Notice on cooperation between national courts and the EFTA Surveillance Authority in applying Articles 53 and 54 of the EEA Agreement (95/C 112/07)

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

B. The European Commission issued, on 13 February 1993, a notice on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EC Treaty (OJ No C 39, 13. 2. 1993, p. 6). This non-binding act contains principles and rules which the Commission follows in the field of competition. It also explains the ways in which the Commission envisages to cooperate with national courts.

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

D. In particular, the purpose of the notice is to achieve effective cooperation in relations between national courts in the EFTA States (1) and the EFTA Surveillance Authority. It spells out how the EFTA Surveillance Authority intends to assist such national courts by close cooperation in the application of Articles 53 and 54 of the EEA Agreement in individual cases; always taking into account the independance of national courts.

I. Introduction

1. The creation of a homogeneous European Economic Area, with free movement of goods, persons, services and capital, enables firms in the EEA to embark on new activities and consumers to benefit from increased competition. The EFTA Surveillance Authority considers that these advantages must not be jeopardized by restrictive or abusive practices of undertakings and that the objectives laid down in the EEA Agreement thus reaffirm the importance of a system ensuring that competition is not distorted.

2. In the day-to-day application of EEA competition rules, national competition authorities, national courts, the Community courts, the EFTA Court, the Commission and the EFTA Surveillance Authority each assume their own tasks and responsibilities, as foreseen in the EEA Agreement. If the competition process is to work well in the European Economic Area, effective cooperation between these institutions must be ensured.

3. According to the case-law of the Court of Justice of the European Communities, provisions of the EC Treaty may have direct effect, in the sense that they penetrate into the internal legal order without the aid of any national measure, to the extent that their character makes this appropriate (2). Such provisions, like Community regulations (which are by nature and function in the system of Community sources of law directly applicable (3) must be applied by national courts without the intervention of a legal measure designed to transpose Community law into national law.

The EFTA Surveillance Authority considers that the situation is different as regards EEA law, in so far as the EFTA States are concerned. In those States, the internal effect of EEA law is governed by the respective constitutional law, subject to Protocol 35 to the EEA Agreement. According to this Protocol, the EFTA States are under an obligation to ensure, if necessary by a separate statutory provision, that in cases of conflict between implemented EEA rules and other statutory provisions the implemented EEA rules prevail. According to the EFTA Court, it is inherent in the nature of such a provision that individuals and economic operators in cases of conflict between implemented EEA rules and national statutory provisions must be entitled to invoke and to claim at the national level any rights that could be derived from provisions of the EEA Agreement, as being or having been made part of the respective national legal order, if they are unconditional and sufficiently precise (4).

4. The assistance and cooperation offered to national courts of the EFTA States in accordance with this notice will, primarily, relate to individual cases pending with these courts and will take the form of information or answers given directly to the court concerned. However, in order to give general guidance for the interpretation of competition rules of the EEA Agreement to economic operators, as well as to national competition authorities and to national courts, the EFTA Surveillance Authority will also endeavor to handle individual cases under its competence in such a way that transparency and public knowledge of these rules and their application is promoted.

5. The EFTA Surveillance Authority may, if appropriate, close the file on a case by issuing a comfort letter, rather than taking a formal decision in the case. Such comfort letters will normally be made known to the public and also explain why, and on what grounds, the comfort letter has been issued.

II. Powers

6. The EFTA Surveillance Authority is, together with the Commission, the administrative authority responsible for the implementation of competition policy in the EEA and for this purpose has to act in the public interest. National courts, on the other hand, have the task of safeguarding the subjective rights of private individuals in their relations with one another.

7. In performing these different tasks, national courts and the EFTA Surveillance Authority possess concurrent powers for the application of Articles 53 (1) and 54 of the EEA Agreement. In the case of the EFTA Surveillance Authority, the power is conferred by Article 55 of the EEA Agreement and by the provisions laid down in Protocol 4 to the Surveillance and Court Agreement. In the case of the national courts, the power derives from the fact that Article 53 (1) and 54 of the EEA Agreement, which in the opinion of the EFTA Surveillance Authority fulfil the implicit criteria in Protocol 35 to the EEA Agreement of being unconditional and sufficiently precise, have been incorporated in the national legal order of the EFTA States (5).

8. In this way, national courts are able to ensure, in accordance with the applicable national procedural law, that the competition rules will be respected for the benefit of private individuals. In addition, Article 53 (2) enables them to determine, in accordance with the national procedural law applicable, the civil law effects of the prohibition set out in Article 53 (6).

9. However, the EFTA Surveillance Authority, and the Commission, pursuant to Article 9 of Chapter II of Protocol 4 to the Surveillance and Court Agreement, and of Regulation No 17 (7), respectively, have sole power, on the conditions set out in Article 56 of the EEA Agreement, to exempt certain types of agreements, decisions and concerted practices from this prohibition. The competent surveillance authority, pursuant to Article 56, may exercise this power by taking a decision exempting a specific agreement in an individual case. In addition, the EEA Agreement contains acts corresponding to Community regulations granting block exemptions for certain categories of agreements, decisions and concerted practices.

10. Although national courts are not competent to apply Article 53 (3), they may nevertheless apply the acts in the EEA Agreement providing for block exemption pursuant to that provision. The provisions of such acts, which in the opinion of the EFTA Surveillance Authority fulfil the implicit criteria in Protocol 35 to the EEA Agreement of being unconditional and sufficiently precise, have been incorporated in the national legal order of the EFTA States (8). National courts may also, in accordance with the applicable national procedural law, apply the individual exemption decisions adopted by the EFTA Surveillance Authority or the Commission pursuant to Article 53 (3), as well as an individual exemption decision adopted by the Commission pursuant to Article 85 (3) of the EC Treaty before the entry into force of the EEA Agreement (9).

11. The powers of the EFTA Surveillance Authority and those of national courts differ not only in their objective and content, but also in the ways in which they are exercised. The EFTA Surveillance Authority exercises its powers according to the procedural rules laid down by Chapter II of Protocol 4 to the Surveillance and Court Agreement, whereas national courts exercises theirs in the context of national procedural law.

12. The Court of Justice of the European Communities has laid down the principles which govern procedures and remedies for invoking, before national courts in Community Member States, directly applicable Community law:

'Although the Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Court of Justice, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down in national law. On the other hand . . . it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of Community provisions having direct effect, on the same conditions concerning the admissibility and procedure as would apply were it a question of ensuring observance of national law.` (10).

13. The EFTA Surveillance Authority considers that these principles also apply in the event of breach of the EEA competition rules; individuals and companies should have access to all procedural remedies provided for by national law in the EFTA States on the same conditions as would apply if a comparable breach of national law were involved. This equality of treatment concerns not only the definitive finding of a breach of competition rules, but embraces all the legal means capable of contributing to effective legal protection. In the opinion of the EFTA Surveillance Authority, national courts should take provisional measures, should bring, by injunction, an effective end to infringements of the EEA competition rules, and should award compensation for the damage suffered as a result of infringements, where such remedies are available in proceedings relating to similar national law.

14. The EFTA Surveillance Authority considers that the simultaneous application of national competition law is compatible with the application of EEA law, provided that it does not impair the effectiveness and uniformity of EEA competition rules and the measures taken to enforce them (11). Any conflicts which may arise when national and EEA competition law are applied simultaneously are foreseen in the EEA Agreement to be resolved so that EEA law takes precedence. The purpose of this principle is to rule out any national measure which could jeopardize the full effectiveness of the provisions of the EEA Agreement.

III. Application of Articles 53 and 54 of the EEA Agreement by national courts

15. The national court may have to reach a decision on the application of Articles 53 and 54 of the EEA Agreement in several procedural situations. In the case of civil law proceedings, two types of action seem particularly likely; actions relating to contracts and actions for damages. Under the former, the defendant would normally rely on Article 53 (2) to dispute the contractual obligations invoked by the plaintiff. Under the latter, the prohibitions contained in Articles 53 and 54 would normally be relevant in determining whether the conduct which has given rise to the alleged injury is illegal.

16. In such situations, the fact that Articles 53 (1) and 54, which in the opinion of the EFTA Surveillance Authorty fulfill the implict criteria in Protocol 35 to the EEA Agreement of being unconditional and sufficiently precise, have been incorporated in the national legal order of the EFTA States, gives national courts sufficient powers to comply with their obligation to hand down judgment (12). Nevertheless, when exercising these powers, they must take account of the powers of the EFTA Surveillance Authority and the Commission in order to avoid decisions which could conflict with those taken or envisaged by the EFTA Surveillance Authority or the Commission, depending on which of the authorities is competent to decide upon an individual case in accordance with the provisions of Article 56 of the EEA Agreement, in applying Articles 53 (1), (3) and 54 (13). In addition, national courts must respect a decision by the Commission in application of Article 85 (3) of the EC Treaty taken before the entry into force of the EEA Agreement (14).

17. In its case-law concerning the Community competition rules the Court of Justice has developed a number of principles which make it possible for such conflicting decisions to be avoided (15). The EFTA Surveillance Authority is of the opinion that national courts could take account of these principles in the following manner.

1. Application of Articles 53 (1), (2) and 54

18. National courts need to answer the question whether the agreement, decision or practice at issue infringes the prohibitions laid down in Article 53 (1) or 54. Before answering this question, national courts may ascertain whether the agreement, decision or pratice has already been the subject of a decision, opinion or other official statement issued by an administrative authority and in particular by the EFTA Surveillance Authority or the Commission. Such statements may provide national courts with significant information for reaching a judgment, even if they are not formally bound by them. It should be noted in this respect that not all procedures before the EFTA Surveillance Authority or the Commission may lead to an official decision, but that cases can also be closed by comfort letters. Whilst this type of letter does not bind national courts, the opinion expressed in such a letter nevertheless constitutes a factor which the national courts may take into account in examining whether the agreements or conduct in question are in accordance with the provisions of Article 53 (16).

19. If the EFTA Surveillance Authority or the Commission has not ruled on the same agreement, decision or practice, the national courts can always be guided, in interpreting the EEA law in question, by the case-law of the EFTA Court and the Court of Justice of the European Communities and the existing decisons of the EFTA Surveillance Authority and the Commission, as well as by the relevant case-law and decisions of the Court of Justice and the Commission concerning corresponding Community law. National courts are obliged, in their application of the provisions of the EEA Agreement, in so far as they are identical in substance to corresponding Community law, to interpret them in conformity with the relevant rulings of the Court of Justice given prior to the date of signature of the EEA Agreement (17). The national courts could also seek guidance from the general notices in which the EFTA Surveillance Authority has specified categories of agreements which are not caught by the ban laid down in Article 53 (1) (18).

20. On these bases, national courts should generally be able to decide whether the conduct at issue is compatible with Articles 53 (1) and 54. Nevertheless, if the EFTA Surveillance Authority or the Commission has initiated a procedure in a case relating to the same conduct, they may, if they consider it necessary for reasons of legal certainty, stay the proceddings while awaiting the outcome of the authority's action (19). A stay of proceedings may also be envisaged where national courts wish to seek information from the EFTA Surveillance Authority in accordance with the arrangements referred to in Part IV of this notice. Finally, national courts may in any event stay proceedings in order to request an advisory opinion of the EFTA Court in accordance with Article 34 of the Surveillance and Court Agreement.

21. However, where national courts decide to give judgment and find that the conditions for applying Article 53 (1) or 54 are not met, they should pursue their proceedings on the basis of such a finding, even if the agreement, decision or concerted practice at issue has been notified to the EFTA Surveillance Authority. Where the assessment of the facts shows that the conditions for applying Article 53 (1) or 54 are met, national courts must rule that the conduct at issue infringes Article 53 (1) or 54 and take the appropriate measures, including those relating to the consequences that attach to infringement of a statutory prohibition under the civil law applicable.

2. Application of Article 53 (3)

22. If the national court concludes that an agreement, decision or concerted practice is prohibited by Article 53 (1), it needs to check whether it is or will be the subject of an exemption pursuant to Article 53 (3). Here several situations may arise.

23. The national court is required to respect the exemption decisions taken by the EFTA Surveillance Authority or the Commission, as well as exemption decisions taken by the Commission pursuant to Article 85 (3) of the EC Treaty before the entry into force of the EEA Agreement (20). Consequently, it must treat the agreement, decision or concerted practice at issue as compatible with EEA law and fully recognize its civil law effects. In this respect mention should be made of comfort letters in which the EFTA Surveillance Authority or the Commission services state that the conditions for applying Article 53 (3) have been met. The EFTA Surveillance Authority considers that national courts may take account of such letters as factual elements.

24. Agreements, decisions and concerted practices which fall withing the scope of application of an act corresponding to a Community block exemption regulation referred to in Annex XIV to the EEA Agreement are automatically exempted from the prohibition laid down in Article 53 (1) (21).

25. Agreements, decisions and concerted practices which are not covered by an act corresponding to a block exemption regulation, and which have not been the subject of an individual exemption decision or a comfort letter may, in the view of the EFTA Surveillance Authority, be examined in the following manner.

26. The national court may first examine whether the procedural conditions necessary for securing exemption are fulfilled, notably whether the agreement, decision or concerted practice has been duly notified to the EFTA Surveillance Authority or the Commission in accordance with Article 4 (1) of Chapter II of Protocol 4 to the Surveillance and Court Agreement and of Regulation No 17, respectively (22). Where no such notification has been made, and subject to Article 4 (2) of Chapter II of Protocol 4 to the Surveillance and Court Agreement and of Regulation No 17, respectively, exemption pursuant to Article 53 (3) is ruled out, so that the national court may decide, pursuant to Article 53 (2), that the agreement, decision or concerted practice is void.

27. Where the agreement, decision or concerted practice has been duly notified to the EFTA Surveillance Authority or the Commission, the national court may assess the likelihood of an exemption being granted in the case in question in the light of the relevant criteria developed by the case-law of the EFTA Court, the Court of Justice of the European Communities and the Court of First Instance, by previous decisions of the EFTA Surveillance Authority and the Commission, by acts corresponding to Community block exemption regulations referred to in Annex XIV to the EEA Agreement, as well as by the case-law and previous decisons of the Court of Justice, the Court of First Instance and the Commission relating to Article 85 (3) of the EC Treaty.

28. Where the national court has in this way ascertained that the agreement, decision or concerted practice at issue cannot be the subject of an individual exemption, it may take the measures necessary to comply with the requirements of Article 53 (1) and (2). On the other hand, if it takes the view that individual exemption is possible, the national court should, subject to the applicable national procedural law, suspend the proceedings while awaiting the competent surveillance authority's decison. If the national court does suspend the proceedings, it nevertheless could, according to the rules of the applicable national law, adopt any interim measures it deems necessary.

29. These considerations do not apply, however, to agreements, decisions and concerted practices which were in existence at the date of entry into force of the EEA Agreement and which were notified to the EFTA Surveillance Authority or the Commission within six months of the date of entry into force of the Agreement. The Court of Justice of the European Communities has held that national courts must consider agreements, decisions and concerted practices which existed before Regulation No 17 entered into force and which were duly notified to the Commission to be valid so long as the Commission or the authorities of the Member States have not taken a prohibition decision or sent a comfort letter to the parties informing them that the file has been closed (23). The EFTA Surveillance Authority considers that a similar principle of provisional validity may apply, with respect to the EEA competition rules, as regards, the abovementioned category of agreements, decisions and concerted practies.

30. The EFTA Surveillance Authority realizes that the considerations set out above concerning the application of Articles 53 and 54 by national courts may be complex and sometimes insufficient to enable those courts to perform their judicial function properly. This may particularly be so where the practical application of Articles 53 (1) and 54 gives rise to legal or economic difficulties, where the competent surveillance authority has initiated a procedure in the same case or where the agreement, decision or concerted practice concerned may become the subject of an individual exemption within the meaning of Article 53 (3). National courts may bring such cases before the EFTA Court for an advisory opinion, in accordance with Article 34 of the Surveillance and Court Agreement. They may also avail themselves of the assistance of the EFTA Surveillance Authority according to the procedures set out below.

IV. Cooperation between national courts and the EFTA Surveillance Authority

31. Article 3 of the EEA Agreement, which is modelled on, and to a great extent reproduces Article 5 of the EC Treaty, puts on the Contracting Parties the obligation to take all appropriate measures to ensure fulfilment of the obligations arising out of the EEA Agreement and to facilitate cooperation within its framework.

The Court of Justice of the European Communities has ruled that, pursuant to Article 5 of the EC Treaty, the Commission has a duty of sincere cooperation vis-à-vis judicial authorities of the Community Member States, who are responsible for ensuring that Community law is applied and respected in the national legal system (24). The EFTA Surveillance Authority considers that it is under a similiar obligation of sincere cooperation vis-à-vis national courts of the EFTA States, by virtue of the corresponding Article 3 of the EEA Agreement and Article 2 of the Surveillance and Court Agreement. It further considers that such cooperation can be an important factor in ensuring an effective and consistent application of the EEA competition rules. In light of these considerations, the EFTA Surveillance Authority proposes to cooperate with the national courts of the EFTA States in the following manner.

32. The case-law of the EFTA Court, the Court of Justice of the European Communities and the Court of First Instance and the decisions of the EFTA Surveillance Authority and the Commission, both pursuant to Articles 53 and 54 of the EEA Agreement and (where applicable) under the corresponding Articles 85 and 86 of the EC Treaty, the acts corresponding to Community block exemption regulations and the general notices issued by the EFTA Surveillance Authority are all sources of law or explanations which may assist in national courts in examining individual cases.

33. If these sources are insufficient, national courts may, within the limits of their national procedural law, ask the EFTA Surveillance Authority for the following information.

34. First, national courts may ask for information of a procedural nature to enable them to discover whether a certain case is pending before the EFTA Surveillance Authority, whether a case has been the subject of a notification, whether the EFTA Surveillance Authority has officially initiated a procedure or whether it has already taken a position through an official decision or through a comfort letter. If necessary, national courts may also ask the EFTA Surveillance Authority how much time is likely to be required for granting or refusing individual exemption for notified agreements or practices, so as to be able to determine the conditions for any decision to suspend proceddings or whether interim measures need to be adopted (25). The EFTA Surveillance Authority, for its part, will endeavour to give priority to cases which are the subject of national proceedings suspended in this way, in particular when the outcome of a civil dispute depends on them.

35. Secondly, where the application of Article 53 (1) or of Article 54 causes them particular difficulties, national courts may ask the EFTA Surveillance Authority for legal information of a general nature. In its replies, the EFTA Surveillance Authority will not consider the merits of the case. In addition, where national courts have doubts as to whether a contested agreement, decision or concerted practice notified to the EFTA Surveillance Authority is eligible for individual exemption, they may ask it to provide them with an interim opinion.

36. The answers given the EFTA Surveillance Authority are not binding on the courts which have requested them. In its replies the EFTA Surveillance Authority will make it clear that its view is not definitive and that right for the national court to request an advisory opinion of the EFTA Court, in accordance with Article 34 of the Surveillance and Court Agreement, is not affected.

37. Lastly, national courts can obtain information from the EFTA Surveillance Authority regarding factual data: statistics, market studies and economic analyses. The EFTA Surveillance Authority will endeavour to communicate these data, within the limits laid down in the following paragraph, or indicate the source from which they can be obtained.

38. It is in the interests of the proper administration of justice that the EFTA Surveillance Authority should answer requests for legal and factual information in the shortest possible time. Nevertheless, the EFTA Surveillance Authority cannot accede to such requests unless several conditions are met. First, the requisite data must actually be at its disposal. Secondly, the EFTA Surveillance Authority may communicate this data only in so far as permitted by the general principle of sound administrative practice.

39. For example, Article 14 of the Surveillance and Court Agreement, as spelt out in Article 20 of Chapter II of Protocol 4 for the purposes of the competition rules, requires the EFTA Surveillance Authority not to disclose information of a confidential nature. In addition, the duty of sincere cooperation deriving from Article 3 of the EEA Agreement and Article 2 of the Surveillance and Court Agreement is one applying to the relationship between national courts and the EFTA Surveillance Authority and does not concern the position of the parties to the dispute pending before those courts. As amicus curiae, the EFTA Surveillance Authority must respect legal neutrality and objectivity. Consequently, it will not accede to requests for information within the framework of the cooperation procedures described in this notice unless they come from a national court, either directly, or indirectly through parties which have been ordered by the court concerned to provide certain information.

V. Final remarks

40. This notice does not relate to the competition rules governing the transport sector. Not does it relate to the competition rules regarding coal and steel laid down in Protocol 25 to the EEA Agreement.

41. This notice is issued for guidance and does not in any way restrict the rights conferred on individuals or companies by the EEA Agreement.

42. This notice is without prejudice to any interpretation of the provisions of the EEA Agreement which may be given by the Court of Justice of the European Communities or the EFTA Court.

(1) For the purpose of this notice, any reference to the EFTA States means the EFTA States in respect of which the EEA Agreement has entered into force.

(2) See for example Case 26/62, Van Gend en Loos v. Nederlandse administratie der belastingen, [1963] ECR, p. 1; Case 28/67, Firma Molkerei-Zentrale Westfalen/Lippe GmbH v. Hauptzollamt Paderborn, [1968] ECR, p. 143.

(3) See for example Case 43/71, Politi v. Ministry for Finance of the Italian Republic, [1971] ECR p. 1039.

(4) See Case E-1/94, judgment of 16 December 1994, paragraph 77 (not yet reported).

(5) See paragraph 3 of this notice.

(6) See the judgments of the Court of Justice of the European Communities in Case 56/65, LTM v. MBU, [1966] ECR, p. 337, Case 48/72, Brasserie de Haecht v. Wilkin-Janssen, [1973] ECR, p. 77 and Case 319/82, Ciments et Bétons v. Kerpen & Kerpen, [1983] ECR, p. 4173, concerning the corresponding provision in Aricle 85 of the EC Treaty.

Article 6 of the EEA Agreement provides that, without prejudice to future developments of case-law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two Treatics, shall in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of the EEA Agreement.

(7) Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ No 13, 21. 2. 1962, p. 204/62; English Special Edition 1959-62, p. 87).

(8) See paragraph 3 of this notice.

(9) Article 13 of Protocol 21 to the EEA Agreement provides that agreements, decisions and concerted practices which benefit from an individual exemption granted pursuant to Article 85 (3) of the EC Treaty before the entry into force of the Agreement shall continue to be exempted as regards the provisions of the Agreement, until their date of expiry as provided for in the decisions granting these exemptions or until the Commission otherwise decides, whichever date is the earlier.

(10) Case 158/80, Rewe v. Hauptzollamt Kiel, [1981] ECR, p. 1805, paragraph 44, see also Case 33/76, Rewe v. Landwirtschaftskammer Saarland, [1976] ECR, p. 1989; Case 79/83, Hartz v. Deutsche Tradax, [1984] ECR, p. 1921; Case 199/82, Amministrazione delle Finanze dello Stato v. San Giorgio, [1983] ECR, p. 3595.

(11) See the judgments of the Court of Justice of the European Communities in Case 14/68, Walt Wilhelm and Others v. Bundeskartellamt. [1969] ECR, p. 1; Joined Cases 253/78 and 1 to 3/79, Procureur de la République v. Giry and Guerlain, [1980] ECR, p. 2327.

(12) See paragraph 3 of this notice.

(13) See the judgment of the Court of Justice of the European Communities in Case C-234/89, Delimitis Henninger Bräu, [1991] ECRI, p. 935, paragraph 47.

(14) See Article 13 of Protocol 21 to the EEA Agreement.

(15) Case 48/72, Brasserie de Haecht v. Wilkin-Janssen, [1973] ECR, p. 77; Case 127/73, BRT v. Sabam, [1971] ECR, p. 51; Case C-234/89, Delimitis v. Henninger Bräu, [1991] ECRI, p. 935.

(16) See the judgment of the Court of Justice of the European Communities in Case 99/79, Lancôme v. Etos, [1980] ECR, p. 2511, paragraph 11.

(17) Article 6 of the EEA Agreement. The date of signature of the Agreement was 2 May 1992.

(18) See the notices of the EFTA Surveillance Authority on:

- exclusive dealing contracts with commercial agents (OJ No L 153, 18. 6. 1994, p. 23),

- agreements, decisions and concerted practices in the field of cooperation between enterprises (OJ No L 153, 18. 6. 1994, p. 25),

- assessment of certain subcontracting agreements (OJ No L 153, 18. 6. 1994, p. 30),

- agreements of minor importance (OJ No L 153, 18. 6. 1994, p. 32).

(19) See the judgment of the Court of Justice of the European Communities in Case 127/73, BRT v. Sabam, [1974] ECR, p. 51, paragraph 21. The procedure before the EFTA Surveillance Authority or the Commission is initiated by an authoritative act. A simple acknowledgement of receipt cannot be considered an authoritative act as such; Case 48/72, Brasserie de Haecht v. Wilkin-Janssen, [1973] ECR, p. 77 paragraphs 16 and 17.

(20) See Article 13 of Protocol 21 to the EEA Agreement.

(21) A list of the relevant acts and of the official explanatory comments issued by the EFTA Surveillance Authority relating to them is given in the Annex to this notice.

(22) It should be noted that it does not matter whether the agreement, decison or concerted practice has been notified to the surveillance authority which is competent in accordance with Article 56 of the EEA Agreement to decide on the case. See Article 10 of Protocol 23 to the EEA Agreement.

(23) Case 48/72, Brasserie de Haecht v. Wilkin-Janssen, [1973], ECR, p. 77; Case 59/77, De Bloons v. Bouyer, [1977] ECR, p. 2359; Case 99/79, Lancôme v. Etos, [1980] ECR, p. 2511.

(24) Case C-2/88 Imm. Zwartveld, [1990] ECRI, p. 3365, paragraph 18; Case C-234/89, Delimitis v. Henninger Bräu, [1991] ECRI, p. 935, paragraph 53.

(25) See paragraphs 20 and 28 of this notice.

ANNEX

ACTS CORRESPONDING TO COMMUNITY BLOCK EXEMPTION REGULATIONS REFERRED TO IN ANNEX XIV TO THE EEA AGREEMENT AND EXPLANATORY NOTICES OF THE EFTA SURVEILLANCE AUTHORITY

I. Distribution agreements

1. Act corresponding to Commission Regulation (EEC) No 1983/83 concerning exclusive distribution agreements referred to in point 2 of Annex XIV to the EEA Agreement.

2. Act corresponding to Commission Regulation (EEC) No 1984/83 concerning exclusive purchasing agreements referred to in point 3 of Annex XIV to the EEA Agreement.

3. Notice of the EFTA Surveillance Authority concerning the acts referred to in points 2 and 3 of Annex XIV to the EEA Agreement (OJ No L 153, 18. 6. 1994, p. 13).

4. Notice of the EFTA Surveillance Authority modifying the Notice concerning the acts referred to in points 2 and 3 of Annex XIV to the EEA Agreement (OJ No L 186, 21. 7. 1994, p. 69).

5. Act corresponding to Commission Regulation (EEC) No 123/85 concerning motor vehicle distribution and servicing agreements referred to in point 4 of Annex XIV to the EEA Agreement.

6. Notice of the EFTA Surveillance Authority concerning the act referred to in point 4 of Annex XIV to the EEA Agreement (OJ No L 153, 18. 6. 1994, p. 20).

7. Notice of the EFTA Surveillance Authority clarifying the activities of motor vehicle intermediaries (OJ No L 186, 21. 7. 1994, p. 70).

II. Licensing and franchising agreements

1. Act corresponding to Commission Regulation (EEC) No 2349/84 concerning patent licensing agreements referred to in point 5 of Annex XIV to the EEA Agreement.

2. Act corresponding to Commission Regulation (EEC) No 4087/88 concerning franchising agreements referred to in point 8 of Annex XIV to the EEA Agreement.

3. Act corresponding to Commission Regulation (EEC) No 556/89 concerning know-how licensing agreements referred to in point 9 of Annex XIV to the EEA Agreement.

III. Cooperative agreements

1. Act corresponding to Commission Regulation (EEC) No 417/85 concerning specialization agreements referred to in point 6 of Annex XIV to the EEA Agreement.

2. Act corresponding to Commission Regulation (EEC) No 418/85 concerning research and development agreements referred to in point 7 of Annex XIV to the EEA Agreement.