or natural or legal persons such representatives shall produce written proof that they are authorized to act.

3. Where a joint application or notification is submitted a joint representative should be appointed.

Article 2

Submission of applications and notifications

1. Nine copies of each application and notification shall be submitted to the EFTA Surveillance Authority.

2. The supporting documents shall be either original or copies; copies must be certified as true copies of the original.

3. Applications and notifications shall be in an official language of an EFTA State or the European Community. Supporting documents shall be submitted in their original language. Where the original language is not an official language of an EFTA State or the European Community, a translation in one of these languages shall be attached.

Article 3

Effective date of submission of applications and registrations

The date of submission of an application or notification shall, without prejudice to Article 11 of Protocol 23 to the EEA Agreement, be the date on which it is received by the EFTA Surveillance Authority. 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.

Article 4

Content of applications and notifications

1. Applications pursuant to Article 2 of Chapter II relating to the applicability of Article 53 (1) of the EEA Agreement and notifications pursuant to Article 4 of Chapter II or Article 1 (2) of Chapter XVI shall be submitted on forms issued for that purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 1, or by the EC Commission.

2. Applications and notifications shall contain the information asked for in these forms.

3. Several participating undertakings may submit an application or notification on a single form.

4. Applications pursuant to Article 2 of Chapter II relating to the applicability of Article 54 of the EEA Agreement shall contain a full statement of the facts, specifying, in particular, the practice concerned and the position of the undertaking or undertakings within the territory covered by the EEA Agreement or a substantial part thereof in regard to products or services to which the practice relates. The forms issued for that purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 1, or by the EC Commission may be used.

Article 5

Special provisions

The EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for forms and complementary notes.

CHAPTER IV Hearings provided for in Article 19 (1) and (2) of Chapter II

Article 1

Before consulting the Advisory Committee on Competition, the EFTA Surveillance Authority shall hold a hearing pursuant to Article 19 (1) of Chapter II.

Article 2

1. The EFTA Surveillance Authority shall inform undertakings and associations of undertakings in writing of the objections raised against them. The communication shall be addressed to each of them or to a joint agent appointed by them.

2. The EFTA Surveillance Authority may inform the parties by giving notice in the EEA Section of the Official Journal of the European Communities, if from the circumstances of the case this appears appropriate, in particular where notice is to be given to a number of undertakings but no joint agent has been appointed. The notice shall have regard to the legitimate interest of the undertakings in the protection of their business secrets.

3. A fine or a periodic penalty payment may be imposed on an undertaking or association of undertakings only if the objections were notified in the manner provided for in paragraph 1.

4. The EFTA Surveillance Authority shall, when giving notice of objections, fix a time limit up to which the undertakings and associations of undertakings may inform the EFTA Surveillance Authority of their views.

Article 3

1. Undertakings and associations of undertakings shall, within the appointed time limit, make known in writing their views concerning the objections raised against them.

2. They may in their written comments set out all matters relevant to their defence.

3. They may attach any relevant documents in proof of the facts set out. They may also propose that the EFTA Surveillance Authority hear persons who may corroborate those facts.

Article 4

The EFTA Surveillance Authority shall in its decisions deal only with those objections raised against undertakings and associations of undertakings in respect of which they have been afforded the opportunity of making known their views.

Article 5

If natural or legal persons showing a sufficient interest apply to be heard pursuant to Article 19 (2) of Chapter II, the EFTA Surveillance Authority shall afford them the opportunity of making known their views in writing within such time limit as it shall fix.

Article 6

Where the EFTA Surveillance Authority, having received an application pursuant to Article 3 (2) of Chapter II, considers that on the basis of the information in its possession there are insufficient grounds for granting the application, it shall inform the applicants of its reasons and fix a time limit for them to submit any further comments in writing.

Article 7

1. The EFTA Surveillance Authority shall afford to persons who have so requested in their written comments the opportunity to put forward their arguments orally, if those persons show a sufficient interest or if the EFTA Surveillance Authority proposes to impose on them a fine or periodic penalty payment.

2. The EFTA Surveillance Authority may likewise afford to any other person the opportunity of orally expressing his views.

Article 8

1. The EFTA Surveillance Authority shall summon the persons to be heard to attend on such date as it shall appoint.

2. It shall forthwith transmit a copy of the summons to the competent authorities of the EFTA States, who may appoint an official to take part in the hearing. Likewise, the EFTA Surveillance Authority shall invite the EC Commission to be represented at the hearing. The invitation shall also extend to the EC Member States.

Article 9

1. Hearings shall be conducted by the persons appointed by the EFTA Surveillance Authority for that purpose.

2. Persons summoned to attend shall appear either in person or be represented by legal representatives or by representatives authorized by their constitution. Undertakings and associations of undertakings may moreover be represented by a duly authorized agent appointed from among their permanent staff.

Persons heard by the EFTA Surveillance Authority may be assisted by lawyers or advisers who are entitled to plead before the EFTA Court, or by other qualified persons.

3. Hearings shall not be public. Persons shall be heard separately or in the presence of other persons summoned to attend. In the latter case, regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets.

4. The essential content of the statements made by each person heard shall be recorded in minutes which shall be read and approved by him.

Article 10

Without prejudice to Article 2 (2), information and summonses from the EFTA Surveillance Authority shall be sent to the addressees by registered letter with acknowledgement of receipt, or shall be delivered by hand against receipt.

Article 11

1. In fixing the time limits provided for in Articles 2, 5 and 6, the EFTA Surveillance Authority shall have regard both to the time required for preparation of comments and to the urgency of the case. The time limit shall be not less than two weeks; it may be extended.

2. Time limits shall run from the day following receipt of a communication or delivery thereof by hand.

3. Written comments must reach the EFTA Surveillance Authority or be dispatched by registered letter before expiry of the time limit. Where the time limit would expire on a Sunday or public holiday, it shall be extended up to the end of the next following working day. For the purpose of calculating this extension, public holidays shall, in cases where the relevant date is the date of receipt of written comments, be those set out in Appendix 2 to this Protocol, and in cases where the relevant date is the date of dispatch, those appointed by law in the country of dispatch.

CHAPTER V Limitation periods in proceedings and the enforcement of sanctions under the rules relating to transport and competition as contained in Chapters II to IV and VI to XIV

Article 1

Limitation periods in proceedings

1. The power of the EFTA Surveillance Authority to impose fines or penalties for infringements of the rules of the EEA Agreement relating to transport or competition shall be subject to the following limitation periods:

(a) three years in the case of infringements of provisions concerning applications or notifications of undertakings or associations of undertakings, requests for information, or the carrying out of investigations;

(b) five years in the case of all other infringements.

2. Time shall begin to run upon the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run upon the day on which the infringement ceases.

Article 2

Interruption of the limitation period in proceedings

1. Any action taken by the EFTA Surveillance Authority, by the EC Commission at the request of the EFTA Surveillance Authority pursuant to Article 8 of Protocol 23 to the EEA Agreement, or by any EFTA State, acting at the request of the EFTA Surveillance Authority, for the purpose of the preliminary investigation or proceedings in respect of an infringement shall interrupt the limitation period in proceedings. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which have participated in the infringement.

Actions which interrupt the running of the period shall include in particular the following:

(a) written requests for information by the EFTA Surveillance Authority, or by the competent authority of an EFTA State acting at the request of the EFTA Surveillance Authority; or a decision by the EFTA Surveillance Authority requiring the requested information;

(b) written authorizations to carry out investigations issued to their officials by the EFTA Surveillance Authority or by the competent authority of any EFTA State at the request of the EFTA Surveillance Authority; or a decision by the EFTA Surveillance Authority ordering an investigation;

(c) the commencement of proceedings by the EFTA Surveillance Authority;

(d) notification of the EFTA Surveillance Authority's statement of objections.

2. The interruption of the limitation period shall apply for all the undertakings or associations of undertakings which have participated in the infringement.

3. Each interruption shall start time running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the EFTA Surveillance Authority having imposed a fine or a penalty; that period shall be extended by the time during which limitation is suspended pursuant to Article 3.

Article 3

Suspension of the limitation period in proceedings

The limitation period in proceedings shall be suspended for as long as the decision of the EFTA Surveillance Authority is the subject of proceedings pending before the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement.

Article 4

Limitation period for the enforcement of sanctions

1. The power of the EFTA Surveillance Authority to enforce decisions imposing fines, penalties, or periodic payments for infringements of the rules of the EEA Agreement relating to transport or competition shall be subject to a limitation period of five years.

2. Time shall begin to run upon the day on which the decision becomes final.

Article 5

Interruption of the limitation period for the enforcement of sanctions

1. The limitation period for the enforcement of sanctions shall be interrupted:

(a) by notification of a decision varying the original amount of the fine, penalty or periodic penalty payments or refusing an application for variation;

(b) by any sanction of the EFTA Surveillance Authority or of an EFTA State at the request of the EFTA Surveillance Authority, for the purpose of enforcing payments, of a fine, penalty or periodic penalty payment.

2. Each interruption shall start time running afresh.

Article 6

Suspension of the limitation period for the enforcement of sanctions

The limitation period for the enforcement of sanctions shall be suspended for so long as:

(a) time to pay is allowed; or

(b) enforcement of payment is suspended pursuant to a decision of the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement.

PART II TRANSPORT

CHAPTER VI Application of rules of competition to transport by rail, road and inland waterway

Due to the division of the text of Regulation (EEC) No 1017/68 between Annex XIV to the EEA Agreement (substantive rules) and the present chapter (procedural rules), the text, as adapted, of Articles 1 to 5 and Articles 7 to 9 is to be found in the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68). The EFTA Surveillance Authority shall decide on these cases in accordance with the provisions of Article 56 of the EEA Agreement, in particular paragraph (1) (a) and (b) and paragraph (3).

Articles 1 to 5

(No text)

Article 6

Agreements intended to reduce disturbances resulting from the structure of the transport market

1. Until such time as appropriate measures to ensure a stable transport market are introduced, the prohibition laid down in Article 2 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) may be declared inapplicable to any agreement, decision or concerted practice which tends to reduce disturbances on the market in question.

2. A decision not to apply the prohibition laid down in Article 2 of the said act, made in accordance with the procedure laid down in Article 14, may not be taken until the Standing Committee has found on the basis of a report by the EFTA Surveillance Authority, that a state of crisis exists in all or part of a transport market.

3. Without prejudice to the provisions of paragraph 2, the prohibition in Article 2 of the said act may be declared inapplicable only where:

(a) the agreement, decision or concerted practice in question does not impose upon the undertakings concerned any restriction not indispensable to the reduction of disturbances;

and

(b) does not make it possible for such undertakings to eliminate competition in respect of a substantial part of the transport market concerned.

Articles 7 to 9

(No text)

Article 10

Procedures on complaint or on the EFTA Surveillance Authority's own initiative

Acting on receipt of a complaint or on its own initiative, the EFTA Surveillance Authority shall initiate procedures to terminate any infringement of the provisions of Article 2 or Article 8 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) or to enforce Article 4 (2) of that act.

Complaints may be submitted by:

(a) EFTA States;

(b) natural or legal persons who claim a legitimate interest.

Article 11

Result of procedures on complaint or on the EFTA Surveillance Authority's own initiative

1. Where the EFTA Surveillance Authority finds that there has been an infringement of Article 2 or Article 8 of the act referred top in point 10 of Annex XIV to the EAA Agreement (Regulation (EEC) No 1017/68), it may by decision require the undertakings or associations of undertakings concerned to bring such infringement to an end.

Without prejudice to the other provisions of this chapter and the said act, the EFTA Surveillance Authority may, before taking a decision under the preceding subparagraph, address to the undertakings or associations of undertakings concerned recommendations for termination of the infringement.

2. Paragraph 1 shall apply also to cases falling within Article 4 (2) of the said act.

3. If the EFTA Surveillance Authority, acting on a complaint received, concludes that on the evidence before it there are no grounds for intervention pursuant to Article 2, Article 4 (2) or Article 8 of the said act in respect of any agreement, decision or concerted practice, it shall issue a decision rejecting the complaint as unfounded.

4. If the EFTA Surveillance Authority, whether acting on a complaint received or on its own initiative, concludes that an agreement, decision or concerted practice satisfies the provisions both of Article 2 and of Article 5 of the said act, it shall issue a decision applying Article 5. Such decision shall indicate the date from which it is to take effect. This date may be prior to that of the decision.

Article 12

Application of Article 5 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) - Objections

1. Undertakings and associations of undertakings which seek application of Article 5 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) in respect of agreements, decisions and concerted practices falling within the provisions of Article 2 of the said act to which they are parties may submit applications to the EFTA Surveillance Authority.

2. If the EFTA Surveillance Authority judges an application admissible and is in possession of all the available evidence, and no action pursuant to Article 10 has been taken against the agreement, decision or concerted practice in question, then it shall publish as soon as possible in the EEA Section of the Official Journal of the European Communities a summary of the application and invite all interested third parties to submit their comments to the EFTA Surveillance Authority within 30 days. Such publication shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

3. Unless the EFTA Surveillance Authority notifies applicants, within 90 days from the date of such publication in the EEA Section of the Official Journal of the European Communities, that there are serious doubts as to the applicability of Article 5 of the said act, the agreement, decision or concerted practice shall be deemed exempt, in so far as it conforms with the description given in the application, from the prohibition for the time already elapsed and for a maximum of three years from the date of publication in the EEA Section of the Official Journal of the European Communities.

If the EFTA Surveillance Authority finds, after expiry of the 90-day time limit, but before expiry of the three-year period, that the conditions for applying Article 5 of the said act are not satisfied, it shall issue a decision declaring that the prohibition in Article 2 of the said act is applicable. Such decision may be retroactive where the parties concerned have given inaccurate information or where they abuse the exemption from the provisions of Article 2 of the said act.

4. If, within the 90-day time limit, the EFTA Surveillance Authority notifies applicants as referred to in the first subparagraph of paragraph 3, it shall examine whether the provisions of Article 2 and of Article 5 of the said act are satisfied.

If it finds that the provisions of Article 2 and of Article 5 of the said act are satisfied it shall issue a decision applying Article 5. The decision shall indicate the date from which it is to take effect. This date may be prior to that of the application.

Article 13

Duration and revocation of decisions applying Article 5 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68)

1. Any decision applying Article 5 of the said act taken under Article 11 (4) or under the second subparagraph of Article 12 (4) shall indicate the period for which it is to be valid; normally such period shall not be less than six years. Conditions and obligations may be attached to the decision.

2. The decision may be renewed if the conditions for applying Article 5 of the said act continue to be satisfied.

3. The EFTA Surveillance Authority may revoke or amend its decision or prohibit specified acts by the parties:

(a) where there has been a change in any of the facts which were basic to the making of the decision;

(b) where the parties commit a breach of any obligation attached to the decision;

(c) where the decision is based on incorrect information or was induced by deceit;

(d) where the parties abuse the exemption from the provisions of Article 2 of the said act granted to them by the decision.

In cases falling within (b), (c) or (d), the decision may be revoked with retroactive effect.

Article 14

Decisions applying Article 6

1. Any agreement, decision or concerted practice covered by Article 2 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) in respect of which the parties seek application of Article 6 shall be notified to the EFTA Surveillance Authority.

2. Any decision by the EFTA Surveillance Authority to apply Article 6 of the said act shall have effect only from the date of its adoption. It shall state the period for which it is to be valid. Such period shall not exceed three years from the finding of a state of crisis by the Standing Committee provided for in Article 6 (2).

3. Such decision may be renewed by the EFTA Surveillance Authority if the Standing Committee again finds, acting pursuant to the procedure provided for in Article 6 (2), that there is a state of crisis and if the other conditions laid down in Article 6 continue to be satisfied.

4. Conditions and obligations may be attached to the decision.

5. The decision of the EFTA Surveillance Authority shall cease to have effect not later than six months from the coming into operation of the measures referred to in Article 6 (1).

6. The provisions of Article 13 (3) shall apply.

Article 15

Powers

Subject to review of its decision by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, the EFTA Surveillance Authority shall have sole power, on the conditions set out in Article 56 of the EEA Agreement:

- to impose obligations pursuant to Article 4 (2) of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68),

- to issue decisions pursuant to Article 5 of the said act and Article 6 of this chapter.

The authorities of the EFTA States shall retain the power to decide whether any case falls within the provisions of Article 2 or Article 8 of the said act, until such time as the EFTA Surveillance Authority has initiated a procedure with a view to formulating a decision in the case in question or has sent notification as provided for in the first subparagraph of Article 12 (3).

Article 16

Liaison with authorities of the EFTA States

1. The EFTA Surveillance Authority shall carry out the procedures provided for in this chapter in close and constant liaison with the competent authorities of the EFTA States; these authorities shall have the right to express their views on such procedures.

2. The EFTA Surveillance Authority shall immediately forward to the competent authorities of the EFTA States copies of the complaints and applications, and of the most important documents sent to it or which it sends out in the course of such procedures.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of notifications, complaints and information on opening of ex officio procedures received from the EC Commission pursuant to Articles 2 and 10 of Protocol 23 to the EEA Agreement.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of documents received from the EC Commission pursuant to Article 7 of Protocol 23 to the EEA Agreement.

3. An Advisory Committee on Competition in the Transport Industry shall be consulted prior to the taking of any decision following upon a procedure under Article 10 or of any decision under the second subparagraph of Article 12 (3), or under the second subparagraph of paragraph 4 of the same Article, or under paragraph 2 or paragraph 3 of Article 14. The Advisory Committee shall also be consulted prior to a proposal referred to in Article 29.

4. The Advisory Committee shall be composed of officials competent in the matter of restrictive practices and monopolies in transport. Each EFTA State shall appoint two officials to represent it, each of whom, if prevented from attending, may be replaced by some other official.

The EC Commission and the EC Member States shall be entitled to be present in the Advisory Committee and to express their views therein. However, their representatives shall not have the right to vote.

5. Consultation shall take place at a joint meeting convened by the EFTA Surveillance Authority; such meeting shall be held not earlier than 14 days after dispatch of the notice convening it. This notice shall, in respect of each case to be examined, be accompanied by a summary of the case together with an indication of the most important documents, and a preliminary draft decision.

In view of the participation provided for in the second subparagraph of paragraph 4, the EC Commission shall receive an invitation to the meeting and the relevant information as provided for in Article 6 of Protocol 23 to the EEA Agreement.

6. The Advisory Committee may deliver an opinion notwithstanding that some of its members or their alternates are not present. A report of the outcome of the consultative proceedings shall be annexed to the draft decision. It shall not be made public.

Article 17

Consideration by the Standing Committee of questions of principle concerning the provisions on transport as contained in the EEA Agreement raised in connection with specific cases

1. The EFTA Surveillance Authority shall not give a decision in respect of which consultation as laid down in Article 16 is compulsory until after the expiry of 20 days from the date on which the Advisory Committee has delivered its opinion.

2. Before the expiry of the period specified in paragraph 1, any EFTA State may request that the Standing Committee be convened to examine with the EFTA Surveillance Authority any question of principle concerning the provisons on transport as contained in the EEA Agreement which such EFTA State considers to be involved in the particular case for decision.

The Standing Committee shall meet within 30 days from the request by the EFTA State concerned for the sole purposes of considering such questions of principle.

The EFTA Surveillance Authority shall not give its decision until after the meeting of the Standing Committee.

3. Further, the Standing Committee may at any time, at the request of an EFTA State or of the EFTA Surveillance Authority, consider general questions raised by the implementation of the competition policy in the transport sector.

4. In all cases where the Standing Committee is asked to meet to consider under paragraph 2 questions of principle or under paragraph 3 general questions, the EFTA Surveillance Authority shall, for the purpose of this chapter, take into account the policy guidelines which emerge from the meeting.

Article 18

Inquiries into transport sectors

1. If trends in transport, fluctuations in or inflexibility of transport rates, or other circumstances, suggest that competition in transport is being restricted or distorted within the territory covered by the EEA Agreement in a specific geographical area, or over one or more transport links, or in respect of the carriage of passengers or goods belonging to one or more specific categories, the EFTA Surveillance Authority may decide, in accordance with the provisions of Protocol 23 to the EEA Agreement, to conduct a general inquiry into the sector concerned, in the course of which it may request transport undertakings in that sector to supply the information and documentation necessary for giving effect to the principles formulated in Articles 2 to 5, 7 and 8 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) and to Article 6 of this chapter.

2. When making inquiries pursuant to paragraph 1, the EFTA Surveillance Authority shall also request undertakings or groups of undertakings whose size suggests that they occupy a dominant position within the territory covered by the EEA Agreement or a substantial part thereof to supply such particulars of the structure of the undertakings and of their behaviour as are requisite to an appraisal of their position in the light of the provisions of Article 8 of the said act.

3. Article 16 (2) to (6) and Articles 17, 19, 20 and 21 shall apply.

Article 19

Requests for information

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by provisions of this chapter, the EFTA Surveillance Authority may obtain all necessary information from the governments and competent authorities of the EFTA States and from undertakings and associations of undertakings.

2. When sending a request for information to an undertaking or association of undertakings, the EFTA Surveillance Authority shall at the same time forward a copy of the request to the competent authority of the EFTA State in whose territory the seat of the undertakings is situated.

3. In its request, the EFTA Surveillance Authority shall state the legal basis and the purpose of the request, and also the penalties provided for in Article 22 (1) (b) for supplying incorrect information.

4. The owners of the undertakings or their representatives and, in the case of legal persons, companies or firms, or of associations having no legal personality, the person authorized to represent them by law or by their constitution, shall be bound to supply the information requested.

5. Where an undertaking or association of undertakings does not supply the information requested within the time limit fixed by the EFTA Surveillance Authority, or supplies incomplete information, the EFTA Surveillance Authority shall by decision require the information to be supplied. The decision shall specify what information is required, fix an appropriate time limit within which it is to be supplied and indicate the penalties provided for in Article 22 (1) (b) and Article 23 (1) (c), and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

6. The EFTA Surveillance Authority shall at the same time forward a copy of its decision to the competent authority of the EFTA State in whose territory the seat of the undertaking or association of undertakings is situated.

Article 20

Investigations by the authorities of the EFTA States

1. At the request of the EFTA Surveillance Authority, the competent authorities of the EFTA States shall undertake the investigations which the EFTA Surveillance Authority considers to be necessary under Article 21 (1), or which it has ordered by decision pursuant to Article 21 (3). The officials of the competent authorities of the EFTA States responsible for conducting these investigations shall exercise their powers upon production of an authorization in writing issued by the competent authority of the EFTA State in whose territory the investigation is to be made. Such authorization shall specify the subject matter and purpose of the investigation.

2. If so requested by the EFTA Surveillance Authority or by the competent authority of the EFTA State in whose territory the investigation is to be made, the officials of the EFTA Surveillance Authority may assist the officials of such authority in carrying out their duties.

Article 21

Investigating powers of the EFTA Surveillance Authority

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by provisions of this chapter, the EFTA Surveillance Authority may undertake all necessary investigations into undertakings and associations of undertakings in the territory of an EFTA State. To this end the officials authorized by the EFTA Surveillance Authority are empowered:

(a) to examine the books and other business records;

(b) to take copies of or extracts from the books and business records;

(c) to ask for oral explanations on the spot;

(d) to enter any premises, land and vehicles of undertakings.

2. The officials of the EFTA Surveillance Authority authorized for the purpose of these investigations shall exercise their powers upon production of an authorization in writing specifying the subject matter and purpose of the investigation and the penalties provided for in Article 22 (1) (c) in cases where production of the required books or other business records is incomplete.

In good time before the investigation, the EFTA Surveillance Authority shall inform the competent authority of the EFTA State in whose territory the same is to be made of the investigation and of the identity of the authorized officials. The EFTA Surveillance Authority shall also provide such an authorization to representatives of the EC Commission who shall take part in the investigation in accordance with Article 8 (4) of Protocol 23 to the EEA Agreement.

3. Undertakings and associations of undertakings shall submit to investigations ordered by decision of the EFTA Surveillance Authority. The decision shall specify the subject matter and purpose of the investigation, appoint the date on which it is to begin and indicate the penalties provided for in Article 22 (1) (c) and Article 23 (1) (d) and the right to have the decision reviewed by the EFTA Court.

4. The EFTA Surveillance Authority shall take decisions referred to in paragraph 3 after consultation with the competent authority of the EFTA State in whose territory the investigation is to be made.

5. Officials of the competent authority of the EFTA State in whose territory the investigation is to be made, may at the request of such authority or of the EFTA Surveillance Authority, assist the officials of the EFTA Surveillance Authority in carrying out their duties.

6. Where an undertaking opposes an investigation ordered pursuant to this Article, the EFTA State concerned shall afford the necessary assistance to the officials authorized by the EFTA Surveillance Authority to enable them to make their investigation. EFTA States shall, after consultation with the EFTA Surveillance Authority, take the necessary measures to this end within six months of the entry into force of the EEA Agreement.

Article 22

Fines

1. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of from ECU 100 to 5 000 where, intentionally or negligently:

(a) they supply incorrect or misleading information in an application pursuant to Article 12 or in a notification pursuant to Article 14; or

(b) they supply incorrect information in response to a request made pursuant to Article 18 or to Article 19 (3) or (5), or do not supply information within the time limit fixed by a decision taken under Article 19 (5); or

(c) they produce the required books or other business records in incomplete form during investigations pursuant to Article 20 or Article 21, or refuse to submit to an investigation ordered by decision issued in implementation of Article 21 (3).

2. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of from ECU 1 000 to 1 000 000, or a sum in excess thereof but not exceeding 10 % of the turnover in the preceding business year of each of the undertakings participating in the infringement, where either intentionally or negligently:

(a) they infringe Article 2 or Article 8 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68); or

(b) they commit a breach of any obligation imposed pursuant to Article 13 (1) or Article 14 (4).

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.

3. Article 16 (3) to (6) and Article 17 shall apply.

4. Decisions taken pursuant to paragraphs 1 and 2 shall not be of a criminal law nature.

Article 23

Periodic penalty payments

1. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings periodic penalty payments of from ECU 50 to 1 000 per day, calculated from the date appointed by the decision, in order to compel them:

(a) to put an end to an infringement of Article 2 or Article 8 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) of this chapter, the termination of which it has ordered pursuant to Article 11 or to comply with an obligation imposed pursuant to Article 4 (2) of the said act;

(b) to refrain from any act prohibited under Article 13 (3);

(c) to supply complete and correct information which it has requested by decision taken pursuant to Article 19 (5);

(d) to submit to an investigation which it has ordered by decision taken pursuant to Article 21 (3).

2. Where the undertakings or associations of undertakings have satisfied the obligation which it was the purpose of the periodic penalty payment to enforce, the EFTA Surveillance Authority may fix the total amount of the periodic penalty payment at a lower figure than that which would arise under the original decision.

3. Article 16 (3) to (6) and Article 17 shall apply.

Article 24

Review by the EFTA Court

The EFTA Court shall, in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, have unlimited jurisdiction within the meaning of Article 35 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed.

Article 25

Ecu

For the purpose of applying Articles 22 to 24, 'ecu' means the ecu as defined by the competent authorities of the European Communities.

Article 26

Hearing of the parties and of third persons

1. Before taking decisions as provided for in Articles 11, 12 (3), second subparagraph, and 12 (4), 13 (3), 14 (2) and (3), 22 and 23, the EFTA Surveillance Authority shall give the undertakings or associations of undertakings concerned the opportunity of being heard on the matters to which the EFTA Surveillance Authority has taken objection.

2. If the EFTA Surveillance Authority or the competent authorities of the EFTA States consider it necessary, they may also hear other natural or legal persons. Applications to be heard on the part of such persons where they show a sufficient interest shall be granted.

3. Where the EFTA Surveillance Authority intends to give negative clearance pursuant to Article 5 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) or Article 6 of this chapter, it shall publish a summary or the relevant agreement, decision or concerted practice and invite all interested third parties to submit their observations within a time limit which it shall fix being not less than one month. Publication shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 27

Professional secrecy

1. Without prejudice to Article 9 of Protocol 23 to the EEA Agreement, information acquired as a result of the application of Articles 18, 19, 20 and 21 of this chapter or Article 58 of the EEA Agreement and Protocol 23 thereto shall be used only for the purpose of the relevant request or investigation.

2. Without prejudice to the provisions of Articles 26 and 28, the EFTA Surveillance Authority and the competent authorities of the EFTA States, their officials and other servants shall not disclose information acquired by them as a result of the application of this Protocol or Article 58 of the EEA Agreement and Protocol 23 thereto and of the kind covered by the obligation of professional secrecy. This obligation shall also apply to the representatives of the EC Commission and of the EC Member States who participate in the Advisory Committee pursuant to Article 16 (4) and in the hearing pursuant to Article 8 (2) of Chapter VIII.

3. The provisions of paragraphs 1 and 2 shall not prevent publication of general information or surveys which do not contain information relating to particular undertakings or associations of undertakings.

Article 28

Publication of decisions

1. The EFTA Surveillance Authority shall publish the decisions which it takes pursuant to Articles 11, 12 (3), second subparagraph, 12 (4), 13 (3) and 14 (2) and (3).

2. The publication shall state the names of the parties and the main content of the decision; it shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 29

Special provisions

The EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for forms to be used for complaints pursuant to Article 10, applications pursuant to Article 12 and notifications pursuant to Article 14 (1), as well as proposals for complementary notes to the forms.

CHAPTER VII Form, content and other details of complaints pursuant to Article 10, applications pursuant to Article 12 and notifications pursuant to Article 14 (1) of Chapter VI

Article 1

Complaints

1. Complaints pursuant to Article 10 of Chapter VI shall be submitted in writing in an official language of an EFTA State or the European Community; they may be submitted on forms issued for this purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 3, or by the EC Commission.

2. When representatives of undertakings, of associations of undertakings, or of natural or legal persons sign such complaints, they shall produce written proof that they are authorized to act.

Article 2

Persons entitled to submit applications and notifications

1. Any undertaking which is party to agreements, decisions or practices of the kind described in Article 2 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) may submit an application pursuant to Article 12 or a notification under Article 14 (1) of Chapter VI. Where the application or notification is submitted by some, but not all, of the undertakings concerned, they shall give notice to the others.

2. Where applications or notifications pursuant to Articles 12 and 14 (1) of Chapter VI are signed by representatives of undertakings, of associations of undertakings, or of natural or legal persons, such representativs shall produce written proof that they are authorized to act.

3. Where a joint application or notification is submitted, a joint representative shall be appointed.

Article 3

Submission of applications and notifications

1. Applications pursuant to Article 12 of Chapter VI shall be submitted on forms issued for this purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 4, or by the EC Commission.

2. Notifications pursuant to Article 14 (1) of Chapter VI shall be submitted on forms issued for this purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 5, or by the EC Commission.

3. Several participating undertakings may submit an application or notification on a single form.

4. Applications and notifications shall contain the information requested in the forms.

5. Nine copies of each application or notification and of the supporting documents shall be submitted to the EFTA Surveillance Authority.

6. The supporting documents shall be either originals or copies. Copies must be certified as true copies of the original.

7. Applications and notifications shall be in an official language of an EFTA State or the European Community. Supporting documents shall be submitted in their original language. Where the original language is not one of the official languages, a translation in one of these languages shall be attached.

Article 4

Special provisions

The EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for forms and complementary notes.

CHAPTER VIII Hearings provided for in Article 26 (1) of Chapter VI

Article 1

Before consulting the Advisory Committee on Competition in the Transport Industry the EFTA Surveillance Authority shall hold a hearing pursuant to Article 26 (1) of Chapter VI.

Article 2

1. The EFTA Surveillance Authority shall inform undertakings and associations of undertakings in writing of the objections raised against them. The communications shall be addressed to each of them or to a joint agent appointed by them.

2. The EFTA Surveillance Authority may inform the parties by giving notice in the EEA Section of the Official Journal of the European Communities, if from the circumstances of the case this appears appropriate, in particular where notice is to be given to a number of undertakings but no joint agent has been appointed. The notice shall have regard to the legitimate interest of the undertakings in the protection of their business secrets.

3. A fine or a periodic penalty payment may be imposed on an undertaking or association of undertakings only if the obligations were notified in the manner provided for in paragraph 1.

4. The EFTA Surveillance Authority shall, when giving notice of objections, fix a time limit up to which the undertakings and associations of undertakings may inform the EFTA Surveillance Authority of their views.

Article 3

1. Undertakings and associations of undertakings shall, within the appointed time limit, make known in writing their views concerning the objections raised against them.

2. They may in their written comments set out all matters relevant to their defence.

3. They may attach any relevant documents in proof of the facts set out. They may also propose that the EFTA Surveillance Authority hear persons who may corroborate those facts.

Article 4

The EFTA Surveillance Authority shall in its decision deal only with those objections raised against undertakings and associations of undertakings in respect of which they have been afforded the opportunity of making known their views.

Article 5

If natural or legal persons showing a sufficient interest apply to be heard pursuant to Article 26 (2) of Chapter VI, the EFTA Surveillance Authority shall afford them the opportunity of making known their views in writing within such time limits as it shall fix.

Article 6

Where the EFTA Surveillance Authority, having received an application pursuant to Article 10 (2) of Chapter VI, considers that on the basis of the information in its possession there are insufficient grounds for granting the application, it shall inform the applicants of its reasons and fix a time limit for them to submit any further comments in writing.

Article 7

1. The EFTA Surveillance Authority shall afford to persons who have so requested in their written comments the opportunity to put forward their arguments orally, if those persons show a sufficient interest or if the EFTA Surveillance Authority proposes to impose on them a fine or periodic penalty payment.

2. The EFTA Surveillance Authority may likewise afford to any other person the opportunity of orally expressing his views.

Article 8

1. The EFTA Surveillance Authority shall summon the persons to be heard to attend on such date as it shall appoint.

2. It shall forthwith transmit a copy of the summons to the competent authorities of the EFTA States, who may appoint an official to take part in the hearing. Likewise, the EFTA Surveillance Authority shall invite the EC Commission to be represented at the hearing. The invitation shall also extend to the EC Member States.

Article 9

1. Hearings shall be conducted by the persons appointed by the EFTA Surveillance Authority for that purpose.

2. Persons summoned to attend shall appear either in person or be represented by legal representatives or by representatives authorized by their constitution. Undertakings and associations of undertakings may moreover be represented by a duly authorized agent appointed from among their permanent staff.

Persons heard by the EFTA Surveillance Authority may be assisted by lawyers or advisers who are entitled to plead before the EFTA Court, or by other qualified persons.

3. Hearings shall not be public. Persons shall be heard separately or in the presence of other persons summoned to attend. In the latter case, regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets.

4. The essential content of the statements made by each person heard shall be recorded in minutes which shall be read and approved to him.

Article 10

Without prejudice to Article 2 (2), information and summonses from the EFTA Surveillance Authority shall be sent to the addressees by registered letter with acknowledgement of receipt, or shall be delivered by hand against receipt.

Article 11

1. In fixing the time limits provided for in Articles 2, 5 and 6, the EFTA Surveillance Authority shall have regard both to the time required for preparation of comments and to the urgency of the case. The time limit shall be not less than two weeks; it may be extended.

2. Time limits shall run from the day following receipt of a communication or delivery thereof by hand.

3. Written comments must reach the EFTA Surveillance Authority or be dispatched by registered letter before expiry of the time limit. Where the time limit would expire on a Sunday or public holiday, it shall be extended up to the end of the next following working day. For the purpose of calculating the extension, public holidays shall, in cases where the relevant date is the date of receipt of written comments, be those set out in Appendix 2 to this Protocol, and in cases where the relevant date is the date of dispatch, those appointed by law in the country of dispatch.

CHAPTER IX Rules for the application of Articles 53 and 54 of the EEA Agreement to maritime transport

Due to the division of the text of Regulation (EEC) No 4056/86 between Annex XIV to the EEA Agreement (substantive rules) and the present chapter (procedural rules), the text, as adapted, of Section I, Articles 1 to 9, is to be found in the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86). The EFTA Surveillance Authority shall decide on these cases in accordance with the provisions of Article 56 of the EEA Agreement, in particular paragraph (1) (a) and (b) and paragraph (3).

Section I

Articles 1 to 9

(No text)

Section II Rules of Procedure

Article 10

Procedures on complaint or on the EFTA Surveillance Authority's own initiative

Acting on receipt of a complaint or on its own initiative, the EFTA Surveillance Authority shall initiate procedures to terminate any infringement of the provisions of Articles 53 (1) or 54 of the EEA Agreement or to enforce Article 7 of the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86).

Complaints may be submitted by:

(a) EFTA States;

(b) natural or legal persons who claim a legitimate interest.

Article 11

Result of procedures on complaint or on the EFTA Surveillance Authority's own initiative

1. Where the EFTA Surveillance Authority finds that there has been an infringement of Articles 53 (1) or 54 of the EEA Agreement, it may by decision require the undertakings or associations of undertakings concerned to bring such infringement to an end.

Without prejudice to the other provisions of this chapter or to the provisions of the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86), the EFTA Surveillance Authority may, before taking a decision under the preceding subparagraph, address to the undertakings or associations of undertakings concerned recommendations for termination of the infringement.

2. Paragraph 1 shall apply also to cases falling within Article 7 of the said act.

3. If the EFTA Surveillance Authority, acting on a complaint received, concludes that on the evidence before it there are no grounds for intervention under Articles 53 (1) or 54 of the EEA Agreement or Article 7 of the said act, in respect of any agreement, decision or practice, it shall issue a decision rejecting the complaint as unfounded.

4. If the EFTA Surveillance Authority, whether acting on a complaint received or on its own initiative, concludes that an agreement, decision or concerted practice satisfies the provisions both of Article 53 (1) and of Article 53 (3) of the EEA Agreement, it shall issue a decision applying Article 53 (3). Such decision shall indicate the date from which it is to take effect. This date may be prior to that of the decision.

Article 12

Application of Article 53 (3) of the EEA Agreement - objections

1. Undertakings and associations of undertakings which seek application of Article 53 (3) of the EEA Agreement in respect of agreements, decisions and concerted practices falling within the provisions of Article 53 (1) to which they are parties shall, without prejudice to Article 11 of Protocol 23 to the EEA Agreement, submit applications to the EFTA Surveillance Authority.

2. If the EFTA Surveillance Authority judges an application admissible and is in possession of all the available evidence, and no action under Article 10 has been taken against the agreement, decision or concerted practice in question, then it shall publish as soon as possible in the EEA Section of the Official Journal of the European Communities a summary of the application and invite all interested third parties and the EFTA States to submit their comments to the EFTA Surveillance Authority within 30 days. Such publications shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

3. Unless the EFTA Surveillance Authority notifies applicants, within 90 days from the date of such publication in the EEA Section of the Official Journal of the European Communities, that there are serious doubts as to the applicability of Article 53 (3), the agreement, decision or concerted practice shall be deemed exempt, in so far as it conforms with the description given in the application, from the prohibition for the time already elapsed and for a maximum of six years from the date of publication in the EEA Section of the Official Journal of the European Communities.

If the EFTA Surveillance Authority finds, after expiry of the 90-day time limit, but before expiry of the six-year period, that the conditions for applying Article 53 (3) are not satisfied, it shall issue a decision declaring that the prohibition in Article 53 (1) is applicable. Such decision may be retroactive where the parties concerned have given inaccurate information or where they abuse the exemption from the provisions of Article 53 (1).

4. The EFTA Surveillance Authority may notify applicants as referred to in the first subparagraph of paragraph 3 and shall do so if requested by an EFTA State within 45 days of the forwarding to the EFTA State of the application in accordance with Article 15 (2). This request must be justified on the basis of considerations relating to the competition rules of the EEA Agreement.

If it finds that the conditions of Article 53 (1) and of Article 53 (3) are satisfied, the EFTA Surveillance Authority shall issue a decision applying Article 53 (3). The decision shall indicate the date from which it is to take effect. This date may be prior to that of the application.

Article 13

Duration and revocation of decisions applying Article 53 (3) of the EEA Agreement

1. Any decision applying Article 53 (3) taken under Article 11 (4) or under the second subparagraph of Article 12 (4) shall indicate the period for which it is to be valid; normally such period shall not be less than six years. Conditions and obligations may be attached to the decision.

2. The decision may be renewed if the conditions for applying Article 53 (3) continue to be satisfied.

3. The EFTA Surveillance Authority may revoke or amend its decision or prohibit specified acts by the parties:

(a) where there has been a change in any of the facts which were basic to the making of the decision;

(b) where the parties commit a breach of any obligation attached to the decision;

(c) where the decision is based on incorrect information or was induced by deceit; or

(d) where the parties abuse the exemption from the provisions of Article 53 (1) granted to them by the decision.

In cases falling within (b), (c) or (d), the decision may be revoked with retroactive effect.

Article 14

Powers

Subject to review of its decision by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, the EFTA Surveillance Authority shall have sole power, on the conditions set out in Article 56 of the EEA Agreement:

- to impose obligations pursuant to Article 7 of the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86),

- to issue decisions pursuant to Article 53 (3) of the EEA Agreement.

The authorities of the EFTA States shall retain the power to decide whether any case falls within the provisions of Article 53 (1) or Article 54, until such time as the EFTA Surveillance Authority has initiated a procedure with a view to formulating a decision in the case in question or has sent notification as provided for in the first subparagraph of Article 12 (3).

Article 15

Liaison with the authorities of the EFTA States

1. The EFTA Surveillance Authority shall carry out the procedures provided for in this chapter in close and constant liaison with the competent authorities of the EFTA States; these authorities shall have the right to express their views on such procedures.

2. The EFTA Surveillance Authority shall immediately forward to the competent authorities of the EFTA States copies of the complaints and applications, and of the most important documents sent to it or which it sends out in the course of such procedures.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of notifications, complaints and information on opening of ex officio procedures received from the EC Commission pursuant to Articles 2 and 10 of Protocol 23 to the EEA Agreement.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of documents received from the EC Commission pursuant to Article 7 of Protocol 23 to the EEA Agreement.

3. An Advisory Committee on Competition in Maritime Transport shall be consulted prior to the taking of any decision following upon a procedure under Article 10 or of any decision issued under the second subparagraph of Article 12 (3), or under the second subparagraph of paragraph 4 of the same Article. The Advisory Committee shall also be consulted prior to a proposal referred to in Article 26.

4. The Advisory Committee shall be composed of officials competent in the sphere of maritime transport and agreements and dominant positions. Each EFTA State shall nominate two officials to represent it, each of whom may be replaced, in the event of his being prevented from attending, by another official.

The EC Commission and the EC Member States shall be entitled to be present in the Advisory Committee and to express their views therein. However, their representatives shall not have the right to vote.

5. Consultation shall take place at a joint meeting convened by the EFTA Surveillance Authority; such meeting shall be held not earlier than 14 days after dispatch of the notice convening it. This notice shall, in respect of each case to be examined, be accompanied by a summary of the case together with an indication of the most important documents, and a preliminary draft decision.

In view of the participation provided for in the second subparagraph of paragraph 4, the EC Commission shall receive an invitation to the meeting and the relevant information as provided for in Article 6 of Protocol 23 to the EEA Agreement.

6. The Advisory Committee may deliver an opinion notwithstanding that some of its members or their alternates are not present. A report of the outcome of the consultative proceedings shall be annexed to the draft decision. It shall not be made public.

Article 16

Requests for information

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by provisions of this chapter, the EFTA Surveillance Authority may obtain all necessary information from the governments and competent authorities of the EFTA States and from undertakings and associations of undertakings.

2. When sending a request for information to an undertaking or association of undertakings, the EFTA Surveillance Authority shall at the same time forward a copy of the request to the competent authority of the EFTA State in whose territory the seat of the undertaking or association of undertakings is situated.

3. In its request, the EFTA Surveillance Authority shall state the legal basis and the purpose of the request, and also the penalties provided for in Article 19 (1) (b) for supplying incorrect information.

4. The owners of the undertakings or their representatives and, in the case of legal persons, companies or firms, or of associations having no legal personality, the person authorized to represent them by law or by their constitution, shall be bound to supply the information requested.

5. Where an undertaking or association of undertakings does not supply the information requested within the time limit fixed by the EFTA Surveillance Authority, or supplies incomplete information, the EFTA Surveillance Authority shall by decision require the information to be supplied. The decision shall specify what information is required, fix an appropriate time limit within which it is to be supplied and indicate the penalties provided for in Article 19 (1) (b) and Article 20 (1) (c) and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

6. The EFTA Surveillance Authority shall at the same time forward a copy of its decision to the competent authority of the EFTA State in whose territory the seat of the undertaking or association of undertakings is situated.

Article 17

Investigations by the authorities of the EFTA States

1. At the request of the EFTA Surveillance Authority, the competent authorities of the EFTA States shall undertake the investigations which the EFTA Surveillance Authority considers to be necessary pursuant to Article 18 (1), or which it has ordered by decision pursuant to Article 18 (3). The officials of the competent authorities of the EFTA States responsible for conducting these investigations shall exercise their powers upon production of an authorization in writing issued by the competent authority of the EFTA State in whose territory the investigation is to be made. Such authorization shall specify the subject matter and purpose of the investigation.

2. If so requested by the EFTA Surveillance Authority or by the competent authority of the EFTA State in whose territory the investigation is to be made, EFTA Surveillance Authority officials may assist the officials of such authority in carrying out their duties.

Article 18

Investigating powers of the EFTA Surveillance Authority

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by provisions of this chapter, the EFTA Surveillance Authority may undertake all necessary investigations into undertakings and associations of undertakings in the territory of an EFTA State.

To this end the officials authorized by the EFTA Surveillance Authority are empowered:

(a) to examine the books and other business records;

(b) to take copies of or extracts from the books and business records;

(c) to ask for oral explanations on the spot;

(d) to enter any premises, land and vehicles of undertakings.

2. The officials of the EFTA Surveillance Authority authorized for the purpose of these investigations shall exercise their powers upon production of an authorization in writing specifying the subject matter and purpose of the investigation and the penalties provided for in Article 19 (1) (c) in cases where production of the required books or other business records is incomplete. In good time before the investigation, the EFTA Surveillance Authority shall inform the competent authority of the EFTA State in whose territory the same is to be made of the investigation and of the identity of the authorized officials. The EFTA Surveillance Authority shall also provide such an authorization to representatives of the EC Commission who shall take part in the investigation in accordance with Article 8 (4) of Protocol 23 to the EEA Agreement.

3. Undertakings and associations of undertakings shall submit to investigations ordered by decision of the EFTA Surveillance Authority. The decision shall specify the subject matter and purpose of the investigation, appoint the date on which it is to begin and indicate the penalties provided for in Article 19 (1) (c) and Article 20 (1) (d) and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

4. The EFTA Surveillance Authority shall take decisions referred to in paragraph 3 after consultation with the competent authority of the EFTA State in whose territory the investigation is to be made.

5. Officials of the competent authority of the EFTA State in whose territory the investigation is to be made, may at the request of such authority or of the EFTA Surveillance Authority, assist the officials of the EFTA Surveillance Authority in carrying out their duties.

6. Where an undertaking opposes an investigation ordered pursuant to this Article, the EFTA State concerned shall afford the necessary assistance to the officials authorized by the EFTA Surveillance Authority to enable them to make their investigation. To this end, EFTA States shall take the necessary measures, after consulting the EFTA Surveillance Authority, within six months of the entry into force of the EEA Agreement.

Article 19

Fines

1. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of from ECU 100 to 5 000 where, intentionally or negligently:

(a) they supply incorrect or misleading information, either in a communication pursuant to Article 5 (5) of the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86) or in an application pursuant to Article 12 of this chapter;

or

(b) they supply incorrect information in response to a request made pursuant to Article 16 (3) or (5), or do not supply information within the time limit fixed by a decision taken under Article 16 (5);

or

(c) they produce the required books or other business records in incomplete form during investigations pursuant to Article 17 or Article 18, or refuse to submit to an investigation ordered by decision issued in implementation of Article 18 (3).

2. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of from ECU 1 000 to 1 000 000, o