14.12.2006   

EN

Official Journal of the European Union

C 305/19

A.

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

B.

The European Commission (hereafter the ‘Commission’) has issued a notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC (1). This non-binding act contains principles and rules which the Commission follows in the field of competition. It also explains the ways in which cooperation between the Commission and the courts of the EU Member States is envisaged to take place.

C.

The EFTA Surveillance Authority considers the above-mentioned act to be EEA relevant. In order to maintain equal conditions of competition and to ensure a uniform application of the EEA competition rules throughout the European Economic Area, the Authority adopts the present notice under the power conferred upon it by Article 5(2)(b) of the Surveillance and Court Agreement.

D.

In particular, the purpose of this notice is to spell out how the EFTA Surveillance Authority intends to cooperate with the national courts of the EFTA States (2) in the application of Articles 53 and 54 of the EEA Agreement in individual cases (3); always taking account of the independence of national courts.

1.

The present notice addresses the co-operation between the EFTA Surveillance Authority and the courts of the EFTA States, when the latter apply Articles 53 and 54 of the EEA Agreement. For the purpose of this notice, the ‘courts of the EFTA States’ (hereinafter ‘national courts’) are those courts and tribunals within an EFTA State that can apply Articles 53 and 54 of the EEA Agreement and that are authorised pursuant to Article 34 of the Surveillance and Court Agreement to request an advisory opinion from the EFTA Court on the interpretation of the EEA Agreement and the Surveillance and Court Agreement. (4)

2.

The national courts may be called upon to apply Articles 53 or 54 of the EEA Agreement in lawsuits between private parties, such as actions relating to contracts or actions for damages. They may also act as public enforcer or as review court. A national court may indeed be designated as a competition authority of an EFTA State (hereinafter ‘the national competition authority’) pursuant to Article 40(1) of Chapter II of Protocol 4 of the Surveillance and Court Agreement (hereafter ‘Chapter II’) on the implementation of the rules on competition laid down in Articles 53 and 54 of the EEA Agreement (5). In that case, the co-operation between the national courts and the EFTA Surveillance Authority is not only covered by the present notice, but also by the notice on the co-operation within the EFTA network of competition authorities (6).

3.

According to the Court of Justice of the European Communities, where, by virtue of domestic law, national courts must raise of their own motion points of law based on binding domestic rules which have not been raised by the parties, such an obligation also exists where binding Community rules, such as the competition rules, are concerned. The position is the same if domestic law confers on national courts discretion to apply of their own motion binding rules of law: national courts must apply the competition rules, even when the party with an interest in application of those provisions has not relied on them, where domestic law allows such application by the national court. However, Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim (10). The EFTA Surveillance Authority considers that national courts of the EFTA States have a similar obligation where such EEA rules have been implemented (11).

4.

Depending on the functions attributed to them under national law, national courts may be called upon to apply Articles 53 and 54 of the EEA Agreement in administrative, civil or criminal proceedings (12). In particular, where a natural or legal person asks the national court to safeguard his individual rights, national courts play a specific role in the enforcement of Articles 53 and 54 of the EEA Agreement, which is different from the enforcement in the public interest by the EFTA Surveillance Authority or by national competition authorities (13). Indeed, national courts can give effect to Articles 53 and 54 of the EEA Agreement by finding contracts to be void or by awards of damages.

5.

National courts can apply Articles 53 and 54 of the EEA Agreement, without it being necessary to apply national competition law in parallel. However, where a national court applies national competition law to agreements, decisions by associations of undertakings or concerted practices which may affect trade between Contracting Parties to the EEA Agreement within the meaning of Article 53(1) of the EEA Agreement (14) or to any abuse prohibited by Article 54 of the EEA Agreement, they also have to apply the EEA competition rules to those agreements, decisions or practices (15).

6.

Chapter II does not only empower the national courts to apply the EEA competition rules. The parallel application of national competition law to agreements, decisions of associations of undertakings and concerted practices which affect trade between Contracting Parties to the EEA Agreement may not lead to a different outcome from that of the EEA competition rules. Article 3(2) of Chapter II provides that agreements, decisions or concerted practices which do not infringe Article 53(1) of the EEA Agreement or which fulfil the conditions of Article 53(3) of the EEA Agreement cannot be prohibited either under national competition law (16). On the other hand, it is foreseen in the EEA Agreement that any conflicts which may arise when national and EEA law are applied simultaneously are to be resolved so that EEA law takes precedence. Agreements, decisions or concerted practices that violate Article 53(1) and do not fulfil the conditions of Article 53(3) EEA may thus not be upheld under national law (17). As to the parallel application of national competition law and Article 54 of the EEA Agreement in the case of unilateral conduct, Article 3 of Chapter II does not provide for a similar convergence obligation. However, in case of conflicting provisions, national courts should be required to disapply any provision of national law which contravenes an implemented EEA rule, regardless of whether that national law provision was adopted before or after the EEA rule (18).

7.

Apart from the application of Articles 53 and 54 of the EEA Agreement, national courts are also competent to apply acts incorporated into the EEA Agreement, rulings of the EFTA Court and decisions of the EFTA Surveillance Authority. National courts may thus have to enforce Authority decisions (19) or acts incorporated into the EEA Agreement applying Article 53(3) of the EEA Agreement to certain categories of agreements, decisions or concerted practices, as well as Commission decisions. When applying these EEA competition rules, national courts act within the framework of EEA law and in so doing, should also take account of the general principles of EEA law (20).

8.

The application of Articles 53 and 54 of the EEA Agreement by national courts often depends on complex economic and legal assessments (21). When applying EEA competition rules, national courts should follow established principles of EEA law (22), as well as acts incorporated into the EEA Agreement applying Article 53(3) of the EEA Agreement to certain categories of agreements, decisions or concerted practices (23). Furthermore, the application of Articles 53 and 54 of the EEA Agreement by the EFTA Surveillance Authority in a specific case binds the national courts when they apply EEA competition rules in the same case in parallel with or subsequent to the Authority (24). Similarly, national courts are required to respect the application of Articles 53 and 54 of the EEA Agreement by the Commission in a specific case when they apply EEA competition rules in the same case in parallel with or subsequent to the Commission. Finally, and without prejudice to the ultimate interpretation of the EEA Agreement by the EFTA Court and the Community Courts, national courts may find guidance in Authority or Commission decisions and acts incorporated into the EEA Agreement which present elements of analogy with the case they are dealing with, as well as in Authority notices and guidelines relating to the application of Articles 53 and 54 EEA (25).

9.

The procedural conditions for the enforcement of EEA competition rules by national courts and the sanctions they can impose in case of an infringement of those rules, are largely covered by national law. However, to some extent, EEA law also determines the conditions in which the EEA competition rules are enforced. The Surveillance and Court Agreement enables national courts to avail themselves of certain instruments, e.g. to ask for the EFTA Surveillance Authority's opinion on questions concerning the application of the EEA competition rules (26). They may also create rules that have an obligatory impact on proceedings before them, e.g. allowing the Authority and national competition authorities to submit written observations (27). These EEA law provisions should prevail over national rules (28).

10.

In the absence of EEA law provisions on procedures and sanctions related to the enforcement of EEA competition rules by national courts, the latter apply national procedural law and — to the extent that they are competent to do so — impose sanctions provided for under national law. However, the application of these national provisions must be compatible with the general principles of EEA law. In this regard, it is useful to recall the case law of the EFTA Court and the Court of Justice of the European Communities, according to which:

11.

A national court may be applying EEA competition law to an agreement, decision, concerted practice or unilateral behaviour affecting trade between Contracting Parties at the same time as the EFTA Surveillance Authority (34) or subsequent to the Authority (35). The following points outline some of the obligations national courts have to respect in those circumstances.

12.

Where a national court comes to a decision before the EFTA Surveillance Authority, it must avoid adopting a decision that would conflict with a decision contemplated by the Authority` (36). To that effect, the national court may ask the Authority whether it has initiated proceedings regarding the same agreements, decisions or practices (37) and if so, about the progress of proceedings and the likelihood of a decision in that case (38). The national court may, if it considers it necessary for reasons of legal certainty, also consider staying its proceedings until the Authority has reached a decision (39). The Authority, for its part, will endeavour to give priority to cases for which it has decided to initiate proceedings within the meaning of Article 2(1) of Chapter III of the Surveillance and Court Agreement (hereafter ‘Chapter III’) and that are the subject of national proceedings stayed in this way, in particular when the outcome of a civil dispute depends on them. However, where the national court cannot reasonably doubt the contemplated decision of the Authority or where the Authority has already decided on a similar case, the national court may decide on the case pending before it in accordance with that contemplated or earlier decision without it being necessary to ask the Authority for the information mentioned above or to await the Authority's decision.

13.

Where the EFTA Surveillance Authority reaches a decision in a particular case before the national court, the latter cannot take a decision running counter to that of the Authority. The binding effect of the decision of the Authority is of course without prejudice to the interpretation of EEA law by the EFTA Court. Therefore, if the national court doubts the legality of the Authority's decision, it cannot avoid the binding effects of that decision without a ruling to the contrary by the EFTA Court (40). Consequently, if a national court intends to take a decision that runs counter to that of the Authority, it must refer a question to the EFTA Court for an advisory opinion (Article 34 of the Surveillance and Court Agreement). The latter will then decide on the compatibility of the decision of the Authority with EEA law. However, if the Authority's decision is challenged before the EFTA Court pursuant to Article 36 of the Surveillance and Court Agreement and the outcome of the dispute before the national court depends on the validity of the Authority's decision, the national court should stay its proceedings pending final judgment in the action for annulment by the EFTA Court unless it considers that, in the circumstances of the case, a reference to the EFTA Court requesting an opinion on the validity of the Authority's decision (Article 34 of the Surveillance and Court Agreement) is warranted (41).

14.

When a national court stays proceedings, e.g. awaiting the Authority's decision (situation described in point 12 of this notice) or pending final judgment by the EFTA Court in an action for annulment or in a request for an advisory opinion (situation described in point 13), it is incumbent on it to examine whether it is necessary to order interim measures in order to safeguard the interests of the parties (42).

15.

Other than the co-operation mechanism between the national courts and the EFTA Court under Article 34 of the Surveillance and Court Agreement, the main body of the EEA Agreement and the Surveillance and Court Agreement do not explicitly provide for co-operation between the national courts and the EFTA Surveillance Authority. However, Article 3 of the EEA Agreement, which is modelled on, and to a great extent reproduces Article 10 of the EC Treaty, obliges the Contracting Parties to take all appropriate measures to facilitate the achievement of the obligations arising out of the EEA Agreement. The Community Courts have found that Article 10 of the EC Treaty imposes on the European institutions and the Member States mutual duties of loyal co-operation with a view to attaining the objectives of the EC Treaty. Article 10 EC thus implies that the Commission must assist national courts when they apply Community law (43). The Authority considers that it is under a similar obligation of loyal co-operation vis-à-vis national courts of EFTA States, by virtue of the corresponding Article 3 of the EEA Agreement and Article 2 of the Surveillance and Court Agreement. Equally, national courts may be obliged to assist the Authority in the fulfilment of its tasks (44).

16.

It is also appropriate to recall the co-operation between national courts and national authorities, in particular national competition authorities, for the application of Articles 53 and 54 of the EEA Agreement. While the co-operation between these national authorities is primarily governed by national rules, Article 15(3) of Chapter II provides for the possibility for national competition authorities to submit observations before the national courts of their EFTA State. Points 31 and 33 to 35 of this notice are mutatis mutandis applicable to those submissions.

17.

In order to assist national courts in the application of EEA competition rules, the EFTA Surveillance Authority is committed to help national courts where the latter find such help necessary to be able to decide on a case. Article 15 of Chapter II refers to the most frequent types of such assistance: the transmission of information (points 21 to 26 below) and the Authority's opinions (points 27 to 30 below), both at the request of a national court and the possibility for the Authority to submit observations (points 31 to 35 below). Since Chapter II provides for these types of assistance, it cannot be limited by any EFTA States' rule. However, in the absence of EEA procedural rules to this effect and to the extent that they are necessary to facilitate these forms of assistance, EFTA States must adopt the appropriate procedural rules to allow both the national courts and the Authority to make full use of the possibilities Chapter II offers (45).

18.

The national court may send its request for assistance in writing to

or send it electronically to

registry@eftasurv.int

19.

It should be recalled that whatever form the co-operation with national courts takes, the EFTA Surveillance Authority will respect the independence of national courts. As a consequence, the assistance offered by the Authority does not bind the national court. The Authority has also to make sure that it respects its duty of professional secrecy and that it safeguards its own functioning and independence (46). In fulfilling its duty under Article 3 of the EEA Agreement and Article 2 of the Surveillance and Court Agreement, of assisting national courts in the application of EEA competition rules, the Authority is committed to remaining neutral and objective in its assistance. Indeed, the Authority's assistance to national courts is part of its duty to defend the public interest. It has therefore no intention to serve the private interests of the parties involved in the case pending before the national court. As a consequence, the Authority will not hear any of the parties about its assistance to the national court. In case the Authority has been contacted by any of the parties in the case pending before the court on issues which are raised before the national court, it will inform the national court thereof, independent of whether these contacts took place before or after the national court's request for co-operation.

20.

The EFTA Surveillance Authority will publish a summary concerning its co-operation with national courts pursuant to this notice in its annual report. It may also make its opinions and observations available on its website.

21.

The duty for the EFTA Surveillance Authority to assist national courts in the application of EEA competition law is mainly reflected in the obligation for the Authority to transmit information it holds to national courts. A national court may, e.g., ask the Authority for documents in its possession or for information of a procedural nature to enable it to discover whether a certain case is pending before the Authority, whether the Authority has initiated a procedure or whether it has already taken a position. A national court may also ask the Authority when a decision is likely to be taken, so as to be able to determine the conditions for any decision to stay proceedings or whether interim measures need to be adopted (47).

22.

In order to ensure the efficiency of the co-operation with national courts, the EFTA Surveillance Authority will endeavour to provide the national court with the requested information within one month from the date it receives the request. Where the Authority has to ask the national court for further clarification of its request or where the Authority has to consult those who are directly affected by the transmission of the information, that period starts to run from the moment that it receives the required information.

23.

In transmitting information to national courts, the EFTA Surveillance Authority has to uphold the guarantees given to natural and legal persons by Article 122 of the EEA Agreement and Article 14 of the Surveillance and Court Agreement (48). Article 14 of the Surveillance and Court Agreement prevents members, officials and other servants of the Authority from disclosing information covered by the obligation of professional secrecy. Article 122 of the EEA Agreement requires representatives, delegates and experts of the Contracting Parties, as well as officials and other servants, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components. This obligation is also spelt out by Article 28 of Chapter II. The information covered by professional secrecy may be both confidential information and business secrets. Business secrets are information of which not only disclosure to the public but also mere transmission to a person other than the one that provided the information might seriously harm the latter's interests (49).

24.

The combined reading of Articles 3 and 122 of the EEA Agreement and 14 of the Surveillance and Court Agreement does not lead to an absolute prohibition for the EFTA Surveillance Authority to transmit information which is covered by the obligation of professional secrecy to national courts. As confirmed by the case law of the Community Courts with regard to the Commission's duty of loyal co-operation, the Authority in the same way considers that the duty of loyal co-operation requires the Authority to provide the national court with whatever information the latter asks for, even information covered by professional secrecy. However, in offering its co-operation to the national courts, the Authority may not in any circumstances undermine the guarantees laid down in Article 122 of the EEA Agreement and Article 14 of the Surveillance and Court Agreement.

25.

Consequently, before transmitting information covered by professional secrecy to a national court, the EFTA Surveillance Authority will remind the court of its obligation under EEA law to uphold the rights which Article 122 of the EEA Agreement and Article 14 of the Surveillance and Court Agreement confers on natural and legal persons and it will ask the court whether it can and will guarantee protection of confidential information and business secrets. If the national court cannot offer such guarantee, the Authority shall not transmit the information covered by professional secrecy to the national court (50). Only when the national court has offered a guarantee that it will protect the confidential information and business secrets, will the Authority transmit the information requested, indicating those parts which are covered by professional secrecy and which parts are not and can therefore be disclosed.

26.

There are further exceptions to the disclosure of information by the EFTA Surveillance Authority to national courts. Particularly, the Authority may refuse to transmit information to national courts for overriding reasons relating to the need to safeguard the interests of the EEA or to avoid any interference with its functioning and independence, in particular by jeopardizing the accomplishment of the tasks entrusted to it (51). Therefore, Authority will not transmit to national courts information voluntarily submitted by a leniency applicant without the consent of that applicant.

27.

When called upon to apply EEA competition rules to a case pending before it, a national court may first seek guidance in the case law of the EFTA Court, in EEA legislation, EFTA Surveillance Authority decisions, notices and guidelines applying Articles 53 and 54 of the EEA Agreement (52), as well as the relevant case-law and decisions of the Community Courts and the Commission applying EEA-law and corresponding Community law. Where these tools do not offer sufficient guidance, the national court may ask the Authority for its opinion on questions concerning the application of EEA competition rules. The national court may ask the Authority or its opinion on economic, factual and legal matters (53). The latter is of course without prejudice to the possibility or the obligation for the national court to ask the EFTA Court for an advisory opinion regarding the interpretation or the validity of EEA law in accordance with Article 34 of the Surveillance and Court Agreement.

28.

In order to enable the EFTA Surveillance Authority to provide the national court with a useful opinion, it may request the national court for further information (54). In order to ensure the efficiency of the co-operation with national courts, the Authority will endeavour to provide the national court with the requested opinion within four months from the date it receives the request. Where the Authority has requested the national court for further information in order to enable it to formulate its opinion, that period starts to run from the moment that it receives the additional information.

29.

When giving its opinion, the EFTA Surveillance Authority will limit itself to providing the national court with the factual information or the economic or legal clarification asked for, without considering the merits of the case pending before the national court. Moreover, the opinion of the Authority does not legally bind the national court.

30.

In line with what has been said in point 19 of this notice, the EFTA Surveillance Authority will not hear the parties before formulating its opinion to the national court. The latter will have to deal with the Authority's opinion in accordance with the relevant national procedural rules, which have to respect the general principles of EEA law.

31.

According to Article 15(3) of Chapter II, the national competition authorities and the EFTA Surveillance Authority may submit observations on issues relating to the application of Articles 53 or 54 of the EEA Agreement to a national court which is called upon to apply those provisions. Chapter II distinguishes between written observations, which the national competition authorities and the Authority may submit on their own initiative, and oral observations, which can only be submitted with the permission of the national court (55).

32.

Chapter II specifies that the EFTA Surveillance Authority will only submit observations when the coherent application of Articles 53 or 54 of the EEA Agreement so requires. That being the objective of its submission, the Authority will limit its observations to an economic and legal analysis of the facts underlying the case pending before the national court.

33.

In order to enable the EFTA Surveillance Authority to submit useful observations, national courts may be asked to transmit or ensure the transmission to the Authority of a copy of all documents that are necessary for the assessment of the case. In line with Article 15(3), second subparagraph, of Chapter II, the EFTA Surveillance Authority will only use those documents for the preparation of its observations (56).

34.

Since Chapter II does not provide for a procedural framework within which the observations are to be submitted, the EFTA States' procedural rules and practices determine the relevant procedural framework. Where an EFTA State has not yet established the relevant procedural framework, the national court has to determine which procedural rules are appropriate for the submission of observations in the case pending before it.

35.

The procedural framework should respect the principles set out in point 10 of this notice. That implies amongst others that the procedural framework for the submission of observations on issues relating to the application of Articles 53 or 54 of the EEA Agreement

36.

Since the duty of loyal co-operation also implies that EFTA States' authorities assist the EFTA Surveillance Authority with a view to attaining the objectives of the EEA Agreement (58), Chapter II provides for three examples of such assistance: (1) the transmission of documents necessary for the assessment of a case in which the Authority would like to submit observations (see point 33), (2) the transmission of judgements applying Articles 53 or 54 of the EEA Agreement; and (3) the role of national courts in the context of an Authority inspection.

37.

According to Article 15(2) of Chapter II, EFTA States shall send to the EFTA Surveillance Authority a copy of any written judgement of national courts applying Articles 53 or 54 of the EEA Agreement without delay after the full written judgment is notified to the parties. The transmission of national judgments on the application of Articles 53 or 54 of the EEA Agreement and the resulting information on proceedings before national courts primarily enable the Authority to become aware in a timely fashion of cases for which it might be appropriate to submit observations where one of the parties lodges an appeal against the judgment.

38.

Finally, national courts may play a role in the context of an EFTA Surveillance Authority inspection of undertakings and associations of undertakings. The role of the national courts depends on whether the inspections are conducted in business premises or in non-business premises.

39.

With regard to the inspection of business premises, national legislation may require authorisation from a national court to allow a national enforcement authority to assist the EFTA Surveillance Authority in case of opposition of the undertaking concerned. Such authorisation may also be sought as a precautionary measure. When dealing with the request, the national court has the power to control that the Authority's inspection decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national court may ask the Authority, directly or through the national competition authority, for detailed explanations in particular on the grounds the Authority has for suspecting infringement of Articles 53 and 54 of the EEA Agreement, as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned (59).

40.

With regard to the inspection of non-business premises, Chapter II requires the authorisation from a national court before an EFTA Surveillance Authority decision ordering such an inspection can be executed. In that case, the national court may control that the Authority's inspection decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard in particular to the seriousness of the suspected infringement, to the importance of the evidence sought, to the involvement of the undertaking concerned and to the reasonable likelihood that business books and records relating to the subject matter of the inspection are kept in the premises for which the authorisation is requested. The national court may ask the Authority, directly or through the national competition authority, for detailed explanations on those elements that are necessary to allow its control of the proportionality of the coercive measures envisaged (60).

41.

In both cases referred to in points 39 and 40, the national court may not call into question the lawfulness of the EFTA Surveillance Authority's decision or the necessity for the inspection nor can it demand that it be provided with information in the Authority's file (61). Furthermore, the duty of loyal co-operation requires the national court to take its decision within an appropriate timeframe that allows the Authority to effectively conduct its inspection (62).

42.

This notice is issued in order to assist national courts in the application of Articles 53 and 54 of the EEA Agreement. It does not bind the national courts, nor does it affect the rights and obligations of the EFTA States and natural or legal persons under EEA law.

43.

This notice replaces the 1995 notice on co-operation between national courts and the EFTA Surveillance Authority in applying Articles 53 and 54 of the EEA Agreement (63).