PROTOCOL 21 on the implementation of competition rules applicable to undertakings

Article 1

The EFTA Surveillance Authority shall, in an agreement between the EFTA States, be entrusted with equivalent powers and similar functions to those of the EC Commission, at the time of the signature of the Agreement, for the application of the competition rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community, enabling the EFTA Surveillance Authority to give effect to the principles laid down in Articles 1(2)(e) and 53 to 60 of the Agreement, and in Protocol 25.

The Community shall, where necessary, adopt the provisions giving effect to the principles laid down in Articles 1(2)(e) and 53 to 60 of the Agreement, and in Protocol 25, in order to ensure that the EC Commission has equivalent powers and similar functions under this Agreement to those which it has, at the time of the signature of the Agreement, for the application of the competition rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community.

Article 2

If, following the procedures set out in Part VII of the Agreement, new acts for the implementation of Articles 1(2)(e) and 53 to 60 and of Protocol 25, or on amendments of the acts listed in Article 3 of this Protocol are adopted, corresponding amendments shall be made in the agreement setting up the EFTA Surveillance Authority so as to ensure that the EFTA Surveillance Authority will be entrusted simultaneously with equivalent powers and similar functions to those of the EC Commission.

Article 3

1. In addition to the acts listed in Annex XIV, the following acts reflect the powers and functions of the EC Commission for the application of the competition rules of the Treaty establishing the European Economic Community:

Control of concentrations

1. 389 R 4064: Articles 6 to 25 of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ No L 395, 30.12.1989, p. 1), as corrected by OJ No L 257, 21.9.1990, p. 13.

2. 390 R 2367: Commission Regulation (EEC) No 2367/90 of 25 July 1990 on the notifications, time limits and hearings provided for in Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (OJ No L 219, 14.8.1990, p. 5).

General procedural rules

3. 362 R 0017: Council Regulation No 17/62 of 6 February 1962. First Regulation implementing Articles 85 and 86 of the Treaty (OJ No 13, 21.2.1962, p. 204/62), as amended by:

- 362 R 0059: Regulation No 59/62 of 3 July 1962 (OJ No 58, 10.7.1962, p. 1655/62),

- 363 R 0118: Regulation No 118/63 of 5 November 1963 (OJ No 162, 7.11.1963, p. 2696/63),

- 371 R 2822: Regulation (EEC) No 2822/71 of 20 December 1971 (OJ No L 285, 29.12.1971, p. 49),

- 1 72 B: Act concerning the conditions of Accession and Adjustments to the Treaties - Accession to the European Communities of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ No L 73, 27.3.1972, p. 92),

- 1 79 H: Act concerning the conditions of Accession and Adjustments to the Treaties - Accession to the European Communities of the Hellenic Republic (OJ No L 291, 19.11.1979, p. 93),

- 1 85 I: Act concerning the conditions of Accession and Adjustments to the Treaties - Accession to the European Communities of the Kingdom of Spain and the Portuguese Republic (OJ No L 302, 15.11.1985, p. 165).

4. 362 R 0027: Commission Regulation No 27/62 of 3 May 1962. First Regulation implementing Council Regulation No 17/62 of 6 February 1962 (Form, content and other details concerning applications and notifications) (OJ No 35, 10.5.1962, p. 1118/62), as amended by:

- 368 R 1133: Regulation (EEC) No 1133/68 of 26 July 1968 (OJ No L 189, 1.8.1968, p. 1),

- 375 R 1699: Regulation (EEC) No 1699/75 of 2 July 1975 (OJ No L 172, 3.7.1975, p. 11),

- 1 79 H: Act concerning the conditions of Accession and Adjustments to the Treaties - Accession to the European Communities of the Hellenic Republic (OJ No L 291, 19.11.1979, p. 94),

- 385 R 2526: Regulation (EEC) No 2526/85 of 5 August 1985 (OJ No L 240, 7.9.1985, p. 1),

- 1 85 I: Act concerning the conditions of Accession and Adjustments to the Treaties - Accession to the European Communities of the Kingdom of Spain and the Portuguese Republic (OJ No L 302, 15.11.1985, p. 166).

5. 363 R 0099: Commission Regulation No 99/63 of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation (EEC) No 17/62 (OJ No 127, 20.8.1963, p. 2268/63).

Transport

6. 362 R 0141: Council Regulation No 141/62 of 26 November 1962 exempting transport from the application of Council Regulation No 17/62 amended by Regulations Nos 165/65/EEC and 1002/67/EEC (OJ No 124, 28.11.1962, p. 2751/62).

7. 368 R 1017: Article 6 and Articles 10 to 31 of Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ No L 175, 23.7.1968, p. 1).

8. 369 R 1629: Commission Regulation (EEC) No 1629/69 of 8 August 1969 on the form, content and other details of complaints pursuant to Article 10, applications pursuant to Article 12 and notifications pursuant to Article 14(1) of Council Regulation (EEC) No 1017/68 of 19 July 1968 (OJ No L 209, 21.8.1969, p. 1).

9. 369 R 1630: Commission Regulation (EEC) No 1630/69 of 8 August 1969 on the hearings provided for in Article 26(1) and (2) of Council Regulation (EEC) No 1017/68 of 19 July 1968 (OJ No L 209, 21.8.1969, p. 11).

10. 374 R 2988: Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ No L 319, 29.11.1974, p. 1).

11. 386 R 4056: Section II of Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ No L 378, 31.12.1986, p. 4).

12. 388 R 4260: Commission Regulation (EEC) No 4260/88 of 16 December 1988 on the communications, complaints and applications and the hearings provided for in Council Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ No L 376, 31.12.1988, p. 1).

13. 387 R 3975: Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ No L 374, 31.12.1987, p. 1), as amended by:

- 391 R 1284: Council Regulation (EEC) No 1284/91 of 14 May 1991 (OJ No L 122, 17.5.1991, p. 2).

14. 388 R 4261: Commission Regulation (EEC) No 4261/88 of 16 December 1988 on the form, content and other details of complaints and of applications, and the hearings provided for in Council Regulation (EEC) No 3975/87 laying down the procedure for the application of the rules of competition to undertakings in the air transport sector (OJ No L 376, 31.12.1988, p. 10).

2. In addition to the acts listed in Annex XIV, the following acts reflect the powers and functions of the EC Commission for the application of the competition rules of the Treaty establishing the European Coal and Steel Community (ECSC):

1. Article (ECSC) 65(2), subparagraphs 3 to 5, (3), (4), subparagraph 2, and (5).

2. Article (ECSC) 66(2), subparagraphs 2 to 4, and (4) to (6).

3. 354 D 7026: High Authority Decision No 26/54 of 6 May 1954 laying down in implementation of Article 66(4) of the Treaty a regulation concerning information to be furnished (Official Journal of the European Coal and Steel Community No 9, 11.5.1954, p. 350/54).

4. 378 S 0715: Commission Decision No 715/78/ECSC of 6 April 1978 concerning limitation periods in proceedings and the enforcement of sanctions under the Treaty establishing the European Coal and Steel Community (OJ No L 94, 8.4.1978, p. 22).

5. 384 S 0379: Commission Decision No 379/84/ECSC of 15 February 1984 defining the powers of officials and agents of the Commission instructed to carry out the checks provided for in the ECSC Treaty and decisions taken in application thereof (OJ No L 46, 16.2.1984, p. 23).

Article 4

1. Agreements, decisions and concerted practices of the kind described in Article 53(1) which come into existence after the entry into force of the Agreement and in respect of which the parties seek application of Article 53(3) shall be notified to the competent surveillance authority pursuant to Article 56, Protocol 23 and the rules referred to in Articles 1 to 3 of this Protocol. Until they have been notified, no decision in application of Article 53(3) may be taken.

2. Paragraph 1 shall not apply to agreements, 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;

(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 or 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 the Agreement, represent more than 15 per cent 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 competent surveillance authority pursuant to Article 56, Protocol 23 and the rules referred to in Articles 1 to 3 of this Protocol.

Article 5

1. Agreements, decisions and concerted practices of the kind described in Article 53(1) which are in existence at the date of entry into force of the Agreement and in respect of which the parties seek application of Article 53(3) shall be notified to the competent surveillance authority pursuant to the provisions in Article 56, Protocol 23 and the rules referred to in Articles 1 to 3 of this Protocol within six months of the date of entry into force of the Agreement.

2. Paragraph 1 shall not apply to agreements, decisions or concerted practices of the kind described in Article 53(1) of the Agreement and falling under Article 4(2) of this Protocol; these may be notified to the competent surveillance authority pursuant to Article 56, Protocol 23 and the rules referred to in Articles 1 to 3 of this Protocol.

Article 6

The competent surveillance authority shall specify in its decisions pursuant to Article 53(3) the date from which the decisions shall take effect. That date may be earlier than the date of notification as regards agreements, decisions of associations of undertakings or concerted practices falling under Articles 4(2) and 5(2) of this Protocol, or those falling under Article 5(1) of this Protocol which have been notified within the time limit specified in Article 5(1).

Article 7

1. Where agreements, decisions or concerted practices of the kind described in Article 53(1) which are in existence at the date of entry into force of the Agreement and notified within the time limits specified in Article 5(1) of this Protocol do not satisfy the requirements of Article 53(3) 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 competent surveillance authority. A decision by the competent 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 this Protocol which are in existence at the date of entry into force of the Agreement if they are notified within six months after that date.

Article 8

Applications and notifications submitted to the EC Commission prior to the date of entry into force of the Agreement shall be deemed to comply with the provisions on application and notification under the Agreement.

The competent surveillance authority pursuant to Article 56 of the Agreement and Article 10 of Protocol 23 may require a duly completed form as prescribed for the implementation of the 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 Agreement.

Article 9

Fines for infringement of Article 53(1) shall not be imposed in respect of any act prior to notification of the agreements, decisions and concerted practices to which Articles 5 and 6 of this Protocol apply and which have been notified within the period specified therein.

Article 10

The Contracting Parties 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 Agreement.

Article 11

As regards agreements, decisions and concerted practices already in existence at the date of entry into force of the Agreement which fall under Article 53(1), 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 Agreement so as to fulfil the conditions contained in the block exemptions provided for in Annex XIV.

Article 12

As regards agreements, decisions of associations of undertakings and concerted practices already in existence at the date of entry into force of the Agreement which fall under Article 53(1), 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 Agreement so as not to fall under the prohibition of Article 53(1) any more.

Article 13

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 Agreement shall continue to be exempted as regards the provisions of the 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.