Proposal for a Council and Commission Decision on the position to be taken by the Community within the Association Council established by the Europe Agreement between the European Communities and their Member States of the one part, and Romania of the other part, signed in Brussels on 1 February 1993, with regard to the adoption of the rules for the implementation of Article 64(1)(i), (1)(ii) and (2) of the Europe Agreement and for the implementation of Article 9(1)(1), (1)(2) and (2) of Protocol 2 on ECSC products to the Europe Agreement
Date: 1998-04-20
Institutions: European Commission
Subjects: ECSC, Romania, association agreement (EU), competition law, trade relations

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 20.04.1998 
COM(1998) 236  final 

98/0139 (CNS) 

Proposal for a 

COUNCIL  AND COMMISSION DECISION 

On the position to be  taken by the Community within the Association Council established by 
the Europe Agreement between the European  Communities and their Member  States of the 
one part, and Romania of the other part, signed in Brussels on 1  February  1993, with regard 
to the adoption of the rules for the implementation of Article 64 (l)(i), (l)(ii) and (2) of the 
Europe Agreement and for the implementation of Article 9(1)(1), (1)(2) and (2) of Protocol 2 
on ECSC products to the Europe Agreement. 

(presented by the Commission) 

2 -3 

EXPLANATORY MEMORANDUM 

Article  64  (3)  of  the  Europe  Agreement  establishing  an association  between  the  European 
Communities and their Member States, of the one part, and Romania, of the other part, signed 
in Brussels on  1 February  1993, provides that the necessary rules for the implementation  of 
paragraphs  1 and 2  of that Article  (i.e. the competition provisions)  shall  be  adopted by the 
Association  Council.  The  time-limit  for  these  rules to  be  adopted  is  three  years from the 
entry into force  of the Agreement; in accordance with Article  126 (1) of the Agreement, the 
time-limit runs from 1  January 1993. 

The competition provisions are one of the basic points of the Europe Agreement between the 
European Communities and Romania.  Their actual implementation, through the adoption of 
the attached rules by the Association Council, is a prerequisite for the smooth development of 
trade  relations  between  the  two  parties.  The proposed  decision  lays  down  procedures  for 
cooperation  between  the  two  parties  competition  authorities. 
It  is  confirmed  that  the 
principles embodied in the block exemption rules in force in the Community will apply, and 
there  is  provision  for  a  consultation  procedure  within  the  Association  Council  should 
disagreement arise between the two competition authorities. 

According  to  Article  2  (1)  of  the  Decision  of  the  Council  and  the  Commission  of  19 
December  1994 on the conclusion of the Europe Agreement, the position to be taken by the 
Community  within  the  Association  Council  shall  be  laid  down  in  accordance  with  the 
corresponding provisions of the Treaties establishing the European Communities. Article 87, 
and 228  of the EC Treaty as well  as Article  65 and 66 of the ECSC Treaty are appropriate 
legal basis for the position to be adopted by the Community in the Association Council with 
to 
regard  to  rules  for  the  implementation  of  the  competition  provisions  applicable 
undertakings. As  a result, it is desirable that the Council and the Commission should adopt 
the attached decision. 

The Commission therefore requests the Council to adopt the attached proposal for a Council 
and Commission Decision. 

Proposal for  a Council and Commission Decision 

On the position to be  taken by the Community within the Association Council established by 
the Europe  Agreement  between  the  European  Communities  and their  Member  States  of  the 
one part, and Romania of the other part, signed in Brussels on  1 February  1993, with  regard 
to the adoption  of the rules for the implementation  of Article 64 (l)(i), (l)(ii)  and  (2) of the 
Europe Agreement and for the implementation of Article 9(1)(1), (1)(2) and (2) of Protocol 2 
on ECSC products to the Europe Agreement. 

The Council of the European Union, 
The Commission of the European Communities, 

Having regard to the Treaty establishing the European Community, and in particular  Articles 
87 and 235 in connection with Article 228 para. 2, second sentence and para. 3, first section, 

Having  regard  to  the  Treaty  establishing  the  European  Coal  and  Steel  Community,  in 
particular Articles 65 and 66, 

Having regard to the opinion of the European Parliament, 

Having regard to the Decision of the Council and the Commission  of  19 December  1994 on 
the  conclusion  of  the  Europe  Agreement  between  the  European  Communities  and  their 
Member States, of the one part, and Romania, of the other part, and in particular Article 2 (1) 
thereof, 

Whereas Article 64 (3) of the Europe Agreement lays down that the Association Council shall 
adopt the rules necessary for the implementation of paragraphs  1. and 2. of that Article, 

Whereas  Article  9  (3)  of  Protocol  2  to  the  Europe  Agreement  on  products  covered  by  the 
ECSC Treaty  lays down that the Association  Council  shall  adopt the necessary  rules  for  the 
implementation of paragraphs  1  and 2 of that Article, 

HAVE DECIDED AS FOLLOWS : 

The position to be taken by the Community within the Association Council established by the 
Europe Agreement  between the European  communities  and their Member  States, of the one 
part, and Romania, of the other part, with regard to the rules implementing  Article  64 (l)(i), 
(l)(ii)  and  (2)  of 
the  aforementioned  Europe  Agreement,  and  to  the  rules  implementing 
Article 9 (1)(1), (1)(2) and (2) of the Protocol 2 on ECSC products to the Europe  Agreement 
shall be based on the draft  decision of the Association Council annexed to this Decision. 

Done at Brussels 

For the Council 

For the Commission 

Association between the European Union 
and Romania 
The Association Council 

Draft decision n° ..J....of the Association Council 
between the European  Communities and their Member States, of the one part, 
and Romania, of the other part, 
of .J.... 

adopting the necessary rules for the implementation of Article 64 (l)(i), (l)(ii) and (2) of the 
Europe Agreement between the European Communities and their Member  States, of the one 
part, and Romania, of the other part, and the rules for the implementation of Article 9 (1)(1), 
(1)(2) and (2) of Protocol 2 on ECSC products to the same agreement, 

The Association Council, 

Having  regard  to  the  Europe  Agreement  establishing  an  association  between  the  European 
Communities  and the Member  States, of the one part, and Romania, of the other part, and in 
particular Article 64 (3) thereof, 

Having regard to Protocol 2 on ECSC products to the aforementioned  Europe Agreement, and 
in particular Article 9 (3) thereof, 

Whereas  Article  64  (3)  of  the  Europe  Agreement  lays  down  that  the  Association  Council 
shall,  within  three  years  of  the  entry  into  force  of  the  Agreement,  adopt  by  decision  the 
necessary rules for the implementation of paragraphs  1  and 2 of that Article, 

Whereas Article 9 (3) of Protocol  2 to the Europe Agreement  lays down that the Association 
Council  shall, within three years of the entry into force  of the Agreement, adopt by decision 
the necessary rules for the implementation of paragraphs  1  and 2 of that Article, 

HAS DECIDED AS FOLLOWS : 

The necessary  rules implementing  Article  64 (l)(i), (l)(ii)  and  (2) of the Europe  Agreement 
establishing  an association  between the European  Communities  and their  member  States, of 
the  one  part,  and  Romania,  of  the  other  part,  and  the  rules  implementing  Article  9  (1)(1), 
(1)(2) and (2) of Protocol  2 on ECSC products to the aforementioned  Europe Agreement, as 
set out in the Annex to this Decision, are hereby adopted. 

Done at Brussels, 

The Secretaries 

For the Association Council 
The President 

Implementing Rules for the application of the competition provisions applicable to undertakings 
provided  for  in  Art.  64  (l)(i),  (l)(ii),  and  (2)  of  the  Europe  Agreement  establishing  an 
association between the European  Communities  and their Member  States, of the  one part, and 
Romania  of  the  other  part,  and  in  Article  9  (1)(1),  (1)(2)  and  (2)  of  Protocol  2  on  ECSC 
products to that agreement. 

ARTICLE  1 : GENERAL PRINCIPLE 

Cases  relating  to  agreements  between  undertakings,  decisions  by  associations  of  undertakings 
and  concerted  practices  between  undertakings  which  have  as  their  object  or  effect  the 
prevention, restriction or distortion of competition as well as to abuses of a dominant position in 
the territories of the Community or of Romania as a whole or in a substantial part thereof, which 
may  affect  trade  between  the  Community  and  Romania  shall  be  settled  according  to  the 
principles contained in Article 64 (1) and (2) of the Europe Agreement. 

For this purpose, these  cases  are dealt with by the Commission  of the  European  Communities 
(DG  IV)  on  the  Community  side  and  the  Competition  Office  and  the  Competition  Council 
(COCC) on the Romanian side. 

The  competences  of  the  EC  Commission  and  the  COCC  to  deal  with  these  cases  shall  flow 
from the existing  rules of the respective  legislation of the Community  and Romania,  including 
where these rules are applied to undertakings located outside the respective territory. 

Both authorities shall settle the cases in accordance with their own substantive rules, and having 
regard to the provisions  set out below.  The relevant substantive  rules of the authorities  are the 
competition  rules  of  the  Treaty  establishing  the  European  Community  as  well  as  the  ECSC 
Treaty including the competition-related  secondary legislation, for the EC Commission  and the 
Romanian Competition Law nr. 21 of  10/4/96 for the COCC. 

ECONOMIC ACTIVITIES UNDER THE EC TREATY 

ARTICLE 2  : COMPETENCE OF BOTH COMPETITION AUTHORITIES 

Cases under Article 64 of the Europe Agreement which may affect both the Community and the 
Romanian  market  and  which  may  fall  under  the  competence  of  both  competition  authorities 
shall  be  dealt  with  by  the  EC  Commission  and  the  COCC,  according  to  the  rules  under  this 
Article. 

2.1 

Notification 

2.1.1  The competition authorities shall notify  to each other those cases they are dealing with, 
which,  according  to  the  general  principle  laid  out  in  Article  1,  appear  to  fall  as  well 
under the competence of the other authority. 

2.1.2  This situation may arise in particular in cases concerning activities that: 

Involve anti-competitive activities carried out in the other authority's territory, 
Are relevant to enforcement activities of the other competition authority, 
Involve remedies that would require or prohibit conduct in the other authority's 
territory. 

2.1.3  Notification  under this  Article  shall  include  sufficient  information  to permit  an  initial 
evaluation  by  the  recipient  party  of  any  effects  on  its  interests.  Copies  of  the 
notifications  shall be submitted on a regular basis to the Association Council under the 
Europe Agreement. 

2.1.4  Notification  shall be made in advance, as soon as possible and at the latest at the stage of 
an investigation  still far  enough in advance of the adoption of a settlement or decision, 
so as to facilitate  comments or consultations and to enable the proceeding  authority  to 
take into account the other authority's views, as well as to take such remedial  action it 
may find feasible under its own laws, in order to deal with the case in question. 

2.2 

Consultation and Comity 

Whenever  the EC  Commission  or the  COCC considers that  anti-competitive  activities 
carried  out  on the  territory  of the  other  authority  are  substantially  affecting  important 
interests of the respective Party, it may request consultation with the other authority, or 
it  may  request  that  the  other  Party's  competition  authority  initiate  any  appropriate 
procedures with a view to take remedial action under its legislation on anti-competitive 
activities.  This  is  without  prejudice  to  any  action  under  the  requesting  Party's 
competition  law  and  does  not  hamper  the  full  freedom  of  ultimate  decision  of  the 
authority so addressed. 

2.3 

Finding of an Understanding 

The competition authority so addressed shall give full  and sympathetic consideration to 
such views and factual materials as may be provided by the requesting authority and, in 
particular,  to  the  nature  of  the  anti-competitive  activities  in  question,  the  enterprises 
involved  and  the  alleged  harmful  effects  on  the  important  interests  of  the  requesting 
Party. 

Without  prejudice  to  any  of  their  rights  or  obligations,  the  competition  authorities 
involved  in  consultations  under  this  Article  shall  endeavour  to  find  a  mutually 
acceptable solution in the light of the respective important interests involved. 

ARTICLE 3 : COMPETENCE OF ONE COMPETITION AUTHORITY ONLY 

3.1 

3.2 

Cases  falling  under  the  exclusive  competence  of  one  competition  authority,  in 
accordance with the principle  laid  down in Article  1, and which may affect  important 
interests of the other Party, shall be handled having regard to the provisions  set out in 
Article 2, and taking account of the principles set out below. 

In particular, whenever one of the competition authorities undertakes an investigation or 
proceeding in a case which is found to affect  important interests of the other Party, the 
proceeding authority shall notify  this case to the other authority, without formal request 
by the latter. 

ARTICLE 4 : REQUEST FOR INFORMATION 

Whenever the competition  authority  of a Party becomes aware of the  fact  that  a case,  falling 
also or only under the competence of the other authority, appears to affect  important interests of 
the first Party, it may request information about this case from the proceeding authority. 

The proceeding authority shall give sufficient  information  to the extent possible and at a stage 
of its proceedings far enough in advance of the adoption of a decision or settlement to enable 
the requesting  authority's views to be taken into account. 

ARTICLE 5 : SECRECY AND CONFIDENTIALITY OF INFORMATION 

5.1 

Having regard to Article 64 (7) of the Europe Agreement, neither competition authority 
is required to provide information to the other authority if disclosure of that  information 
to  the  requesting  authority  is  prohibited  by  the  law  of  the  authority  possessing  the 
information,  or  would  be  incompatible  with  important  interests  of  the  Party  whose 
authority is in possession of the information. 

5.2 

Each  authority  agrees to maintain, to the fullest  extent possible, the confidentiality  of 
any information provided to it in confidence by the other authority. 

ARTICLE 6 : BLOCK EXEMPTIONS 

In the application of Article 64 of the Europe Agreement as provided for in Articles 2 and 3 of 
these implementing rules, the competition authorities shall ensure that the principles contained 
in the  block  exemption  regulations  in  force  in  the  Community  shall  be  applied  in  full.  The 
COCC shall be informed  of any procedure related to the adoption, abolition or modification  of 
block exemptions by the Community. 

Where  such block  exemption  regulations  encounter  serious objections  on the Romanian  side, 
and  having  regard  to  the  approximation  of  legislation  as  foreseen  in the  Europe  Agreement, 
consultations  shall  take  place  in  the  Association  Council,  in  accordance  with  the  provisions 
contained in Article 9. 

The  same  principles  shall  apply  regarding  other  significant  changes  in  the  Community  or 
Romanian competition policies. 

ARTICLE 7 : MERGER CONTROL 

With  regard  to  mergers  which  fall  within  Council  Regulation  (EEC)  n°  4064/89  of  21 
December  1989 on the control  of concentrations between undertakings  (  , and which have a 
significant impact on the Romanian economy, the COCC shall be entitled to express its view in 
the  course  of  the  procedure,  taking  into  account  the  time  limits  as  provided  for  in  the 
aforementioned  Regulation.  The  EC  Commission  shall  give  due  consideration  to  that  view, 
without prejudice to any action under the Parties' respective competition laws. 

ARTICLE 8 : ACTIVITIES OF MINOR IMPORTANCE 

8.1 

Anti-competitive activities whose effects on trade between the Parties or on competition 
are negligible, do not fall under Article 64 (1) of the Europe Agreement, and therefore, 
are not to be treated under Articles 2 to 6 of these implementing rules. 

8.2 

Negligible effects in the sense of Article 8.1 are generally presumed to exist when 

the aggregate annual turnover of the participating undertakings does not exceed 
ECU 200 millions, and 

the goods or services which are the subject of the agreement together with the 
participating undertakings' other goods or services which are considered by users 
to be equivalent in view of their characteristics, price and intended use, do not 
represent  more than 5% of the total market for such goods or services in the area 
of  the  common  market  affected  by the  agreement,  and the  Romanian market 
affected by the agreement. 

ARTICLE 9 : ASSOCIATION COUNCIL 

9.1  Whenever  the  procedures  provided  for  in  Articles  2  and  3  above  do  not  lead  to a 
mutually  acceptable  solution,  as  well  as  in  other cases  explicitly  mentioned  in these 
implementing rules, an exchange of views shall take place in the Association Council at 
the request of one Party within 3 months following the request. 

(,) OJ n° L395 of 30.12.89, as last modified by Regulation (EC) n° 1310/97 (OJ n° L180 of 
09.07.1997) 

10 

9.2 

Following  this exchange  of views, or after expiry of the period referred to in paragraph 
9.1., the Association Council may make appropriate recommendations for the settlement 
of  these  cases,  without  prejudice  to  Article  64  (6) of the  Europe  Agreement.  In these 
recommendations,  the  Association  Council  may  take  into  account  any  failure  of  the 
requested authority to give its point of view to the requesting authority witliin the period 
referred to in Art. 9.1. 

9.3 

These procedures  in the Association  Council  are without prejudice to any  action under 
the respective competition laws in force in the territory of the Parties. 

ARTICLE  10 : NEGATIVE CONFLICT OF COMPETENCE 

When both the  EC  Commission  and the  COCC consider that neither  of  them  is  competent  to 
handle a case on the basis of their respective  legislation, an exchange  of views  shall  take place 
on request in the Association  Council.  The Community  and Romania shall  endeavour to find a 
mutually acceptable  solution in the light of the respective important  interests involved with the 
support  of  the  Association  Council,  which  may  make  appropriate  recommendations,  without 
prejudice to Article 64 (6) of the Europe Agreement, and the rights of individual  Member States 
of the European Communities on the basis of their competition rules. 

ECONOMIC ACTIVITIES UNDER THE ECSC TREATY 

ARTICLE  11:  TREATY  ESTABLISHING  THE  EUROPEAN  COAL  AND  STEEL 

COMMUNITY  (ECSC) 

The provisions contained in Articles  1 to 6 and 8 to 10 above shall apply with respect to the coal 
and steel sector as referred to in Protocol 2 to the Europe Agreement. 

ARTICLE 12 : ADMINISTRATIVE ASSISTANCE  (LANGUAGES) 

The  EC  Commission  and  the  COCC  shall  provide  for  practical  arrangements,  for  mutual 
assistance or any other appropriate solution concerning in particular the question of translations. 

u 

ISSN 0254-1475 

COM(98) 236 final 

DOCUMENTS 

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11  06  01  02 

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