CELEX: 51998PC0236
Language: en
Date: 1998-04-20
Title: Proposal for a Council and Commission Decision on the position to be taken by the Community within the Association Council established by the Europe Agreement between the European Communities and their Member States of the one part, and Romania of the other part, signed in Brussels on 1 February 1993, with regard to the adoption of the rules for the implementation of Article 64(1)(i), (1)(ii) and (2) of the Europe Agreement and for the implementation of Article 9(1)(1), (1)(2) and (2) of Protocol 2 on ECSC products to the Europe Agreement

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                        Brussels, 20.04.1998
                                                        COM(1998) 236 final
                                                        98/0139 (CNS)
                                         Proposal for a
                        COUNCIL AND COMMISSION DECISION
On the position to be taken by the Community within the Association Council established by
the Europe Agreement between the European Communities and their Member States of the
one part, and Romania of the other part, signed in Brussels on 1 February 1993, with regard
to the adoption of the rules for the implementation of Article 64 (l)(i), (l)(ii) and (2) of the
Europe Agreement and for the implementation of Article 9(1)(1), (1)(2) and (2) of Protocol 2
on ECSC products to the Europe Agreement.
                                (presented by the Commission)
 ---pagebreak---  ---pagebreak---                                             2-3
                              EXPLANATORY MEMORANDUM
Article 64 (3) of the Europe Agreement establishing an association between the European
Communities and their Member States, of the one part, and Romania, of the other part, signed
in Brussels on 1 February 1993, provides that the necessary rules for the implementation of
paragraphs 1 and 2 of that Article (i.e. the competition provisions) shall be adopted by the
Association Council. The time-limit for these rules to be adopted is three years from the
entry into force of the Agreement; in accordance with Article 126 (1) of the Agreement, the
time-limit runs from 1 January 1993.
The competition provisions are one of the basic points of the Europe Agreement between the
European Communities and Romania. Their actual implementation, through the adoption of
the attached rules by the Association Council, is a prerequisite for the smooth development of
trade relations between the two parties. The proposed decision lays down procedures for
cooperation between the two parties competition authorities. It is confirmed that the
principles embodied in the block exemption rules in force in the Community will apply, and
there is provision for a consultation procedure within the Association Council should
disagreement arise between the two competition authorities.
According to Article 2 (1) of the Decision of the Council and the Commission of 19
December 1994 on the conclusion of the Europe Agreement, the position to be taken by the
 Community within the Association Council shall be laid down in accordance with the
 corresponding provisions of the Treaties establishing the European Communities. Article 87,
and 228 of the EC Treaty as well as Article 65 and 66 of the ECSC Treaty are appropriate
 legal basis for the position to be adopted by the Community in the Association Council with
regard to rules for the implementation of the competition provisions applicable to
undertakings. As a result, it is desirable that the Council and the Commission should adopt
the attached decision.
 The Commission therefore requests the Council to adopt the attached proposal for a Council
 and Commission Decision.
 ---pagebreak---                        Proposalfor a Council and Commission Decision
On the position to be taken by the Community within the Association Council established by
the Europe Agreement between the European Communities and their Member States of the
one part, and Romania of the other part, signed in Brussels on 1 February 1993, with regard
to the adoption of the rules for the implementation of Article 64 (l)(i), (l)(ii) and (2) of the
Europe Agreement and for the implementation of Article 9(1)(1), (1)(2) and (2) of Protocol 2
on ECSC products to the Europe Agreement.
The Council of the European Union,
The Commission of the European Communities,
Having regard to the Treaty establishing the European Community, and in particular Articles
87 and 235 in connection with Article 228 para. 2, second sentence and para. 3, first section,
Having regard to the Treaty establishing the European Coal and Steel Community, in
particular Articles 65 and 66,
 Having regard to the opinion of the European Parliament,
Having regard to the Decision of the Council and the Commission of 19 December 1994 on
the conclusion of the Europe Agreement between the European Communities and their
 Member States, of the one part, and Romania, of the other part, and in particular Article 2 (1)
thereof,
 Whereas Article 64 (3) of the Europe Agreement lays down that the Association Council shall
adopt the rules necessary for the implementation of paragraphs 1. and 2. of that Article,
 Whereas Article 9 (3) of Protocol 2 to the Europe Agreement on products covered by the
 ECSC Treaty lays down that the Association Council shall adopt the necessary rules for the
 implementation of paragraphs 1 and 2 of that Article,
 HAVE DECIDED AS FOLLOWS :
 The position to be taken by the Community within the Association Council established by the
 Europe Agreement between the European communities and their Member States, of the one
 part, and Romania, of the other part, with regard to the rules implementing Article 64 (l)(i),
 (l)(ii) and (2) of the aforementioned Europe Agreement, and to the rules implementing
 Article 9 (1)(1), (1)(2) and (2) of the Protocol 2 on ECSC products to the Europe Agreement
 shall be based on the draft decision of the Association Council annexed to this Decision.
 Done at Brussels
 For the Council                                       For the Commission
 ---pagebreak--- Association between the European Union
and Romania
The Association Council
                       Draft decision n° ..J....of the Association Council
       between the European Communities and their Member States, of the one part,
                                 and Romania, of the other part,
                                             of .J....
adopting the necessary rules for the implementation of Article 64 (l)(i), (l)(ii) and (2) of the
Europe Agreement between the European Communities and their Member States, of the one
part, and Romania, of the other part, and the rules for the implementation of Article 9 (1)(1),
(1)(2) and (2) of Protocol 2 on ECSC products to the same agreement,
The Association Council,
Having regard to the Europe Agreement establishing an association between the European
Communities and the Member States, of the one part, and Romania, of the other part, and in
particular Article 64 (3) thereof,
Having regard to Protocol 2 on ECSC products to the aforementioned Europe Agreement, and
in particular Article 9 (3) thereof,
Whereas Article 64 (3) of the Europe Agreement lays down that the Association Council
shall, within three years of the entry into force of the Agreement, adopt by decision the
necessary rules for the implementation of paragraphs 1 and 2 of that Article,
Whereas Article 9 (3) of Protocol 2 to the Europe Agreement lays down that the Association
Council shall, within three years of the entry into force of the Agreement, adopt by decision
the necessary rules for the implementation of paragraphs 1 and 2 of that Article,
HAS DECIDED AS FOLLOWS :
The necessary rules implementing Article 64 (l)(i), (l)(ii) and (2) of the Europe Agreement
establishing an association between the European Communities and their member States, of
the one part, and Romania, of the other part, and the rules implementing Article 9 (1)(1),
(1)(2) and (2) of Protocol 2 on ECSC products to the aforementioned Europe Agreement, as
set out in the Annex to this Decision, are hereby adopted.
Done at Brussels,
The Secretaries                                         For the Association Council
                                                        The President
 ---pagebreak--- Implementing Rules for the application of the competition provisions applicable to undertakings
provided for in Art. 64 (l)(i), (l)(ii), and (2) of the Europe Agreement establishing an
association between the European Communities and their Member States, of the one part, and
Romania of the other part, and in Article 9 (1)(1), (1)(2) and (2) of Protocol 2 on ECSC
products to that agreement.
ARTICLE 1 : GENERAL PRINCIPLE
Cases relating to agreements between undertakings, decisions by associations of undertakings
and concerted practices between undertakings which have as their object or effect the
prevention, restriction or distortion of competition as well as to abuses of a dominant position in
the territories of the Community or of Romania as a whole or in a substantial part thereof, which
may affect trade between the Community and Romania shall be settled according to the
principles contained in Article 64 (1) and (2) of the Europe Agreement.
For this purpose, these cases are dealt with by the Commission of the European Communities
(DG IV) on the Community side and the Competition Office and the Competition Council
(COCC) on the Romanian side.
The competences of the EC Commission and the COCC to deal with these cases shall flow
from the existing rules of the respective legislation of the Community and Romania, including
where these rules are applied to undertakings located outside the respective territory.
Both authorities shall settle the cases in accordance with their own substantive rules, and having
regard to the provisions set out below. The relevant substantive rules of the authorities are the
competition rules of the Treaty establishing the European Community as well as the ECSC
Treaty including the competition-related secondary legislation, for the EC Commission and the
Romanian Competition Law nr. 21 of 10/4/96 for the COCC.
ECONOMIC ACTIVITIES UNDER THE EC TREATY
ARTICLE 2 : COMPETENCE OF BOTH COMPETITION AUTHORITIES
Cases under Article 64 of the Europe Agreement which may affect both the Community and the
Romanian market and which may fall under the competence of both competition authorities
shall be dealt with by the EC Commission and the COCC, according to the rules under this
Article.
2.1      Notification
2.1.1    The competition authorities shall notify to each other those cases they are dealing with,
         which, according to the general principle laid out in Article 1, appear to fall as well
         under the competence of the other authority.
 ---pagebreak--- 2.1.2 This situation may arise in particular in cases concerning activities that:
              Involve anti-competitive activities carried out in the other authority's territory,
              Are relevant to enforcement activities of the other competition authority,
              Involve remedies that would require or prohibit conduct in the other authority's
              territory.
2.1.3 Notification under this Article shall include sufficient information to permit an initial
      evaluation by the recipient party of any effects on its interests. Copies of the
      notifications shall be submitted on a regular basis to the Association Council under the
      Europe Agreement.
2.1.4 Notification shall be made in advance, as soon as possible and at the latest at the stage of
      an investigation still far enough in advance of the adoption of a settlement or decision,
      so as to facilitate comments or consultations and to enable the proceeding authority to
      take into account the other authority's views, as well as to take such remedial action it
      may find feasible under its own laws, in order to deal with the case in question.
2.2   Consultation and Comity
      Whenever the EC Commission or the COCC considers that anti-competitive activities
      carried out on the territory of the other authority are substantially affecting important
      interests of the respective Party, it may request consultation with the other authority, or
      it may request that the other Party's competition authority initiate any appropriate
      procedures with a view to take remedial action under its legislation on anti-competitive
      activities. This is without prejudice to any action under the requesting Party's
      competition law and does not hamper the full freedom of ultimate decision of the
      authority so addressed.
2.3   Finding of an Understanding
      The competition authority so addressed shall give full and sympathetic consideration to
      such views and factual materials as may be provided by the requesting authority and, in
      particular, to the nature of the anti-competitive activities in question, the enterprises
       involved and the alleged harmful effects on the important interests of the requesting
       Party.
       Without prejudice to any of their rights or obligations, the competition authorities
       involved in consultations under this Article shall endeavour to find a mutually
       acceptable solution in the light of the respective important interests involved.
 ---pagebreak--- ARTICLE 3 : COMPETENCE OF ONE COMPETITION AUTHORITY ONLY
3.1      Cases falling under the exclusive competence of one competition authority, in
         accordance with the principle laid down in Article 1, and which may affect important
         interests of the other Party, shall be handled having regard to the provisions set out in
         Article 2, and taking account of the principles set out below.
3.2      In particular, whenever one of the competition authorities undertakes an investigation or
         proceeding in a case which is found to affect important interests of the other Party, the
         proceeding authority shall notify this case to the other authority, without formal request
         by the latter.
ARTICLE 4 : REQUEST FOR INFORMATION
Whenever the competition authority of a Party becomes aware of the fact that a case, falling
also or only under the competence of the other authority, appears to affect important interests of
the first Party, it may request information about this case from the proceeding authority.
The proceeding authority shall give sufficient information to the extent possible and at a stage
of its proceedings far enough in advance of the adoption of a decision or settlement to enable
the requesting authority's views to be taken into account.
ARTICLE 5 : SECRECY AND CONFIDENTIALITY OF INFORMATION
 5.1     Having regard to Article 64 (7) of the Europe Agreement, neither competition authority
         is required to provide information to the other authority if disclosure of that information
         to the requesting authority is prohibited by the law of the authority possessing the
         information, or would be incompatible with important interests of the Party whose
         authority is in possession of the information.
5.2      Each authority agrees to maintain, to the fullest extent possible, the confidentiality of
         any information provided to it in confidence by the other authority.
ARTICLE 6 : BLOCK EXEMPTIONS
In the application of Article 64 of the Europe Agreement as provided for in Articles 2 and 3 of
these implementing rules, the competition authorities shall ensure that the principles contained
in the block exemption regulations in force in the Community shall be applied in full. The
COCC shall be informed of any procedure related to the adoption, abolition or modification of
block exemptions by the Community.
Where such block exemption regulations encounter serious objections on the Romanian side,
and having regard to the approximation of legislation as foreseen in the Europe Agreement,
consultations shall take place in the Association Council, in accordance with the provisions
contained in Article 9.
 ---pagebreak--- The same principles shall apply regarding other significant changes in the Community or
Romanian competition policies.
ARTICLE 7 : MERGER CONTROL
With regard to mergers which fall within Council Regulation (EEC) n° 4064/89 of 21
December 1989 on the control of concentrations between undertakings ( , and which have a
significant impact on the Romanian economy, the COCC shall be entitled to express its view in
the course of the procedure, taking into account the time limits as provided for in the
aforementioned Regulation. The EC Commission shall give due consideration to that view,
without prejudice to any action under the Parties' respective competition laws.
ARTICLE 8 : ACTIVITIES OF MINOR IMPORTANCE
8.1      Anti-competitive activities whose effects on trade between the Parties or on competition
         are negligible, do not fall under Article 64 (1) of the Europe Agreement, and therefore,
         are not to be treated under Articles 2 to 6 of these implementing rules.
8.2     Negligible effects in the sense of Article 8.1 are generally presumed to exist when
                 the aggregate annual turnover of the participating undertakings does not exceed
                 ECU 200 millions, and
                 the goods or services which are the subject of the agreement together with the
                 participating undertakings' other goods or services which are considered by users
                 to be equivalent in view of their characteristics, price and intended use, do not
                 represent more than 5% of the total market for such goods or services in the area
                 of the common market affected by the agreement, and the Romanian market
                 affected by the agreement.
ARTICLE 9 : ASSOCIATION COUNCIL
9.1     Whenever the procedures provided for in Articles 2 and 3 above do not lead to a
        mutually acceptable solution, as well as in other cases explicitly mentioned in these
        implementing rules, an exchange of views shall take place in the Association Council at
        the request of one Party within 3 months following the request.
(,)
    OJ n° L395 of 30.12.89, as last modified by Regulation (EC) n° 1310/97 (OJ n° L180 of
09.07.1997)
 ---pagebreak---                                                    10
9.2     Following this exchange of views, or after expiry of the period referred to in paragraph
        9.1., the Association Council may make appropriate recommendations for the settlement
        of these cases, without prejudice to Article 64 (6) of the Europe Agreement. In these
        recommendations, the Association Council may take into account any failure of the
        requested authority to give its point of view to the requesting authority witliin the period
        referred to in Art. 9.1.
9.3     These procedures in the Association Council are without prejudice to any action under
        the respective competition laws in force in the territory of the Parties.
ARTICLE 10 : NEGATIVE CONFLICT OF COMPETENCE
When both the EC Commission and the COCC consider that neither of them is competent to
handle a case on the basis of their respective legislation, an exchange of views shall take place
on request in the Association Council. The Community and Romania shall endeavour to find a
mutually acceptable solution in the light of the respective important interests involved with the
support of the Association Council, which may make appropriate recommendations, without
prejudice to Article 64 (6) of the Europe Agreement, and the rights of individual Member States
of the European Communities on the basis of their competition rules.
ECONOMIC ACTIVITIES UNDER THE ECSC TREATY
ARTICLE 11: TREATY ESTABLISHING THE EUROPEAN COAL AND                                       STEEL
                  COMMUNITY (ECSC)
The provisions contained in Articles 1 to 6 and 8 to 10 above shall apply with respect to the coal
and steel sector as referred to in Protocol 2 to the Europe Agreement.
ARTICLE 12 : ADMINISTRATIVE ASSISTANCE (LANGUAGES)
The EC Commission and the COCC shall provide for practical arrangements, for mutual
assistance or any other appropriate solution concerning in particular the question of translations.
 ---pagebreak---  ---pagebreak---                                              u
                                                                    ISSN 0254-1475
                                                             COM(98) 236 final
                                               DOCUMENTS
EN                                                              11 06 01 02
                                    Catalogue number : CB-C0-98-254-EN-C
                                                              ISBN 92-78-35163-6
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