Decision of the EEA Joint Committee No 130/2004 of 24 September 2004 amending Annex XIV (Competition), Protocol 21 (On the implementation of competition rules applicable to undertakings) and Protocol 23 (Concerning the cooperation between the surveillance authorities) to the EEA Agreement
Date: 2004-09-24
Institutions: EEA Joint Committee
Subjects: EFTA, Iceland, Norway, competition law, competition policy, cooperation policy, economic concentration, merger control

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DECISION OF THE EEA JOINT COMMITTEE

No 130/2004

of 24 September 2004

amending Annex XIV (Competition), Protocol 21 (On the implementation of competition rules
applicable to undertakings) and Protocol 23 (Concerning the cooperation between the
surveillance authorities) to the EEA Agreement

THE EEA JOINT COMMITTEE,

Having regard to the Agreement on the European Economic Area, as amended by the Protocol adjusting
the Agreement on the European Economic Area, hereinafter referred to as ‘the Agreement’, and in
particular Article 98 thereof,

Whereas:

(1) Annex XIV to the Agreement was amended by Decision of the EEA Joint Committee No 79/2004 of

8 June 2004 (1).

(2) Protocol 21 to the Agreement was amended by Decision of the EEA Joint Committee No 79/2004 of

8 June 2004.

(3) Protocol 23 to the Agreement has not been previously amended.

(4) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on
competition laid down in Articles 81 and 82 of the Treaty (2), is to be incorporated into the
Agreement,

HAS DECIDED AS FOLLOWS:

Article 1

Annex XIV to the Agreement shall be amended as specified in Annex I to this Decision.

Article 2

Protocol 21 to the Agreement shall be amended as specified in Annex II to this Decision.

Protocol 23 to the Agreement shall be replaced as specified in Annex III to this Decision.

Article 3

Article 4

The texts of Regulation (EC) No 1/2003 in the Icelandic and Norwegian languages, to be published in the
EEA Supplement to the Official Journal of the European Union, shall be authentic.

(1) OJ L 219, 19.6.2004, p. 24.
(2) OJ L 1, 4.1.2003, p. 1.

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This Decision shall enter into force on the first day following the last notification to the EEA Joint
Committee under Article 103(1) of the Agreement (*).

Article 5

Article 6

This Decision shall be published in the EEA Section of, and in the EEA Supplement to, the Official Journal
of the European Union.

Done at Brussels, 24 September 2004.

For the EEA Joint Committee

The President

Kjartan JÓHANNSSON

(*)

Constitutional requirements indicated.

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ANNEX I

to Decision of the EEA Joint Committee No 130/2004

Annex XIV to the Agreement shall be amended as follows:

1.

2.

3.

point 4 (Commission Regulation (EEC) No 123/85) shall be deleted;

point 4a (Commission Regulation (EC) No 1475/95) shall be deleted;

point 10 (Council Regulation (EEC) No 1017/68), shall be replaced by the following:

‘368 R 1017: Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport
by rail, road and inland waterway (OJ No L 175, 23.7.1968, p. 1), as amended by:

— 32003 R 0001: Council Regulation (EC) No 1/2003 of 16 December 2002 (OJ L 1, 4.1.2003, p. 1).

The provisions of the Regulation shall, for the purposes of the Agreement, be read with the following
adaptation:

Article 3 (2) shall not apply.’;

4.

point 11 (Council Regulation (EEC) No 4056/86), shall be amended as follows:

4.1.

the following shall be added:

‘, as amended by:

— 32003 R 0001: Council Regulation (EC) No 1/2003 of 16 December 2002 (OJ L 1, 4.1.2003, p. 1).’;

4.2.

the text of adaptation (c) shall be replaced by the following:

‘In Article 7(1), introductory paragraph, the term “Council Regulation (EC) No 1/2003 of 16 December
2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty”
shall read “Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules
on competition laid down in Articles 81 and 82 of the Treaty or the corresponding provisions envisaged
in Protocol 21 to the Agreement”;’

4.3.

the text of adaptation (d) shall be replaced by the following:

‘In Article 7(2)(a), the term “Council Regulation (EC) No 1/2003” shall read “Council Regulation (EC)
No 1/2003 or the corresponding provisions envisaged in Protocol 21 to the Agreement”;’

4.4.

the following new adaptation shall be added after adaptation (d):

‘(e)

in Article 7(2)(c)(i), second sentence of the second subparagraph, the term “Article 9 of Regulation
(EC) No 1/2003” shall read “Article 9 of Regulation (EC) No 1/2003 or the corresponding provisions
envisaged in Protocol 21 to the Agreement”;’

4.5.

the text of present adaptation (f) shall be replaced by the following:

‘In Article 8, the term “at the request of a Member State” shall read “at the request of a State falling within
its competence”. Furthermore, the term “Regulation (EC) No 1/2003” shall read “Regulation (EC) No 1/
2003 or the corresponding provisions envisaged in Protocol 21 to the Agreement”;’

4.6. present adaptations (e), (f), (g) and (h), shall become adaptations (f), (g), (h) and (i), respectively;

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5.

6.

7.

8.

point 11a (Commission Regulation (EEC) No 3652/93) shall be deleted;

in adaptation (c) of point 11b (Commission Regulation (EEC) No 1617/93), the words ‘Article 13 of Regulation
(EEC) No 3975/87’ shall be replaced by the words ‘Article 24 of Regulation (EC) No 1/2003’;

point 15a (Commission Regulation (EEC) No 3932/92) shall be deleted;

in points 2 adaptation (b), 4b adaptation (b), 5 adaptation (h), 6 adaptation (b), 7 adaptation (b), 15b adaptation
(b), the words ‘Articles 6 and 8 of Regulation (EEC) No 17/62’ shall be replaced by the words ‘Article 10 of
Regulation (EC) No 1/2003’. Furthermore, the words ‘, without any notification from the undertakings
concerned being required’ shall be deleted from those adaptations.

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ANNEX II

to Decision of the EEA Joint Committee No 130/2004

1.

Article 3 of Protocol 21 to the Agreement shall be amended as follows:

1.1.

the text of point 1(3) (Council Regulation (EEC) No17/62) shall be replaced by the following:

‘32003 R 0001: Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the
rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).’;

1.2.

the following shall be added in point 1(10) (Council Regulation (EEC) No 2988/74):

‘, as amended by:

— 32003 R 0001: Council Regulation (EC) No 1/2003 of 16 December 2002 (OJ L 1, 4.1.2003, p. 1).’;

1.3. points 1(6) (Council Regulation (EEC) No 141/62), 1(7) (Article 6 and Articles 10 to 31 of Council
Regulation (EEC) No 1017/68) and 1(11) (Section II of Council Regulation (EEC) No 4056/86) shall be
deleted;

1.4.

the following indent shall be added in point 1(13) (Council Regulation (EEC) No 3975/87):

‘— 32003 R 0001: Council Regulation (EC) No 1/2003 of 16 December 2002 (OJ L 1, 4.1.2003, p. 1).’;

2.

3.

Articles 4, 5, 6, 7 and 9 of Protocol 21 to the Agreement shall be deleted;

The words ‘and notifications’ shall be deleted in the first and second subparagraph of Article 8 of Protocol 21 to
the Agreement;

4.

the following shall be inserted after Article 13 of Protocol 21 to the Agreement:

‘Review clause

By the end of 2005 and at the request of one of the Contracting Parties, the Parties shall review the mechanisms
for the enforcement of Articles 53 and 54 of the Agreement as well as the cooperation mechanisms of Protocol
23 to the Agreement, with a view to ensuring the homogenous and effective application of those Articles. The
Parties shall in particular review the Decision of the EEA Joint Committee No 130/2004 of 24 September 2004
in light of the Parties' experiences with the new system of enforcing the competition rules and explore the
possibility of mirroring in the EEA the system established in the EU by Council Regulation (EC) No 1/2003 as
regards the application of Articles 81 and 82 of the Treaty by national competition authorities, the horizontal
cooperation between national competition authorities and the mechanism for ensuring uniform application of
the competition rules by national authorities.’

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ANNEX III

to Decision of the EEA Joint Committee No 130/2004

Protocol 23 to the Agreement shall be replaced by the following:

‘PROTOCOL 23
CONCERNING THE COOPERATION BETWEEN
THE SURVEILLANCE AUTHORITIES (ARTICLE 58)

GENERAL PRINCIPLES

Article 1

1. The EFTA Surveillance Authority and the EC Commission shall exchange information and consult each other on
general policy issues at the request of either of the surveillance authorities.

2. The EFTA Surveillance Authority and the EC Commission, in accordance with their internal rules, respecting
Article 56 of the Agreement and Protocol 22 and the autonomy of both sides in their decisions, shall cooperate in the
handling of individual cases falling under Article 56(1)(b) and (c), (2), second sentence and (3), as provided for in the
provisions below.

For the purposes of this Protocol, the term “territory of a surveillance authority” shall mean for the EC
3.
Commission the territory of the EC Member States to which the Treaty establishing the European Community applies,
upon the terms laid down in that Treaty, and for the EFTA Surveillance Authority the territories of the EFTA States to
which the Agreement applies.

THE INITIAL PHASE OF THE PROCEEDINGS

Article 2

1.
In cases falling under Article 56(1)(b) and (c), (2), second sentence and (3) of the Agreement, the EFTA
Surveillance Authority and the EC Commission shall without undue delay forward to each other complaints to the
extent that it is not apparent that these have been addressed to both surveillance authorities. They shall also inform
each other when opening ex officio procedures.

2. The EFTA Surveillance Authority and the EC Commission shall without undue delay forward to each other
information received from the national competition authorities within their respective territories concerning the
commencement of the first formal investigative measure in cases falling under Article 56 (1)(b) and (c), (2), second
sentence and (3) of the Agreement.

3. The surveillance authority which has received information as provided for in the first paragraph may present its
comments thereon within 30 working days of its receipt.

Article 3

1. The competent surveillance authority shall, in cases falling under Article 56(1)(b) and (c), (2), second sentence
and (3) of the Agreement, consult the other surveillance authority when:

— addressing to the undertakings or associations of undertakings concerned its statement of objections,

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— publishing its intention to adopt a decision declaring Article 53 or 54 of the Agreement not applicable, or

— publishing its intention to adopt a decision making commitments offered by the undertakings binding on the

undertakings.

2. The other surveillance authority may deliver its comments within the time limits set out in the abovementioned
publication or statement of objections.

3. Observations received from the undertakings concerned or third parties shall be transmitted to the other
surveillance authority.

Article 4

In cases falling under Article 56(1)(b) and (c), (2), second sentence and (3) of the Agreement, the competent
surveillance authority shall transmit to the other surveillance authority the administrative letters by which a file is
closed or a complaint rejected.

Article 5

In cases falling under Article 56(1)(b) and (c), (2), second sentence and (3) of the Agreement, the competent
surveillance authority shall invite the other surveillance authority to be represented at hearings of the undertakings
concerned. The invitation shall also extend to the States falling within the competence of the other surveillance
authority.

ADVISORY COMMITTEES

Article 6

1.
In cases falling under Article 56 (1)(b) and (c), (2), second sentence and (3) of the Agreement, the competent
surveillance authority shall, in due time, inform the other surveillance authority of the date of the meeting of the
Advisory Committee and transmit the relevant documentation.

2. All documents forwarded for that purpose from the other surveillance authority shall be presented to the
Advisory Committee of the surveillance authority which is competent to decide on a case in accordance with
Article 56 together with the material sent out by that surveillance authority.

3.
Each surveillance authority and the States falling within its competence shall be entitled to be present in the
Advisory Committees of the other surveillance authority and to express their views therein; they shall not have,
however, the right to vote.

4. Consultations may also take place by written procedure. However, if the surveillance authority which is not
competent to decide on a case in accordance with Article 56 so requests, the competent surveillance authority shall
convene a meeting.

REQUEST FOR DOCUMENTS AND THE RIGHT

TO MAKE OBSERVATIONS

Article 7

The surveillance authority which is not competent to decide on a case in accordance with Article 56 of the
Agreement may request from the other surveillance authority at all stages of the proceedings copies of the most
important documents concerning cases falling under Article 56(1)(b) and (c), (2) second sentence and (3) of the
Agreement, and may furthermore, before a final decision is taken, make any observations it considers appropriate.

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ADMINISTRATIVE ASSISTANCE

Article 8

1. When the competent surveillance authority, as defined in Article 56 of the Agreement, by simple request or by
decision requires an undertaking or association of undertakings located within the territory of the other surveillance
authority to supply information, it shall at the same time forward a copy of the request or decision to the other
surveillance authority.

2. At the request of the competent surveillance authority, as defined in Article 56 of the Agreement, the other
surveillance authority shall, in accordance with its internal rules, undertake inspections within its territory in cases
where the competent surveillance authority so requesting considers it to be necessary.

3. The competent surveillance authority is entitled to be represented and take an active part in inspections carried
out by the other surveillance authority in respect of paragraph 2.

4. All information obtained during such inspections on request shall be transmitted to the surveillance authority
which requested the inspections immediately after their finalization.

5. Where the competent surveillance authority, in cases falling under Article 56(1)(b) and (c), (2), second sentence
and (3) of the Agreement, carries out inspections within its territory, it shall inform the other surveillance authority of
the fact that such inspections have taken place and, on request, transmit to that authority the relevant results of the
inspections.

6. When the competent surveillance authority as defined in Article 56 of the Agreement interviews a consenting
natural or legal person in the territory of the other surveillance authority, the latter shall be informed thereof. The
surveillance authority which is not competent may be present during such an interview, as well as officials from the
competition authority on whose territory the interviews are conducted.

EXCHANGE AND USE OF INFORMATION

Article 9

1.
For the purpose of applying Articles 53 and 54 of the Agreement, the EFTA Surveillance Authority and the EC
Commission shall have the power to provide one another with and use in evidence any matter of fact or of law,
including confidential information.

2.
Information acquired or exchanged pursuant to this Protocol shall only be used in evidence for the purpose of
procedures under Articles 53 and 54 of the Agreement and in respect of the subject matter for which it was collected.

3. Where the information referred to in Article 2 (1) and (2) concerns a case which has been initiated as a result of
an application for leniency, that information cannot be used by the receiving surveillance authority as the basis for
starting an inspection on its own behalf. This is without prejudice to any power of the surveillance authority to open
an inspection on the basis of information received from other sources.

4.
Save as provided under paragraph 5, information voluntarily submitted by a leniency applicant will only be
transmitted to the other surveillance authority with the consent of the applicant. Similarly other information that has
been obtained during or following an inspection or by means of or following any other fact-finding measures which,
in each case, could not have been carried out except as a result of the leniency application will only be transmitted to
the other surveillance authority if the applicant has consented to the transmission to that authority of information it
has voluntarily submitted in its application for leniency. Once the leniency applicant has given consent to the
transmission of information to the other surveillance authority, that consent may not be withdrawn. This paragraph is
without prejudice, however, to the responsibility of each applicant to file leniency applications to whichever
authorities it may consider appropriate.

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5. Notwithstanding paragraph 4, the consent of the applicant for the transmission of information to the other
surveillance authority is not required in any of the following circumstances:

(a)

(b)

no consent is required where the receiving surveillance authority has also received a leniency application
relating to the same infringement from the same applicant as the transmitting surveillance authority, provided
that at the time the information is transmitted it is not open to the applicant to withdraw the information which
it has submitted to that receiving surveillance authority;

no consent is required where the receiving surveillance authority has provided a written commitment that
neither the information transmitted to it nor any other information it may obtain following the date and time of
transmission as noted by the transmitting surveillance authority, will be used by it or by any other authority to
which the information is subsequently transmitted to impose sanctions on the leniency applicant or on any
other legal or natural person covered by the favourable treatment offered by the transmitting authority as a
result of the application made by the applicant under its leniency programme or on any employee or former
employee of the leniency applicant or of any of the aforementioned persons. A copy of the receiving authority's
written commitment will be provided to the applicant;

(c)

in the case of information collected by a surveillance authority under Article 8(2) at the request of the
surveillance authority to whom the leniency application was made, no consent is required for the transmission
of such information to, and its use by, the surveillance authority to whom the application was made.

PROFESSIONAL SECRECY

Article 10

1.
For the purpose of carrying out the tasks entrusted to it by this Protocol, the EC Commission and the EFTA
Surveillance Authority can forward to the States falling within their respective territories all information acquired or
exchanged by them pursuant to this Protocol.

2. The EC Commission, the EFTA Surveillance Authority, the competent authorities of the EC Member States and
the EFTA States, their officials, servants and other persons working under the supervision of these authorities as well
as officials and servants of other authorities of the States shall not disclose information acquired or exchanged by
them as a result of the application of this Protocol and of the kind covered by the obligation of professional secrecy.

3. Rules on professional secrecy and restricted use of information provided for in the Agreement or in the
legislation of the Contracting Parties shall not prevent exchange of information as set out in this Protocol.

COMPLAINTS AND TRANSFERRAL OF CASES

Article 11

1. Complaints may be addressed to either surveillance authority. Complaints addressed to the surveillance authority
which, pursuant to Article 56, is not competent to decide on a given case shall be transferred without delay to the
competent surveillance authority.

2.
If, in the preparation or initiation of ex officio proceedings, it becomes apparent that the other surveillance
authority is competent to decide on a case in accordance with Article 56 of the Agreement, this case shall be
transferred to the competent surveillance authority.

3. Once a case is transferred to the other surveillance authority as provided for in paragraphs 1 and 2, the case may
not be transferred back. A case may not be transferred after

— the statement of objections has been sent to the undertakings or associations of undertakings concerned,

— a letter has been sent to the complainant informing him that there are insufficient grounds for pursuing the

complaint,

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— the publication of the intention to adopt a decision declaring Article 53 or 54 not applicable, or the publication
of the intention to adopt a decision making commitments offered by the undertakings binding on the
undertakings.

LANGUAGES

Article 12

Any natural or legal person shall be entitled to address and be addressed by the EFTA Surveillance Authority and the
EC Commission in an official language of an EFTA State or the European Community which they choose as regards
complaints. This shall also cover all instances of a proceeding, whether it be opened following a complaint or ex officio
by the competent surveillance authority.’