Decision No 2/1999 of the Association Council between the European Communities and their Member States, of the one part, and Romania, of the other part of 16 March 1999 adopting the necessary rules for the implementation of Article 64(1)(i) and (ii) and Article 64(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 for the implementation of Article 9(1)(1) and (2) and Article 9(2) of Protocol 2 on ECSC products to the same Agreement
Date: 1999-03-16
Institutions: EC–Romania Association Council
Subjects: Romania, association agreement, coal industry, iron and steel industry, merger control, restriction on competition

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DECISION No 2/1999 OF THE ASSOCIATION COUNCIL

between the European Communities and their Member States, of the one part, and
Romania, of the other part

of 16 March 1999

adopting the necessary rules for the implementation of Article 64(1)(i) and (ii) and
Article 64(2) of the Europe Agreement establishing an association between the Euro-
pean 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) and (2) and Article
9(2) of Protocol 2 on ECSC products to the same Agreement

(1999/249/EC, ECSC, Euratom)

THE ASSOCIATION COUNCIL,

Having regard to the Europe Agreement establishing an association between the European
Communities and their Member States, of the one part, and Romania, of the other part (1), and in
particular Article 64(3) thereof,

Having regard to Protocol 2 on ECSC products to the said 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:

Sole Article

The necessary rules for the implementation of Article 64(1)(i) and (ii) and Article 64(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 for the implementa-
tion of Article 9(1)(1) and (2) and Article 9(2) of Protocol 2 on ECSC products to the Europe
Agreement, as set out in the Annex to this Decision, are hereby adopted.

Done at Brussels, 16 March 1999.

For the Association Council

The President

J. FISCHER

(1) OJ L 357, 31.12.1994, p. 2.

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ANNEX

IMPLEMENTING RULES FOR THE APPLICATION OF THE COMPETITION PROVISIONS
APPLICABLE TO UNDERTAKINGS PROVIDED FOR IN ARTICLE 64(1)(i) AND (ii) AND
ARTICLE 64(2) OF THE EUROPE AGREEMENT AND ARTICLE 9(1)(1) AND (2) AND ARTICLE
9(2) OF PROTOCOL 2 ON ECSC PRODUCTS TO THAT AGREEMENT

Article 1

General principle

shall be dealt with by the
competition authorities
Commission and the COCC, according to the rules under
this Article.

the prevention,

Cases relating to agreements between undertakings, deci-
sions by associations of undertakings and concerted prac-
tices between undertakings which have as their object or
effect
restriction or distortion of
competition and cases relating 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, the cases are dealt with by the Commis-
sion of the European Communities (DG IV) (‘Commis-
sion') on the Community side and the Competition
Office and the Competition Council
(COCC) on the
Romanian side.

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

the Community

legislation of

respective

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 of the
Treaty
and Steel
Community including the competition-related secondary
legislation,
the Commission, and the Romanian
Competition Law No 21 of 10 April 1996, for the COCC.

the European Coal

establishing

for

ECONOMIC ACTIVITIES UNDER THE TREATY ESTAB-
LISHING THE EUROPEAN COMMUNITY

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

1. Notification

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

(b) This situation may arise in particular

in cases

concerning activities that:

(cid:190) involve anti-competitive activities carried out in

the other authority’s territory,

(cid:190) are relevant

to enforcement activities of

the

other competition authority,

(cid:190) involve remedies that would require or prohibit
conduct in the other authority’s territory.

(c) Notification under this Article shall include suffi-
cient 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.

(d) Notification shall be made in advance, as soon as
possible and at the latest at the stage of an invest-
igation 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. Consultation and comity

Whenever the Commission or the COCC considers
that anti-competitive activities carried out on the terri-
tory of the other authority are substantially affecting
it may
important
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

the respective Party,

interests of

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taking 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.

3. Finding of an understanding

would be incompatible with important interests of the
Party whose authority is in possession of the information.

Each authority agrees to maintain,

2.
to the fullest
extent possible, the confidentiality of any information
provided to it in confidence by the other authority.

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
the enterprises
involved and the alleged harmful effects on the impor-
tant interests of the requesting Party.

in question,

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

Article 3

Competence of one competition authority only

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

In particular, whenever one of

the competition
2.
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 infor-
mation 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 settle-
ment to enable the requesting authority’s views to be
taken into account.

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 provi-
sions contained in Article 9.

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

Article 7

Merger control

With regard to mergers which fall within Council Regula-
tion (EEC) No 4064/89 of 21 December 1989 on the
control of concentrations between undertakings (1), 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 Regula-
tion. The 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

Article 5

Secrecy and confidentiality of information

1. Having regard to Article 64(7) of the Europe Agree-
ment, 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

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.

(1) OJ L 395, 30.12.1989, p. 1. Regulation as last amended by
Regulation (EC) No 1310/97 (OJ L 180, 9.7.1997, p. 1 ).

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2. Negligible effects within the meaning of paragraph
1 are generally presumed to exist when:

Article 10

Negative conflict of competence

(cid:190) the aggregate annual

the participating
undertakings does not exceed ECU 200 million, and

turnover of

(cid:190) the goods or services which are the subject of the
Agreement
together with the participating under-
takings’ other goods or services which are considered
by users to be equivalent in view of their characteris-
tics, price and intended use, do not represent more
than 5 % of
for such goods or
services in the area of the common market affected by
the Agreement, and the Romanian market affected by
the Agreement.

the total market

Article 9

Association Council

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.

2.
Following this exchange of views, or after expiry of
the period referred to in paragraph 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 recommenda-
tions, the Association Council may take into account any
failure of the requested authority to give its point of view
to the requesting authority within the period referred to
in paragraph 1.

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.

When both the 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 Asso-
ciation Council, which may make appropriate recommen-
dations, 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 TREATY ESTAB-
AND STEEL
LISHING

THE

EUROPEAN COAL
COMMUNITY (ECSC)

Article 11

ECSC Treaty

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.

ADMINISTRATIVE ASSISTANCE

Article 12

Languages

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