E1994A1231(05)

PROTOCOL 4 on the functions and powers of the EFTA Surveillance Authority in the field of competition

Table of contents with references to the corresponding EC Acts or provisions of the EEA Agreement

Page

PART I GENERAL RULES . 14

Chapter I Introduction . 14

Chapter II General procedural rules implementing Articles 53 and 54 of the EEA Agreement (see Regulation 17/62) . 14

Chapter III Form, content and other details concerning applications and notifications (see Regulation 27/62) . 20

Chapter IV Hearings provided for in Article 19 (1) and (2) of Chapter II (see Regulation 99/63) . 20

Chapter V Limitation periods in proceedings and the enforcement of sanctions under the rules relating to transport and competition as contained in Chapters II to IV and VI to XIV (see No Regulation (EEC) No 2988/74) . 22

PART II TRANSPORT . 23

Chapter VI Application of rules of competition to transport by rail, road and inland waterway (see Regulation (EEC) No 1017/68, Articles 6 and 10 to 31) 23

Chapter VII Form, content and other details of complaints pursuant to Article 10, applications pursuant to Article 12 and notifications pursuant to Article 14 (1) of Chapter VI (see Regulation (EEC) No 1629/69) . 29

Chapter VIII Hearings provided for in Article 26 (1) of Chapter VI (see Regulation (EEC) No 1630/69) . 30

Chapter IX Rules for the application of Articles 53 and 54 of the EEA Agreement to maritime transport (see Regulation (EEC) No 4056/86, Section II) . 31

Chapter X The obligation of communication, the form, content and other details of complaints and of applications, and the hearings provided for in Chapter IX (see Regulation (EEC) No 4260/88) . 37

Chapter XI Procedure for the application of the rules on competition to undertakings in the air transport sector (see Regulation (EEC) No 3975/87) . 39

Chapter XII Form, content and other details of complaints and of applications, and the hearings provided for in Chapter XI laying down the procedure for the application of the rules of competition to undertakings in the air transport sector (see Regulation (EEC) No 4261/88) . 45

PART III CONTROL OF CONCENTRATIONS . 47

Chapter XIII Rules relating to control of concentrations between undertakings (see Regulation (EEC) No 4064/89, Articles 6 to 25) . 47

Chapter XIV Detailed rules concerning notifications, time limits and hearings in the field of control of concentrations between undertakings (see Regulation (EEC) No 2367/90) . 55

PART IV COAL AND STEEL . 59

Chapter XV Rules applicable to undertakings in the field of coal and steel . 59

Section I General rules regarding agreements and concentrations (see Articles 65 (2), subparagraphs 3 to 5, (3), (4), subparagraphs 2 and (5) and 66 (2), subparagraphs 2 to 4, and (4) to 6, 47, 36 (1) and 82 of ECSC Treaty) 59

Section II Information to be furnished (Article 2 (4) of Section I) (see Decision 26/54) 62

Section III Limitation periods in proceedings and the enforcement of sanctions under Protocol 25 to the EEA Agreement and the present chapter (see Decision 715/78/EEC) . 63

Section IV Powers of officials and agents of the EFTA Surveillance Authority instructed to carry out the checks provided for in Protocol 25 to the EEA Agreement and in this chapter (see Decision 379/84/EEC) . 64

PART V TRANSITIONAL AND OTHER RULES . 64

Chapter XVI Transitional and other rules . 64

Section I Rules applicable to Chapters II to XII and XV (see Articles 5 et seq. of Protocol 21 to the EEA Agreement) . 64

Section II Rules applicable to Chapters XIII and XIV (see Article 25 (2) of Regulation (EEC) No 4064/89) . 66

APPENDICES

Appendix 7 List of certain technical agreements in the air transport sector, referred to in Article 2 of Chapter XI . 67

PART I GENERAL RULES

CHAPTER I Introduction

Article 1

This Protocol sets out provisions for the implementation of competition rules applicable to undertakings in the EEA Agreement, and in particular for the implementtion of Protocols 21 to 25 to that Agreement.

Article 2

1. Chapters II to V, XIII and XIV apply to all sectors covered by the EEA Agreement unless otherwise provided.

2. Chapters II to IV shall not apply to agreements, decisions or concerted practices in the transport sector which have as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport or the sharing of transport markets; nor shall they apply to the abuse of a dominant position, within the meaning of Article 54 of the EEA Agreement, within the transport market. Such cases are covered by Chapters VI to XII.

3. Chapters II to V, XIII and XIV shall not apply to cases covered by Chapter XV, on the conditions set out therein.

Article 3

Chapter XVI sets out the transitional rules applicable for Chapters II to XV.

Article 4

The EFTA Surveillance Authority may, in accordance with Article 49 of this Agreement, submit to the Governments of the EFTA States proposals for amendments to this Protocol including its Appendices.

CHAPTER II General procedural rules implementing Articles 53 and 54 of the EEA Agreement

Article 1

Basic provision

Without prejudice to Article 6 of this chapter and Article 3 of Chapter XVI, agremeents, decisions and concerted practices of the kind described in Article 53 (1) of the EEA Agreement and the abuse of a dominant position in the market, within the meaning of Article 54 of the EEA Agreement, shall be prohibited, no prior decision to that effect being required.

Article 2

Negative clearance

Upon application by the undertakings or associations of undertakings concerned, the EFTA Surveillance Authority may certify that, on the basis of the facts in its possession, there are no grounds pursuant to Article 53 (1) or Article 54 of the EEA Agreement for action on its part in respect of an agreement, decision or practice.

Article 3

Termination of infringements

1. Where the EFTA Surveillance Authority, upon application or upon its own initiative, finds that there is infringement of Article 53 or Article 54 of the EEA Agreement, it may by decision require the undertakings or associations of undertakings concerned to bring such infringement to an end.

2. Those entitled to make application are:

(a) EFTA States;

(b) natural or legal persons who claim a legitimate interest.

3. Without prejudice to the other provisions of this Protocol, the EFTA Surveillance Authority may, before taking a decision pursuant to paragraph 1, address to the undertakings or associations of undertakings concerned recommendations for termination of the infringement.

Article 4

Notification of new agreements, decisions and practices

1. Agreements, decisions and concerted practices of the kind described in Article 53 (1) of the EEA Agreement which come into existence after the entry into force of the EEA Agreement and in respect of which the parties seek application of Article 53 (3) of the EEA Agreement shall be notified to the EFTA Surveillance Authority pursuant to Article 56 of the EEA Agreement, the rules referred to in Articles 1 to 3 of Protocol 21 and the rules referred to in Protocol 23 to the EEA Agreement, as well as in Chapters III, VI, VII, IX, X, XI, XII and XV. Until they have been notified, no decision in application of Article 53 (3) may be taken.

2. Paragraph 1 shall not apply to agremeents, decisions and concerted practices where:

(a) the only parties thereto are undertakings from one EC Member State or from one EFTA State and the agreements, decisions or concerted practices do not relate either to imports or to exports between Contracting Parties to the EEA Agreement;

(b) not more than two undertakings are party thereto, and the agreements only:

(i) restrict the freedom of one party to the contract in determining the prices or conditions of business upon which the goods which he has obtained from the other party to the contract may be resold;

or

(ii) impose restrictions on the exercise of the rights of the assignee or user of industrial property rights - in particular patents, utility models, designs on trademarks - or of the person entitled under a contract to the assignment, or grant, of the right to use a method of manufacture or knowledge relating to the use and to the application of industrial processes;

(c) they have as their sole object:

(i) the development or uniform application of standards or types;

or

(ii) joint research or development;

or

(iii) specialization in the manufacture of products including agreements necessary for achieving this:

- where the products which are the subject of specialization do not, in a substantial part of the territory covered by this Agreement, represent more than 15 % of the volume of business done in identical products or those considered by consumers to be similar by reason of their characteristics, price and use,

and

- where the total annual turnover of the participating undertakings does not exceed ECU 200 million.

These agreements, decisions and concerted practices may be notified to the EFTA Surveillance Authority pursuant to Article 56 of the EEA Agreement, the rules referred to in Articles 1 to 3 of Protocol 21 and the rules referred to in Protocol 23 to the EEA Agreement, as well as in Chapters III, VI, VII, IX, X, XI, XII and XV.

Article 5

Notification of existing agreements, decisions and practices

(See Article 1 of Chapter XVI.)

Article 6

Decisions pursuant to Article 53 (3) of the EEA Agreement

1. Whenever the EFTA Surveillance Authority takes a decision pursuant to Article 53 (3) of the EEA Agreement, it shall specify therein the date from which the decision shall take effect. Such date shall not be earlier than the date of notification.

2. The second sentence of paragraph 1 shall not apply to agreements, decisions or concerted practices falling within Article 4 (2) of this chapter and Article 1 (2) of Chapter XVI, nor to those falling within Article 1 (1) of Chapter XVI which have been notified within the time limit specified in Article 1 (1) of Chapter XVI.

Article 7

Special provisions for existing agreements, decisions and practices

(See Article 3 of Chapter XVI.)

Article 8

Duration and revocation of decisions pursuant to Article 53 (3)

1. A decision in application of Article 53 (3) of the EEA Agreement shall be issued for a specified period and conditions and obligations may be attached thereto.

2. A decision may on application be renewed if the requirements of Article 53 (3) of the EEA Agreement continue to be satisfied.

3. The EFTA Surveillance Authority may revoke or amend its decision or prohibit specified acts by the parties:

(a) where there has been a change in any of the facts which were basic to the making of the decision;

(b) where the parties commit a breach of any obligation attached to the decision;

(c) where the decision is based on incorrect information or was induced by deceit;

(d) where the parties abuse the exemption from the provisions of Article 53 (1) of the EEA Agreement granted to them by the decision.

In cases to which subparagraphs (b), (c) or (d) apply, the decision may be revoked with retroactive effect.

Article 9

Powers

1. Subject to review of its decision by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, the EFTA Surveillance Authority shall have sole power to declare Article 53 (1) inapplicable pursuant to Article 53 (3) of the EEA Agreement on the conditions set out in Article 56 of the EEA Agreement.

2. The EFTA Surveillance Authority shall have power to apply Article 53 (1) and Article 54 of the EEA Agreement; this power may be exercised notwithstanding that the time limits specified in Articles 1 (1) and 3 (2) of Chapter XVI relating to notification have not expired.

3. As long as the EFTA Surveillance Authority has not initiated any procedure pursuant to Articles 2, 3 or 6, the authorities of the EFTA States shall remain competent to apply Article 53 (1) and Article 54; they shall remain competent in this respect notwithstanding that the time limits specified in Articles 1 (1) and 3 (2) of Chapter XVI relating to notification have not expired.

Article 10

Liaison with the authorities of the EFTA States

1. The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of the applications and notifications together with copies of the most important documents lodged with the EFTA Surveillance Authority for the purpose of establishing the existence of infringements of Articles 53 or 54 of the EEA Agreement or of obtaining negative clearance or a decision in application of Article 53 (3).

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of notifications, complaints and information on opening of ex officio procedures received from the EC Commission pursuant to Articles 2 and 10 of Protocol 23 to the EEA Agreement.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of documents received from the EC Commission pursuant to Article 7 of Protocol 23 to the EEA Agreement.

2. The EFTA Surveillance Authority shall carry out the procedure set out in the first subparagraph of paragraph 1 in close and constant liaison with the competent authorities of the EFTA States; such authorities shall have the right to express their views upon that procedure.

3. An Advisory Committee on Competition shall be consulted prior to the taking of any decision following upon a procedure under the first subparagraph of paragraph 1, and of any decision concerning the renewal, amendment or revocation of a decision pursuant to Article 53 (3) of the EEA Agreement.

The Advisory Committee shall be consulted prior to a proposal referred to in Article 22.

4. The Advisory Committee shall be composed of officials competent in the matter of restrictive practices and monopolies. Each EFTA State shall appoint an official to represent it who, if prevented from attending, may be replaced by another official.

The EC Commission and the EC Member States shall be entitled to be present in the Advisory Committee and to express their views therein. However, their representatives shall not have the right to vote.

5. The consultation shall take place at a joint meeting convened by the EFTA Surveillance Authority; such meeting shall be held not earlier than 14 days after dispatch of the notice convening it. The notice shall, in respect of each case to be examined, be accompanied by a summary of the case together with an indication of the most important documents, and a preliminary draft decision.

In view of the participation provided for in the second subparagraph of paragraph 4, the EC Commission shall receive an invitation to the meeting and the relevant information as provided for in Article 6 of Protocol 23 to the EEA Agreement.

6. The Advisory Committee may deliver an opinion notwithstanding that some of its members or their alternates are not present. A report of the outcome of the consultative proceedings shall be annexed to the draft decision. It shall not be made public.

Article 11

Requests for information

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by the provisions of this chapter, the EFTA Surveillance Authority may obtain all necessary information from the Governments and competent authorities of the EFTA States and from undertakings and associations of undertakings.

2. When sending a request for information to an undertaking or association of undertakings, the EFTA Surveillance Authority shall at the same time forward a copy of the request to the competent authority of the EFTA State in whose territory the seat of the undertaking or association of undertakings is situated.

3. In its request the EFTA Surveillance Authority shall state the legal basis and the purpose of the request and also the penalties provided for in Article 15 (1) (b) for supplying incorrect information.

4. The owners of the undertakings or their representatives and, in the case of legal persons, companies or firms, or of associations having no legal personality, the persons authorized to represent them by law or by their constitution, shall supply the information requested.

5. Where an undertaking or association of undertakings does not supply the information requested within the time limit fixed by the EFTA Surveillance Authority, or supplies incomplete information, the EFTA Surveillance Authority shall by decision require the information to be supplied. The decision shall specify what information is required, fix an appropriate time limit within which it is to be supplied and indicate the penalties provided for in Article 15 (1) (b) and Article 16 (1) (c) and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

6. The EFTA Surveillance Authority shall at the same time forward a copy of its decision to the competent authority of the EFTA State in whose territory the seat of the undertaking or association of undertakings is situated.

Article 12

Inquiry into sectors of the economy

1. If any sector of the economy the trend of trade, price movements, inflexibility of prices or other circumstances suggest that in the economic sector concerned competition is being restricted or distorted within the territory covered by the EEA Agreement, the EFTA Surveillance Authority may decide, in accordance with the provisions of Protocol 23 to the EEA Agreement, to conduct a general inquiry into that economic sector and in the course thereof may request undertakings in the sector concerned to supply the information necessary for giving effect to the principles formulated in Articles 53 and 54 of the EEA Agreement and for carrying out the duties entrusted to the EFTA Surveillance Authority.

2. The EFTA Surveillance Authority may in particular request every undertaking or association of undertakings in the economic sector concerned to communicate to it all agreements, decisions and concerted practices which are exempt from notification by virtue of Article 4 (2) of this chapter and Article 1 (2) of Chapter XVI.

3. When making inquiries pursuant to paragraph 2, the EFTA Surveillance Authority shall also request undertakings or groups of undertakings whose size suggests that they occupy a dominant position within the territory covered by the EEA Agreement or a substantial part thereof to supply to the EFTA Surveillance Authority such particulars of the structure of the undertakings and of their behaviour as are requisite to an appraisal of their position in the light of Article 54 of the EEA Agreement.

4. Article 10 (3) to (6) and Articles 11, 13 and 14 shall apply correspondingly.

Article 13

Investigations by the authorities of the EFTA States

1. At the request of the EFTA Surveillance Authority, the competent authorities of the EFTA States shall undertake the investigations which the EFTA Surveillance Authority considers to be necessary pursuant to Article 14 (1), or which it has ordered by decision pursuant to Article 14 (3). The officials of the competent authorities of the EFTA States responsible for conducting these investigations shall exercise their powers upon production of an authorization in writing issued by the competent authority of the EFTA State in whose territory the investigation is to be made. Such authorization shall specify the subject matter and purpose of the investigation.

2. If so requested by the EFTA Surveillance Authority or by the competent authority of the EFTA State in whose territory the investigation is to be made, the officials of the EFTA Surveillance Authority may assist the officials of such authority in carrying out their duties.

Article 14

Investigating powers of the EFTA Surveillance Authority

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by the provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by the provisions of this chapter, the EFTA Surveillance Authority may undertake all necessary investigations into undertakings and associations of undertakings in the territory of an EFTA State. To this end the officials authorized by the EFTA Surveillance Authority are empowered:

(a) to examine the books and other business records;

(b) to take copies of or extracts from the books and business records;

(c) to ask for oral explanations on the spot;

(d) to enter any premises, land and means of transport of undertakings.

2. The officials of the EFTA Surveillance Authority authorized for the purpose of these investigations shall exercise their powers upon production of an authorization in writing specifying the subject matter and purpose of the investigation and the penalties provided for in Article 15 (1) (c) in cases where production of the required books or other business records is incomplete. In good time before the investigation, the EFTA Surveillance Authority shall inform the competent authority of the EFTA State in whose territory the same is to be made of the investigation and of the identity of the authorized officials. The EFTA Surveillance Authority shall also provide such an authorization to representatives of the EC Commission who shall take part in the investigation in accordance with Article 8 (4) of Protocol 23 to the EEA Agreement.

3. Undertakings and associations of undertakings shall submit to investigations ordered by decision of the EFTA Surveillance Authority. The decision shall specify the subject matter and purpose of the investigation, appoint the date on which it is to begin and indicate the penalties provided for in Article 15 (1) (c) and Article 16 (1) (d) and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

4. The EFTA Surveillance Authority shall take decisions referred to in paragraph 3 after consultation with the competent authority of the EFTA State in whose territory the investigation is to be made.

5. Officials of the competent authority of the EFTA State in whose territory the investigation is to be made may, at the request of such authority or of the EFTA Surveillance Authority, assist the officials of the EFTA Surveillance Authority in carrying out their duties.

6. Where an undertaking opposes an investigation ordered pursuant to this Article, the EFTA State concerned shall afford the necessary assistance to the officials authorized by the EFTA Surveillance Authority to enable them to make their investigation.

7. EFTA States shall, after consultation with the EFTA Surveillance Authority, take the necessary measures to this end within six months of the entry into force of the EEA Agreement.

Article 15

Fines

1. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of from ECU 100 to 5 000 where, intentionally or negligently:

(a) they supply incorrect or misleading information in an application pursuant to Article 2 or in a notification pursuant to Article 4 of this chapter or Article 1 of Chapter XVI;

or

(b) they supply incorrect information in response to a request made pursuant to Article 11 (3) or (5) or to Article 12, or do not supply information within the time limit fixed by a decision taken pursuant to Article 11 (5);

or

(c) they produce the required books or other business records in incomplete form during investigations pursuant to Article 13 or 14, or refuse to submit to an investigation ordered by decision issued in implementation of Article 14 (3).

2. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of ECU from 1 000 to 1 000 000, or a sum in excess thereof but not exceeding 10 % of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently:

(a) they infringe Article 53 (1) or Article 54 of the EEA Agreement;

or

(b) they commit a breach of any obligation imposed pursuant to Article 8 (1).

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.

3. Article 10 (3) to (6) shall apply.

4. Decisions taken pursuant to paragraphs 1 and 2 shall not be of a criminal law nature.

5. The fines provided for in paragraph 2 (a) shall not be imposed in respect of acts taking place:

(a) after notification to the EFTA Surveillance Authority and before its decision in application of Article 53 (3) of the EEA Agreement, provided they fall within the limits of the activity described in the notification;

(b) before notification and in the course of agreements, decisions or concerted practices in existence at the date of entry into force of the EEA Agreement, provided that notification was effected within the time limits specified in Articles 1 (1) and 3 (2) of Chapter XVI.

6. Paragraph 5 shall not have effect where the EFTA Surveillance Authority has informed the undertakings concerned that after preliminary examination it is of the opinion that Article 53 (1) of the EEA Agreement applies and that application of Article 53 (3) is not justified.

Article 16

Periodic penalty payments

1. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings periodic penalty payments of from ECU 50 to 1 000 per day, calculated from the date appointed by the decision, in order to compel them:

(a) to put an end to an infringement of Articles 53 or 54 of the EEA Agreement, in accordance with a decision taken pursuant to Article 3 of this chapter;

(b) to refrain from any act prohibited under Article 8 (3);

(c) to supply complete and correct information which it has requested by decision taken pursuant to Article 11 (5);

(d) to submit to an investigation which it has ordered by decision taken pursuant to Article 14 (3).

2. Where the undertakings or associations of undertakings have satisfied the obligation which it was the purpose of the periodic penalty payment to enforce, the EFTA Surveillance Authority may fix the total amount of the periodic penalty payment at a lower figure than that which would arise under the original decision.

3. Article 10 (3) to (6) shall apply.

Article 17

Review by the EFTA Court

The EFTA Court, in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, shall have unlimited jurisdiction within the meaning of Article 35 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed.

Article 18

Ecu

For the purposes of applying Articles 15 to 17, 'ECU' means the ecu as defined by the competent authorities of the European Communities.

Article 19

Hearing of the parties and of third persons

1. Before taking decisions as provided for in Articles 2, 3, 6, 8, 15 and 16 of this chapter and in Article 3 of Chapter XVI, the EFTA Surveillance Authority shall give the undertakings or associations of undertakings concerned the opportunity of being heard on the matters to which the EFTA Surveillance Authority has taken objection.

2. If the EFTA Surveillance Authority or the competent authorities of the EFTA States consider it necessary, they may also hear other natural or legal persons. Applications to be heard on the part of such persons shall, where they show a sufficient interest, be granted.

3. Where the EFTA Surveillance Authority intends to give negative clearance pursuant to Article 2 or take a decision in application of Article 53 (3) of the EEA Agreement, it shall publish a summary of the relevant application or notification and invite all interested third parties to submit their observations within a time limit which it shall fix being not less than one month. Publication shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 20

Professional secrecy

1. Without prejudice to Article 9 (3) of Protocol 23 to the EEA Agreement, information acquired as a result of the application of Articles 11, 12, 13 and 14 of this chapter or of Article 58 of the EEA Agreement and Protocol 23 thereto shall be used only for the purpose of the relevant request or investigation.

2. Without prejudice to the provisions of Articles 19 and 21, the EFTA Surveillance Authority and the competent authorities of the EFTA States, their officials and other servants shall not disclose information acquired by them as a result of the application of this Protocol or Article 58 of the EEA Agreement and Protocol 23 thereto and of the kind covered by the obligation of professional secrecy. This obligation shall also apply to the representatives of the EC Commission and of the EC Member States who participate in the Advisory Committee pursuant to Article 10 (4) and in the hearing pursuant to Article 8 (2) of Chapter IV.

3. The provisions of paragraphs 1 and 2 shall not prevent publication of general information or surveys which do not contain information relating to particular undertakings or associations of undertakings.

Article 21

Publication of decisions

1. The EFTA Surveillance Authority shall publish the decisions which it takes pursuant to Articles 2, 3, 6 and 8 of this chapter and to Article 3 of Chapter XVI.

2. The publication shall state the names of the parties and the main content of the decision; it shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 22

Special provisions

The EFTA Surveillance Authority may submit to the attention of the EFTA States, for consultation within the Standing Committee in accordance with Article 2 of the Agreement on a Standing Committee of the EFTA States, proposals for exempting, in accordance with Article 53 (3) of the EEA Agreement, certain categories of agreement, decision and concerted practice from the prohibition set out in Article 53 (1) of that Agreement.

CHAPTER III Form, content and other details concerning applications and notifications

Article 1

Persons entitled to submit applications and notifications

1. Any undertaking which is party to agreements, decisions or practices of the kind described in Articles 53 and 54 of the EEA Agreement may submit an application pursuant to Article 2 of Chapter II or a notification pursuant to Article 4 of Chapter II and Article 1 of Chapter XVI. Where the application or notification is submitted by some, but not all, of the undertakings concerned, they shall give notice to the others.

2. Where applications and notifications pursuant to Articles 2, 3 (1), 3 (2) (b) and 4 of Chapter II and Article 1 of Chapter XVI are signed by representatives of undertakings, or associations of undertakings, or natural or legal persons such representatives shall produce written proof that they are authorized to act.

3. Where a joint application or notification is submitted a joint representative should be appointed.

Article 2

Submission of applications and notifications

1. Nine copies of each application and notification shall be submitted to the EFTA Surveillance Authority.

2. The supporting documents shall be either original or copies; copies must be certified as true copies of the original.

3. Applications and notifications shall be in an official language of an EFTA State or the European Community. Supporting documents shall be submitted in their original language. Where the original language is not an official language of an EFTA State or the European Community, a translation in one of these languages shall be attached.

Article 3

Effective date of submission of applications and registrations

The date of submission of an application or notification shall, without prejudice to Article 11 of Protocol 23 to the EEA Agreement, be the date on which it is received by the EFTA Surveillance Authority. Where, however, the application or notification is sent by registered post, it shall be deemed to have been received on the date shown on the postmark of the place of posting.

Article 4

Content of applications and notifications

1. Applications pursuant to Article 2 of Chapter II relating to the applicability of Article 53 (1) of the EEA Agreement and notifications pursuant to Article 4 of Chapter II or Article 1 (2) of Chapter XVI shall be submitted on forms issued for that purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 1, or by the EC Commission.

2. Applications and notifications shall contain the information asked for in these forms.

3. Several participating undertakings may submit an application or notification on a single form.

4. Applications pursuant to Article 2 of Chapter II relating to the applicability of Article 54 of the EEA Agreement shall contain a full statement of the facts, specifying, in particular, the practice concerned and the position of the undertaking or undertakings within the territory covered by the EEA Agreement or a substantial part thereof in regard to products or services to which the practice relates. The forms issued for that purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 1, or by the EC Commission may be used.

Article 5

Special provisions

The EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for forms and complementary notes.

CHAPTER IV Hearings provided for in Article 19 (1) and (2) of Chapter II

Article 1

Before consulting the Advisory Committee on Competition, the EFTA Surveillance Authority shall hold a hearing pursuant to Article 19 (1) of Chapter II.

Article 2

1. The EFTA Surveillance Authority shall inform undertakings and associations of undertakings in writing of the objections raised against them. The communication shall be addressed to each of them or to a joint agent appointed by them.

2. The EFTA Surveillance Authority may inform the parties by giving notice in the EEA Section of the Official Journal of the European Communities, if from the circumstances of the case this appears appropriate, in particular where notice is to be given to a number of undertakings but no joint agent has been appointed. The notice shall have regard to the legitimate interest of the undertakings in the protection of their business secrets.

3. A fine or a periodic penalty payment may be imposed on an undertaking or association of undertakings only if the objections were notified in the manner provided for in paragraph 1.

4. The EFTA Surveillance Authority shall, when giving notice of objections, fix a time limit up to which the undertakings and associations of undertakings may inform the EFTA Surveillance Authority of their views.

Article 3

1. Undertakings and associations of undertakings shall, within the appointed time limit, make known in writing their views concerning the objections raised against them.

2. They may in their written comments set out all matters relevant to their defence.

3. They may attach any relevant documents in proof of the facts set out. They may also propose that the EFTA Surveillance Authority hear persons who may corroborate those facts.

Article 4

The EFTA Surveillance Authority shall in its decisions deal only with those objections raised against undertakings and associations of undertakings in respect of which they have been afforded the opportunity of making known their views.

Article 5

If natural or legal persons showing a sufficient interest apply to be heard pursuant to Article 19 (2) of Chapter II, the EFTA Surveillance Authority shall afford them the opportunity of making known their views in writing within such time limit as it shall fix.

Article 6

Where the EFTA Surveillance Authority, having received an application pursuant to Article 3 (2) of Chapter II, considers that on the basis of the information in its possession there are insufficient grounds for granting the application, it shall inform the applicants of its reasons and fix a time limit for them to submit any further comments in writing.

Article 7

1. The EFTA Surveillance Authority shall afford to persons who have so requested in their written comments the opportunity to put forward their arguments orally, if those persons show a sufficient interest or if the EFTA Surveillance Authority proposes to impose on them a fine or periodic penalty payment.

2. The EFTA Surveillance Authority may likewise afford to any other person the opportunity of orally expressing his views.

Article 8

1. The EFTA Surveillance Authority shall summon the persons to be heard to attend on such date as it shall appoint.

2. It shall forthwith transmit a copy of the summons to the competent authorities of the EFTA States, who may appoint an official to take part in the hearing. Likewise, the EFTA Surveillance Authority shall invite the EC Commission to be represented at the hearing. The invitation shall also extend to the EC Member States.

Article 9

1. Hearings shall be conducted by the persons appointed by the EFTA Surveillance Authority for that purpose.

2. Persons summoned to attend shall appear either in person or be represented by legal representatives or by representatives authorized by their constitution. Undertakings and associations of undertakings may moreover be represented by a duly authorized agent appointed from among their permanent staff.

Persons heard by the EFTA Surveillance Authority may be assisted by lawyers or advisers who are entitled to plead before the EFTA Court, or by other qualified persons.

3. Hearings shall not be public. Persons shall be heard separately or in the presence of other persons summoned to attend. In the latter case, regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets.

4. The essential content of the statements made by each person heard shall be recorded in minutes which shall be read and approved by him.

Article 10

Without prejudice to Article 2 (2), information and summonses from the EFTA Surveillance Authority shall be sent to the addressees by registered letter with acknowledgement of receipt, or shall be delivered by hand against receipt.

Article 11

1. In fixing the time limits provided for in Articles 2, 5 and 6, the EFTA Surveillance Authority shall have regard both to the time required for preparation of comments and to the urgency of the case. The time limit shall be not less than two weeks; it may be extended.

2. Time limits shall run from the day following receipt of a communication or delivery thereof by hand.

3. Written comments must reach the EFTA Surveillance Authority or be dispatched by registered letter before expiry of the time limit. Where the time limit would expire on a Sunday or public holiday, it shall be extended up to the end of the next following working day. For the purpose of calculating this extension, public holidays shall, in cases where the relevant date is the date of receipt of written comments, be those set out in Appendix 2 to this Protocol, and in cases where the relevant date is the date of dispatch, those appointed by law in the country of dispatch.

CHAPTER V Limitation periods in proceedings and the enforcement of sanctions under the rules relating to transport and competition as contained in Chapters II to IV and VI to XIV

Article 1

Limitation periods in proceedings

1. The power of the EFTA Surveillance Authority to impose fines or penalties for infringements of the rules of the EEA Agreement relating to transport or competition shall be subject to the following limitation periods:

(a) three years in the case of infringements of provisions concerning applications or notifications of undertakings or associations of undertakings, requests for information, or the carrying out of investigations;

(b) five years in the case of all other infringements.

2. Time shall begin to run upon the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run upon the day on which the infringement ceases.

Article 2

Interruption of the limitation period in proceedings

1. Any action taken by the EFTA Surveillance Authority, by the EC Commission at the request of the EFTA Surveillance Authority pursuant to Article 8 of Protocol 23 to the EEA Agreement, or by any EFTA State, acting at the request of the EFTA Surveillance Authority, for the purpose of the preliminary investigation or proceedings in respect of an infringement shall interrupt the limitation period in proceedings. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which have participated in the infringement.

Actions which interrupt the running of the period shall include in particular the following:

(a) written requests for information by the EFTA Surveillance Authority, or by the competent authority of an EFTA State acting at the request of the EFTA Surveillance Authority; or a decision by the EFTA Surveillance Authority requiring the requested information;

(b) written authorizations to carry out investigations issued to their officials by the EFTA Surveillance Authority or by the competent authority of any EFTA State at the request of the EFTA Surveillance Authority; or a decision by the EFTA Surveillance Authority ordering an investigation;

(c) the commencement of proceedings by the EFTA Surveillance Authority;

(d) notification of the EFTA Surveillance Authority's statement of objections.

2. The interruption of the limitation period shall apply for all the undertakings or associations of undertakings which have participated in the infringement.

3. Each interruption shall start time running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the EFTA Surveillance Authority having imposed a fine or a penalty; that period shall be extended by the time during which limitation is suspended pursuant to Article 3.

Article 3

Suspension of the limitation period in proceedings

The limitation period in proceedings shall be suspended for as long as the decision of the EFTA Surveillance Authority is the subject of proceedings pending before the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement.

Article 4

Limitation period for the enforcement of sanctions

1. The power of the EFTA Surveillance Authority to enforce decisions imposing fines, penalties, or periodic payments for infringements of the rules of the EEA Agreement relating to transport or competition shall be subject to a limitation period of five years.

2. Time shall begin to run upon the day on which the decision becomes final.

Article 5

Interruption of the limitation period for the enforcement of sanctions

1. The limitation period for the enforcement of sanctions shall be interrupted:

(a) by notification of a decision varying the original amount of the fine, penalty or periodic penalty payments or refusing an application for variation;

(b) by any sanction of the EFTA Surveillance Authority or of an EFTA State at the request of the EFTA Surveillance Authority, for the purpose of enforcing payments, of a fine, penalty or periodic penalty payment.

2. Each interruption shall start time running afresh.

Article 6

Suspension of the limitation period for the enforcement of sanctions

The limitation period for the enforcement of sanctions shall be suspended for so long as:

(a) time to pay is allowed; or

(b) enforcement of payment is suspended pursuant to a decision of the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement.

PART II TRANSPORT

CHAPTER VI Application of rules of competition to transport by rail, road and inland waterway

Due to the division of the text of Regulation (EEC) No 1017/68 between Annex XIV to the EEA Agreement (substantive rules) and the present chapter (procedural rules), the text, as adapted, of Articles 1 to 5 and Articles 7 to 9 is to be found in the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68). The EFTA Surveillance Authority shall decide on these cases in accordance with the provisions of Article 56 of the EEA Agreement, in particular paragraph (1) (a) and (b) and paragraph (3).

Articles 1 to 5

(No text)

Article 6

Agreements intended to reduce disturbances resulting from the structure of the transport market

1. Until such time as appropriate measures to ensure a stable transport market are introduced, the prohibition laid down in Article 2 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) may be declared inapplicable to any agreement, decision or concerted practice which tends to reduce disturbances on the market in question.

2. A decision not to apply the prohibition laid down in Article 2 of the said act, made in accordance with the procedure laid down in Article 14, may not be taken until the Standing Committee has found on the basis of a report by the EFTA Surveillance Authority, that a state of crisis exists in all or part of a transport market.

3. Without prejudice to the provisions of paragraph 2, the prohibition in Article 2 of the said act may be declared inapplicable only where:

(a) the agreement, decision or concerted practice in question does not impose upon the undertakings concerned any restriction not indispensable to the reduction of disturbances;

and

(b) does not make it possible for such undertakings to eliminate competition in respect of a substantial part of the transport market concerned.

Articles 7 to 9

(No text)

Article 10

Procedures on complaint or on the EFTA Surveillance Authority's own initiative

Acting on receipt of a complaint or on its own initiative, the EFTA Surveillance Authority shall initiate procedures to terminate any infringement of the provisions of Article 2 or Article 8 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) or to enforce Article 4 (2) of that act.

Complaints may be submitted by:

(a) EFTA States;

(b) natural or legal persons who claim a legitimate interest.

Article 11

Result of procedures on complaint or on the EFTA Surveillance Authority's own initiative

1. Where the EFTA Surveillance Authority finds that there has been an infringement of Article 2 or Article 8 of the act referred top in point 10 of Annex XIV to the EAA Agreement (Regulation (EEC) No 1017/68), it may by decision require the undertakings or associations of undertakings concerned to bring such infringement to an end.

Without prejudice to the other provisions of this chapter and the said act, the EFTA Surveillance Authority may, before taking a decision under the preceding subparagraph, address to the undertakings or associations of undertakings concerned recommendations for termination of the infringement.

2. Paragraph 1 shall apply also to cases falling within Article 4 (2) of the said act.

3. If the EFTA Surveillance Authority, acting on a complaint received, concludes that on the evidence before it there are no grounds for intervention pursuant to Article 2, Article 4 (2) or Article 8 of the said act in respect of any agreement, decision or concerted practice, it shall issue a decision rejecting the complaint as unfounded.

4. If the EFTA Surveillance Authority, whether acting on a complaint received or on its own initiative, concludes that an agreement, decision or concerted practice satisfies the provisions both of Article 2 and of Article 5 of the said act, it shall issue a decision applying Article 5. Such decision shall indicate the date from which it is to take effect. This date may be prior to that of the decision.

Article 12

Application of Article 5 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) - Objections

1. Undertakings and associations of undertakings which seek application of Article 5 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) in respect of agreements, decisions and concerted practices falling within the provisions of Article 2 of the said act to which they are parties may submit applications to the EFTA Surveillance Authority.

2. If the EFTA Surveillance Authority judges an application admissible and is in possession of all the available evidence, and no action pursuant to Article 10 has been taken against the agreement, decision or concerted practice in question, then it shall publish as soon as possible in the EEA Section of the Official Journal of the European Communities a summary of the application and invite all interested third parties to submit their comments to the EFTA Surveillance Authority within 30 days. Such publication shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

3. Unless the EFTA Surveillance Authority notifies applicants, within 90 days from the date of such publication in the EEA Section of the Official Journal of the European Communities, that there are serious doubts as to the applicability of Article 5 of the said act, the agreement, decision or concerted practice shall be deemed exempt, in so far as it conforms with the description given in the application, from the prohibition for the time already elapsed and for a maximum of three years from the date of publication in the EEA Section of the Official Journal of the European Communities.

If the EFTA Surveillance Authority finds, after expiry of the 90-day time limit, but before expiry of the three-year period, that the conditions for applying Article 5 of the said act are not satisfied, it shall issue a decision declaring that the prohibition in Article 2 of the said act is applicable. Such decision may be retroactive where the parties concerned have given inaccurate information or where they abuse the exemption from the provisions of Article 2 of the said act.

4. If, within the 90-day time limit, the EFTA Surveillance Authority notifies applicants as referred to in the first subparagraph of paragraph 3, it shall examine whether the provisions of Article 2 and of Article 5 of the said act are satisfied.

If it finds that the provisions of Article 2 and of Article 5 of the said act are satisfied it shall issue a decision applying Article 5. The decision shall indicate the date from which it is to take effect. This date may be prior to that of the application.

Article 13

Duration and revocation of decisions applying Article 5 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68)

1. Any decision applying Article 5 of the said act taken under Article 11 (4) or under the second subparagraph of Article 12 (4) shall indicate the period for which it is to be valid; normally such period shall not be less than six years. Conditions and obligations may be attached to the decision.

2. The decision may be renewed if the conditions for applying Article 5 of the said act continue to be satisfied.

3. The EFTA Surveillance Authority may revoke or amend its decision or prohibit specified acts by the parties:

(a) where there has been a change in any of the facts which were basic to the making of the decision;

(b) where the parties commit a breach of any obligation attached to the decision;

(c) where the decision is based on incorrect information or was induced by deceit;

(d) where the parties abuse the exemption from the provisions of Article 2 of the said act granted to them by the decision.

In cases falling within (b), (c) or (d), the decision may be revoked with retroactive effect.

Article 14

Decisions applying Article 6

1. Any agreement, decision or concerted practice covered by Article 2 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) in respect of which the parties seek application of Article 6 shall be notified to the EFTA Surveillance Authority.

2. Any decision by the EFTA Surveillance Authority to apply Article 6 of the said act shall have effect only from the date of its adoption. It shall state the period for which it is to be valid. Such period shall not exceed three years from the finding of a state of crisis by the Standing Committee provided for in Article 6 (2).

3. Such decision may be renewed by the EFTA Surveillance Authority if the Standing Committee again finds, acting pursuant to the procedure provided for in Article 6 (2), that there is a state of crisis and if the other conditions laid down in Article 6 continue to be satisfied.

4. Conditions and obligations may be attached to the decision.

5. The decision of the EFTA Surveillance Authority shall cease to have effect not later than six months from the coming into operation of the measures referred to in Article 6 (1).

6. The provisions of Article 13 (3) shall apply.

Article 15

Powers

Subject to review of its decision by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, the EFTA Surveillance Authority shall have sole power, on the conditions set out in Article 56 of the EEA Agreement:

- to impose obligations pursuant to Article 4 (2) of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68),

- to issue decisions pursuant to Article 5 of the said act and Article 6 of this chapter.

The authorities of the EFTA States shall retain the power to decide whether any case falls within the provisions of Article 2 or Article 8 of the said act, until such time as the EFTA Surveillance Authority has initiated a procedure with a view to formulating a decision in the case in question or has sent notification as provided for in the first subparagraph of Article 12 (3).

Article 16

Liaison with authorities of the EFTA States

1. The EFTA Surveillance Authority shall carry out the procedures provided for in this chapter in close and constant liaison with the competent authorities of the EFTA States; these authorities shall have the right to express their views on such procedures.

2. The EFTA Surveillance Authority shall immediately forward to the competent authorities of the EFTA States copies of the complaints and applications, and of the most important documents sent to it or which it sends out in the course of such procedures.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of notifications, complaints and information on opening of ex officio procedures received from the EC Commission pursuant to Articles 2 and 10 of Protocol 23 to the EEA Agreement.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of documents received from the EC Commission pursuant to Article 7 of Protocol 23 to the EEA Agreement.

3. An Advisory Committee on Competition in the Transport Industry shall be consulted prior to the taking of any decision following upon a procedure under Article 10 or of any decision under the second subparagraph of Article 12 (3), or under the second subparagraph of paragraph 4 of the same Article, or under paragraph 2 or paragraph 3 of Article 14. The Advisory Committee shall also be consulted prior to a proposal referred to in Article 29.

4. The Advisory Committee shall be composed of officials competent in the matter of restrictive practices and monopolies in transport. Each EFTA State shall appoint two officials to represent it, each of whom, if prevented from attending, may be replaced by some other official.

The EC Commission and the EC Member States shall be entitled to be present in the Advisory Committee and to express their views therein. However, their representatives shall not have the right to vote.

5. Consultation shall take place at a joint meeting convened by the EFTA Surveillance Authority; such meeting shall be held not earlier than 14 days after dispatch of the notice convening it. This notice shall, in respect of each case to be examined, be accompanied by a summary of the case together with an indication of the most important documents, and a preliminary draft decision.

In view of the participation provided for in the second subparagraph of paragraph 4, the EC Commission shall receive an invitation to the meeting and the relevant information as provided for in Article 6 of Protocol 23 to the EEA Agreement.

6. The Advisory Committee may deliver an opinion notwithstanding that some of its members or their alternates are not present. A report of the outcome of the consultative proceedings shall be annexed to the draft decision. It shall not be made public.

Article 17

Consideration by the Standing Committee of questions of principle concerning the provisions on transport as contained in the EEA Agreement raised in connection with specific cases

1. The EFTA Surveillance Authority shall not give a decision in respect of which consultation as laid down in Article 16 is compulsory until after the expiry of 20 days from the date on which the Advisory Committee has delivered its opinion.

2. Before the expiry of the period specified in paragraph 1, any EFTA State may request that the Standing Committee be convened to examine with the EFTA Surveillance Authority any question of principle concerning the provisons on transport as contained in the EEA Agreement which such EFTA State considers to be involved in the particular case for decision.

The Standing Committee shall meet within 30 days from the request by the EFTA State concerned for the sole purposes of considering such questions of principle.

The EFTA Surveillance Authority shall not give its decision until after the meeting of the Standing Committee.

3. Further, the Standing Committee may at any time, at the request of an EFTA State or of the EFTA Surveillance Authority, consider general questions raised by the implementation of the competition policy in the transport sector.

4. In all cases where the Standing Committee is asked to meet to consider under paragraph 2 questions of principle or under paragraph 3 general questions, the EFTA Surveillance Authority shall, for the purpose of this chapter, take into account the policy guidelines which emerge from the meeting.

Article 18

Inquiries into transport sectors

1. If trends in transport, fluctuations in or inflexibility of transport rates, or other circumstances, suggest that competition in transport is being restricted or distorted within the territory covered by the EEA Agreement in a specific geographical area, or over one or more transport links, or in respect of the carriage of passengers or goods belonging to one or more specific categories, the EFTA Surveillance Authority may decide, in accordance with the provisions of Protocol 23 to the EEA Agreement, to conduct a general inquiry into the sector concerned, in the course of which it may request transport undertakings in that sector to supply the information and documentation necessary for giving effect to the principles formulated in Articles 2 to 5, 7 and 8 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) and to Article 6 of this chapter.

2. When making inquiries pursuant to paragraph 1, the EFTA Surveillance Authority shall also request undertakings or groups of undertakings whose size suggests that they occupy a dominant position within the territory covered by the EEA Agreement or a substantial part thereof to supply such particulars of the structure of the undertakings and of their behaviour as are requisite to an appraisal of their position in the light of the provisions of Article 8 of the said act.

3. Article 16 (2) to (6) and Articles 17, 19, 20 and 21 shall apply.

Article 19

Requests for information

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by provisions of this chapter, the EFTA Surveillance Authority may obtain all necessary information from the governments and competent authorities of the EFTA States and from undertakings and associations of undertakings.

2. When sending a request for information to an undertaking or association of undertakings, the EFTA Surveillance Authority shall at the same time forward a copy of the request to the competent authority of the EFTA State in whose territory the seat of the undertakings is situated.

3. In its request, the EFTA Surveillance Authority shall state the legal basis and the purpose of the request, and also the penalties provided for in Article 22 (1) (b) for supplying incorrect information.

4. The owners of the undertakings or their representatives and, in the case of legal persons, companies or firms, or of associations having no legal personality, the person authorized to represent them by law or by their constitution, shall be bound to supply the information requested.

5. Where an undertaking or association of undertakings does not supply the information requested within the time limit fixed by the EFTA Surveillance Authority, or supplies incomplete information, the EFTA Surveillance Authority shall by decision require the information to be supplied. The decision shall specify what information is required, fix an appropriate time limit within which it is to be supplied and indicate the penalties provided for in Article 22 (1) (b) and Article 23 (1) (c), and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

6. The EFTA Surveillance Authority shall at the same time forward a copy of its decision to the competent authority of the EFTA State in whose territory the seat of the undertaking or association of undertakings is situated.

Article 20

Investigations by the authorities of the EFTA States

1. At the request of the EFTA Surveillance Authority, the competent authorities of the EFTA States shall undertake the investigations which the EFTA Surveillance Authority considers to be necessary under Article 21 (1), or which it has ordered by decision pursuant to Article 21 (3). The officials of the competent authorities of the EFTA States responsible for conducting these investigations shall exercise their powers upon production of an authorization in writing issued by the competent authority of the EFTA State in whose territory the investigation is to be made. Such authorization shall specify the subject matter and purpose of the investigation.

2. If so requested by the EFTA Surveillance Authority or by the competent authority of the EFTA State in whose territory the investigation is to be made, the officials of the EFTA Surveillance Authority may assist the officials of such authority in carrying out their duties.

Article 21

Investigating powers of the EFTA Surveillance Authority

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by provisions of this chapter, the EFTA Surveillance Authority may undertake all necessary investigations into undertakings and associations of undertakings in the territory of an EFTA State. To this end the officials authorized by the EFTA Surveillance Authority are empowered:

(a) to examine the books and other business records;

(b) to take copies of or extracts from the books and business records;

(c) to ask for oral explanations on the spot;

(d) to enter any premises, land and vehicles of undertakings.

2. The officials of the EFTA Surveillance Authority authorized for the purpose of these investigations shall exercise their powers upon production of an authorization in writing specifying the subject matter and purpose of the investigation and the penalties provided for in Article 22 (1) (c) in cases where production of the required books or other business records is incomplete.

In good time before the investigation, the EFTA Surveillance Authority shall inform the competent authority of the EFTA State in whose territory the same is to be made of the investigation and of the identity of the authorized officials. The EFTA Surveillance Authority shall also provide such an authorization to representatives of the EC Commission who shall take part in the investigation in accordance with Article 8 (4) of Protocol 23 to the EEA Agreement.

3. Undertakings and associations of undertakings shall submit to investigations ordered by decision of the EFTA Surveillance Authority. The decision shall specify the subject matter and purpose of the investigation, appoint the date on which it is to begin and indicate the penalties provided for in Article 22 (1) (c) and Article 23 (1) (d) and the right to have the decision reviewed by the EFTA Court.

4. The EFTA Surveillance Authority shall take decisions referred to in paragraph 3 after consultation with the competent authority of the EFTA State in whose territory the investigation is to be made.

5. Officials of the competent authority of the EFTA State in whose territory the investigation is to be made, may at the request of such authority or of the EFTA Surveillance Authority, assist the officials of the EFTA Surveillance Authority in carrying out their duties.

6. Where an undertaking opposes an investigation ordered pursuant to this Article, the EFTA State concerned shall afford the necessary assistance to the officials authorized by the EFTA Surveillance Authority to enable them to make their investigation. EFTA States shall, after consultation with the EFTA Surveillance Authority, take the necessary measures to this end within six months of the entry into force of the EEA Agreement.

Article 22

Fines

1. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of from ECU 100 to 5 000 where, intentionally or negligently:

(a) they supply incorrect or misleading information in an application pursuant to Article 12 or in a notification pursuant to Article 14; or

(b) they supply incorrect information in response to a request made pursuant to Article 18 or to Article 19 (3) or (5), or do not supply information within the time limit fixed by a decision taken under Article 19 (5); or

(c) they produce the required books or other business records in incomplete form during investigations pursuant to Article 20 or Article 21, or refuse to submit to an investigation ordered by decision issued in implementation of Article 21 (3).

2. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of from ECU 1 000 to 1 000 000, or a sum in excess thereof but not exceeding 10 % of the turnover in the preceding business year of each of the undertakings participating in the infringement, where either intentionally or negligently:

(a) they infringe Article 2 or Article 8 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68); or

(b) they commit a breach of any obligation imposed pursuant to Article 13 (1) or Article 14 (4).

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.

3. Article 16 (3) to (6) and Article 17 shall apply.

4. Decisions taken pursuant to paragraphs 1 and 2 shall not be of a criminal law nature.

Article 23

Periodic penalty payments

1. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings periodic penalty payments of from ECU 50 to 1 000 per day, calculated from the date appointed by the decision, in order to compel them:

(a) to put an end to an infringement of Article 2 or Article 8 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) of this chapter, the termination of which it has ordered pursuant to Article 11 or to comply with an obligation imposed pursuant to Article 4 (2) of the said act;

(b) to refrain from any act prohibited under Article 13 (3);

(c) to supply complete and correct information which it has requested by decision taken pursuant to Article 19 (5);

(d) to submit to an investigation which it has ordered by decision taken pursuant to Article 21 (3).

2. Where the undertakings or associations of undertakings have satisfied the obligation which it was the purpose of the periodic penalty payment to enforce, the EFTA Surveillance Authority may fix the total amount of the periodic penalty payment at a lower figure than that which would arise under the original decision.

3. Article 16 (3) to (6) and Article 17 shall apply.

Article 24

Review by the EFTA Court

The EFTA Court shall, in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, have unlimited jurisdiction within the meaning of Article 35 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed.

Article 25

Ecu

For the purpose of applying Articles 22 to 24, 'ecu' means the ecu as defined by the competent authorities of the European Communities.

Article 26

Hearing of the parties and of third persons

1. Before taking decisions as provided for in Articles 11, 12 (3), second subparagraph, and 12 (4), 13 (3), 14 (2) and (3), 22 and 23, the EFTA Surveillance Authority shall give the undertakings or associations of undertakings concerned the opportunity of being heard on the matters to which the EFTA Surveillance Authority has taken objection.

2. If the EFTA Surveillance Authority or the competent authorities of the EFTA States consider it necessary, they may also hear other natural or legal persons. Applications to be heard on the part of such persons where they show a sufficient interest shall be granted.

3. Where the EFTA Surveillance Authority intends to give negative clearance pursuant to Article 5 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) or Article 6 of this chapter, it shall publish a summary or the relevant agreement, decision or concerted practice and invite all interested third parties to submit their observations within a time limit which it shall fix being not less than one month. Publication shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 27

Professional secrecy

1. Without prejudice to Article 9 of Protocol 23 to the EEA Agreement, information acquired as a result of the application of Articles 18, 19, 20 and 21 of this chapter or Article 58 of the EEA Agreement and Protocol 23 thereto shall be used only for the purpose of the relevant request or investigation.

2. Without prejudice to the provisions of Articles 26 and 28, the EFTA Surveillance Authority and the competent authorities of the EFTA States, their officials and other servants shall not disclose information acquired by them as a result of the application of this Protocol or Article 58 of the EEA Agreement and Protocol 23 thereto and of the kind covered by the obligation of professional secrecy. This obligation shall also apply to the representatives of the EC Commission and of the EC Member States who participate in the Advisory Committee pursuant to Article 16 (4) and in the hearing pursuant to Article 8 (2) of Chapter VIII.

3. The provisions of paragraphs 1 and 2 shall not prevent publication of general information or surveys which do not contain information relating to particular undertakings or associations of undertakings.

Article 28

Publication of decisions

1. The EFTA Surveillance Authority shall publish the decisions which it takes pursuant to Articles 11, 12 (3), second subparagraph, 12 (4), 13 (3) and 14 (2) and (3).

2. The publication shall state the names of the parties and the main content of the decision; it shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 29

Special provisions

The EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for forms to be used for complaints pursuant to Article 10, applications pursuant to Article 12 and notifications pursuant to Article 14 (1), as well as proposals for complementary notes to the forms.

CHAPTER VII Form, content and other details of complaints pursuant to Article 10, applications pursuant to Article 12 and notifications pursuant to Article 14 (1) of Chapter VI

Article 1

Complaints

1. Complaints pursuant to Article 10 of Chapter VI shall be submitted in writing in an official language of an EFTA State or the European Community; they may be submitted on forms issued for this purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 3, or by the EC Commission.

2. When representatives of undertakings, of associations of undertakings, or of natural or legal persons sign such complaints, they shall produce written proof that they are authorized to act.

Article 2

Persons entitled to submit applications and notifications

1. Any undertaking which is party to agreements, decisions or practices of the kind described in Article 2 of the act referred to in point 10 of Annex XIV to the EEA Agreement (Regulation (EEC) No 1017/68) may submit an application pursuant to Article 12 or a notification under Article 14 (1) of Chapter VI. Where the application or notification is submitted by some, but not all, of the undertakings concerned, they shall give notice to the others.

2. Where applications or notifications pursuant to Articles 12 and 14 (1) of Chapter VI are signed by representatives of undertakings, of associations of undertakings, or of natural or legal persons, such representativs shall produce written proof that they are authorized to act.

3. Where a joint application or notification is submitted, a joint representative shall be appointed.

Article 3

Submission of applications and notifications

1. Applications pursuant to Article 12 of Chapter VI shall be submitted on forms issued for this purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 4, or by the EC Commission.

2. Notifications pursuant to Article 14 (1) of Chapter VI shall be submitted on forms issued for this purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 5, or by the EC Commission.

3. Several participating undertakings may submit an application or notification on a single form.

4. Applications and notifications shall contain the information requested in the forms.

5. Nine copies of each application or notification and of the supporting documents shall be submitted to the EFTA Surveillance Authority.

6. The supporting documents shall be either originals or copies. Copies must be certified as true copies of the original.

7. Applications and notifications shall be in an official language of an EFTA State or the European Community. Supporting documents shall be submitted in their original language. Where the original language is not one of the official languages, a translation in one of these languages shall be attached.

Article 4

Special provisions

The EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for forms and complementary notes.

CHAPTER VIII Hearings provided for in Article 26 (1) of Chapter VI

Article 1

Before consulting the Advisory Committee on Competition in the Transport Industry the EFTA Surveillance Authority shall hold a hearing pursuant to Article 26 (1) of Chapter VI.

Article 2

1. The EFTA Surveillance Authority shall inform undertakings and associations of undertakings in writing of the objections raised against them. The communications shall be addressed to each of them or to a joint agent appointed by them.

2. The EFTA Surveillance Authority may inform the parties by giving notice in the EEA Section of the Official Journal of the European Communities, if from the circumstances of the case this appears appropriate, in particular where notice is to be given to a number of undertakings but no joint agent has been appointed. The notice shall have regard to the legitimate interest of the undertakings in the protection of their business secrets.

3. A fine or a periodic penalty payment may be imposed on an undertaking or association of undertakings only if the obligations were notified in the manner provided for in paragraph 1.

4. The EFTA Surveillance Authority shall, when giving notice of objections, fix a time limit up to which the undertakings and associations of undertakings may inform the EFTA Surveillance Authority of their views.

Article 3

1. Undertakings and associations of undertakings shall, within the appointed time limit, make known in writing their views concerning the objections raised against them.

2. They may in their written comments set out all matters relevant to their defence.

3. They may attach any relevant documents in proof of the facts set out. They may also propose that the EFTA Surveillance Authority hear persons who may corroborate those facts.

Article 4

The EFTA Surveillance Authority shall in its decision deal only with those objections raised against undertakings and associations of undertakings in respect of which they have been afforded the opportunity of making known their views.

Article 5

If natural or legal persons showing a sufficient interest apply to be heard pursuant to Article 26 (2) of Chapter VI, the EFTA Surveillance Authority shall afford them the opportunity of making known their views in writing within such time limits as it shall fix.

Article 6

Where the EFTA Surveillance Authority, having received an application pursuant to Article 10 (2) of Chapter VI, considers that on the basis of the information in its possession there are insufficient grounds for granting the application, it shall inform the applicants of its reasons and fix a time limit for them to submit any further comments in writing.

Article 7

1. The EFTA Surveillance Authority shall afford to persons who have so requested in their written comments the opportunity to put forward their arguments orally, if those persons show a sufficient interest or if the EFTA Surveillance Authority proposes to impose on them a fine or periodic penalty payment.

2. The EFTA Surveillance Authority may likewise afford to any other person the opportunity of orally expressing his views.

Article 8

1. The EFTA Surveillance Authority shall summon the persons to be heard to attend on such date as it shall appoint.

2. It shall forthwith transmit a copy of the summons to the competent authorities of the EFTA States, who may appoint an official to take part in the hearing. Likewise, the EFTA Surveillance Authority shall invite the EC Commission to be represented at the hearing. The invitation shall also extend to the EC Member States.

Article 9

1. Hearings shall be conducted by the persons appointed by the EFTA Surveillance Authority for that purpose.

2. Persons summoned to attend shall appear either in person or be represented by legal representatives or by representatives authorized by their constitution. Undertakings and associations of undertakings may moreover be represented by a duly authorized agent appointed from among their permanent staff.

Persons heard by the EFTA Surveillance Authority may be assisted by lawyers or advisers who are entitled to plead before the EFTA Court, or by other qualified persons.

3. Hearings shall not be public. Persons shall be heard separately or in the presence of other persons summoned to attend. In the latter case, regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets.

4. The essential content of the statements made by each person heard shall be recorded in minutes which shall be read and approved to him.

Article 10

Without prejudice to Article 2 (2), information and summonses from the EFTA Surveillance Authority shall be sent to the addressees by registered letter with acknowledgement of receipt, or shall be delivered by hand against receipt.

Article 11

1. In fixing the time limits provided for in Articles 2, 5 and 6, the EFTA Surveillance Authority shall have regard both to the time required for preparation of comments and to the urgency of the case. The time limit shall be not less than two weeks; it may be extended.

2. Time limits shall run from the day following receipt of a communication or delivery thereof by hand.

3. Written comments must reach the EFTA Surveillance Authority or be dispatched by registered letter before expiry of the time limit. Where the time limit would expire on a Sunday or public holiday, it shall be extended up to the end of the next following working day. For the purpose of calculating the extension, public holidays shall, in cases where the relevant date is the date of receipt of written comments, be those set out in Appendix 2 to this Protocol, and in cases where the relevant date is the date of dispatch, those appointed by law in the country of dispatch.

CHAPTER IX Rules for the application of Articles 53 and 54 of the EEA Agreement to maritime transport

Due to the division of the text of Regulation (EEC) No 4056/86 between Annex XIV to the EEA Agreement (substantive rules) and the present chapter (procedural rules), the text, as adapted, of Section I, Articles 1 to 9, is to be found in the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86). The EFTA Surveillance Authority shall decide on these cases in accordance with the provisions of Article 56 of the EEA Agreement, in particular paragraph (1) (a) and (b) and paragraph (3).

Section I

Articles 1 to 9

(No text)

Section II Rules of Procedure

Article 10

Procedures on complaint or on the EFTA Surveillance Authority's own initiative

Acting on receipt of a complaint or on its own initiative, the EFTA Surveillance Authority shall initiate procedures to terminate any infringement of the provisions of Articles 53 (1) or 54 of the EEA Agreement or to enforce Article 7 of the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86).

Complaints may be submitted by:

(a) EFTA States;

(b) natural or legal persons who claim a legitimate interest.

Article 11

Result of procedures on complaint or on the EFTA Surveillance Authority's own initiative

1. Where the EFTA Surveillance Authority finds that there has been an infringement of Articles 53 (1) or 54 of the EEA Agreement, it may by decision require the undertakings or associations of undertakings concerned to bring such infringement to an end.

Without prejudice to the other provisions of this chapter or to the provisions of the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86), the EFTA Surveillance Authority may, before taking a decision under the preceding subparagraph, address to the undertakings or associations of undertakings concerned recommendations for termination of the infringement.

2. Paragraph 1 shall apply also to cases falling within Article 7 of the said act.

3. If the EFTA Surveillance Authority, acting on a complaint received, concludes that on the evidence before it there are no grounds for intervention under Articles 53 (1) or 54 of the EEA Agreement or Article 7 of the said act, in respect of any agreement, decision or practice, it shall issue a decision rejecting the complaint as unfounded.

4. If the EFTA Surveillance Authority, whether acting on a complaint received or on its own initiative, concludes that an agreement, decision or concerted practice satisfies the provisions both of Article 53 (1) and of Article 53 (3) of the EEA Agreement, it shall issue a decision applying Article 53 (3). Such decision shall indicate the date from which it is to take effect. This date may be prior to that of the decision.

Article 12

Application of Article 53 (3) of the EEA Agreement - objections

1. Undertakings and associations of undertakings which seek application of Article 53 (3) of the EEA Agreement in respect of agreements, decisions and concerted practices falling within the provisions of Article 53 (1) to which they are parties shall, without prejudice to Article 11 of Protocol 23 to the EEA Agreement, submit applications to the EFTA Surveillance Authority.

2. If the EFTA Surveillance Authority judges an application admissible and is in possession of all the available evidence, and no action under Article 10 has been taken against the agreement, decision or concerted practice in question, then it shall publish as soon as possible in the EEA Section of the Official Journal of the European Communities a summary of the application and invite all interested third parties and the EFTA States to submit their comments to the EFTA Surveillance Authority within 30 days. Such publications shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

3. Unless the EFTA Surveillance Authority notifies applicants, within 90 days from the date of such publication in the EEA Section of the Official Journal of the European Communities, that there are serious doubts as to the applicability of Article 53 (3), the agreement, decision or concerted practice shall be deemed exempt, in so far as it conforms with the description given in the application, from the prohibition for the time already elapsed and for a maximum of six years from the date of publication in the EEA Section of the Official Journal of the European Communities.

If the EFTA Surveillance Authority finds, after expiry of the 90-day time limit, but before expiry of the six-year period, that the conditions for applying Article 53 (3) are not satisfied, it shall issue a decision declaring that the prohibition in Article 53 (1) is applicable. Such decision may be retroactive where the parties concerned have given inaccurate information or where they abuse the exemption from the provisions of Article 53 (1).

4. The EFTA Surveillance Authority may notify applicants as referred to in the first subparagraph of paragraph 3 and shall do so if requested by an EFTA State within 45 days of the forwarding to the EFTA State of the application in accordance with Article 15 (2). This request must be justified on the basis of considerations relating to the competition rules of the EEA Agreement.

If it finds that the conditions of Article 53 (1) and of Article 53 (3) are satisfied, the EFTA Surveillance Authority shall issue a decision applying Article 53 (3). The decision shall indicate the date from which it is to take effect. This date may be prior to that of the application.

Article 13

Duration and revocation of decisions applying Article 53 (3) of the EEA Agreement

1. Any decision applying Article 53 (3) taken under Article 11 (4) or under the second subparagraph of Article 12 (4) shall indicate the period for which it is to be valid; normally such period shall not be less than six years. Conditions and obligations may be attached to the decision.

2. The decision may be renewed if the conditions for applying Article 53 (3) continue to be satisfied.

3. The EFTA Surveillance Authority may revoke or amend its decision or prohibit specified acts by the parties:

(a) where there has been a change in any of the facts which were basic to the making of the decision;

(b) where the parties commit a breach of any obligation attached to the decision;

(c) where the decision is based on incorrect information or was induced by deceit; or

(d) where the parties abuse the exemption from the provisions of Article 53 (1) granted to them by the decision.

In cases falling within (b), (c) or (d), the decision may be revoked with retroactive effect.

Article 14

Powers

Subject to review of its decision by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, the EFTA Surveillance Authority shall have sole power, on the conditions set out in Article 56 of the EEA Agreement:

- to impose obligations pursuant to Article 7 of the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86),

- to issue decisions pursuant to Article 53 (3) of the EEA Agreement.

The authorities of the EFTA States shall retain the power to decide whether any case falls within the provisions of Article 53 (1) or Article 54, until such time as the EFTA Surveillance Authority has initiated a procedure with a view to formulating a decision in the case in question or has sent notification as provided for in the first subparagraph of Article 12 (3).

Article 15

Liaison with the authorities of the EFTA States

1. The EFTA Surveillance Authority shall carry out the procedures provided for in this chapter in close and constant liaison with the competent authorities of the EFTA States; these authorities shall have the right to express their views on such procedures.

2. The EFTA Surveillance Authority shall immediately forward to the competent authorities of the EFTA States copies of the complaints and applications, and of the most important documents sent to it or which it sends out in the course of such procedures.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of notifications, complaints and information on opening of ex officio procedures received from the EC Commission pursuant to Articles 2 and 10 of Protocol 23 to the EEA Agreement.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of documents received from the EC Commission pursuant to Article 7 of Protocol 23 to the EEA Agreement.

3. An Advisory Committee on Competition in Maritime Transport shall be consulted prior to the taking of any decision following upon a procedure under Article 10 or of any decision issued under the second subparagraph of Article 12 (3), or under the second subparagraph of paragraph 4 of the same Article. The Advisory Committee shall also be consulted prior to a proposal referred to in Article 26.

4. The Advisory Committee shall be composed of officials competent in the sphere of maritime transport and agreements and dominant positions. Each EFTA State shall nominate two officials to represent it, each of whom may be replaced, in the event of his being prevented from attending, by another official.

The EC Commission and the EC Member States shall be entitled to be present in the Advisory Committee and to express their views therein. However, their representatives shall not have the right to vote.

5. Consultation shall take place at a joint meeting convened by the EFTA Surveillance Authority; such meeting shall be held not earlier than 14 days after dispatch of the notice convening it. This notice shall, in respect of each case to be examined, be accompanied by a summary of the case together with an indication of the most important documents, and a preliminary draft decision.

In view of the participation provided for in the second subparagraph of paragraph 4, the EC Commission shall receive an invitation to the meeting and the relevant information as provided for in Article 6 of Protocol 23 to the EEA Agreement.

6. The Advisory Committee may deliver an opinion notwithstanding that some of its members or their alternates are not present. A report of the outcome of the consultative proceedings shall be annexed to the draft decision. It shall not be made public.

Article 16

Requests for information

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by provisions of this chapter, the EFTA Surveillance Authority may obtain all necessary information from the governments and competent authorities of the EFTA States and from undertakings and associations of undertakings.

2. When sending a request for information to an undertaking or association of undertakings, the EFTA Surveillance Authority shall at the same time forward a copy of the request to the competent authority of the EFTA State in whose territory the seat of the undertaking or association of undertakings is situated.

3. In its request, the EFTA Surveillance Authority shall state the legal basis and the purpose of the request, and also the penalties provided for in Article 19 (1) (b) for supplying incorrect information.

4. The owners of the undertakings or their representatives and, in the case of legal persons, companies or firms, or of associations having no legal personality, the person authorized to represent them by law or by their constitution, shall be bound to supply the information requested.

5. Where an undertaking or association of undertakings does not supply the information requested within the time limit fixed by the EFTA Surveillance Authority, or supplies incomplete information, the EFTA Surveillance Authority shall by decision require the information to be supplied. The decision shall specify what information is required, fix an appropriate time limit within which it is to be supplied and indicate the penalties provided for in Article 19 (1) (b) and Article 20 (1) (c) and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

6. The EFTA Surveillance Authority shall at the same time forward a copy of its decision to the competent authority of the EFTA State in whose territory the seat of the undertaking or association of undertakings is situated.

Article 17

Investigations by the authorities of the EFTA States

1. At the request of the EFTA Surveillance Authority, the competent authorities of the EFTA States shall undertake the investigations which the EFTA Surveillance Authority considers to be necessary pursuant to Article 18 (1), or which it has ordered by decision pursuant to Article 18 (3). The officials of the competent authorities of the EFTA States responsible for conducting these investigations shall exercise their powers upon production of an authorization in writing issued by the competent authority of the EFTA State in whose territory the investigation is to be made. Such authorization shall specify the subject matter and purpose of the investigation.

2. If so requested by the EFTA Surveillance Authority or by the competent authority of the EFTA State in whose territory the investigation is to be made, EFTA Surveillance Authority officials may assist the officials of such authority in carrying out their duties.

Article 18

Investigating powers of the EFTA Surveillance Authority

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by provisions of this chapter, the EFTA Surveillance Authority may undertake all necessary investigations into undertakings and associations of undertakings in the territory of an EFTA State.

To this end the officials authorized by the EFTA Surveillance Authority are empowered:

(a) to examine the books and other business records;

(b) to take copies of or extracts from the books and business records;

(c) to ask for oral explanations on the spot;

(d) to enter any premises, land and vehicles of undertakings.

2. The officials of the EFTA Surveillance Authority authorized for the purpose of these investigations shall exercise their powers upon production of an authorization in writing specifying the subject matter and purpose of the investigation and the penalties provided for in Article 19 (1) (c) in cases where production of the required books or other business records is incomplete. In good time before the investigation, the EFTA Surveillance Authority shall inform the competent authority of the EFTA State in whose territory the same is to be made of the investigation and of the identity of the authorized officials. The EFTA Surveillance Authority shall also provide such an authorization to representatives of the EC Commission who shall take part in the investigation in accordance with Article 8 (4) of Protocol 23 to the EEA Agreement.

3. Undertakings and associations of undertakings shall submit to investigations ordered by decision of the EFTA Surveillance Authority. The decision shall specify the subject matter and purpose of the investigation, appoint the date on which it is to begin and indicate the penalties provided for in Article 19 (1) (c) and Article 20 (1) (d) and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

4. The EFTA Surveillance Authority shall take decisions referred to in paragraph 3 after consultation with the competent authority of the EFTA State in whose territory the investigation is to be made.

5. Officials of the competent authority of the EFTA State in whose territory the investigation is to be made, may at the request of such authority or of the EFTA Surveillance Authority, assist the officials of the EFTA Surveillance Authority in carrying out their duties.

6. Where an undertaking opposes an investigation ordered pursuant to this Article, the EFTA State concerned shall afford the necessary assistance to the officials authorized by the EFTA Surveillance Authority to enable them to make their investigation. To this end, EFTA States shall take the necessary measures, after consulting the EFTA Surveillance Authority, within six months of the entry into force of the EEA Agreement.

Article 19

Fines

1. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of from ECU 100 to 5 000 where, intentionally or negligently:

(a) they supply incorrect or misleading information, either in a communication pursuant to Article 5 (5) of the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86) or in an application pursuant to Article 12 of this chapter;

or

(b) they supply incorrect information in response to a request made pursuant to Article 16 (3) or (5), or do not supply information within the time limit fixed by a decision taken under Article 16 (5);

or

(c) they produce the required books or other business records in incomplete form during investigations pursuant to Article 17 or Article 18, or refuse to submit to an investigation ordered by decision issued in implementation of Article 18 (3).

2. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings fines of from ECU 1 000 to 1 000 000, or a sum in excess thereof but not exceeding 10 % of the turnover in the preceding business year of each of the undertakings participating in the infringement, where either intentionally or negligently:

(a) they infringe Article 53 (1) or Article 54 of the EEA Agreement, or do not comply with an obligation imposed under Article 7 of the said act;

(b) they commit a breach of any obligation imposed pursuant to Article 5 of the said act or to Article 13 (1).

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.

3. Article 15 (3) and (4) shall apply.

4. Decisions taken pursuant to paragraphs 1 and 2 shall not be of a criminal law nature.

5. The fines provided for in paragraph 2 (a) shall not be imposed in respect of acts taking place after notification to the EFTA Surveillance Authority and before its decision in application of Article 53 (3) of the EEA Agreement, provided they fall within the limits of the activity described in the notification.

However, this provision shall not have effect where the EFTA Surveillance Authority has informed the undertakings concerned that after preliminary examination it is of the opinion that Article 53 (1) of the EEA Agreement applies and that application of Article 53 (3) is not justified.

Article 20

Periodic penalty payments

1. The EFTA Surveillance Authority may by decision impose on undertakings or associations of undertakings periodic penalty payments of from ECU 50 to 1 000 per day, calculated from the date appointed by the decision, in order to compel them:

(a) to put an end to an infringement of Article 53 (1) or Article 54 of the EEA Agreement the termination of which it has ordered pursuant to Article 11, or to comply with an obligation imposed pursuant to Article 7 of the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86);

(b) to refrain from any act prohibited under Article 13 (3);

(c) to supply complete and correct information which it has requested by decision taken pursuant to Article 16 (5);

(d) to submit to an investigation which it has ordered by decision taken pursuant to Article 18 (3).

2. Where the undertakings or associations of undertakings have satisfied the obligation which it was the purpose of the periodic penalty payment to enforce, the EFTA Surveillance Authority may fix the total amount of the periodic penalty payment at a lower figure than that which would arise under the original decision.

3. Article 15 (3)and (4) shall apply.

Article 21

Review by the EFTA Court

The EFTA Court, in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, shall have unlimited jurisdiction within the meaning of Article 35 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed.

Article 22

Ecu

For the purpose of applying Articles 19 to 21, 'ecu' means the ecu as defined by the competent authorities of the European Communities.

Article 23

Hearing of the parties and of third persons

1. Before taking decisions as provided for in Articles 11, 12 (3), second subparagraph, 12 (4), 13 (3), 19 and 20, the EFTA Surveillance Authority shall give the undertakings or associations of undertakings concerned the opportunity of being heard on the matters to which the EFTA Surveillance Authority has taken objection.

2. If the EFTA Surveillance Authority or the competent authorities of the EFTA States consider it necessary, they may also hear other natural or legal persons. Applications to be heard on the part of such persons where they show a sufficient interest shall be granted.

3. Where the EFTA Surveillance Authority intends to give negative clearance pursuant to Article 53 (3) of the EEA Agreement, it shall publish a summary of the relevant agreement, decision or concerted practice and invite all interested third parties to submit their observations within a time limit which it shall fix being not less than one month. Publication shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 24

Professional secrecy

1. Without prejudice to Article 9 of Protocol 23 to the EEA Agreement, information acquired as a result of the application of Articles 17 and 18 of this chapter or Article 58 of the EEA Agreement and Protocol 23 thereto shall be used only for the purpose of the relevant request or investigation.

2. Without prejudice to the provisions of Articles 23 and 25, the EFTA Surveillance Authority and the competent authorities of the EFTA States, their officials and other servants shall not disclose information acquired by them as a result of the application of this Protocol or Article 58 of the EEA Agreement and Protocol 23 thereto and of the kind covered by the obligation of professional secrecy. This obligation shall also apply to the representatives of the EC Commission and of the EC Member States who participate in the Advisory Committee pursuant to Article 15 (4) and in the hearing pursuant to Article 12 (2) of Chapter X.

3. The provisions of paragraphs 1 and 2 shall not prevent publication of general information or surveys which do not contain information relating to particular undertakings or associations of undertakings.

Article 25

Publication of decisions

1. The EFTA Surveillance Authority shall publish the decisions which it takes pursuant to Articles 11, 12 (3), second paragraph, 12 (4) and 13 (3).

2. The publication shall state the names of the parties and the main content of the decision; it shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 26

Special provisions

The EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for forms to be used for complaints pursuant to Article 10 and applications pursuant to Article 12, as well as proposals for complementary notes to the forms.

CHAPTER X The obligation of communication, the form, content and other details of complaints and of applications, and the hearings provided for in Chapter IX

Section I Notifications, complaints and applications

Article 1

Notifications

1. Awards at arbitration and recommendations by conciliators accepted by the parties shall be notified to the EFTA Surveillance Authority when they concern the settlement of disputes relating to the practices of conferences referred to in Articles 4 and 5 (2) and (3) of the act referred to in point 11 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4056/86).

2. The obligation of notification applies to any party to the dispute resolved by the award or recommendation.

3. Notifications shall be submitted forthwith by registered letter with an acknowledgement of receipt or shall be delivered by hand against receipt. They shall be written in an official language of an EFTA State or the European Community.

Supporting documents shall be either originals or copies. Copies must be certified as true copies of the original. They shall be submitted in their original language. Where the original language is not an official language of an EFTA State or the European Community, a translation in one of these languages shall be attached.

4. When representatives of undertakings, of associations of undertakings, or of natural or legal persons sign such notifications, they shall produce written proof that they are authorized to act.

Article 2

Complaints

1. Complaints pursuant to Article 10 of Chapter IX shall be submitted in writing in an official language of an EFTA State or the European Community, their form, content and other details being left to the discretion of complainants.

2. Complaints may be submitted by:

(a) EFTA States;

(b) natural or legal persons who claim a legitimate interest.

3. When representatives of undertakings, of associations of undertakings, or of natural or legal persons sign such complaints, they shall produce written proof that they are authorized to act.

Article 3

Persons entitled to submit applications

1. Any undertaking which is party to agreements, decisions or practices of the kind described in Article 53 (1) of the EEA Agreement may submit an application pursuant to Article 12 of Chapter IX. Where the application is submitted by some but not all of the undertakings concerned, they shall give notice to the others.

2. Where applications pursuant to Article 12 of Chapter IX are signed by representatives of undertakings, of associations of undertakings, or of natural or legal persons, such representatives shall produce written proof that they are authorized to act.

3. Where a joint application is submitted, a joint representative shall be appointed.

Article 4

Submission of applications

1. Applications pursuant to Article 12 of Chapter IX shall be submitted on forms issued for this purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 6, or by the EC Commission.

2. Several participating undertakings may submit an application on a single form.

3. Applications shall contain the information requested in the form.

4. Nine copies of each application and of the supporting documents shall be submitted to the EFTA Surveillance Authority.

5. The supporting documents shall be either originals or copies. Copies must be certified as true copies of the original.

6. Applications shall be in an official language of an EFTA State or the European Community. Supporting documents shall be submitted in their original language. Where the original language is not an official language of an EFTA State or the European Community, a translation in one of these languages shall be attached.

7. The date of submission of an application shall be the date on which it is received by the EFTA Surveillance Authority, without prejudice to Article 11 of Protocol 23 to the EEA Agreement. Where, however, the application is sent by registered post, it shall be deemed to have been received on the date shown on the postmark of the place of posting.

8. Where an application submitted pursuant to Article 12 of Chapter IX falls outside the scope of that chapter, the EFTA Surveillance Authority shall without delay inform the applicant that it intends to examine the application under the provisions of such other act referred to in Annex XIV to the EEA Agreement as is applicable to the case; however, the date of submission of the application shall be the date resulting from paragraph 7. The EFTA Surveillance Authority shall inform the applicant of its reasons and fix a period for him to submit any comments in writing before it conducts its appraisal pursuant to the provisions of that other act.

Section II Hearings

Article 5

Before consulting the Advisory Committee on Competition in Maritime Transport, the EFTA Surveillance Authority shall hold a hearing pursuant to Article 23 (1) of Chapter IX.

Article 6

1. The EFTA Surveillance Authority shall inform undertakings and associations of undertakings in writing of the objections raised against them. The communication shall be addressed to each of them or to a joint agent appointed by them.

2. The EFTA Surveillance Authority may inform the parties by giving notice in the EEA Section of the Official Journal of the European Communities, if from the circumstances of the case this appears appropriate, in particular where notice is to be given to a number of undertakings but no joint agent has been appointed. The notice shall have regard to the legitimate interest of the undertakings in the protection of their business secrets.

3. A fine or a periodic penalty payment may be imposed on an undertaking or association of undertakings only if the objections were notified in the manner provided for in paragraph 1.

4. The EFTA Surveillance Authority shall, when giving notice of objections, fix a period within which the undertakings and associations of undertakings may inform the EFTA Surveillance Authority of their views.

Article 7

1. Undertakings and associations of undertakings shall, within the appointed period, make known in writing their views concerning the objections raised against them.

2. They may in their written comments set out all matters relevant to their defence.

3. They may attach any relevant documents in proof of the facts set out. They may also propose that the EFTA Surveillance Authority hear persons who may corroborate those facts.

Article 8

The EFTA Surveillance Authority shall in its decision deal only with those objections raised against undertakings and associations of undertakings in respect of which they have been afforded the opportunity of making known their views.

Article 9

If natural or legal persons showing a sufficient interest apply to be heard pursuant to Article 23 (2) of Chapter IX the EFTA Surveillance Authority shall afford them the opportunity of making known their views in writing within such period as it shall fix.

Article 10

Where the EFTA Surveillance Authority, having received a complaint pursuant to Article 10 of Chapter IX, considers that on the basis of the information in its possession there are insufficient grounds for acting on the complaint, it shall inform the persons who submitted the complaint of its reasons and fix a period for them to submit any further comments in writing.

Article 11

1. The EFTA Surveillance Authority shall afford to persons who have so requested in their written comments the opportunity to put forward their arguments orally, if those persons show a sufficient interest or if the EFTA Surveillance Authority proposes to impose on them a fine or periodic penalty payment.

2. The EFTA Surveillance Authority may likewise afford to any other person the opportunity of orally expressing his views.

Article 12

1. The EFTA Surveillance Authority shall summon the persons to be heard to attend on such date as it shall appoint.

2. It shall forthwith transmit a copy of the summons to the competent authorities of the EFTA States, who may appoint an official to take part in the hearing. Likewise, the EFTA Surveillance Authority shall invite the EC Commission to be represented at the hearing. The invitation shall also extend to the EC Member States.

Article 13

1. Hearings shall be conducted by the persons appointed by the EFTA Surveillance Authority for that purpose.

2. Persons summoned to attend shall either appear in person or be represented by legal representatives or by representatives authorized by their constitution. Undertakings and associations of undertakings may moreover be represented by a duly authorized agent appointed from among their permanent staff.

Persons heard by the EFTA Surveillance Authority may be assisted by lawyers or advisers who are entitled to plead before the EFTA Court, or by other qualified persons.

3. Hearings shall not be public. Persons shall be heard separately or in the presence of other persons summoned to attend. In the latter case, regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets.

4. The essential content of the statements made by each person heard shall be recorded in minutes which shall be read and approved by him.

Article 14

Without prejudice to Article 6 (2), information and summonses from the EFTA Surveillance Authority shall be sent to the addressees by registered letter with acknowledgement of receipt, or shall be delivered by and against receipt.

Article 15

1. In fixing the periods provided for in Articles 4 (8), 6, 9 and 10, the EFTA Surveillance Authority shall have regard both to the time required for preparation of comments and to the urgency of the case. A period shall be not less than two weeks; it may be extended.

2. Periods shall run from the day following receipt of a communication or delivery thereof by hand.

3. Written comments must reach the EFTA Surveillance Authority or be dispatched by registered letter before expiry of the period. Where the period would expire on a Sunday or a public holiday, it shall be extended up to the end of the next following working day. For the purpose of calculating the extension, public holidays shall, in cases where the relevant date is the date of receipt of written comments, be those set out in Appendix 2 to this Protocol, and in cases where the relevant date is the date of dispatch, those appointed by law in the country of dispatch.

Article 16

Special provisions

The EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for forms and complementary notes.

CHAPTER XI Procedure for the application of the rules on competition to undertakings in the air transport sector

Article 1

Scope

1. This chapter lays down detailed rules for the application of Articles 53 and 54 of the EEA Agreement to air transport services.

2. This chapter shall apply only to international air transport between airports within the territory covered by the EEA Agreement.

Article 2

Exceptions for certain technical agreements

1. The prohibition laid down in Article 53 (1) of the EEA Agreement shall not apply to the agreements, decisions and concerted practices listed in Appendix 7 to this Protocol, in so far as their sole object and effect is to achieve technical improvements or cooperation. This list is not exhaustive.

2. If necessary, the EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for the amendment of the list in Appendix 7.

Article 3

Procedures on complaint or on the EFTA Surveillance Authority's own initiative

1. Acting on receipt of a complaint or on its own initiative, the EFTA Surveillance Authority shall initiate procedures to terminate any infringement of the provisions of Articles 53 (1) or 54 of the EEA Agreement.

Complaints may be submitted by:

(a) EFTA States;

(b) natural or legal persons who claim a legitimate interest.

2. Upon application by the undertakings or associations of undertakings concerned, the EFTA Surveillance Authority may certify that, on the basis of the facts in its possession, there are no grounds under Article 53 (1) or Article 54 of the EEA Agreement for action on its part in respect of an agreement, decision or concerted practice.

Article 4

Result of procedures on complaint or on the EFTA Surveillance Authority's own initiative

1. Where the EFTA Surveillance Authority finds that there has been an infringement of Articles 53 (1) or 54 of the EEA Agreement, it may by decision require the undertakings or associations of undertakings concerned to bring such an infringement to an end.

Without prejudice to the other provisions of this chapter, the EFTA Surveillance Authority may address recommendations for termination of the infringement to the undertakings or associations of undertakings concerned before taking a decision under the preceding subparagraph.

2. If the EFTA Surveillance Authority, acting on a complaint received, concludes that, on the evidence before it, there are no grounds for intervention pursuant to Articles 53 (1) or 54 of the EEA Agreement in resepct of any agreement, decision or concerted practice, it shall take a decision rejecting the complaint as unfounded.

3. If the EFTA Surveillance Authority, whether acting on a complaint received or on its own initiative concludes that an agreement, decision or concerted practice satisfies the provisions of both Article 53 (1) and 53 (3) of the EEA Agreement, it shall take a decision applying paragraph 3 of the said Article. Such a decision shall indicate the date from which it is to take effect. This date may be prior to that of the decision.

Article 4a

Interim measures against anti-competitive practices

1. Without prejudice to the application of Article 4 (1), where the EFTA Surveillance Authority has clear prima facie evidence that certain practices are contrary to Article 53 or 54 of the EEA Agreement and have the object or effect of directly jeopardizing the existence of an air service, and where recourse to normal procedures may not be sufficient to protect the air service or the airline company concerned, it may by decision take interim measures to ensure that these practices are not implemented or cease to be implemented and give such instructions as are necessary to prevent the occurrence of these practices until a decision pursuant to Article 4 (1) is taken.

2. A decision taken pursuant to paragraph 1 shall apply for a period not exceeding six months. Article 8 (5) shall not apply.

The EFTA Surveillance Authority may review that initial decision, with or without modification, for a period not exceeding three months. In such case, Article 8 (5) shall apply.

Article 5

Application of Article 53 (3) of the EEA Agreement - objections

1. Undertakings and associations of undertakings which wish to seek application of Article 53 (3) of the EEA Agreement in respect of agreements, decisions and concerted practices falling within the provisions of paragraph 1 of the said Article to which they are parties shall submit application to the EFTA Surveillance Authority.

2. If the EFTA Surveillance Authority judges an application admissible and is in possession of all the available evidence and no action pursuant to Article 3 has been taken against the agreement, decision or concerted practice in question, then it shall publish as soon as possible in the EEA Section of the Official Journal of the European Communities a summary of the application and invite all interested third parties and the EFTA States to submit their comments to the EFTA Surveillance Authority within 30 days. Such publications shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

3. Unless the EFTA Surveillance Authority notifies applicants, within 90 days of the date of such publication in the EEA Section of the Official Journal of the European Communities, that there are serious doubts as to the applicability of Article 53 (3) of the EEA Agreement, the agreement, decision or concerted practice shall be deemed exempt, in so far as it conforms with the description given in the application, from the prohibition for the time already elapsed and for a maximum of six years from the date of publication in the EEA Section of the Official Journal of the European Communities.

If the EFTA Surveillance Authority finds, after expiry of the 90-day time limit, but before expiry of the six-year period, that the conditions for applying Article 53 (3) of the EEA Agreement are not satisfied, it shall issue a decision declaring that the prohibition in Article 53 (1) applies. Such decision may be retroactive where the parties concerned have given inaccurate information or where they abuse an exemption from the provisions of Article 53 (1) or have contravened Article 54.

4. The EFTA Surveillance Authority may notify applicants as referred to in the first subparagraph of paragraph 3; it shall do so if requested by an EFTA State within 45 days of the forwarding to the EFTA State of the application in accordance with Article 8 (2). This request must be justified on the basis of considerations relating to the competition rules of the EEA Agreement.

If it finds that the conditions of Article 53 (1) and (3) of the EEA Agreement are satisfied, the EFTA Surveillance Authority shall issue a decision applying Article 53 (3). The decision shall indicate the date from which it is to take effect. This date may be prior to that of the application.

Article 6

Duration and revocation of decisions applying Article 53 (3) of the EEA Agreement

1. Any decision applying Article 53 (3) of the EEA Agreement adopted pursuant to Articles 4 or 5 of this chapter shall indicate the period for which it is to be valid; normally such period shall not be less than six years. Conditions and obligations may be attached to the decision.

2. The decision may be renewed if the conditions for applying Article 53 (3) of the EEA Agreement continue to be satisfied.

3. The EFTA Surveillance Authority may revoke or amend its decision or prohibit specific acts by the parties:

(a) where there has been a change in any of the facts which were basic to the making of the decision;

or

(b) where the parties commit a breach of any obligation attached to the decision;

or

(c) where the decision is based on incorrect information or was induced by deceit;

or

(d) where the parties abuse the exemption from the provisions of Article 53 (1) of the EEA Agreement granted to them by the decision.

In cases falling under subparagraphs (b), (c) or (d), the decision may be revoked with retroactive effect.

Article 7

Powers

Subject to review of its decision by the EFTA Court, in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, the EFTA Surveillance Authority shall have sole power to issue decisions pursuant to Article 53 (3) of the EEA Agreement, on the conditions set out in Article 56 of the EEA Agreement.

The authorities of the EFTA States shall retain the power to decide whether any case falls under the provisions of Articles 53 (1) or 54 of the EEA Agreement, until such time as the EFTA Surveillance Authority has initiated a procedure with a view to formulating a decision on the case in question or has sent notification as provided by the first subparagraph of Article 5 (3) of this chapter.

Article 8

Liaison with the authorities of the EFTA States

1. The EFTA Surveillance Authority shall carry out the procedures provided for in this chapter in close and constant liaison with the competent authorities of the EFTA States; these authorities shall have the right to express their views on such procedures.

2. The EFTA Surveillance Authority shall immediately forward to the competent authorities of the EFTA States copies of the complaints and applications and of the most important documents sent to it or which it sends out in the course of such procedures.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of notifications, complaints and information on opening of ex officio procedures received from the EC Commission pursuant to Articles 2 and 10 of Protocol 23 to the EEA Agreement.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of documents received from the EC Commission pursuant to Article 7 of Protocol 23 to the EEA Agreement.

3. An Advisory Committee on Competition in Air Transport shall be consulted prior to the taking of any decision following upon a procedure under Article 3 or of any decision under the second subparagraph of Article 5 (3), or under the second subparagraph of paragraph 4 of the same Article or under Article 6. The Advisory Committee shall also be consulted prior to a proposal referred to in Article 19.

4. The Advisory Committee shall be composed of officials competent in the sphere of air transport and agreements and dominant positions. Each EFTA State shall nominate two officials to represent it, each of whom may be replaced, in the event of his being prevented from attending, by another official.

The EC Commission and the EC Member States shall be entitled to be present in the Advisory Committee and to express their views therein. However, their representatives shall not have the right to vote.

5. Consultation shall take place at a joint meeting convened by the EFTA Surveillance Authority; such a meeting shall be held not earlier than 14 days after dispatch of the notice convening it. In respect of each case to be examined, this notice shall be accompanied by a summary of the case, together with an indication of the most important documents, and a preliminary draft decision.

In view of the participation provided for in the second subparagraph of paragraph 4, the EC Commission shall receive an invitation to the meeting and the relevant information as provided for in Article 6 of Protocol 23 to the EEA Agreement.

6. The Advisory Committee may deliver an opinion notwithstanding that some of its members or their alternates are not present. A report of the outcome of the consultative proceedings shall be annexed to the draft decision. It shall not be made public.

Article 9

Requests for information

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by provisions of this chapter, the EFTA Surveillance Authority may obtain all necessary information from the governments and competent authorities of the EFTA States and from undertakings and associations of undertakings.

2. When sending a request for information to an undertaking or association of undertakings, the EFTA Surveillance Authority shall forward a copy of the request at the same time to the competent authority of the EFTA State in whose territory the head office of the undertaking or association of undertakings is situated.

3. In its request, the EFTA Surveillance Authority shall state the legal basis and purpose of the request and also the penalties for supplying incorrect information provided for in Article 12 (1) (b).

4. The owners of the undertakings or their representatives and, in the case of legal persons or of companies, firms or associations having no legal personality, the person authorized to represent them by law or by their rules shall be bound to supply the information requested.

5. When an undertaking or association of undertakings does not supply the information requested within the time limit fixed by the EFTA Surveillance Authority, or supplies incomplete information, the EFTA Surveillance Authority shall by decision require the information to be supplied. The decision shall specify what information is required, fix an appropriate time limit within which it is to be supplied and indicate the penalties provided for in Article 12 (1) (b) and Article 13 (1) (c), as well as the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

6. At the same time the EFTA Surveillance Authority shall send a copy of its decision to the competent authority of the EFTA State in whose territory the head office of the undertaking or association of undertakings is situated.

Article 10

Investigations by the authorities of the EFTA States

1. At the request of the EFTA Surveillance Authority, the competent authorities of the EFTA States shall undertake the investigations which the EFTA Surveillance Authority considers to be necessary under Article 11 (1) or which it has ordered by decision adopted pursuant to Article 11 (3). The officials of the competent authorities of the EFTA States responsible for conducting these investigations shall exercise their powers upon production of an authorization in writing issued by the competent authority of the EFTA State in whose territory the investigation is to be made. Such an authorization shall specify the subject matter and purpose of the investigation.

2. If so requested by the EFTA Surveillance Authority or by the competent authority of the EFTA State in whose territory the investigation is to be made, EFTA Surveillance Authority officials may assist the officials of the competent authority in carrying out their duties.

Article 11

Investigating powers of the EFTA Surveillance Authority

1. In carrying out the duties assigned to it by Articles 55 and 58 of the EEA Agreement, by provisions set out in Protocol 23 and in Annex XIV to the EEA Agreement or by provisions of this chapter, the EFTA Surveillance Authority may undertake all necessary investigations into undertakings and associations of undertakings. To this end the officials authorized by the EFTA Surveillance Authority shall be empowered:

(a) to examine the books and other business records;

(b) to take copies of, or extracts from, the books and business records;

(c) to ask for oral explanations on the spot;

(d) to enter any premises, land and vehicles used by undertakings or associations of undertakings.

2. The authorized officials of the EFTA Surveillance Authority shall exercise their powers upon production of an authorization in writing specifying the subject matter and purpose of the investigation and the penalties provided for in Article 12 (1) (c) in cases where production of the required books or other business records is incomplete. In good time, before the investigation, the EFTA Surveillance Authority shall inform the competent authority of the EFTA State, in whose territory the same is to be made, of the investigation and the identity of the authorized officials. The EFTA Surveillance Authority shall also provide such an authorization to represenatives of the EC Commission who shall take part in the investigation in accordance with Article 8 (4) of Protocol 23 to the EEA Agreement.

3. Undertakings and associations of undertakings shall submit to investigations ordered by decision of the EFTA Surveillance Authority. The decision shall specify the subject matter and purpose of the investigation, appoint the date on which it is to begin and indicate the penalties provided for in Articles 12 (1) (c) and 13 (1) (d) and the right to have the decision reviewed by the EFTA Court.

4. The EFTA Surveillance Authority shall take the decisions mentioned in paragraph 3 after consultation with the competent authority of the EFTA State in whose territory the investigation is to be made.

5. Officials of the competent authority of the EFTA State in whose territory the investigation is to be made may assist the EFTA Surveillance Authority officials in carrying out their duties, at the request of such authority or of the EFTA Surveillance Authority.

6. Where an undertaking opposes an investigation ordered pursuant to this Article, the EFTA State concerned shall afford the necessary assistance to the officials authorized by the EFTA Surveillance Authority to enable them to make their investigation. To this end, EFTA States shall take the necessary measures after consultation of the EFTA Surveillance Authority within six months of the entry into force of the EEA Agreement.

Article 12

Fines

1. The EFTA Surveillance Authority may, by decision, impose fines on undertakings or associations of undertakings of from ECU 100 to 5 000 where, intentionally or negligently:

(a) they supply incorrect or misleading information in connection with an application pursuant to Article 3 (2) or Article 5;

or

(b) they supply incorrect information in response to a request made pursuant to Article 9 (3) or (5), or do not supply information within the time limit fixed by a decision adopted under Article 9 (5);

or

(c) they produce the required books or other business records in incomplete form during investigations pursuant to Article 10 or Article 11, or refuse to submit to an investigation ordered by decision taken pursuant to Article 11 (3).

2. The EFTA Surveillance Authority may, by decision, impose fines on undertakings or associations of undertakings of from ECU 1 000 to 1 000 000, or a sum in excess thereof, but not exceeding 10 % of the turnover in the preceding business year of the undertakings participating in the infringement, where either intentionally or negligently they:

(a) infringe Article 53 (1) or Article 54 of the EEA Agreement;

or

(b) commit a breach of any obligation imposed pursuant to Article 6 (1) of this chapter.

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.

3. Article 8 shall apply.

4. Decisions taken pursuant to paragraphs 1 and 2 shall not be of a penal nature.

5. The fines provided for in paragraph 2 (a) shall not be imposed in respect of acts taking place after notification to the EFTA Surveillance Authority and before its decision in application of Article 53 (3) of the EEA Agreement, provided they fall within the limits of the activity described in the notifiction.

However, this provision shall not have effect where the EFTA Surveillance Authority has informed the undertakings or associations of undertakings concerned that, after preliminary examination, it is of the opinion that Article 53 (1) of the EEA Agreement applies and that application of Article 53 (3) is not justified.

Article 13

Periodic penalty payments

1. By decision, the EFTA Surveillance Authority may impose periodic penalty payments on undertakings or associations of undertakings of from ECU 50 to 1 000 per day, calculated from the date appointed by the decision, in order to compel them:

(a) to put an end to an infringement of Article 53 (1) or Article 54 of the EEA Agreement, the termination of which has been ordered pursuant to Article 4 of this chapter;

(b) to refrain from any act prohibited under Article 6 (3);

(c) to supply complete and correct information which has been requested by decision, taken pursuant to Article 9 (5);

(d) to submit to an investigation which has been ordered by decision taken pursuant to Article 11 (3);

(e) to comply with any measure imposed by decision taken under Article 4a.

2. When the undertakings or associations of undertakings have satisfied the obligation which it was the purpose of the periodic penalty payment to enforce, the EFTA Surveillance Authority may fix the total amount of the periodic penalty payment at a lower figure than that which would result from the original decision.

3. Article 8 shall apply.

Article 14

Review by the EFTA Court

The EFTA Court, in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, shall have unlimited jurisdiction within the meaning of Article 35 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed.

Article 15

Ecu

For the purpose of applying Articles 12 to 14, 'ecu' means the ecu as defined by the competent authorities of the European Communities.

Article 16

Hearing of the parties and of third persons

1. Before refusing the certificate mentioned in Article 3 (2), or taking decisions as provided for in Articles 4, 4a, 5 (3) second subparagraph and 5 (4), 6 (3), 12 and 13, the EFTA Surveillance Authority shall give the undertakings or associations of undertakings concerned the opportunity of being heard on the matters to which the EFTA Surveillance Authority takes, or has taken, objection.

2. If the EFTA Surveillance Authority or the competent authorities of the EFTA States consider it necessary, they may also hear other natural or legal persons. Applications by such persons to be heard shall be granted when they show a sufficient interest.

3. When the EFTA Surveillance Authority intends to take a decision pursuant to Article 53 (3) of the EEA Agreement, it shall publish a summary of the relevant agreement, decision or concerted practice in the EEA Section of the Official Journal of the European Communities and invite all interested third parties to submit their observations within a period, not being less than one month, which it shall fix. Publication shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 17

Professional secrecy

1. Without prejudice to Article 9 of Protocol 23 to the EEA Agreement, information acquired as a result of the application of Articles 9 to 11 of this chapter or Article 58 of the EEA Agreement and Protocol 23 thereto shall be used only for the purpose of the relevant request or investigation.

2. Without prejudice to the provisions of Articles 16 and 18, the EFTA Surveillance Authority and the competent authorities of the EFTA States, their officials and other servants shall not disclose information of a kind covered by the obligation of professional secrecy and which has been acquired by them as a result of the application of this Protocol or Article 58 of the EEA Agreement and Protocol 23 thereto. This obligation shall also apply to the representatives of the EC Commission and of the EC Member States who participate in the Advisory Committee pursuant to Article 8 (4) and in the hearing pursuant to Article 11 (2) of Chapter XII.

3. The provisions of paragraphs 1 and 2 shall not prevent publication of general information or of surveys which do not contain information relating to particular undertakings or associations of undertakings.

Article 18

Publication of decisions

1. The EFTA Surveillance Authority shall publish the decision which it adopts pursuant to Articles 3 (2), 4, 5 (3) second subparagraph, 5 (4) and 6 (3).

2. The publication shall state the names of the parties and the main contents of the decision; it shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 19

Special provisions

The EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for forms to be used for complaints pursuant to Article 3 and applications pursuant to Articles 3 (2) and 5, as well as proposals for complementary notes to the forms.

CHAPTER XII Form, content and other details of complaints and of applications, and the hearings provided for in Chapter XI laying down the procedure for the application of the rules of competition to undertakings in the air transport sector

Section I Complaints and applications

Article 1

Complaints

1. Complaints pursuant to Article 3 (1) of Chapter XI shall be submitted in writing in an official language of an EFTA State or the European Community, their form, content and other details being left to the discretion of complainants.

2. Complaints may be submitted by:

(a) EFTA States;

(b) natural or legal persons who claim a legitimate interest.

3. When representatives of undertakings, of associations of undertakings, or of natural or legal persons sign such complaints, they shall produce written proof that they are authorized to act.

Article 2

Persons entitled to submit applications

1. Any undertaking which is party to agreements, decisions or practices of the kind described in Articles 53 (1) and 54 of the EEA Agreement may submit an application pursuant to Articles 3 (2) and 5 of Chapter XI. Where the application is submitted by some but not all of the undertakings concerned, they shall give notice to the others.

2. Where applications pursuant to Articles 3 (2) and 5 of Chapter XI are signed by representatives of undertakings, of associations of undertakings, or of natural or legal persons, such representatives shall produce written proof that they are authorized to act.

3. Where a joint application is submitted, a joint representative shall be appointed.

Article 3

Submission of applications

1. Applications pursuant to Articles 3 (2) and 5 of Chapter XI shall be submitted on forms issued for this purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 8, or by the EC Commission.

2. Several participating undertakings may submit an application on a single form.

3. Applications shall contain the information requested in the form.

4. Nine copies of each application and of the supporting documents shall be submitted to the EFTA Surveillance Authority.

5. The supporting documents shall be either originals or copies. Copies must be certified as true copies of the original.

6. Applications shall be in one of the official languages of an EFTA State or the European Community. Supporting documents shall be submitted in their original language. Where the original language is not an official language of an EFTA State or the European Community, a translation in one of these languages shall be attached.

7. The date of submission of an application shall be the date on which it is received by the EFTA Surveillance Authority, without prejudice to Article 11 of Protocol 23 to the EEA Agreement. Where, however, the application is sent by registered post, it shall be deemed to have been received on the date shown on the postmark of the place of posting.

8. Where an application submitted pursuant to Articles 3 (2) and 5 of Chapter XI falls outside the scope of that chapter, the EFTA Surveillance Authority shall without delay inform the applicant that it intends to examine the application under the provisions of such other acts referred to in Annex XIV to the EEA Agreement as is applicable to the case; however, the date of submission of the application shall be the date resulting from paragraph 7. The EFTA Surveillance Authority shall inform the applicant of its reasons and fix a period for him to submit any comments in writing before it conducts its appraisal pursuant to the provisions of that other act.

Section II Hearings

Article 4

Before consulting the Advisory Committee on Competition in Air Transport, the EFTA Surveillance Authority shall hold a hearing pursuant to Article 16 (1) of Chapter XI.

Article 5

1. The EFTA Surveillance Authority shall inform undertakings and associations of undertakings in writing of the objections raised against them. The communication shall be addressed to each of them or to a joint agent appointed by them.

2. The EFTA Surveillance Authority may inform the parties by giving notice in the EEA Section of the Official Journal of the European Communities, if from the circumstances of the case this appears appropriate, in particular where notice is to be given to a number of undertakings but no joint agent has been appointed. The notice shall have regard to the legitimate interest of the undertakings in the protection of their business secrets.

3. A fine or a periodic penalty payment may be imposed on an undertaking or association of undertakings only if the objections were notified in the manner provided for in paragraph 1.

4. The EFTA Surveillance Authority shall, when giving notice of objections, fix a period within which the undertakings and associations of undertakings may inform the EFTA Surveillance Authority of their view.

Article 6

1. Undertakings and associations of undertakings shall, within the appointed period, make known in writing their views concerning the objections raised against them.

2. They may in their written comments set out all matters relevant to their defence.

3. They may attach any relevant documents in proof of the facts set out. They may also propose that the EFTA Surveillance Authority hear persons who may corroborate those facts.

Article 7

The EFTA Surveillance Authority shall in its decision deal only with those objections raised against undertakings and associations of undertakings in respect of which they have been afforded the opportunity of making known their views.

Article 8

If natural or legal persons showing a sufficient interest apply to be heard pursuant to Article 16 (2) of Chapter XI the EFTA Surveillance Authority shall afford them the opportunity of making known their views in writing within such period as it shall fix.

Article 9

Where the EFTA Surveillance Authority, having received a complaint pursuant to Article 3 (1) of Chapter XI considers that on the basis of the information in its possession there are insufficient grounds for acting on the complaint, it shall inform the persons who submitted the complaint of its reasons and fix a period for them to submit any further comments in writing.

Article 10

1. The EFTA Surveillance Authority shall afford to persons who have so requested in their written comments the opportunity to put forward their arguments orally, if those persons show a sufficient interest or if the EFTA Surveillance Authority proposes to impose on them a fine or periodic penalty payment.

2. The EFTA Surveillance Authority may likewise afford to any other person the opportunity of orally expressing his views.

Article 11

1. The EFTA Surveillance Authority shall summon the persons to be heard to attend on such date as it shall appoint.

2. It shall forthwith transmit a copy of the summons to the competent authorities of the EFTA States, who may appoint an official to take part in the hearing. Likewise, the EFTA Surveillance Authority shall invite the EC Commission to be represented at the hearing. The invitation shall also extend to the EC Member States.

Article 12

1. Hearings shall be conducted by the persons appointed by the EFTA Surveillance Authority for that purpose.

2. Persons summoned to attend shall either appear in person or be represented by legal representatives or by representatives authorized by their constitution. Undertakings and associations of undertakings may moreover be represented by a duly authorized agent appointed from among their permanent staff.

Persons heard by the EFTA Surveillance Authority may be assisted by lawyers or advisers who are entitled to plead before the EFTA Court, or by other qualified persons.

3. Hearings shall not be public. Persons shall be heard separately or in the presence of other persons summoned to attend. In the latter case, regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets.

4. The essential content of the statements made by each person heard shall be recorded in minutes which shall be read and approved by him.

Article 13

Without prejudice to Article 5 (2), information and summonses from the EFTA Surveillance Authority shall be sent to the addressees by registered letter with acknowledgement of receipt, or shall be delivered by hand against receipt.

Article 14

1. In fixing the periods provided for in Articles 3 (8), 5, 8 and 9, the EFTA Surveillance Authority shall have regard both to the time required for preparation of comments and to the urgency of the case. A period shall be not less than two weeks; it may be extended.

2. Periods shall run from the day following receipt of a communication or delivery thereof by hand.

3. Written comments must reach the EFTA Surveillance Authority or be dispatched by registered letter before expiry of the period. Where the period would expire on a Sunday or a public holiday, it shall be extended up to the end of the next following working day. For the purpose of calculating the extension, public holidays shall, in cases where the relevant date is the date of receipt of written comments, be those set out in Appendix 2 to this Protocol, and in cases where the relevant date is the date of dispatch, those appointed by law in the country of dispatch.

Article 15

Special provisions

The EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for forms and complementary notes.

PART III CONTROL OF CONCENTRATIONS

CHAPTER XIII Rules relating to control of concentrations between undertakings

Due to the division of the text of Regulation (EEC) No 4064/89 between Annex XIV to the EEA Agreement (substantive rules) and the present chapter (procedural rules), the text, as adapted, of Articles 1 to 5 is to be found in the act referred to in point 1 of Annex XIV to the EAA Agreement (Regulation (EEC) No 4064/89). The EFTA Surveillance Authority shall carry out the control of concentration in accordance with the provisions of Article 57 of the EEA Agreement, in particular paragraph 2 (b).

Articles 1 to 5

(No text)

Article 6

Examination of the notification and initiation of proceedings

1. The EFTA Surveillance Authority, in accordance with the provisions of Article 57 (1) and (2) (b) of the EEA Agreement, shall examine the notification as soon as it is received.

(a) Where it concludes that the concentration notified does not fall within the scope of the act referred to in point 1 of Annex XIV to the EAA Agreement (Regulation (EEC) No 4064/89), it shall record that finding by means of a decision.

(b) Where it finds that the concentration notified, although falling within the scope of the said act, does not raise serious doubts as to its compatibility with the functioning of the EEA Agreement, it shall decide not to oppose it and shall declare that it is compatible with the functioning of the EEA Agreement.

(c) If, on the other hand, it finds that the concentration notified falls within the scope of the said act and raises serious doubts as to its compatibility with the functioning of the EEA Agreement, it shall decide to initiate proceedings.

2. The EFTA Surveillance Authority shall notify its decision to the undertakings concerned and the competent authorities of the EFTA States without delay.

Article 7

Suspension of concentrations

1. For the purposes of paragraph 2 a concentration as defined in Article 1 of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89) shall not be put into effect either before its notification or within the first three weeks following its notification.

2. Where the EFTA Surveillance Authority, following a preliminary examination of the notification within the period provided for in paragraph 1, finds it necessary in order to ensure the full effectiveness of any decision taken later pursuant to Article 8 (3) and (4), it may decide on its own initiative to continue the suspension of a concentration in whole or in part until it takes a final decision, or to take other interim measures to that effect.

3. Paragraphs 1 and 2 shall not impede the implementation of a public bid which has been notified to the EFTA Surveillance Authority in accordance with Article 4 (1) of the said act, provided that the acquirer does not exercise the voting rights attached to the securities in question or does so only to maintain the full value of those investments and on the basis of a derogation granted by the EFTA Surveillance Authority pursuant to paragraph 4.

4. The EFTA Surveillance Authority may, on request, grant a derogation from the obligations imposed in paragraphs 1, 2 or 3 in order to prevent serious damage to one or more undertakings concerned by a concentration or to a third party. That derogation may be made subject to conditions and obligations in order to ensure conditions of effective competition. A derogation may be applied for and granted at any time, even before notification or after the transaction.

5. The validity of any transaction carried out in contravention of paragraph 1 or 2 shall be dependent on a decision pursuant to Article 6 (1) (b) or 8 (2) or (3) or on a presumption pursuant to Article 10 (6).

This Article shall, however, have no effect on the validity of transactions in securities including those convertible into other securities admitted to trading on a market which is regulated and supervised by authorities recognized by public bodies, operates regularly and is accessible directly or indirectly to the public, unless the buyer and seller knew or ought to have known that the transaction was carried out in contravention of paragraph 1 or 2.

Article 8

Powers of decision of the EFTA Surveillance Authority

1. Without prejudice to Article 9, all proceedings initiated pursuant to Article 6 (1) (c) shall be closed by means of a decision as provided for in paragraphs 2 to 5.

2. Where the EFTA Surveillance Authority finds that, following modification by the undertakings concerned if necessary, a notified concentration fulfils the criterion laid down in Article 2 (2) of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89), it shall issue a decision declaring the concentration compatible with the functioning of the EEA Agreement.

It may attach to its decision conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into vis-à-vis the EFTA Surveillance Authority with a view to modifying the original concentration plan. The decision declaring the concentration compatible shall also cover restrictions directly related and necessary to the implementation of the concentration.

3. Where the EFTA Surveillance Authority finds that a concentration fulfills the criterion laid down in Article 2 (3) of the said act, it shall issue a decision declaring that the concentration is incompatible with the functioning of the EEA Agreement.

4. Where a concentration has already been implemented, the EFTA Surveillance Authority may, in a decision pursuant to paragraph 3 or by separate decision, require the undertakings or assets brought together to be separated or the cessation of joint control or any other action that may be appropriate in order to restore conditons of effective competition.

5. The EFTA Surveillance Authority may revoke the decision it has taken pursuant to paragraph 2 where:

(a) the declaration of compatibility is based on incorrect information for which one of the undertakings is responsible or where it has been obtained by deceit;

or

(b) the undertakings concerned commit a breach of an obligation attached to the decision.

6. In the case referred to in paragraph 5, the EFTA Surveillance Authority may take a decision under paragraph 3, without being bound by the deadline referred to in Article 10 (3).

Article 9

Referral to the competent authorities of the EFTA States

1. The EFTA Surveillance Authority may, by means of a decision notified without delay to the undertakings concerned and the competent authorities of the other EFTA States, refer a notified concentration to the competent authorities of the EFTA State concerned in the following circumstances.

2. Within three weeks of the date of receipt of the copy of the notification an EFTA State may inform the EFTA Surveillance Authority which shall inform the undertakings concerned that a concentration threatens to create or to strengthen a dominant position as a result of which effective competition would be significantly impeded on a market, within the State, which presents all the characteristics of a distinct market, be it a substantial part of the territory of the EFTA States or not.

3. If the EFTA Surveillance Authority considers that, having regard to the market for the products or services in question and the geographical reference market within the meaning of paragraph 7, there is such a distinct market and that such a threat exists, either:

(a) it shall itself deal with the case in order to maintain or restore effective competition on the market concerned;

or

(b) it shall refer the case to the competent authorities of the EFTA State concerned with a view to the application of that State's national competition law.

If, however, the EFTA Surveillance Authority considers that such a distinct market or threat does not exist it shall adopt a decision to that effect which it shall address to the EFTA State concerned.

4. A decision to refer or not to refer pursuant to paragraph 3 shall be taken where:

(a) as a general rule within the six-week period provided for in Article 10 (1), second paragraph, where the EFTA Surveillance Authority, pursuant to Article 6 (1) (b), has not initiated proceedings;

or

(b) within three months at most of the notification of the concentration concerned where the EFTA Surveillance Authority has initiated proceedings under Article 6 (1) (c), without taking the preparatory steps in order to adopt the necessary measures under Article 8 (2), second subparagraph, (3) or (4) to maintain or restore effective competition on the market concerned.

5. If within the three months referred to in paragraph 4 (b) the EFTA Surveillance Authority, despite a reminder from the EFTA State concerned, has not taken a decision on referral in accordance with paragraph 3 nor has taken the preparatory steps referred to in paragraph 4 (b), it shall be deemed to have taken a decision to refer the case to the EFTA State concerned in accordance with paragraph 3 (b).

6. The publication of any report or the announcement of the findings of the examination of the concentration by the competent authority of the EFTA State concerned shall be effected not more than four months after the EFTA Surveillance Authority's referral.

7. The geographical reference market shall consist of the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because, in particular, conditions of competition are appreciably different in those areas. This assessment should take account in particular of the nature and characteristics of the products or services concerned, of the existence of entry barriers or of consumer preferences, of appreciable differences of the undertakings' market shares between the area concerned and neighbouring areas or of substantial price differences.

8. In applying the provisions of this Article, the EFTA State concerned may take only the measures strictly necessary to safeguard or restore effective competition on the market concerned.

9. In accordance with the relevant provisions of the EEA Agreement, any EFTA State may appeal to the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, and in particular request the application of Article 41 of this Agreement, for the purpose of applying its national competition law.

10. This Article will be reviewed before the end of the year 1993.

Article 10

Time limits for initiating proceedings and for decisions

1. The decisions referred to in Article 6 (1) must be taken within one month at most. That period shall begin on the day following that of the receipt of a notification or, if the information to be supplied with the notification is incomplete, on the day following that of the receipt of the complete information. That period shall be increased to six weeks if the EFTA Surveillance Authority receives a request from an EFTA State in accordance with Article 9 (2).

2. Decisions taken pursuant to Article 8 (2) concerning notified concentrations must be taken as soon as it appears that the serious doubts referred to in Article 6 (1) (c) have been removed, particularly as a result of modifications made by the undertakings concerned, and at the latest by the deadline laid down in paragraph 3.

3. Without prejudice to Article 8 (6), decisions taken pursuant to Article 8 (3) concerning notified concentrations must be taken within not more than four months of the date on which the proceeding is initiated.

4. The period set by paragraph 3 shall exceptionally be suspended where, owing to circumstances for which one of the undertakings involved in the concentration is responsible, the EFTA Surveillance Authority has had to request information by decision pursuant to Article 11 or to order an investigation by decision pursuant to Article 13.

5. Where the EFTA Court gives a judgment which annuls the whole or part of an EFTA Surveillance Authority decision taken under this chapter, the periods laid down in this chapter shall start again from the date of the judgment.

6. Where the EFTA Surveillance Authority has not taken a decision in accordance with Article 6 (1) (b) or (c) or Article 8 (2) or (3) within the deadlines set in paragraphs 1 and 3 respectively, the concentration shall be deemed to have been declared compatible with the functioning of the EEA Agreement, without prejudice to Article 9.

Article 11

Requests for information

1. In carrying out the duties assigned to it by Articles 57 or 58 of the EEA Agreement, by provisions set out in Protocol 24 and in Annex XIV to the EEA Agreement and by the provisions of this chapter, the EFTA Surveillance Authority may obtain all necessary information from the Governments and competent authorities of the EFTA States, from the persons referred to in Article 3 (1) (b) of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89), and from undertakings and associations of undertakings.

2. When sending a request for information to a person, an undertaking or an association of undertakings, the EFTA Surveillance Authority shall at the same time send a copy of the request to the competent authority of the EFTA State within the territory of which the residence of the person or the seat of the undertaking or association of undertakings is situated.

3. In its request the EFTA Surveillance Authority shall state the legal basis and the purpose of the request and also the penalties provided for in Article 14 (1) (c) for supplying incorrect information.

4. The information requested shall be provided, in the case of undertakings, by their owners or their representatives and, in the case of legal persons, companies or firms, or of associations having no legal personality, by the persons authorized to represent them by law or by their statutes.

5. Where a person, an undertaking or an association of undertakings does not provide the information requested within the period fixed by the EFTA Surveillance Authority or provides incomplete information, the EFTA Surveillance Authority shall by decision require the information to be provided. The decision shall specify what information is required, fix an appropriate period within which it is to be supplied and state the penalties provided for in Articles 14 (1) (c) and 15 (1) (a) and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

6. The EFTA Surveillance Authority shall at the same time send a copy of its decision to the competent authority of the EFTA State within the territory of which the residence of the person or the seat of the undertaking or association of undertakings is situated.

Article 12

Investigations by the authorities of the EFTA States

1. At the request of the EFTA Surveillance Authority, the competent authorities of the EFTA States shall undertake the investigations which the EFTA Surveillance Authority considers to be necessary under Article 13 (1), or which it has ordered by decision pursuant to Article 13 (3). The officials of the competent authorities of the EFTA States responsible for conducting those investigations shall exercise their powers upon production of an authorization in writing issued by the competent authority of the EFTA State within the territory of which the investigation is to be carried out. Such authorization shall specify the subject matter and purpose of the investigation.

2. If so requested by the EFTA Surveillance Authority or by the competent authority of the EFTA State within the territory of which the investigation is to be carried out, officials of the EFTA Surveillance Authority may assist the officials of that authority in carrying out their duties.

Article 13

Investigative powers of the EFTA Surveillance Authority

1. In carrying out the duties assigned to it by Articles 57 and 58 of the EEA Agreement, by provisions set out in Protocol 24 and in Annex XIV to the EEA Agreement and by the provisions of this chapter, the EFTA Surveillance Authority may undertake all necessary investigations into undertakings and associations of undertakings.

To that end the officials authorized by the EFTA Surveillance Authority shall be empowered:

(a) to examine the books and other business records;

(b) to take or demand copies of or extracts from the books and business records;

(c) to ask for oral explanations on the spot;

(d) to enter any premises, land and means of transport of undertakings.

2. The officials of the EFTA Surveillance Authority authorized to carry out the investigations shall exercise their powers on production of an authorization in writing specifying the subject matter and purpose of the investigation and the penalties provided for in Article 14 (1) (d) in cases where production of the required books or other business records is incomplete. In good time before the investigation, the EFTA Surveillance Authority shall inform, in writing, the competent authority of the EFTA State within the territory of which the investigation is to be carried out of the investigation and of the identities of the authorized officials. The EFTA Surveillance Authority shall also provide such an authorization to representatives of the EC Commission who shall take part in the investigation in accordance with Article 8 (5) of Protocol 24 to the EEA Agreement.

3. Undertakings and associations of undertakings shall submit to investigations ordered by decision of the EFTA Surveillance Authority. The decision shall specify the subject matter and purpose of the investigation, appoint the date on which it shall begin and state the penalties provided for in Articles 14 (1) (d) and 15 (1) (b) and the right to have the decision reviewed by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 36.

4. The EFTA Surveillance Authority shall in good time and in writing inform the competent authority of the EFTA State within the territory of which the investigation is to be carried out of its intention of taking a decision pursuant to paragraph 3. It shall hear the competent authority before taking its decision.

5. Officials of the competent authority of the EFTA State within the territory of which the investigation is to be carried out may, at the request of that authority or of the EFTA Surveillance Authority, assist the officials of the EFTA Surveillance Authority in carrying out their duties.

6. Where an undertaking or association of undertakings opposes an investigation ordered pursuant to this Article, the EFTA State concerned shall afford the necessary assistance to the officials authorized by the EFTA Surveillance Authority to enable them to carry out their investigation. To this end the EFTA States shall, after consulting the EFTA Surveillance Authority, take the necessary measures within six months of the entry into force of the EEA Agreement.

Article 14

Fines

1. The EFTA Surveillance Authority may by decision impose on the persons referred to in Article 3 (1) (b) of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89), undertakings or associations of undertakings fines of from ECU 1 000 to 50 000 where intentionally or negligently:

(a) they fail to notify a concentration in accordance with Article 4 of the said act;

(b) they supply incorrect or misleading information in a notification pursuant to Article 4 of the said act;

(c) they supply incorrect information in response to a request made pursuant to Article 11 or fail to supply information within the period fixed by a decision taken pursuant to Article 11;

(d) they produce the required books or other business records in incomplete form during investigations under Article 12 or 13, or refuse to submit to an investigation ordered by decision taken pursuant to Article 13.

2. The EFTA Surveillance Authority may by decision impose fines not exceeding 10 % of the aggregate turnover of the undertakings concerned within the meaning of Article 5 of the said act on the persons or undertakings concerned where, either intentionally or negligently, they:

(a) fail to comply with an obligation imposed by decision pursuant to Article 7 (4) or 8 (2), second subparagraph;

(b) put into effect a concentration in breach of Article 7 (1) or disregard a decision taken pursuant to Article 7 (2);

(c) put into effect a concentration declared incompatible with the functioning of the EEA Agreement by decision pursuant to Article 8 (3) or do not take the measures ordered by decision pursuant to Article 8 (4).

3. In setting the amount of a fine, regard shall be had to the nature and gravity of the infringement.

4. Decisions taken pursuant to paragraphs 1 and 2 shall not be of a criminal law nature.

Article 15

Periodic penalty payments

1. The EFTA Surveillance Authority may by decision impose on the persons referred to in Article 3 (1) (b) of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89), undertakings or associations of undertakings concerned periodic penalty payments of up to ECU 25 000 for each day of delay calculated from the date set in the decision, in order to compel them:

(a) to supply complete and correct information which it has requested by decision pursuant to Article 11;

(b) to submit to an investigation which it has ordered by decision pursuant to Article 13.

2. The EFTA Surveillance Authority may by decision impose on the persons referred to in Article 3 (1) (b) of the said act or on undertakings periodic penalty payments of up to ECU 100 000 for each day of delay calculated from the date set in the decision, in order to compel them:

(a) to comply with an obligation imposed by decision pursuant to Article 7 (4) or Article 8 (2), second subparagraph;

or

(b) to apply the measures ordered by decision pursuant to Article 8 (4).

3. Where the persons referred to in Article 3 (1) (b) of the said act, undertakings or associations of undertakings have satisfied the obligation which it was the purpose of the periodic penalty payment to enforce, the EFTA Surveillance Authority may set the total amount of the periodic penalty payments at a lower figure than that which would arise under the original decision.

Article 16

Review by the EFTA Court

The EFTA Court, in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, shall have unlimited jurisdiction within the meaning of Article 36 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payments; it may cancel, reduce or increase the fine or periodic penalty payments imposed.

Article 17

Professional secrecy

1. Without prejudice to Article 9 of Protocol 24 to the EEA Agreement, information acquired as a result of the application of Articles 57 and 58 of the EEA Agreement, of Protocol 24 to the EEA Agreement and of Articles 11, 12, 13 and 18 of this chapter shall be used only for the purposes of the relevant request, investigation or hearing.

2. Without prejudice to Article 4 (3) of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89) and of Articles 18 and 20 of this chapter, the EFTA Surveillance Authority and the competent authorities of the EFTA States, their officials and other servants shall not disclose information they have acquired through the application of Protocol 24 to the EEA Agreement, of the said act or of this chapter of the kind covered by the obligation of professional secrecy.

3. Paragraphs 1 and 2 shall not prevent publication of general information or of surveys which do not contain information relating to particular undertakings or associations of undertakings.

Article 18

Hearing of the parties and of third persons

1. Before taking any decision provided for in Articles 7 (2) and (4), 8 (2), second subparagraph, and (3) to (5), Articles 14 and 15, the EFTA Surveillance Authority shall give the persons, undertakings and associations of undertakings concerned the opportunity, at every stage of the procedure up to the consultation of the Advisory Committee, of making known their views on the objections against them.

2. By way of derogation from paragraph 1, a decision to continue the suspension of a concentration or to grant a derogation from suspension as referred to in Article 7 (2) or (4) may be taken provisionally, without the persons, undertakings or associations of undertakings concerned being given the opportunity to make known their views beforehand, provided that the EFTA Surveillance Authority gives them that opportunity as soon as possible after having taken its decision.

3. The EFTA Surveillance Authority shall base its decision only on objections on which the parties have been able to submit their observations. The rights of the defence shall be fully respected in the proceedings. Access to the file shall be open at least to the parties directly involved, subject to the legitimate interest of undertakings in the protection of their business secrets.

4. In so far as the EFTA Surveillance Authority and the competent authorities of the EFTA States deem it necessary, they may also hear other natural or legal persons. Natural or legal persons showing a sufficient interest and especially members of the administrative or management bodies of the undertakings concerned or the recognized representatives of their employees shall be entitled, upon application, to be heard.

Article 19

Liaison with the authorities of the EFTA States

1. The EFTA Surveillance Authority shall transmit to the competent authorities of the EFTA States copies of notifications within three working days and, as soon as possible, copies of the most important documents lodged with or issued by the EFTA Surveillance Authority pursuant to the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89) and this chapter.

2. The EFTA Surveillance Authority shall carry out the procedures set out in the said act and in this chapter in close and constant liaison with the competent authorities of the EFTA States, which may express their views upon those procedures. For the purposes of Article 9 it shall obtain information from the competent authority of the EFTA State as referred to in paragraph 2 of that Article and give it the opportunity to make known its views at every stage of the procedure up to the adoption of a decision pursuant to paragraph 3 of that Article; to that end it shall give it access to the file.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of notifications and information received from the EC Commission pursuant to Articles 3 and 10 of Protocol 24 to the EEA Agreement.

The EFTA Surveillance Authority shall forthwith transmit to the competent authorities of the EFTA States a copy of documents received from the EC Commission pursuant to Article 8 of Protocol 24 to the EEA Agreement.

3. An Advisory Committee on Concentrations shall be consulted before any decision is taken pursuant to Articles 8 (2) to (5), 14 or 15, or prior to a proposal referred to in Article 23.

4. The Advisory Committee shall consist of representatives of the authorities of the EFTA States. Each EFTA State shall appoint one or two representatives; if unable to attend, they may be replaced by other representatives. At least one of the representatives of an EFTA State shall be competent in matters of restrictive practices and dominant positions.

5. Consultation shall take place at a joint meeting convened at the invitation of and chaired by the EFTA Surveillance Authority. A summary of the case, together with the most important documents and a preliminary draft of the decision to be taken for each case considered, shall be sent with the invitation. The meeting shall take place not less than 14 days after the invitation has been sent. The EFTA Surveillance Authority may in exceptional cases shorten that period as appropriate in order to avoid serious harm to one or more of the undertakings concerned by a concentration.

6. The Advisory Committee shall deliver an opinion on the EFTA Surveillance Authority's draft decision, if necessary by taking a vote. The Advisory Committee may deliver an opinion even if some members are absent and unrepresented. The opinion shall be delivered in writing and appended to the draft decision. The EFTA Surveillance Authority shall take the utmost account of the opinion delivered by the Committee. It shall inform the Committee of the manner in which its opinion has been taken into account.

7. The Advisory Committee may recommend publication of the opinion. The EFTA Surveillance Authority may carry out such publication. The decision to publish shall take due account of the legitimate interest of undertakings in the protection of their business secrets and of the interest of the undertakings concerned in such publication's taking place.

Article 20

Publication of decisions

1. The EFTA Surveillance Authority shall publish the decisions which it takes pursuant to Article 8 (2) to (5) in the EEA Section of the Official Journal of the European Communities.

2. The publication shall state the names of the parties and the main content of the decision; it shall have regard to the legitimate interest of undertakings in the protection of their business secrets.

Article 21

Jurisdiction

1. Subject to review by the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, the EFTA Surveillance Authority shall have sole jurisdiction, on the conditions set out in Article 58 of the EEA Agreement, to take the decisions provided for in the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89) and this chapter.

2. No EFTA State shall apply its national legislation on competition to any concentration that has an EFTA dimension within the meaning of Article 1 of the said act.

The first subparagraph shall be without prejudice to any EFTA State's power to carry out any enquiries necessary for the application of Article 9 (2) or after referral, pursuant to Article 9 (3), first subparagraph, indent (b), or (5), to take the measures strictly necessary for the application of Article 9 (8).

3. Notwithstanding paragraphs 1 and 2, the EFTA States may take appropriate measures to protect legitimate interests other than those taken into consideration by the said act and this chapter and compatible with the general principles and other provisions as provided for, directly or indirectly, under the EEA Agreement.

Public security, plurality of the media and prudential rules shall be regarded as legitimate interests within the meaning of the first subparagraph.

Any other public interest must be communicated to the EFTA Surveillance Authority by the EFTA State concerned and shall be recognized by the EFTA Surveillance Authority after an assessment of its compatibility with the general principles and other provisions as provided for, directly or indirectly, under the EEA Agreement before the measures referred to above may be taken. The EFTA Surveillance Authority shall inform the EFTA State concerned of its decision within one month of that communication.

Article 22

Application of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89) and of this chapter

1. The act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89) and this chapter alone shall apply to concentrations as defined in Article 3 of the said act.

2. Chapters II, VI, IX and XI and the acts referred to in points 10 and 11 of Annex XIV to the EEA Agreement (Regulations (EEC) No 1017/68 and (EEC) No 4056/86) shall not apply to concentrations as defined in Article 3 of the act referred to in point 1 of Annex XIV to the EEA Agreement ( Regulation (EEC) No 4064/89).

3. If the EFTA Surveillance Authority finds, at the request of an EFTA State, that a concentration as defined in Article 3 of the said act that has no EFTA dimension within the meaning of Article 1 of the said act creates or strengthens a dominant position as a result of which effective competition would be significantly impeded within the territory of the EFTA State concerned it may, in so far as the concentration affects trade between EFTA States, adopt the decisions provided for in Article 8 (2), second subparagraph, (3) and (4).

4. Articles 2 (1) (a) and (b), and 5 of the said act and Articles 6, 8 and 10 to 20 of this chapter shall apply. The period within which proceedings may be initiated pursuant to Article 10 (1) shall begin on the date of the receipt of the request from the EFTA State. The request must be made within one month at most of the date on which the concentration was made known to the EFTA State or effected. This period shall begin on the date of the first of those events.

5. Pursuant to paragraph 3 the EFTA Surveillance Authority shall take only the measures strictly necessary to maintain or restore effective competition within the territory of the EFTA State at the request of which it intervenes.

6. Paragraphs 3 to 5 shall continue to apply until the thresholds referred to in Article 1 (2) of the said act have been reviewed.

Article 23

Special provisions

The EFTA Surveillance Authority may submit to the Governments of the EFTA States, in accordance with the provisions of Article 49 of this Agreement, proposals for forms to be used for notifications pursuant to Article 4 of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89), as well as proposals for complementary notes to the forms.

Article 24

Relations with countries not party to the EEA Agreement

1. The EFTA State shall inform the EFTA Surveillance Authority of any general difficulties encountered by their undertakings with concentrations as defined in Article 3 of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89) in a country not party to the EEA Agreement.

2. Initially not more than one year after the entry into force of the EEA Agreement and thereafter periodically the EFTA Surveillance Authority shall draw up a report examining the treatment accorded to EFTA undertakings, in the terms referred to in paragraphs 3 and 4, as regards concentrations in countries not party to the EEA Agreement. The EFTA Surveillance Authority shall submit those reports to the Standing Committee, together with any recommendations.

3. Whenever it appears to the EFTA Surveillance Authority, either on the basis of the reports referred to in paragraph 2 or on the basis of other information, that a country not party to the EEA Agreement does not grant EFTA undertakings treatment comparable to that granted by EFTA States to undertakings from that country, the EFTA Surveillance Authority may submit proposals to each of the Governments of the EFTA States with a view to obtaining comparable treatment for EFTA undertakings.

4. Measures taken under this Article shall comply with the obligations of the EFTA States under international agreements, whether bilateral or multilateral.

Article 25

(See Article 10 of Chapter XVI.)

CHAPTER XIV Detailed rules concerning notifications, time limits and hearings in the field of control of concentrations between undertakings

Section I Notifications

Article 1

Persons entitled to submit notifications

1. Notifications shall be submitted by the persons or undertakings referred to in Article 4 (2) of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89).

2. Where notifications are signed by representatives of persons or of undertakings, such representatives shall produce written proof that they are authorized to act.

3. Joint notifications should be submitted by a joint representative who is authorized to transmit and to receive documents on behalf of all notifying parties.

Article 2

Submission of notifications

1. Notifications shall be submitted in the manner prescribed in the form issued for this purpose by the Governments of the EFTA States, by common accord, as shown in Appendix 9, or by the EC Commission. Joint notifications shall be submitted on a single form.

2. Nine copies of each notification and of the supporting documents shall be submitted to the EFTA Surveillance Authority at the address indicated in the form as issued by the Governments of the EFTA States, by common accord.

3. The supporting documents shall be either originals or copies of the originals; in the latter case the notifying parties shall confirm that they are true and complete.

4. Notifications shall be in an official language of an EFTA State or of the Community. If undertakings choose to notify the EFTA Surveillance Authority in a language which is not one of the official languages of the States falling within the competence of that Authority, or a working language of that Authority, they shall simultaneously supplement all documentation with a translation into an official language or a working language of that authority. The language which is chosen for the translation shall determine the language in which the undertaking may be addressed by the EFTA Surveillance Authority. Supporting documents shall be submitted in their original language. Where the original language is not one of the official languages as referred to above, a translation into the language of the proceeding shall be attached.

Article 3

Information to be provided

1. Notifications shall contain the information requested by the form as issued by the Governments of the EFTA States, by common accord, or the EC Commission. The information must be correct and complete.

2. Material changes in the facts specified in the notification which the notifying parties know or ought to have known must be communicated to the EFTA Surveillance Authority voluntarily and without delay.

3. Incorrect or misleading information shall be deemed to be incomplete information.

Article 4

Effective date of notifications

1. Subject to paragraph 2, and without prejudice to Article 11 of Protocol 24 to the EEA Agreement, notifications shall become effective on the date on which they are received by the EFTA Surveillance Authority.

2. Subject to paragraph 3, where the information contained in the notification is incomplete in a material respect, the EFTA Surveillance Authority shall without delay inform the notifying parties or the joint representative in writing and shall fix an appropriate time limit for the completion of the information; in such cases, the notification shall become effective on the date on which the complete information is received by the EFTA Surveillance Authority.

3. The EFTA Surveillance Authority may dispense with the obligation to provide any particular information requested by the form as issued by the Governments of the EFTA States, by common accord, or the EC Commission where the EFTA Surveillance Authority considers that such information is not necessary for the examination of the case.

4. The EFTA Surveillance Authority shall without delay acknowledge in writing to the notifying parties or the joint representative receipt of the notification and of any reply to a letter sent by the EFTA Surveillance Authority pursuant to paragraph 2.

Article 5

Conversion of notifications

1. Where the EFTA Surveillance Authority finds that the operation notified does not constitute a concentration within the meaning of Article 3 of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89) it shall inform the notifying parties or the joint representative in writing. In such a case, the EFTA Surveillance Authority may, if requested by notifying parties, as appropriate and subject to paragraph 2 below, treat the notification as an application within the meaning of Article 2 or a notification within the meaning of Article 4 of Chapter II, as an application within the meaning of Article 12 of Chapter VI, as an application within the meaning of Article 12 of Chapter IX or as an application within the meaning of Article 3 (2) or of Article 5 of Chapter XI.

2. In cases referred to in paragraph 1, second sentence, the EFTA Surveillance Authority may require that the information given in the notification be supplemented within an appropriate time limit fixed by it in so far as this is necessary for assessing the operation on the basis of the abovementioned chapters. The application or notification shall be deemed to fulfil the requirements of such chapters from the date of the original notification where the additional information is received by the EFTA Surveillance Authority within the time limit fixed.

Section II Time limits for initiating proceedings and for decisions

Article 6

Beginning of the time limit

1. The periods referred to in Article 10 (1) of Chapter XIII shall start at the beginning of the day following the effective date of the notification, within the meaning of Article 4 (1) and (2) of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89).

2. The period referred to in Article 10 (3) of Chapter XIII shall start at the beginning of the day following the day on which proceedings were initiated.

3. Where the first day of a period is not a working day within the meaning of Article 19, the period shall start at the begnning of the following working day.

Article 7

End of the time limit

1. The period referred to in the first subparagraph of Article 10 (1) of Chapter XIII shall end with the expiry of the day which in the month following that in which the period began falls on the same date as the day from which the period runs. Where such a day does not occur in that month, the period shall end with the expiry of the last day of that month.

2. The period referred to in the second subparagraph of Article 10 (1) of Chapter XIII shall end with the expiry of the day which in the sixth week following that in which the period began is the same day of the week as the day from which the period runs.

3. The period referred to in Article 10 (3) of Chapter XIII shall end with the expiry of the day which in the fourth month following that in which the period began falls on the same date as the day from which the period runs. Where such a day does not occur in that month the period shall end with the expiry of the last day of that month.

4. Where the last day of the period is not a working day within the meaning of Article 19, the period shall end with the expiry of the following working day.

5. Paragraphs 1 to 4 shall be subject to the provisions of Article 8.

Article 8

Addition of holidays

Where public holiday or other holidays of the EFTA Surveillance Authority as defined in Article 19 fall within the periods referred to in Article 10 (1) and in Article 10 (3) of Chapter XIII, these periods shall be extended by a corresponding number of days.

Article 9

Suspension of the time limit

1. The period referred to in Article 10 (3) of Chapter XIII shall be suspended where the EFTA Surveillance Authority, pursuant to Articles 11 (5) or 13 (3) of Chapter XIII, has to take a decision because:

(a) information which the EFTA Surveillance Authority has requested pursuant to Article 11 (2) of Chapter XIII from an undertaking involved in a concentration is not provided or not provided in full within the time limit fixed by the EFTA Surveillance Authority;

(b) an undertaking involved in the concentration has refused to submit to an investigation deemed necessary by the EFTA Surveillance Authority on the basis of Article 13 (1) of Chapter XIII or to cooperate in the carrying out of such an investigation in accordance with the abovementioned provision;

(c) the notifying parties have failed to inform the EFTA Surveillance Authority of material changes in the facts specified in the notification.

2. The period referred to in Article 10 (3) of Chapter XIII shall be suspended:

(a) in the cases referred to in subparagraph 1 (a), for the period between the end of the time limit fixed in the request for information and the receipt of the complete and correct information required by decision;

(b) in the cases referred to in subparagraph 1 (b), for the period between the unsuccessful attempt to carry out the investigation and the completion of the investigation ordered by decision;

(c) in the cases referred to in subparagraph 1 (c), for the period between the occurrence of the change in the facts referred to therein and the receipt of the complete and correct information requested by decision or the completion of the investigation ordered by decision.

3. The suspension of the time limit shall begin on the day following that on which the event causing the suspension occurred. It shall end with the expiry of the day on which the reason for suspension is removed. Where such day is not a working day within the meaning of Article 19, the suspension of the time limit shall end with the expiry of the following working day.

Article 10

Compliance with the time limit

The time limits referred to in Article 10 (1) and (3) of Chapter XIII shall be met where the EFTA Surveillance Authority has taken the relevant decision before the end of the period. Notification of the decision to the undertakings concerned must follow without delay.

Section III Hearing of the parties and of third parties

Article 11

Decisions on the suspension of concentrations

1. Where the EFTA Surveillance Authority intends to take a decision under Article 7 (2) of Chapter XIII or a decision under Article 7 (4) of that chapter which adversely affects the parties, it shall, pursuant to Article 18 (1) of that chapter, inform the parties concerned in writing of its objections and shall fix a time limit within which they may make known their views.

2. Where the EFTA Surveillance Authority pursuant to Article 18 (2) of Chapter XIII has taken a decision referred to in paragraph 1 provisionally without having given the parties concerned the opportunity to make known their views, it shall without delay and in any event before the expiry of the suspension send them the text of the provisional decision and shall fix a time limit within which they may make known their views.

Once the parties concerned have made known their views, the EFTA Surveillance Authority shall take a final decision annulling, amending or confirming the provisional decision. Where the parties concerned have not made known their view within the time limit fixed, the EFTA Surveillance Authority's provisional decision shall become final with the expiry of that period.

3. The parties concerned shall make known their views in writing or orally within the time limit fixed. They may confirm their oral statements in writing.

Article 12

Decisions on the substance of the case

1. Where the EFTA Surveillance Authority intends to take a decision pursuant to Article 8 (2), second subparagraph, Article 8 (3), (4) and (5), Article 14 or Article 15 of Chapter XIII, it shall, before consulting the Advisory Committee on Concentrations, hold a hearing of the parties concerned pursuant to Article 18 of that chapter.

2. The EFTA Surveillance Authority shall inform the parties concerned in writing of its objections. The communication shall be addressed to the notifying parties or to the joint representative. The EFTA Surveillance Authority shall, when giving notice of objections, fix a time limit within which the parties concerned may inform the EFTA Surveillance Authority of their views.

3. Having informed the parties of its objections, the EFTA Surveillance Authority shall upon request give the parties concerned access to the file for the purposes of preparing their observations. Documents shall not be accessible in so far as they contain business secrets of other parties concerned or of third parties, or other confidential information including sensitive commercial information the disclosure of which would have a significant adverse effect on the supplier of such information or where they are internal documents of the authorities.

4. The parties concerned shall, within the time limit fixed, make known in writing their views on the EFTA Surveillance Authority's objections. They may in their written comments set out all the matters relevant to the case and may attach any relevant documents in proof of the facts set out. They may also propose that the EFTA Surveillance Authority hear persons who may corroborate those facts.

Article 13

Oral hearings

1. The EFTA Surveillance Authority shall afford parties concerned who have so requested in their written comments the opportunity to put forward their arguments orally, if those persons show a sufficient interest or if the EFTA Surveillance Authority proposes to impose a fine or periodic penalty payment on them. It may also in other cases afford the parties concerned the opportunity of expressing their views orally.

2. The EFTA Surveillance Authority shall summon the persons to be heard to attend on such date as it shall appoint.

3. It shall forthwith transmit a copy of the summons to the competent authorities of the EFTA States, who may appoint an official to take part in the hearing.

Article 14

Hearings

1. Hearings shall be conducted by persons appointed by the EFTA Surveillance Authority for that purpose.

2. Persons summoned to attend shall either appear in person or be represented by legal representatives or representatives authorized by their constitution. Undertakings and associations of undertakings may be represented by a duly authorized agent appointed from among their permanent staff.

3. Persons heard by the EFTA Surveillance Authority may be assisted by lawyers or advisers who are entitled to plead before the EFTA Court, or by other qualified persons.

4. Hearings shall not be public. Persons shall be heard separately or in the presence of other persons summoned to attend. In the latter case, regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets.

5. The statements made by each person heard shall be recorded.

Article 15

Hearing of third parties

1. If natural or legal persons showing a sufficient interest, and especially members of the administrative or management organs of the undertakings concerned or recognized workers' representatives of those undertakings, apply in writing to be heard pursuant to the second sentence of Article 18 (4) of Chapter XIII, the EFTA Surveillance Authority shall inform them in writing of the nature and subject matter of the procedure and shall fix a time limit within which they may make known their views.

2. The third parties referred to in paragraph 1 shall make known their views in writing or orally within the time limit fixed. They may confirm their oral statements in writing.

3. The EFTA Surveillance Authority may likewise afford to any other third parties the opportunity of expressing their views.

Section IV Miscellaneous provisions

Article 16

Transmission of documents

1. Transmission of documents and summonses from the EFTA Surveillance Authority to the addressees may be effected in any of the following ways:

(a) delivery by hand against receipt;

(b) registered letter with acknowledgement of receipt;

(c) telefax with a request for acknowledgement of receipt;

(d) telex.

2. Subject to Article 18 (1), paragraph 1 above also applies to the transmission of documents from the parties concerned or from third parties to the EFTA Surveillance Authority.

3. Where a document is sent by telex or by telefax, it shall be presumed that it has been received by the addressee on the day on which it was sent.

Article 17

Setting of time limits

1. In fixing the time limits provided for in Articles 4 (2), 5 (2), 11 (1) and (2), 12 (2) and 15 (1), the EFTA Surveillance Authority shall have regard to the time required for preparation of statements and to the urgency of the case. It shall also take account of public holidays in the country of receipt of the EFTA Surveillance Authority's communication.

2. The day on which the addressee received a communication shall not be taken into account for the purpose of fixing time limits.

Article 18

Receipt of documents by the EFTA Surveillance Authority

1. Subject to Article 4 (1), notifications must be delivered to the EFTA Surveillance Authority at the address indicated in the form as issued by the Governments of the EFTA States, by common accord, or the EC Commission or have been dispatched by registered letter before expiry of the period referred to in Article 4 (1) of the act referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89). Additional information requested to complete notifications pursuant to Article 4 (2) or to supplement notifications pursuant to Article 5 (2) of the said act must reach the EFTA Surveillance Authority at the aforesaid address or have been dispatched by registered letter before the expiry of the time limit fixed in each case. Written comments on EFTA Surveillance Authority communications pursuant to Articles 11 (1) and (2), 12 (2) and 15 (1) must be delivered to the EFTA Surveillance Authority at the aforesaid address before the time limit fixed in each case.

2. Where the last day of a period referred to in paragraph 1 is a day by which documents must be received and that day is not a working day within the meaning of Article 19, the period shall end with the expiry of the following working day.

3. Where the last day of a period referred to in paragraph 1 is a day by which documents must be dispatched and that day is a Saturday, Sunday or public holiday in the country of dispatch, the period shall end with the expiry of the following working day in that country.

Article 19

Definition of EFTA Surveillance Authority working days

The term 'working days' in Articles 6 (3), 7 (4), 9 (3) and 18 (2) means all days other than Saturdays, Sundays, public holidays set out in Appendix 10 to this Protocol and other holidays as determined by the EFTA Surveillance Authority and published in the EEA Section of the Official Journal of the European Communities before the beginning of each year.

PART IV COAL AND STEEL

CHAPTER XV Rules applicable to undertakings in the field of coal and steel

Section I General rules regarding agreements and concentrations

Article 1

1. Authorizations pursuant to Article 1 (2) of Protocol 25 to the EEA Agreement may be granted subject to specified conditions and for limited periods. In such cases the EFTA Surveillance Authority shall renew an authorization once or several times if it finds that the requirements of subparagraphs (a) to (c) of Article 1 (2) of Protocol 25 to the EEA Agreement are still met at the time of renewal.

2. The EFTA Surveillance Authority shall revoke or amend an authorization if it finds that as a result of a change in circumstances the agreement no longer meets these requirements, or that the actual results of the agreement or of the application thereof are contrary to the requirements for its authorization.

3. Decisions granting, renewing, amending, refusing or revoking an authorization shall be published together with the reasons therefor; the restrictions imposed by Article 3 (2) shall not apply thereto.

4. The EFTA Surveillance Authority may, as provided in Article 3, obtain any information needed for the application of Article 1 of Protocol 25 to the EEA Agreement and of this Article, either by making a special request to the parties concerned or by means of decisions stating the kinds of agreement, decision or practice which must be communicated to it.

5. The EFTA Surveillance Authority shall have sole jurisdiction, subject to the right to bring actions before the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement and, on the conditions set out in Article 55 of the EEA Agreement and Protocols 22 and 25 thereto, to rule whether any such agreement or decision is compatible with Article 1 of Protocol 25 to the EEA Agreement.

6. On any undertaking which has entered into an agreement which is automatically void pursuant to Article 1 (3) of Protocol 25 to the EEA Agreement, or has enforced or attempted to enforce, by arbitration, penalty, boycott or any other means, an agreement or decision which is automatically void or an agreement for which authorization has been refused or revoked, or has obtained an authorization by means of information which it knew to be false or misleading, or has engaged in practices prohibited by Article 1 (1) of Protocol 25 to the EEA Agreement, the EFTA Surveillance Authority may impose fines or periodic penalty payments not exceeding twice the turnover on the products which were the subject of the agreement, decision or practice prohibited by Article 1 (1) of Protocol 25 to the EEA Agreement; if, however, the purpose of the agreement, decision or practice is to restrict production, technical development or investment, this maximum may be raised to 10 % of the annual turnover of the undertakings in question in the case of fines, and 20 % of the daily turnover in the case of periodic penalty payments.

Article 2

1. In assessing whether the requirements of Article 2 (2) of Protocol 25 to the EEA Agreement are met, the EFTA Surveillance Authority shall, in accordance with the principle of non-discrimination, take account of the size of like undertakings in the territory covered by the EEA Agreement, to the extent it considers justified in order to avoid or correct disadvantages resulting from unequal competitive conditions.

2. The EFTA Surveillance Authority may make its authorization subject to any conditions which it considers appropriate for the purposes of Article 2 (2) of Protocol 25 to the EEA Agreement.

3. Before ruling on a transaction concerning undertakings at least one of which is not subject to Article 3 of Protocol 25 to the EEA Agreement, the EFTA Surveillance Authority shall obtain the comments of the Governments concerned.

4. Without prejudice to the application of Article 3 to undertakings within its jurisdiction, the EFTA Surveillance Authority may obtain from the natural or legal persons who have acquired or regrouped or are intending to acquire or regroup the rights or assets in question any information needed for the application of Article 2 of Protocol 25 to the EEA Agreement and of the present Article concerning transactions liable to produce the effect referred to in Article 2 (1) of Protocol 25 to the EEA Agreement.

5. If a concentration should occur which the EFTA Surveillance Authority finds has been effected contrary to the provisions of Article 2 (1) of Protocol 25 to the EEA Agreement but which nevertheless meets the requirements of Article 2 (2) of Protocol 25 to the EEA Agreement, the EFTA Surveillance Authority shall make its approval of that concentration subject to payment by the persons who have acquired or regrouped the rights or assets in question of the fine provided for in paragraph 12 (b); the amount of the fine shall not be less than half of the maximum determined in that subparagraph (b) should it be clear that authorization ought to have been applied for. If the fine is not paid, the EFTA Surveillance Authority shall take the steps hereinafter provided for in respect of concentrations found to be unlawful.

6. If a concentration should occur which the EFTA Surveillance Authority finds cannot fulfil the general or specific conditions to which an authorization under Article 2 (2) of Protocol 25 to the EEA Agreement would be subject, the EFTA Surveillance Authority shall, by means of a reasoned decision, declare the concentration unlawful and, after giving the parties concerned the opportunity to submit their comments, shall order separation of the undertakings or assets improperly concentrated or cessation of joint control, and any other measures which it considers appropriate to return the undertakings or assets in question into independent operation and restore normal conditions of competition. Any person directly concerned may institute proceedings against such decisions, as provided in Articles 108 (2) (b) of the EEA Agreement and 18 of the present Agreement. The EFTA Court, in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, shall have unlimited jurisdiction to assess whether the transaction effected is a concentration within the meaning of Article 2 (1) of Protocol 25 to the EEA Agreement and of the acts concerning coal and steel as contained in Annex XIV to the EEA Agreement. The institution of proceedings shall have suspensory effect. Proceedings may not be instituted until the measures provided for above have been ordered, unless the EFTA Surveillance Authority agrees to the institution of separate proceedings against the decision declaring the transaction unlawful.

7. The EFTA Surveillance Authority may at any time, unless Article 41 of this Agreement is applied, take or cause to be taken such interim measures of protection as it may consider necessary to safeguard the interests of competing undertakings and of third parties, and to forestall any step which might hinder the implementation of its decisions. Unless the EFTA Court decides otherwise, proceedings shall not have suspensory effect in respect of such interim measures.

8. The EFTA Surveillance Authority shall allow the parties concerned a reasonable period in which to comply with its decisions, on expiration of which it may impose daily penalty payments not exceeding one-tenth of 1 % of the value of the rights or assets in question.

9. Furthermore, if the parties concerned do not fulfil their obligations, the EFTA Surveillance Authority shall itself take steps to implement its decision.

10. The EFTA Surveillance Authority is also empowered to make such recommendations to the EFTA States concerned as may be necessary to ensure that the measures provided for in the preceding paragraphs are implemented under their own law.

11. In the exercise of its powers, the EFTA Surveillance Authority shall take account of the rights of third parties which have been acquired in good faith.

12. The EFTA Surveillance Authority may impose fines not exceeding:

(a) 3% of the value of the assets acquired or regrouped or to be acquired or regrouped, on natural or legal persons who have evaded the obligations laid down in paragraph 4;

(b) 10 % of the value of the assets acquired or regrouped, on natural or legal persons who have evaded the obligations laid down in Article 2 (1) of Protocol 25 to the EEA Agreement; this maximum shall be increased by one twenty-fourth for each month which elapses after the end of the 12th month following completion of the transaction until the EFTA Surveillance Authority establishes that there has been an infringement;

(c) 10 % of the value of the assets acquired or regrouped or to be acquired or regrouped, on natural or legal persons who have obtained or attempted to obtain authorization under Article 2 (2) of Protocol 25 to the EEA Agreement by means of false or misleading information;

(d) 15 % of the value of the assets acquired or regrouped, on undertakings within its jurisdiction which have engaged in or been party to transactions contrary to the provisions of Article 2 of Protocol 25 to the EEA Agreement or of the present Article.

13. Persons fined under paragraph 12 may appeal to the EFTA Court as provided in Article 35 of this Agreement.

Article 3

1. The EFTA Surveillance Authority may obtain the information it requires to carry out its tasks. It may have any necessary checks made.

2. Without prejudice to Article 9 of Protocol 23 to the EEA Agreement, the EFTA Surveillance Authority must not disclose information acquired as a result of the application of Articles 55 and 58 of the EEA Agreement, of Protocol 25 thereto and of the provisions of this chapter and which is of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components. This obligation shall also apply to the representatives of the EC Commission and of the EC Member States who participate in the Advisory Committee pursuant to Article 10 (4) of Chapter II and in the hearing pursuant to Article 8 (2) of Chapter IV.

Subject to this reservation, it shall publish such data as could be useful to governments or to any other parties concerned.

3. The EFTA Surveillance Authority may impose fines or periodic penalty payments on undertakings which evade their obligations under decisions taken pursuant to this Article or which knowingly furnish false information. The maximum amount of such fines shall be 1 % of the annual turnover, and the maximum amount of such penalty payments shall be 5 % of the average daily turnover for each day's delay.

4. Any breach of professional secrecy by the EFTA Surveillance Authority which has caused damage to an undertaking may be the subject of an action for compensation before the EFTA Court in accordance with Article 108 (2) of the EEA Agreement and with the relevant provisions of this Agreement, in particular Article 39.

Article 4

Before imposing a pecuniary sanction or ordering a periodic penalty payment as provided for in this chapter, the EFTA Surveillance Authority must give the party concerned the opportunity to submit its comments.

Article 5

The turnover taken as the basis for calculating any fines and periodic penalty payments imposed on undertakings under this chapter shall be the turnover on products referred to in Protocol 14 to the EEA Agreement.

Section II Information to be furnished (Article 2 (4) of Section I)

Part one Compulsory notification

Article 1

All natural and legal persons except persons engaged within the territory covered by the EEA Agreement in the production of coal and steel or in the distribution of those products other than by way of sale to domestic consumers or small craft industries shall, where they effect transactions specified in the following Articles, furnish information as provided for in this Section.

Article 2

The persons referred to in Article 1 shall notify the EFTA Surveillance Authority of any acquisition of rights in an undertaking covered by Article 3 of Protocol 25 to the EEA Agreement and any acquisition of power to exercise on their own behalf or on behalf of third parties rights in any such undertaking, whereby they acquire more than 10 % of the voting power at meetings of shareholders or other members of such undertaking and where the total value of the rights held by them exceeds ECU 100 000. Any rights, or power to exercise rights on behalf of others, held by the persons concerned before the transaction in question shall be included in that calculation.

Article 3

Article 1 shall also apply to the acquisition of rights in any undertaking which exercises control over an undertaking covered by Article 3 of Protocol 25 to the EEA Agreement.

Article 4

1. Banks and their agents shall be exempt from the obligation to notify the transactions mentioned in Articles 2 and 3 where exercise of voting rights attaches:

- to shares belonging to customers of those or other banks,

or

- to registered shares or stock in respect of which the bank is entitled to exercise such rights in a fiduciary capacity on behalf of its clients.

2. Paragraph 1 shall not affect:

- the obligation for banks to furnish information on such transactions under Article 7,

- the obligation for their customers to notify such transactions in accordance with Articles 2 and 3 or to furnish information under Article 7.

Article 5

The EFTA Surveillance Authority may, by special authorization and subject to certain conditions, grant exemption from the obligation to notify the transactions mentioned in Articles 2 and 3 to duly accredited stockbrokers where they do not exercise the voting rights attaching to the stock held by them.

Article 6

The notification provided for in Articles 2 and 3 shall be made within four weeks from the date on which the person required to make notification has knowledge of the transaction in question.

Part two Special requests for information

Article 7

1. The EFTA Surveillance Authority may, by special request, obtain from the persons mentioned in Article 1 all information necessary for the implementation of Article 2 of Section I regarding:

(1) acquisition of ownership of or of rights to use premises, industrial plant or concessions of any undertaking if, before such acquisition, those premises, plant or concessions were used in the operations of that undertaking;

(2) acquisition of rights, in an undertaking, conferring voting powers at meetings of shareholders or other members of such undertaking;

(3) acquisition of the power to exercise on their own behalf or on behalf of third parties rights of the kind referred to in subparagraph (2) belonging to third parties;

(4) acquisition by contract of the power to make decisions as to how the profits of an undertaking are shown in the accounts or applied;

(5) acquisition of the power to participate in the management of an undertaking, alone or with others, whether as owner, beneficiary, manager or member of the managing organs;

(6) appointment to the Board of Directors of an undertaking.

2. The persons subject to the obligation to furnish information must likewise declare to the EFTA Surveillance Authority at the latter's request the name and address of the actual owner of the rights concerned, where they are empowered:

- to exercise the rights referred to in paragraph 1 in a fiduciary capacity on behalf of a third party,

- to exercise on their own behalf or on behalf of third parties the rights referred to in paragraph 1 belonging to third parties.

Section III Limitation periods in proceedings and the enforcement of sanctions under Protocol 25 to the EEA Agreement and the present chapter

Article 1

Limitation periods in proceedings

1. The power of the EFTA Surveillance Authority to impose fines for infringements of the provisions of Articles 53 and 54 of the EEA Agreement and Protocol 25 thereto or of the provisions contained in this chapter shall be subject to a limitation period:

(a) of three years in the case of infringements of provisions concerning applications or communications of the parties, requests for information, or the carrying out of investigations;

(b) of five years in the case of all other infringements.

2. Time shall begin to run upon the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run upon the day on which the infringement ceases.

Article 2

Interruption of the limitation period in proceedings

1. Any action taken by the EFTA Surveillance Authority for the purpose of the preliminary investigation or proceedings in respect of an infringement shall interrupt the limitation period in proceedings. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one party which has participated in the infringement.

Actions which interrupt the running of period shall include in particular the following:

(a) written requests for information by the EFTA Surveillance Authority or decisions by the EFTA Surveillance Authority requiring the requested information;

(b) written authorizations to carry out investigations issued to their officials by the EFTA Surveillance Authority or a decision by the EFTA Surveillance Authority ordering an investigation;

(c) the commencement of proceedings by the EFTA Surveillance Authority;

(d) notification by the EFTA Surveillance Authority of a letter giving the party concerned the opportunity to submit its comments, pursuant to Article 4 of Section I.

2. The interruption of the limitation period shall apply for all parties which have participated in the infringement.

3. Each interruption shall start time running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the EFTA Surveillance Authority having imposed a fine or a penalty; that period shall be extended by the time during which limitation is suspended pursuant to Article 3.

Article 3

Suspension of the limitation period in proceedings

The limitation period in proceedings shall be suspended for as long as the decision of the EFTA Surveillance Authority is the subject of proceedings pending before the EFTA Court.

Article 4

Limitation period for the enforcement of sanctions

1. The power of the EFTA Surveillance Authority to enforce decisions imposing fines or periodic payments for infringements of the provisions of the EEA Agreement or of provisions made for its implementation shall be subject to a limitation period of five years.

2. Time shall begin to run upon the day on which the decision becomes final.

Article 5

Interruption of the limitation period for the enforcement of sanctions

1. The limitation period for the enforcement of sanctions shall be interrupted:

(a) by notification of a decision varying the original amount of the fine or periodic penalty payments or refusing an application for variation;

(b) by any action of the EFTA Surveillance Authority or of an EFTA State at the request of the EFTA Surveillance Authority, for the purpose of enforcing payments of a fine or periodic penalty payment.

2. Each interruption shall start the time running afresh.

Article 6

Suspension of the limitation period for the enforcement of sanctions

The limitation period for the enforcement of sanctions shall be suspended for so long as:

(a) time to pay is allowed; or

(b) enforcement of payment is suspended pursuant to a decision of the EFTA Court.

Section IV Powers of officials and agents of the EFTA Surveillance Authority instructed to carry out the checks provided for in Protocol 25 to the EEA Agreement and in this chapter

Article 1

1. Officials and agents of the EFTA Surveillance Authority instructed to carry out the checks on undertakings provided for in Protocol 25 and Annex XIV to the EEA Agreement and in the provisions of this chapter, in particular Article 3 (1) of Section I, are hereby empowered:

(a) to examine books and business records to the extent necessary for the purpose of the check, including records held in automated systems of any kind, wherever such books or business records are kept;

(b) to take copies or photocopies of or extracts from the books and business records, including data stored in automated systems of any kind;

(c) to require oral explanations on the spot;

(d) to enter any premises, land or means of transport of undertakings, and of any third party with whom books or business records have been deposited, and in so doing to have sight of the said books and business records so as to be able to select all those that are relevant and are to be produced for inspection.

2. Forthcoming visits of inspection and the status of the officials shall be duly notified to the State concerned. Officials of that State may, at its request or at that of the EFTA Surveillance Authority, assist the officials of the EFTA Surveillance Authority in the performance of their tasks.

3. Undertakings shall assist officials and agents of the EFTA Surveillance Authority in carrying out their duties.

Article 2

Officials and agents of the EFTA Surveillance Authority instructed to carry out checks shall exercise their powers upon production of an authorization in writing specifying the purpose of the check. The EFTA Surveillance Authority shall also provide such an authorization to representatives of the EC Commission who shall take part in the investigation in accordance with Article 8 (4) of Protocol 23 to the EEA Agreement.

Article 3

Undertakings shall comply with the obligations imposed by Article 1 of this Section without an individual decision being required for that purpose, failure to do so rendering them liable to the fines and penalties provided for in Article 3 (3) of Section I.

PART V TRANSITIONAL AND OTHER RULES

CHAPTER XVI Transitional and other rules

Section I Rules applicable to Chapters II to XII and XV

Article 1

Notification of existing agreements, decisions and practices

1. Agreements, decisions and concerted practices of the kind described in Article 53 (1) of the EEA Agreement which are in existence at the date of entry into force of the EEA Agreement and in respect of which the parties seek application of Article 53 (3) of the EEA Agreement shall be notified to the EFTA Surveillance Authority pursuant to the provisions in Article 56 of the EEA Agreement, the rules referred to in Articles 1 to 3 of Protocol 21 and Protocol 23 to the EEA Agreement, as well as Chapters III, VI, VII, IX, X, XI, XII and XV, within six months of the date of entry into force of the EEA Agreement.

2. Paragraph 1 shall not apply to agreements, decisions or concerted practices of the kind described in Article 53 (1) of the EEA Agreement and falling under Article 4 (2) of Chapter II; these may be notified to the EFTA Surveillance Authority pursuant to Article 56 of the EEA Agreement, the rules referred to in Articles 1 to 3 of Protocol 21 and Protocol 23 to the EEA Agreement, as well as Chapters III, VI, VII, IX, X, XI, XII and XV.

Article 2

Decisions pursuant to Article 53 (3) of the EEA Agreement

1. Whenever the EFTA Surveillance Authority takes a decision pursuant to Article 53 (3) of the EEA Agreement, it shall specify therein the date from which the decision shall take effect. Such date shall not be earlier than the date of notification.

2. The second sentence of paragraph 1 shall not apply to agreements, decisions or concerted practices falling within Article 4 (2) of Chapter II and Article 1 (2) of this chapter, nor to those falling within Article 1 (1) which have been notified within the time limit specified in Article 1 (1).

Article 3

Special provisions for existing agreements, decisions and practices

1. Where agreements, decisions or concerted practices of the kind described in Article 53 (1) of the EEA Agreement which are in existence at the date of entry into force of the EEA Agreement and notified within the time limits specified in Article 1 (1) of this chapter do not satisfy the requirements of Article 53 (3) of the EEA Agreement and the undertakings or associations of undertakings concerned cease to give effect to them or modify them in such a manner that they no longer fall under the prohibition contained in Article 53 (1) or that they satisfy the requirements of Article 53 (3), the prohibition contained in Article 53 (1) shall apply only for a period fixed by the EFTA Surveillance Authority. A decision by the EFTA Surveillance Authority pursuant to the foregoing sentence shall not apply as against undertakings and associations of undertakings which did not expressly consent to the notification.

2. Paragraph 1 shall apply to agreements, decisions or concerted practices falling under Article 4 (2) of Chapter II which are in existence at the date of entry into force of the EEA Agreement if they are notified within six months after that date.

Article 4

Applications and notifications submitted to the EC Commission prior to the date of entry into force of the EEA Agreement shall be deemed to comply with the provisions on application and notification under that Agreement.

The EFTA Surveillance Authority pursuant to Article 56 of the EEA Agreement and Article 10 of Protocol 23 to the EEA Agreement may require a duly completed form as prescribed for the implementation of the EEA Agreement to be submitted to it within such time as it shall appoint. In that event, applications and notifications shall be treated as properly made only if the forms are submitted within the prescribed period and in accordance with the provisions of the EEA Agreement and of Chapters II, III, V, VII, X, XII and XV of this Protocol.

Article 5

Fines

Fines for infringement of Article 53 (1) of the EEA Agreement shall not be imposed in respect of any act prior to notification of the agreements, decisions and concerted practices to which Articles 1 and 2 of this chapter apply and which have been notified within the period specified therein.

Article 6

The EFTA States shall ensure that the measures affording the necessary assistance to officials of the EFTA Surveillance Authority and the EC Commission, in order to enable them to make their investigations as foreseen under the Agreement, are taken within six months of the entry into force of the EEA Agreement.

Article 7

As regards agreements, decisions and concerted practices already in existence at the date of entry into force of the EEA Agreement which fall under Article 53 (1) of the EEA Agreement, the prohibition in Article 53 (1) shall not apply where the agreements, decisions or practices are modified within six months from the date of entry into force of the EEA Agreement so as to fulfil the conditions contained in the block exemptions provided for in Annex XIV to the EEA Agreement.

Article 8

As regards agreements, decisions of associations of undertakings and concerted practices already in existence at the date of entry into force of the EEA Agreement which fall under Article 53 (1) of the EEA Agreement, the prohibition in Article 53 (1) shall not apply, from the date of entry into force of the Agreement, where the agreements, decisions or practices are modified within six months from the date of entry into force of the EEA Agreement so as not to fall under the prohibition of Article 53 (1) any more.

Article 9

Agreements, decisions of associations of undertakings and concerted practices which benefit from an individual exemption granted under Article 85 (3) of the Treaty establishing the European Economic Community before the entry into force of the EEA Agreement shall continue to be exempted as regards the provisions of the EEA Agreement, until their date of expiry as provided for in the decisions granting these exemptions or until the EC Commission otherwise decides, whichever date is the earlier.

Section II Rules applicable to Chapters XIII and XIV

Article 10

The act as referred to in point 1 of Annex XIV to the EEA Agreement (Regulation (EEC) No 4064/89) and Chapter XIII shall not apply to any concentration which was the subject of an agreement or announcement or where control was acquired within the meaning of Article 4 (1) of the said act before the entry into force of the EEA Agreement and they shall not in any circumstances apply to any concentration in respect of which proceedings were initiated before that date by an EFTA State's authority with responsibility for competition.

APPENDICES

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Appendix 7

List of certain technical agreements in the air transport sector referred to in Article 2 of Chapter XI

(a) The introduction or uniform application or mandatory or recommended technical standards for aircraft, aircraft parts, equipment and aircraft supplies, where such standards are set by an organization normally accorded international recognition, or by an aircraft or equipment manufacturer;

(b) the introduction of uniform application of technical standards for fixed installations for aircraft, where such standards are set by an organization normally accorded international recognition;

(c) the exchange, leasing, pooling, or maintenance of aircraft, aircraft parts, equipment or fixed installations for the purpose of operating air services and the joint purchase of aircraft parts, provided that such arrangements are made on a non-discriminatory basis;

(d) the introduction, operation and maintenance of technical communication networks, provided that such arrangements are made on a non-discriminatory basis;

(e) the exchange, pooling or training of personnel for technical or operational purposes;

(f) the organization and execution of substitute transport operations for passengers, mail and baggage, in the event of breakdown/delay of aircraft, either under charter or by provision of substitute aircraft under contractual arrangements;

(g) the organization and execution of successive or supplementary air transport operations, and the fixing and application of inclusive rates and conditions for such operations;

(h) the consolidation of individual consignments;

(i) the establishment or application of uniform rules concerning the structure and the conditions governing the application of transport tariffs, provided that such rules do not directly or indirectly fix transport fares and conditions;

(j) arrangements as to the sale, endorsement and acceptance of tickets between air carriers (interlining) as well as the refund, pro-rating and accounting schemes established for such purposes;

(k) the clearing and settling of accounts between air carriers by means of a clearing house, including such services as may be necessary or incidental thereto; the clearing and settling of accounts between air carriers and their appointed agents by means of a centralized and automated settlement plan or system, including such services as may be necessary or incidental thereto.