E1994A1231(03)

PROTOCOL 2 on the functions and powers of the EFTA Surveillance Authority in the field of procurement

Article 1

1. Without prejudice to Article 31 of this Agreement, the EFTA Surveillance Authority may invoke the procedure for which the present Article provides when, prior to a contract being concluded, it considers that a clear and manifest infringement of the provisions of the EEA Agreement in the field of procurement has been committed during a contract award procedure falling within the scope of the acts referred to in points 2 and 3 of Annex XVI to the EEA Agreement.

2. The EFTA Surveillance Authority shall notify the EFTA State and the contracting authority concerned of the reasons which have led it to conclude that a clear and manifest infringement has been committed and request its correction.

3. Within 21 days of receipt of the notification referred to in paragraph 2, the EFTA State concerned shall communicate to the EFTA Surveillance Authority:

(a) its confirmation that the infringement has been corrected;

or

(b) a reasoned submission as to why no correction has been made;

or

(c) a notice to the effect that the contract award procedure has been suspended either by the contracting authority on its own initiative or on the basis of the powers specified in Article 2 (1) (a) of the act referred to in point 5 of Annex XVI to the EEA Agreement.

4. A reasoned submission in accordance with paragraph 3 (b) of this Article may rely among other matters on the fact that the alleged infringement is already the subject of judicial or other review proceedings or of a review as referred to in Article 2 (8) of the act referred to in point 5 of Annex XVI to the EEA Agreement. In such a case, the EFTA State shall inform the EFTA Surveillance Authority of the result of those proceedings as soon as it becomes known.

5. Where notice has been given that a contract award procedure has been suspended in accordance with paragraph 3 (c) of this Article, the EFTA State shall notify the EFTA Surveillance Authority when the suspension is lifted or another contract procedure relating in whole or in part to the same subject matter is begun. That notification shall confirm that the alleged infringement has been corrected or include a reasoned submission as to why no correction has been made.

Article 2

1. Not later than 1 January 1996, the EFTA Surveillance Authority shall, together with an advisory committee composed of representatives of the EFTA States, review the manner in which the provisions of this Protocol and the provisions of the act referred to in point 5 of Annex XVI of the EEA Agreement have been implemented and, if necessary, make proposals for amendments. The committee shall have as chairman a representative of the EFTA Surveillance Authority. The committee shall be convened by its chairman either on his own initiative or at the request of one of its members.

2. By 1 March each year the EFTA States shall communicate to the EFTA Surveillance Authority information on the operation of their national review procedures during the preceding calendar year. The nature of the information shall be determined by the EFTA Surveillance Authority in consultation with the advisory committee.