EFTA Surveillance Authority Notice on the handling of complaints by the Authority under Articles 53 and 54 of the EEA Agreement
Date: 2007-11-29
Institutions: EFTA Surveillance Authority
Subjects: EFTA Court, EFTA countries, competition law, restriction on competition

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NOTICES CONCERNING THE EUROPEAN ECONOMIC AREA

EFTA SURVEILLANCE AUTHORITY

EFTA Surveillance Authority Notice on the handling of complaints by the Authority under
Articles 53 and 54 of the EEA Agreement

(2007/C 287/06)

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

B.
The European Commission (hereafter the ‘Commission’) has issued a notice entitled ‘Commission
Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty’ (1).
That non-binding act contains principles and rules which the Commission follows in the field of competi-
tion. It also explains how the Commission intends to handle complaints.

C.
The EFTA Surveillance Authority considers the abovementioned 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 under
the power conferred upon it by 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 relevant EEA rules to a particular
case (2).

In particular, the purpose of this Notice is to spell out how the EFTA Surveillance Authority aims to

D.
handle complaints concerning alleged infringements of Articles 53 and 54 of the EEA Agreement.

The present notice applies to cases where the Authority is the competent surveillance authority under

E.
Article 56 of the EEA Agreement.

I. INTRODUCTION AND SUBJECT-MATTER OF THE NOTICE

1. Chapter II of Part I of Protocol 4 to the Surveillance and Court Agreement (hereafter ‘Chapter II’) (3)
establishes a system in which the EFTA Surveillance Authority and the EFTA States' competition autho-
rities and courts can apply Articles 53 and 54 of the EEA Agreement. Chapter II recognises in particular
the complementary functions of the Authority and EFTA States' competition authorities acting as public
enforcers and the EFTA States' courts that rule on private lawsuits in order to safeguard the rights of
individuals deriving from Articles 53 and 54.

2. Under Chapter II, the public enforcers may focus their action on the investigation of serious infringe-
ments of Articles 53 and 54 which are often difficult to detect. For their enforcement activity, they
benefit from information supplied by undertakings and by consumers in the market.

(1) OJ C 101, 27.4.2004, p. 65.
(2) The competence to handle individual cases falling under Articles 53 and 54 of the EEA Agreement, is divided between the
EFTA Surveillance Authority and the Commission according to the rules laid down in Article 56 of the EEA Agreement.
Only one of the surveillance authorities is competent to handle any given case.

(3) Following the entry into force on 20 May 2005 of the Agreement amending Protocol 4 to the Agreement of the EFTA
States on the establishment of a Surveillance Authority and a Court of Justice of 24 September 2004, Chapter II of
Protocol 4 of the Surveillance and Court Agreement reflects to a large extent in the EFTA pillar Council Regulation (EC)
No 1/2003 (OJ L 1, 4.1.2003, p. 1).

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3. The EFTA Surveillance Authority therefore wishes to encourage citizens and undertakings to address
themselves to the public enforcers to inform them about suspected infringements of the competition
rules. At the level of the Authority, there are two ways to do this, one is by lodging a complaint
pursuant to Article 7(2) of Chapter II. Under Articles 5 to 9 of Chapter III of Part I of Protocol 4 to the
Surveillance and Court Agreement (hereafter ‘Chapter III’) (1), such complaints must fulfil certain
requirements.

4. The other way is the provision of market information that does not have to comply with the require-
ments for complaints pursuant to Article 7(2) of Chapter II. Such information about suspected infringe-
ments of Articles 53 and 54 can be the starting point for an investigation by the EFTA Surveillance
Authority (2). Information about suspected infringements can be supplied to the following address:

EFTA Surveillance Authority
Competition and State Aid Directorate
Rue Belliard 35
B-1040 Bruxelles/Brussel
competition@eftasurv.int

5. Without prejudice to the interpretation of Chapters II and III by the EFTA Court, the present Notice
intends to provide guidance to citizens and undertakings that are seeking relief from suspected infringe-
ments of the competition rules. The Notice contains two main parts:

— part II gives indications about the choice between complaining to the EFTA Surveillance Authority
or bringing a lawsuit before a national court. Moreover, it recalls the principles related to the work-
sharing between the Authority and the national competition authorities of the EFTA States in the
enforcement system established by Chapter II that are explained in the Notice on cooperation
within the EFTA network of competition authorities (3),

— part III explains the procedure for the treatment of complaints pursuant to Article 7(2) of Chapter II

by the Authority.

6. This Notice does not address the following situations:

— complaints lodged by EFTA States pursuant to Article 7(2) of Chapter II,

— complaints that ask the EFTA Surveillance Authority to take action against a EFTA State pursuant to

Article 59(3) in conjunction with Articles 53 or 54 of the EEA Agreement,

— complaints relating to Article 61 of the EEA Agreement on State aids,

— complaints relating to infringements by EFTA States that the Authority may pursue in the frame-

work of Article 31 of the Surveillance and Court Agreement.

II. DIFFERENT POSSIBILITIES FOR LODGING COMPLAINTS ABOUT SUSPECTED INFRINGEMENTS OF

ARTICLES 53 OR 54 OF THE EEA AGREEMENT

A. Complaints in the new enforcement system established by Chapter II

7. Depending on the nature of the complaint, a complainant may bring his complaint either to a national
court or to an EFTA State competition authority that acts as public enforcer. The present chapter of this
Notice intends to help potential complainants to make an informed choice about whether to address
themselves to the EFTA Surveillance Authority, to one of the EFTA States' competition authorities or to
a national court.

(1) Following the entry into force on 1 July 2005 of the Agreement of the EFTA States on the establishment of a Surveillance
Authority and a Court of Justice of 3 December 2004, Chapter III of Protocol 4 to the Surveillance and Court Agreement
will reflect Commission Regulation (EC) No 773/2004 (OJ L 123, 27.4.2004, p. 18).

(2) The Authority handles correspondence from informants in accordance with its principles of good administrative practice.
(3) EFTA Surveillance Authority Notice on cooperation within the EFTA Network of competition authorities, not yet

published.

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8. While national courts are called upon to safeguard the rights of individuals and are thus bound to rule
on cases brought before them, public enforcers cannot investigate all complaints, but must set priorities
in their treatment of cases. The EFTA Surveillance Authority, entrusted by Article 55(1) of the EEA
Agreement with the task of ensuring application of the principles laid down in Articles 53 and 54 of
the EEA Agreement, is responsible for defining and implementing the orientation of EEA competition
policy (1). According to the case law of the Court of Justice of the European Communities, the Commis-
sion, in order to perform its tasks effectively, is entitled to give differing degrees of priority to the
complaints brought before it under Article 81 or 82 of the EC Treaty (2). The Authority is of the
opinion that a similar principle applies to the Authority within the context of the EEA Agreement.

9. Chapter II empowers EFTA States' courts and EFTA States' competition authorities to apply Articles 53
and 54 of the EEA Agreement in their entirety alongside the EFTA Surveillance Authority. Chapter II
pursues as one principal objective that EFTA States' courts and competition authorities should partici-
pate effectively in the enforcement of Articles 53 and 54 (3).

10. Moreover, Article 3 of Chapter II provides that EFTA States' courts and competition authorities have to
apply Articles 53 and 54 of the EEA Agreement to all cases of agreements or conduct that are capable
of affecting trade between Contracting Parties to the EEA Agreement to which they apply their national
competition laws. In addition, Articles 11 and 15 of Chapter II create a range of mechanisms by which
EFTA States' courts and competition authorities cooperate with the EFTA Surveillance Authority in the
enforcement of Articles 53 and 54.

11. In this new legislative framework, the EFTA Surveillance Authority intends to refocus its enforcement

resources along the following lines:

— enforce the EEA competition rules in cases for which it is well placed to act (4), concentrating its

resources on the most serious infringements,

— handle cases in relation to which the EFTA Surveillance Authority should act with a view to define
EEA competition policy and/or to ensure coherent application of Articles 53 or 54 of the EEA
Agreement.

B. The complementary roles of private and public enforcement

12. It has been consistently held by the Community Courts that national courts are called upon to safe-
guard the rights of individuals created by the direct effect of Articles 81(1) and 82 of the EC Treaty (5).
It follows from Article 7 EEA and Protocol 35 to the EEA Agreement that EEA law does not entail a
transfer of legislative powers. Therefore, EEA law does not require that individuals and economic opera-
tors can rely directly on non-implemented EEA rules before national courts (6). However, according to
Protocol 35, 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

(1) These tasks are shared with the Commission in accordance with the rules of competence in Article 56 of the EEA

Agreement.

(2) Case C-344/98, Masterfoods v HB Ice Cream, [2000] ECR I-11369, paragraph 46; Case C-119/97 P, Union française de l'express
(Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, paragraph 88; Case T-24/90, Automec v
Commission of the European Communities, [1992] ECR II-2223, paragraphs 73-77. 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 treaties, 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. As regards relevant rulings by the Court of Justice given after the
date of signature of the EEA Agreement, it follows from Article 3(2) of the Surveillance and Court Agreement that the
EFTA Surveillance Authority and the EFTA Court shall pay due account to the principles laid down by these rulings.

(3) Cf. in particular Articles 5, 6, 11, 12, 15, 22, 29 and 40 of Chapter II.
(4) Cf. Notice on cooperation within the EFTA network of competition authorities, paragraphs 5ss.
(5) Settled case law in the Community, cf. Case 127/73, Belgische Radio en Televisie (BRT) v SABAM and Fonior, [1974] ECR 51,
paragraph 16; Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997] ECR I-1503, para-
graph 39; Case C-453/99, Courage v Bernhard Crehan, [2001] ECR I-6297, paragraph 23.

(6) See Case E-4/01, Karlsson, EFTA Court Report [ 2002], p. 240, paragraph 28.

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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 (1).

13. National courts can decide upon the nullity or validity of contracts and only national courts can grant
damages to an individual in case of an infringement of Articles 53 and 54 of the EEA Agreement. In
order to ensure the full effectiveness of the EEA competition rules, any individual must be able to claim
damages for loss caused to him by a contract or by conduct which restricts or distorts competition.
Such actions for damages before the national courts can make a significant contribution to the mainte-
nance of effective competition in the territory covered by the EEA Agreement as they discourage under-
takings from concluding or applying restrictive agreements or practices (2).

14. Chapter II takes express account of the fact that national courts have an essential part to play in
applying the EEA competition rules (3). By extending the power to apply Article 53(3) to national
courts it removes the possibility for undertakings to delay national court proceedings by a notification
to the EFTA Surveillance Authority and thus eliminates an obstacle for private litigation that existed
under the previous rules.

15. Without prejudice to the right or obligation of national courts to request an advisory opinion from the
EFTA Court in accordance with Article 34 of the Surveillance and Court Agreement, Article 15(1) of
Chapter II provides expressly that national courts may ask for opinions or information from the EFTA
Surveillance Authority. This provision aims at facilitating the application of Articles 53 and 54 by
national courts (4).

16. Action before national courts has the following advantages for complainants:

— national courts may award damages for loss suffered as a result of an infringement of Article 53

or 54,

— national courts may rule on claims for payment or contractual obligations based on an agreement

that they examine under Article 53,

— it is for the national courts to apply the civil sanction of nullity of Article 53(2) in contractual rela-
tionships between individuals (5). They can in particular assess, in the light of the applicable national
law, the scope and consequences of the nullity of certain contractual provisions under Article 53(2),
with particular regard to all the other matters covered by the agreement (6),

— national courts are usually better placed than the EFTA Surveillance Authority to adopt interim

measures (7),

— before national courts, it is possible to combine a claim under EEA competition law with other

claims under national law,

— courts normally have the power to award legal costs to the successful applicant. This is never

possible in an administrative procedure before the Authority.

(1) See Case E-1/94, Restamark, EFTA Court Report [1994-1995], p. 15, paragraph 77.
(2) Case C-453/99, Courage v Bernhard Crehan, [2001] ECR I-6297, paragraphs 26-27.
(3) Cf. Articles 1, 6 and 15 of Chapter II.
(4) For more detailed explanations of this mechanism, cf. Notice on the co-operation between the Authority and the courts of

the EFTA States in the application of Articles 53 and 54 EC, not yet published.

(5) Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, paragraph 93.
(6) Cf. the EFTA Court's decisions in Case E-3/97 Jæger v Opel Norge, EFTA Court Report [1998], p. 1, paragraph 77, and Case
E-7/01 Hegelstad v Hydro Texaco, EFTA Court Report [2002], p. 310, paragraph 43, as well as the Community courts' deci-
sions in Case C-230/96, Cabour and Nord Distribution Automobile v Arnor ‘SOCO’, [1998] ECR I-2055, paragraph 51; Joined
Cases T-185/96, T-189/96 and T-190/96, Dalmasso and Others v Commission of the European Communities, [1999] ECR II-93,
paragraph 50.

(7) Cf. Article 8 of Chapter II and paragraph 80 below. Depending on the case, EFTA States' competition authorities may

equally be well placed to adopt interim measures.

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17. The fact that a complainant can secure the protection of his rights by an action before a national court,
is an important element that the EFTA Surveillance Authority may take into account in its examination
of the interest under the EEA Agreement for investigating a complaint (1).

18. The EFTA Surveillance Authority holds the view that the new enforcement system established by
Chapter II strengthens the possibilities for complainants to seek and obtain effective relief before
national courts.

C. Work-sharing between the public enforcers in the EFTA pillar

19. Chapter II creates a system where both the EFTA Surveillance Authority and the EFTA States' competi-
tion authorities are empowered to apply Articles 53 and 54 in their entirety (Article 5). Decentralised
enforcement by EFTA States' competition authorities is further encouraged by the possibility to
exchange information (Article 12) and to provide each other assistance with investigations (Article 22).

20. Chapter II does not regulate the work-sharing between the EFTA Surveillance Authority and the EFTA
States' competition authorities but leaves the division of case work to the cooperation of the Authority
and the EFTA States' competition authorities inside the EFTA Competition Network. Chapter II pursues
the objective of ensuring effective enforcement of Articles 53 and 54 through a flexible division of case
work between the EFTA public enforcers.

21. Orientations for the work sharing between the EFTA Surveillance Authority and the EFTA States'
competition authorities are laid down in a separate Notice (2). The guidance contained in that Notice,
which concerns the relations between the EFTA public enforcers, will be of interest to complainants as
it permits them to address a complaint to the authority most likely to be well placed to deal with their
case.

22. The Notice on cooperation within the EFTA Network of Competition Authorities states in particular (3):

‘An authority can be considered to be well placed to deal with a case if the following three cumulative
conditions are met:

(1) the agreement or practice has substantial direct actual or foreseeable effects on competition within

its territory, is implemented within or originates from its territory;

(2) the authority is able to effectively bring to an end the entire infringement i.e. it can adopt a cease
and desist order the effect of which will be sufficient to bring an end to the infringement and it
can, where appropriate, sanction the infringement adequately;

(3) it can gather, possibly with the assistance of other authorities, the evidence required to prove the

infringement.

The above criteria indicate that a material link between the infringement and the territory of an EFTA
State must exist in order for that EFTA State's competition authority to be considered well placed. It can
be expected that in most cases the authorities of those EFTA States where competition is substantially
affected by an infringement will be well placed provided they are capable of effectively bringing the
infringement to an end through either single or parallel action unless the EFTA Surveillance Authority
is better placed to act (see below […]).

It follows that a single NCA is usually well placed to deal with agreements or practices that substantially
affect competition mainly within its territory. […]

(1) Cf. paragraphs 41ss. below.
(2) Notice on cooperation within the EFTA Network of competition authorities.
(3) Notice on cooperation within the EFTA Network of competition authorities, paragraphs 8-14.

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Furthermore single action of an NCA might also be appropriate where, although more than one NCA
can be regarded as well placed, the action of a single NCA is sufficient to bring the entire infringement
to an end. […]

Parallel action by several NCAs may be appropriate where an agreement or practice has substantial
effects on competition mainly in their respective territories and the action of only one NCA would not
be sufficient to bring the entire infringement to an end and/or to sanction it adequately. […]

The authorities dealing with a case in parallel action will endeavour to coordinate their action to the
extent possible. To that effect, they may find it useful to designate one of them as a lead authority and
to delegate tasks to the lead authority such as for example the coordination of investigative measures,
while each authority remains responsible for conducting its own proceedings.

The EFTA Surveillance Authority is also well placed if one or several agreement(s) or practice(s),
including networks of similar agreements or practices, have effects on competition in two or more
EFTA States (cross-border markets covering two or more EFTA States or several national markets).

Moreover, the EFTA Surveillance Authority is particularly well placed to deal with a case if it is closely
linked to other EEA provisions which may be exclusively or more effectively applied by the Authority, if
the EEA interest requires the adoption of an Authority decision to develop EEA competition policy
when a new competition issue arises or to ensure effective enforcement.’

23. Within the EFTA Competition Network, information on cases that are being investigated following a
complaint will be made available to the other members of the network before or without delay after
commencing the first formal investigative measure (1). Where the same complaint has been lodged with
several authorities or where a case has not been lodged with an authority that is well placed, the
members of the network will endeavour to determine within an indicative time-limit of two months
which authority or authorities should be in charge of the case.

24. Complainants themselves have an important role to play in further reducing the potential need for
reallocation of a case originating from their complaint by referring to the orientations on work sharing
in the network set out in the present chapter when deciding on where to lodge their complaint. If none-
theless a case is reallocated within the network, the undertakings concerned and the complainant(s) are
informed as soon as possible by the competition authorities involved (2).

25. The EFTA Surveillance Authority may reject a complaint in accordance with Article 13 of Chapter II, on
the grounds that an EFTA State competition authority is dealing or has dealt with the case. When doing
so, the Authority must, in accordance with Article 9 of Chapter III, inform the complainant without
delay of the national competition authority which is dealing or has already dealt with the case.

III. THE EFTA SURVEILLANCE AUTHORITY'S HANDLING OF COMPLAINTS PURSUANT TO

ARTICLE 7(2) OF CHAPTER II

A. General

26. According to Article 7(2) of Chapter II, natural or legal persons that can show a legitimate interest (3)
are entitled to lodge a complaint to ask the EFTA Surveillance Authority to find an infringement of
Articles 53 and 54 EEA and to require that the infringement be brought to an end in accordance with
Article 7(1) of Chapter II. The present part of this Notice explains the requirements applicable to
complaints based on Article 7(2) of Chapter II, their assessment and the procedure followed by the
Authority.

(1) Article 11(2) and (3) of Chapter II ; Notice on cooperation within the EFTA Network of Competition Authorities para-

graphs 15-16.

(2) Notice on cooperation within the EFTA Network of Competition Authorities, paragraph 33.
(3) For more extensive explanations on this notion in particular, cf. paragraphs 33ss. below.

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27. The EFTA Surveillance Authority, unlike civil courts, whose task is to safeguard the individual rights of
private persons, is an administrative authority that must act in the public interest. It is an inherent
feature of the Authority's task as public enforcer that it has a margin of discretion to set priorities in its
enforcement activity (1).

28. The EFTA Surveillance Authority is entitled to give different degrees of priority to complaints made to
it and may refer to the interest under the EEA Agreement presented by a case as a criterion of
priority (2). The Authority may reject a complaint when it considers that the case does not display a
sufficient interest under the EEA Agreement to justify further investigation. Where the Authority
rejects a complaint, the complainant is entitled to a decision of the Authority (3) without prejudice to
Article 7(3) of Chapter III.

B. Making a complaint pursuant to Article 7(2) of Chapter II

(a) Complaint form

29. A complaint pursuant to Article 7(2) of Chapter II can only be made about an alleged infringement of
Articles 53 or 54 with a view to the EFTA Surveillance Authority taking action under Article 7(1) of
Chapter II. A complaint under Article 7(2) of Chapter II has to comply with Form C mentioned in
Article 5(1) of Chapter III.

30. Form C is available at: http://www.eftasurv.int/fieldsofwork/fieldcompetition/faq/ and is also annexed to
this Notice. The complaint must be submitted in three paper copies as well as, if possible, an electronic
copy.
the complaint
(Article 5(2) of Chapter III. Electronic transmission to the EFTA Surveillance Authority is possible via
the website indicated above, the paper copies should be sent to the following address:

the complainant must provide a non-confidential version of

In addition,

EFTA Surveillance Authority
Competition and State Aid Directorate
Rue Belliard 35
B-1040 Bruxelles/Brussel

31. Form C requires complainants to submit comprehensive information in relation to their complaint.
They should also provide copies of relevant supporting documentation reasonably available to them
and, to the extent possible, provide indications as to where relevant information and documents that
are unavailable to them could be obtained by the EFTA Surveillance Authority. In particular cases, the
Authority may dispense with the obligation to provide information in relation to part of the informa-
tion required by Form C (Article 5(1) of Chapter III). The Authority holds the view that this possibility
can in particular play a role to facilitate complaints by consumer associations where they, in the context
of an otherwise substantiated complaint, do not have access to specific pieces of information from the
sphere of the undertakings complained of.

32. Correspondence to the EFTA Surveillance Authority that does not comply with the requirements of
Article 5 of Chapter III and therefore does not constitute a complaint within the meaning of Article 7(2)
of Chapter II will be considered by the Authority as general information that, where it is useful, may
lead to an own-initiative investigation (cf. paragraph 4 above).

(1) The Community courts has recognised such a margin of discretion for the Commission in its enforcement activities, see
e.g. Case C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999]
ECR I-1341, paragraph 88; Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, para-
graphs 73-77 and 85. See also paragraph 8 above.

(2) The Commission's possibility to refer to the Community interest presented by a case as a criterion of priority has been
settled case law since Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, paragraph 85.
The Authority considers that a similar possibility exists for the Authority within the context of the EEA Agreement.

(3) See in the Community context: Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997]

ECR I-1503, paragraph 36.

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(b) Legitimate interest

33. The status of formal complainant under Article 7(2) of Chapter II is reserved to legal and natural
persons who can show a legitimate interest (1). EFTA States are deemed to have a legitimate interest for
all complaints they choose to lodge.

34. In many cases, the condition of legitimate interest is not a matter of doubt as the complainants are in a
position of being directly and adversely affected by the alleged infringement. However, there are situa-
tions where the condition of a ‘legitimate interest’ in Article 7(2) requires further analysis to conclude
that it is fulfilled. Useful guidance can best be provided by a non-exhaustive set of examples.

35. The Court of First Instance of the European Communities has held that an association of undertakings
may claim a legitimate interest in lodging a complaint regarding conduct concerning its members, even
if it is not directly concerned, as an undertaking operating in the relevant market, by the conduct
complained of, provided that, first, it is entitled to represent the interests of its members and secondly,
the conduct complained of is liable to adversely affect the interests of its members (2). Conversely, the
Commission has been found to be entitled not to pursue the complaint of an association of undertak-
ings whose members were not involved in the type of business transactions complained of (3).

36. Taking account of this case law, the EFTA Surveillance Authority is of the opinion that undertakings
(themselves or through associations that are entitled to represent their interests) can claim a legitimate
interest where they are operating in the relevant market or where the conduct complained of is liable to
directly and adversely affect their interests. The Authority considers that a legitimate interest can, for
instance, be claimed by the parties to the agreement or practice which is the subject of the complaint,
by competitors whose interests have allegedly been damaged by the behaviour complained of or by
undertakings excluded from a distribution system.

37. Consumer associations can equally lodge complaints with the EFTA Surveillance Authority (4). The
Authority moreover holds the view that individual consumers whose economic interests are directly
and adversely affected insofar as they are the buyers of goods or services that are the object of an infrin-
gement can be in a position to show a legitimate interest (5).

38. However, the EFTA Surveillance Authority does not consider as a legitimate interest within the meaning
of Article 7(2) the interest of persons or organisations that wish to come forward on general interest
considerations without showing that they or their members are liable to be directly and adversely
affected by the infringement (pro bono publico).

39. Local or regional public authorities may be able to show a legitimate interest in their capacity as buyers
or users of goods or services affected by the conduct complained of. Conversely, they cannot be
considered as showing a legitimate interest within the meaning of Article 7(2) of Chapter II to the
extent that they bring to the attention of the EFTA Surveillance Authority alleged infringements pro
bono publico.

40. Complainants have to demonstrate their legitimate interest. Where a natural or legal person lodging a
complaint is unable to demonstrate a legitimate interest, the EFTA Surveillance Authority is entitled,
without prejudice to its right to initiate proceedings of its own initiative, not to pursue the complaint.
The Authority may ascertain whether this condition is met at any stage of the investigation (6).

(1) Cf. Article 5(1) of Chapter II.
(2) Case T-114/92, Bureau Européen des Médias et de l'Industrie Musicale (BEMIM) v Commission of the European Communities,
[1995] ECR II-147, paragraph 28. Associations of undertakings were also the complainants in the cases underlying the
judgments in Case 298/83, Comité des industries cinématographiques des Communautés européennes (CICCE) v Commission of the
European Communities, [1985] ECR 1105 and Case T-319/99, Federacion Nacional de Empresas (FENIN) v Commission of the
European Communities, not yet published in [2003] ECR.

(3) Joined Cases T-133/95 and T-204/95, International Express Carriers Conference (IECC) v Commission of

Communities, [1998] ECR II-3645, paragraphs 79-83.

the European

(4) See in the Community context: Case T-37/92, Bureau Européen des Unions des Consommateurs (BEUC) v Commission of the

European Communities, [1994] ECR II-285, paragraph 36.

(5) This question is currently raised in a pending procedure before the Court of First Instance of the European Communities
(Joined Cases T-213 and 214/01). The Commission has also accepted as complainant an individual consumer in its Deci-
sion of 9 December 1998 in Case IV/D-2/34.466, Greek Ferries, OJ L 109, 27.4.1999, p. 24, paragraph 1.
(6) Joined Cases T-133/95 and T-204/95, International Express Carriers Conference (IECC) v Commission of

the European

Communities, [1998] ECR II-3645, paragraph 79.

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C. Assessment of complaints

(a) Interest under the EEA Agreement

41. With reference to settled case law of the Community Courts and practice of the Commission, the EFTA
Surveillance Authority considers that it is not required to conduct an investigation in each case (1) or, a
fortiori, to take a decision within the meaning of Article 5(2)(a) of the Surveillance and Court Agreement
on the existence or non-existence of an infringement of Articles 53 or 54 of the EEA Agreement (2),
but is entitled to give differing degrees of priority to the complaints brought before it and refer to
interest under the EEA Agreement in order to determine the degree of priority to be applied to the
various complaints it receives (3). The position is different only if the complaint falls within the exclusive
competence of the Authority (4).

42. The EFTA Surveillance Authority must however examine carefully the factual and legal elements
brought to its attention by the complainant in order to assess the interest under the EEA Agreement in
further investigation of a case (5).

43. The assessment of interest under the EEA Agreement raised by a complaint depends on the circum-
stances of each individual case. Accordingly, the number of criteria of assessment to which the EFTA
Surveillance Authority may refer is not limited, nor is the Authority required to have recourse exclu-
sively to certain criteria. As the factual and legal circumstances may differ considerably from case to
case, it is permissible to apply new criteria which had not before been considered (6). Where appro-
priate, the Authority may give priority to a single criterion for assessing the Community interest under
the EEA Agreement (7).

44. Among the criteria which may be held relevant for the assessment of the interest under the EEA Agree-

ment in the (further) investigation of a case are the following:

— The EFTA Surveillance Authority can reject a complaint on the ground that the complainant can

bring an action to assert its rights before national courts (8).

— The Authority may not regard certain situations as excluded in principle from its purview under the
task entrusted to it by the EEA Agreement but is required to assess in each case how serious the
alleged infringements are and how persistent their consequences are. This means in particular that it
must take into account the duration and the extent of the infringements complained of and their
effect on the competition situation in the territory covered by the EEA Agreement (9).

— The Authority may have to balance the significance of the alleged infringement as regards the func-
tioning of the EEA Agreement, the probability of establishing the existence of the infringement and
the scope of the investigation required in order to fulfil its task of ensuring that Articles 53 and 54
of the EEA Agreement are complied with (10).

(1) Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, paragraph 76; Case C-91/95 P, Roger

Tremblay and Others v Commission of the European Communities, [1996] ECR I-5547, paragraph 30.

(2) Case 125/78, GEMA v Commission of the European Communities, [1979] ECR 3173, paragraph 17; Case C-119/97 P, Union

française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341, paragraph 87.

(3) Settled case law in the Community since Case T-24/90, Automec v Commission of the European Communities, [1992]

ECR II-2223, paragraphs 77 and 85; see also footnotes 26 and 27 above.

(4) Settled case law in the Community since Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-
2223, paragraph 75. Under Chapter II, this principle may only be relevant in the context of Article 29 of that Chapter.
(5) See in this context: Case 210/81, Oswald Schmidt, trading as Demo-Studio Schmidt v Commission of the European Communities,
[1983] ECR 3045, paragraph 19; Case C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European
Communities, [1999] ECR I-1341, paragraph 86.

(6) Case C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities, [1999] ECR I-1341,

paragraphs 79-80.

(7) See in this context: Case C-450/98 P, International Express Carriers Conference (IECC) v Commission of the European Communities,

[2001] ECR I-3947, paragraphs 57-59.

(8) See in this context: Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223, paragraphs 88ss.;
Case T-5/93, Roger Tremblay and Others v Commission of the European Communities, [1995] ECR II-185, paragraphs 65ss.;
Case T-575/93, Casper Koelman v Commission of the European Communities, [1996] ECR II-1, paragraphs 75-80; see also part
II above where more detailed explanations concerning this situation are given.

(9) See in this context: Case C-119/97 P, Union française de l'express (Ufex) and Others v Commission of the European Communities,

[1999] ECR I-1341, paragraphs 92 and 93.

(10) Settled case law in the Community since Case T-24/90, Automec v Commission of the European Communities, [1992]

ECR II-2223, paragraph 86.

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— While the Authority's discretion does not depend on how advanced the investigation of a case is,
the stage of the investigation forms part of the circumstances of the case which the Authority may
have to take into consideration (1).

— The Authority may decide that it is not appropriate to investigate a complaint where the practices in
question have ceased. However, for this purpose, the Authority will have to ascertain whether
anti-competitive effects persist and if the seriousness of the infringements or the persistence of their
effects does not give the complaint an interest under the EEA Agreement (2).

— The Authority may also decide that it is not appropriate to investigate a complaint where the under-
takings concerned agree to change their conduct in such a way that it can consider that there is no
longer a sufficient interest under the EEA Agreement to intervene (3).

45. Where it forms the view that a case does not display sufficient interest under the EEA Agreement to
justify (further) investigation, the EFTA Surveillance Authority may reject the complaint on that ground.
Such a decision can be taken either before commencing an investigation or after taking investigative
measures (4). However, the Authority is not obliged to set aside a complaint for lack of sufficiently
strong interest under the EEA Agreement (5).

(b) Assessment under Articles 53 and 54

46. The examination of a complaint under Articles 53 and 54 involves two aspects, one relating to the
facts to be established to prove an infringement of Articles 53 or 54 and the other relating to the legal
assessment of the conduct complained of.

47. Where the complaint, while complying with the requirements of Article 5 of Chapter III and Form C,
does not sufficiently substantiate the allegations put forward, it may be rejected on that ground (6). In
order to reject a complaint on the ground that the conduct complained of does not infringe the EEA
competition rules or does not fall within their scope of application, the EFTA Surveillance Authority is
not obliged to take into account circumstances that have not been brought to its attention by the
complainant and that it could only have uncovered by the investigation of the case (7).

48. The criteria for the legal assessment of agreements or practices under Articles 53 and 54 cannot be
dealt with exhaustively in the present Notice. However, potential complainants should refer to the exten-
sive guidance available from the EFTA Surveillance Authority (8), in addition to other sources and in
particular the case law of the EFTA Court and the Community Courts and the case practice of the
Authority and the Commission (9). Four specific issues are mentioned in the following points with indi-
cations on where to find further guidance.

(1) See in this context: Case C-449/98 P, International Express Carriers Conference (IECC) v Commission of the European Communities,

[2001] ECR I-3875, paragraph 37.

(2) See in this context: Case T-77/95, Syndicat français de l'Express International and Others v Commission of the European
Communities, [1997] ECR II-1, paragraph 57; Case C-119/97 P, Union française de l'express (Ufex) and Others v Commission of
the European Communities, [1999] ECR I-1341, paragraph 95. Cf. also Case T-37/92, Bureau Européen des Unions des Consom-
mateurs (BEUC) v Commission of the European Communities, [1994] ECR II-285, paragraph 113, where an unwritten commit-
ment between a Member State and a third county outside the common commercial policy was held not to suffice to estab-
lish that the conduct complained of had ceased.

(3) See in this context: Case T-110/95, International Express Carriers (IECC) v Commission of the European Communities and Others,
[1998] ECR II-3605, paragraph 57, upheld by Case 449/98 P, International Express Carriers (IECC) v Commission of the
European Communities and Others, [2001] ECR I-3875, paragraphs 44-47.

(4) See in this context: Case C-449/98 P, International Express Carriers (IECC) v Commission of the European Communities e.a,

[2001] ECR I-3875, paragraph 37.

(5) See in this context: Case T-77/92, Parker Pen v Commission of the European Communities, [1994] ECR II-549, paragraphs 64

and 65.

(6) Case 298/83, Comité des industries cinématographiques des Communautés européennes (CICCE) v Commission of the European
Communities, [1985] ECR 1105, paragraphs 21-24; Case T-198/98, Micro Leader Business v Commission of the European
Communities, [1999] ECR II-3989, paragraphs 32-39.

(7) See in this context: Case T-319/99, Federacion Nacional de Empresas (FENIN) v Commission of the European Communities, not

yet published in [2003] ECR, paragraph 43.

(8) Extensive guidance can be found on the Authority's website at:

http://www.eftasurv.int/fieldsofwork/fieldcompetition/

(9) As stated in Article 58 of the EEA Agreement and Protocol 23 thereto, the Authority and the Commission are to
co-operate with a view to inter alia promoting a homogenous implementation, application and interpretation of the EEA
Agreement. Although the Commission's Decisions and informal guidance letters are not binding on the Authority, the
Authority will thus endeavour to take due account of the case practice of the Commission.

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49. Agreements and practices fall within the scope of application of Articles 53 and 54 where they are
capable of affecting trade between the Contracting Parties to the EEA Agreement. Where an agreement
or practice does not fulfil this condition, national competition law may apply, but not EEA competition
law. Extensive guidance on this subject can be found in the Notice on the effect on trade concept (1).

50. Agreements falling within the scope of Article 53 may be agreements of minor importance which are
deemed not to restrict competition appreciably. Guidance on this issue can be found in the EFTA
Surveillance Authority's de minimis Notice (2).

51. Agreements that fulfil the conditions of a block exemption regulation are deemed to satisfy the condi-
tions of Article 53(3). For the EFTA Surveillance Authority to withdraw the benefit of the block exemp-
tion pursuant to Article 29 of Chapter II, it must find that upon individual assessment an agreement to
which the exemption regulation applies has certain effects which are incompatible with Article 53(3).

52. Agreements that restrict competition within the meaning of Article 53(1) of the EEA Agreement may
fulfil the conditions of Article 53(3) of the EEA Agreement. Pursuant to Article 1(2) of Chapter II and
without a prior administrative decision being required, such agreements are not prohibited. Guidance
on the conditions to be fulfilled by an agreement pursuant to Article 53(3) can be found in the Notice
on Article 53(3) (3).

D. The EFTA Surveillance Authority's procedures when dealing with complaints

(a) Overview

53. As recalled above, the EFTA Surveillance Authority is not obliged to carry out an investigation on the
basis of every complaint submitted with a view to establishing whether an infringement has been
committed. However, the Authority is under a duty to consider carefully the factual and legal issues
brought to its attention by the complainant, in order to assess whether those issues indicate conduct
which is liable to infringe Articles 53 and 54 (4).

54. In the EFTA Surveillance Authority's procedure for dealing with complaints, different stages can be

distinguished (5).

55. During the first stage, following the submission of the complaint, the EFTA Surveillance Authority
examines the complaint and may collect further information in order to decide what action it will take
on the complaint. That stage may include an informal exchange of views between the Authority and the
complainant with a view to clarifying the factual and legal
is
concerned. In this stage, the Authority may give an initial reaction to the complainant allowing the
complainant an opportunity to expand on his allegations in the light of that initial reaction.

issues with which the complaint

56. In the second stage, the EFTA Surveillance Authority may investigate the case further with a view to
initiating proceedings pursuant to Article 7(1) of Chapter II against the undertakings complained of.
Where the Authority considers that there are insufficient grounds for acting on the complaint, it will
inform the complainant of its reasons and offer the complainant the opportunity to submit any further
comments within a time-limit which it fixes (Article 7(1) of Chapter III).

(1) Notice on the effect on trade concept contained in Articles 53 and 54 of the EEA Agreement, not yet published.
(2) Authority Notice on agreements of minor importance which do not appreciably restrict competition under Article 53(1)
of the EEA Agreement (de minimis) (OJ C 67, 20.3.2003, p. 20) and EEA Supplement to the OJ No 15, 20.3.2003, p. 11.

(3) Authority Notice — Guidelines on the application of Article 53(3) of the EEA Agreement, not yet published.
(4) See in this context: Case 210/81, Oswald Schmidt, trading as Demo-Studio Schmidt v Commission of the European Communities,
[1983] ECR 3045, paragraph 19; Case T-24/90, Automec v Commission of the European Communities, [1992] ECR II-2223,
paragraph 79.

(5) See in this context: Cf. Case T-64/89, Automec v Commission of the European Communities, [1990] ECR II-367, para-
the European

graphs 45-47; Case T-37/92, Bureau Européen des Unions des Consommateurs (BEUC) v Commission of
Communities, [1994] ECR II-285, paragraph 29.

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57. If the complainant fails to make known its views within the time-limit set by the EFTA Surveillance
Authority, the complaint is deemed to have been withdrawn (Article 7(3) of Chapter III). In all other
cases, in the third stage of the procedure, the Authority takes cognisance of the observations submitted
by the complainant and either initiates a procedure against the subject of the complaint or adopts a
decision rejecting the complaint (1).

58. Where the EFTA Surveillance Authority rejects a complaint pursuant to Article 13 of Chapter II on the
grounds that another authority is dealing or has dealt with the case, the Authority proceeds in accord-
ance with Article 9 of Chapter III.

59. Throughout the procedure, complainants benefit from a range of rights as provided in particular in
Articles 6 to 8 of Chapter III. However, proceedings of the EFTA Surveillance Authority in competition
cases do not constitute adversarial proceedings between the complainant on the one hand and the
companies which are the subject of the investigation on the other hand. Accordingly, the procedural
rights of complainants are less far-reaching than the right to a fair hearing of the companies which are
the subject of an infringement procedure (2).

(b) Indicative time limit for informing the complainant of the EFTA Surveillance Authority's proposed action

60. The EFTA Surveillance Authority is under an obligation to decide on complaints within a reasonable
time (3). What is a reasonable duration depends on the circumstances of each case and in particular, its
context, the various procedural steps followed by the Authority, the conduct of the parties in the course
of the procedure, the complexity of the case and its importance for the various parties involved (4).

61. The EFTA Surveillance Authority will in principle endeavour to inform complainants of the action that
it proposes to take on a complaint within an indicative time frame of four months from the reception
of the complaint. Thus, subject to the circumstances of the individual case and in particular the possible
need to request complementary information from the complainant or third parties, the Authority will
in principle inform the complainant within four months whether or not it intends to investigate its case
further. This time-limit does not constitute a binding statutory term.

62. Accordingly, within this four month period, the EFTA Surveillance Authority may communicate its
proposed course of action to the complainant as an initial reaction within the first phase of the proce-
dure (see point 55 above). The Authority may also, where the examination of the complaint has
progressed to the second stage (see point 56 above), directly proceed to informing the complainant
about its provisional assessment by a letter pursuant to Article 7(1) of Chapter III.

63. To ensure the most expeditious treatment of their complaint, it is desirable that complainants cooperate
diligently in the procedures (5), for example by informing the EFTA Surveillance Authority of new devel-
opments.

(c) Procedural rights of the complainant

64. Where the EFTA Surveillance Authority addresses a statement of objections to the companies
complained of pursuant to Article 10(1) of Chapter III, the complainant is entitled to receive a copy of
this document from which business secrets and other confidential
information of the companies
concerned have been removed (non-confidential version of the statement of objections; cf. Article 6(1)
of Chapter III). The complainant is invited to comment in writing on the statement of objections. A
time-limit will be set for such written comments.

(1) See in this context: Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997] ECR I-1503, para-

graph 36.

(2) Joined Cases 142 and 156/84, British American Tobacco Company and R. J. Reynolds Industries v Commission of the European

Communities, [1987] ECR 249, paragraphs 19-20.

(3) See in this context: Case C-282/95 P, Guérin automobiles v Commission of the European Communities, [1997] ECR I-1503, para-

graph 37.

(4) See in this context: Joined Cases T-213/95 and T-18/96, Stichting Certificatie Kraanverhuurbedrijf (SCK) and Federatie van

Nederlandse Kraanbedrijven (FNK) v Commission of the European Communities, [1997] ECR 1739, paragraph 57.

(5) The notion of ‘diligence’ on the part of the complainant is used by the Court of First Instance of the European Communities
the European

in Case T-77/94, Vereniging van Groothandelaren in Bloemkwekerijprodukten and Others v Commission of
Communities, [1997] ECR II-759, paragraph 75.

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65. Furthermore, the EFTA Surveillance Authority may, where appropriate, afford complainants the oppor-
tunity of expressing their views at the oral hearing of the parties to which a statement of objections has
been addressed, if the complainants so request in their written comments (1).

66. Complainants may submit, of their own initiative or following a request by the EFTA Surveillance
Authority, documents that contain business secrets or other confidential information. Confidential infor-
mation will be protected by the Authority (2). Under Article 16 of Chapter III, complainants are obliged
to identify confidential information, give reasons why the information is considered confidential and
submit a separate non-confidential version when they make their views known pursuant to Articles 6(1)
and 7(1) of Chapter III, as well as when they subsequently submit further information in the course of
the same procedure. Moreover, the Authority may,
in all other cases, request complainants which
produce documents or statements to identify the documents or parts of the documents or statements
which they consider to be confidential. It may in particular set a deadline for the complainant to specify
why it considers a piece of information to be confidential and to provide a non-confidential version,
including a concise description or non-confidential version of each piece of information deleted.

67. The qualification of information as confidential does not prevent the EFTA Surveillance Authority from
disclosing and using information where that is necessary to prove an infringement of Articles 53 or
54 (3). Where business secrets and confidential information are necessary to prove an infringement, the
Authority must assess for each individual document whether the need to disclose is greater than the
harm which might result from disclosure.

68. Where the EFTA Surveillance Authority takes the view that a complaint should not be further examined,
because there is no sufficient interest under the EEA Agreement in pursuing the case further or on
other grounds, it will inform the complainant in the form of a letter which indicates its legal basis
(Article 7(1) of Chapter III), sets out the reasons that have led the Authority to provisionally conclude
in the sense indicated and provides the complainant with the opportunity to submit supplementary
information or observations within a time-limit set by the Authority. The Authority will also indicate
the consequences of not replying pursuant to Article 7(3) of Chapter III, as explained below.

69. Pursuant to Article 8(1) of Chapter III, the complainant has the right to access the information on
which the Authority bases its preliminary view. Such access is normally provided by annexing to the
letter a copy of the relevant documents.

70. The time-limit for observations by the complainant on the letter pursuant to Article 7(1) of Chapter III
will be set in accordance with the circumstances of the case. It will not be shorter than four weeks
(Article 17(2) of Chapter III). If the complainant does not respond within the time-limit set, the
complaint is deemed to have been withdrawn pursuant to Article 7(3) of Chapter III. Complainants are
also entitled to withdraw their complaint at any time if they so wish.

71. The complainant may request an extension of the time-limit for the provision of comments. Depending

on the circumstances of the case, the EFTA Surveillance Authority may grant such an extension.

72. In that case, where the complainant submits supplementary observations,

the EFTA Surveillance
Authority takes cognisance of those observations. Where they are of such a nature as to make the
Authority change its previous course of action,
it may initiate a procedure against the companies
complained of. In this procedure, the complainant has the procedural rights explained above.

73. Where the observations of the complainant do not alter the EFTA Surveillance Authority's proposed

course of action, it rejects the complaint by decision (4).

(1) Article 6(2) of Chapter III.
(2) Article 122 of the EEA Agreement, Article 14(4) of the Surveillance and Court Agreement, Article 28 of Chapter II and

Articles 15 and 16 of Chapter III.

(3) Article 27(2) of Chapter II.
(4) Article 7(2) of Chapter III, see in this context Case C-282/95 P, Guérin automobiles v Commission of the European Communities,

[1997] ECR I-1503, paragraph 36.

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(d) The EFTA Surveillance Authority decision rejecting a complaint

74. Where the EFTA Surveillance Authority rejects a complaint by decision pursuant to Article 7(2) of
Chapter III, it must state the reasons in accordance with Article 16 of the Surveillance and Court Agree-
ment, i.e. in a way that is appropriate to the act at issue and takes into account the circumstances of
each case.

75. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by
the EFTA Surveillance Authority in such a way as to enable the complainant to ascertain the reasons for
the decision and to enable the EFTA Court to exercise its power of review. However, the Authority is
not obliged to adopt a position on all the arguments relied on by the complainant in support of its
complaint. It only needs to set out the facts and legal considerations which are of decisive importance
in the context of the decision (1).

76. Where the EFTA Surveillance Authority rejects a complaint in a case that also gives rise to a decision
pursuant to Article 10 of Chapter II (Finding of inapplicability of Articles 53 or 54) or Article 9 of
Chapter II (Commitments), the decision rejecting a complaint may refer to that other decision adopted
on the basis of the provisions mentioned.

77. A decision to reject a complaint is subject to appeal before the EFTA Court (2).

78. A decision rejecting a complaint prevents complainants from requiring the reopening of the investiga-
tion unless they put forward significant new evidence. Accordingly, further correspondence on the same
alleged infringement by former complainants cannot be regarded as a new complaint unless significant
new evidence is brought to the attention of the EFTA Surveillance Authority. However, the Authority
may re-open a file under appropriate circumstances.

79. A decision to reject a complaint does not definitively rule on the question of whether or not there is an
infringement of Articles 53 or 54, even where the EFTA Surveillance Authority has assessed the facts
on the basis of Articles 53 and 54. The assessments made by the Authority in a decision rejecting a
complaint therefore do not prevent an EFTA State court or competition authority from applying Arti-
cles 53 and 54 to agreements and practices brought before it. The assessments made by the Authority
in a decision rejecting a complaint constitute facts which EFTA States' courts or competition authorities
may take into account in examining whether the agreements or conduct in question are in conformity
with Articles 53 and 54 (3).

(e) Specific situations

80. According to Article 8 of Chapter II, the EFTA Surveillance Authority may on its own initiative order
interim measures where there is the risk of serious and irreparable damage to competition. Article 8 of
Chapter II makes it clear that interim measures cannot be applied for by complainants under Article 7(2)
of Chapter II. Requests for interim measures by undertakings can be brought before EFTA States' courts
which are well placed to decide on such measures (4).

81. Some persons may wish to inform the EFTA Surveillance Authority about suspected infringements of
Articles 53 or 54 without having their identity revealed to the undertakings concerned by the allega-
tions. These persons are welcome to contact the Authority. The Authority is bound to respect an infor-
mant's request for anonymity (5), unless the request to remain anonymous is manifestly unjustified.

(1) Settled case law, cf. Case E-2/94, Scottish Salmon Growers Association Limited v the EFTA Surveillance Authority, EFTA Court
Report [1994-1995] p. 59, Case E-4/97, Norwegian Bankers' Association v the EFTA Surveillance Authority, EFTA Court
Report [1998], p. 38, and in the Community i.a. Case T-114/92, Bureau Européen des Médias et de l'Industrie Musicale
(BEMIM) v Commission of the European Communities, [1995] ECR II-147, paragraph 41.

(2) Article 36(2) of the Surveillance and Court Agreement. See in the Community context: Case 210/81, Oswald Schmidt,

trading as Demo-Studio Schmidt v Commission of the European Communities, [1983] ECR 3045.

(3) See in this context: Case T-575/93, Casper Koelman v Commission of the European Communities, [1996] ECR II-1, para-

graphs 41-43.

(4) Depending on the case, EFTA States' competition authorities may equally be well placed to adopt interim measures.
(5) Case 145/83, Stanley George Adams v Commission of the European Communities, [1985] ECR 3539.

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ANNEX