COMMISSION REGULATION (EC) No 2843/98 of 22 December 1998 on the form, content and other details of applications and notifications provided for in Council Regulations (EEC) No 1017/68, (EEC) No 4056/86 and (EEC) No 3975/87 applying the rules on competition to the transport sector (Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Agreement on the European Economic Area,
Having regard to Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (1), as last amended by the Act of Accession of Austria, Finland and Sweden, and in particular Article 29 thereof,
Having regard to 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 (2), as last amended by the Act of Accession of Austria, Finland and Sweden, and in particular Article 26 thereof,
Having regard to 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 (3), as last amended by Regulation (EEC) No 2410/92 (4), and in particular Article 19 thereof,
Having consulted the Advisory Committee on restrictive practices and monopolies in the transport industry, the Advisory Committee on agreements and dominant positions in maritime transport, and the Advisory Committee on agreements and dominant positions in air transport,
(1) Whereas experience in the application of Commission Regulation (EEC) No 1629/69 of 8 August 1969 on the form, content and other detail 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 (5), as last amended by the Act of Accession of Austria, Finland and Sweden, and of Section I of 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 (6), as last amended by the Act of Accession of Austria, Finland and Sweden and also of Section I of Commission Regulation (EEC) No 4261/88 of 16 December 1988 on the complaints, applications and hearings provided for in Council Regulation (EEC) No 3975/87 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (7), as last amended by the Act of Accession of Austria, Finland and Sweden, has shown the need to improve certain procedural aspects of those Regulations;
(2) Whereas it is appropriate, for the sake of clarity, to adopt a single Regulation on the procedures for applications and notifications in the transport sector; whereas, accordingly, Regulation (EEC) No 1629/69 and Regulations (EEC) No 4260/88 and (EEC) No 4261/88 should be replaced;
(3) Whereas the submission of applications under Article 12 of Regulation (EEC) No 1017/68 and notifications under Article 14(1) of that Regulation, and applications under Article 12 of Regulation (EEC) No 4056/86 and Articles 3(2) and 5 of Regulation (EEC) No 3975/87, may have important legal consequences for each undertaking which is a party to an agreement, a decision or a practice; whereas each party should therefore have the right to submit such applications or notifications to the Commission; whereas, furthermore, a party exercising the right should inform the other parties in order to enable them to protect their interests;
(4) Whereas it is for the applicants and the notifying parties to make full and honest disclosure to the Commission of the facts and circumstances which are relevant to reaching a decision on the agreements, decisions or practices concerned;
(5) Whereas, in order to simplify and expedite their examination, it is desirable to prescribe that a form be used for applications for negative clearance relating to Article 85(1) and for applications relating to Article 5 of Regulation (EEC) No 1017/68 and to Article 85(3); whereas the use of this form should also be possible in the case of applications for negative clearance relating to Article 86;
(6) Whereas, in order to simplify their handling, it is appropriate to introduce a single form for applications under Article 12 of Regulation (EEC) No 1017/68, under Article 12 of Regulation (EEC) No 4056/86 and under Articles 3(2) and 5 of Regulation (EEC) No 3975/87; whereas, in the case of notifications under Article 14(1) of Regulation (EEC) No 1017/68, it is appropriate to provide a separate form;
(7) Whereas the Commission, in appropriate cases, should continue to give the parties, if they so request, an opportunity before the application or the notification to discuss the intended agreement, decision or practice informally and in strict confidence; whereas, in addition, it should, after the application or notification, continue to maintain close contact with the parties to the extent necessary to discuss with them any practical or legal problems which it discovers on a first examination of the case and if possible to remove such problems by mutual agreement;
(8) Whereas the obligation of communication to the Commission, pursuant to point 5 of Article 5 of Regulation (EEC) No 4056/86, of awards at arbitration and recommendations by conciliators concerns the settlement of disputes relating to the practices of conferences referred to in Article 4 and in points 2 and 3 of Article 5 of that Regulation; whereas it seems appropriate to make the procedure for this notification as simple as possible; whereas it is appropriate, therefore, to provide for notifications to be made in writing, attaching the documents containing the text of the awards and recommendations concerned;
(9) Whereas the provisions of this Regulation should also cover cases in which complaints, applications and notifications are made under Articles 53 and 54 of the Agreement on the European Economic Area,
HAS ADOPTED THIS REGULATION:
Article 1
Entitled persons
1. Any undertaking and any association of undertakings being a party to agreements or to concerted practices, or any association of undertakings adopting decisions, shall be permitted to submit applications or notifications to the Commission under any of the following provisions:
(a) Article 2 or Article 14(1) of Regulation (EEC) No 1017/68;
(b) Article 12 of Regulation (EEC) No 4056/86;
(c) Articles 3(2) and 5 of Regulation (EEC) No 3975/87.
2. Where the application or notification is submitted by some, but not all, of the parties referred to in paragraph 1, they shall give notice to the other parties.
3. Where the application or notification is signed by representatives of persons, undertakings or associations of undertakings, such representatives shall produce written proof that they are authorised to act.
4. Where a joint application or notification is made, a joint representative shall be appointed who is authorised to transmit and receive documents on behalf of all the applicants or notifying parties.
Article 2
Submission of applications and notifications
1. Applications under Article 3(2) of Regulation (EEC) No 3975/87 relating to Article 85(1) of the Treaty and applications under Article 12 of Regulation (EEC) No 1017/68, Article 12 of Regulation (EEC) No 4056/86 and Article 5 of Regulation (EEC) No 3975/87 shall be submitted in the manner prescribed by Form TR as shown in Annex I to this Regulation.
Form TR may also be used for applications under Article 3(2) of Regulation (EEC) No 3975/87 relating to Article 86 of the Treaty.
Notifications under Article 14(1) of Regulation (EEC) No 1017/68 shall be submitted on Form TR(B) shown in Annex II to this Regulation.
2. Joint applications and joint notifications shall be submitted on a single form.
3. One original and 17 copies of each application and notification, and three copies of the supporting documents, shall be submitted to the Commission at the address indicated on the forms.
4. The supporting documents shall be either originals or copies of the originals; in the latter case the applicant or notifying party shall certify that they are true and complete copies of the originals.
5. Applications and notifications shall be in one of the official languages of the Union. This language shall also be the language of the proceeding for the applicant or notifying party. Documents shall be submitted in their original language. Where the original language is not one of the official Union languages, a translation into the language of the proceeding shall be attached.
6. Where an application which purports to be submitted under Article 12 of Regulation (EEC) No 1017/68, Article 12 of Regulation (EEC) No 4056/86 or Articles 3(2) and 5 of Regulation (EEC) No 3975/87 is found to fall outside the scope of the Regulation or Regulations under which it has been submitted, the Commission shall without delay inform the applicant that it intends to examine the application under the provisions of such other Regulation or Regulations as is or are applicable to the case; however, the date of submission of the application shall be the date resulting from Article 4. The Commission shall inform the applicant of its reasons and fix a period for the applicant to submit any comments in writing before it conducts its appraisal pursuant to that other Regulation or those other Regulations. The period fixed by the Commission shall be not less than two weeks; it may be extended.
Article 3
Content of applications and notifications
1. Applications and notifications shall contain the information, including the documents, required by the forms. The information shall be correct and complete.
2. The Commission may dispense with the obligation to provide any particular information, including documents, required by the forms where the Commission considers that such information is not necessary for the examination of the case.
3. The Commission shall, without delay, acknowledge in writing to the applicant or notifying party receipt of the application or notification, and of any reply to a letter sent by the Commission pursuant to Article 4(2).
Article 4
Effective date of submission of applications and notifications
1. Without prejudice to paragraphs 2 to 5, applications and notifications shall become effective on the date on which they are received by the Commission. Where, however, the application or notification is sent by registered post, it shall become effective on the date shown on the postmark of the place of posting.
2. Where the Commission finds that the information, including documents, contained in the application or notification is incomplete in any material respect, it shall, without delay, inform the applicant or notifying party in writing of this fact and shall fix an appropriate time limit for the supply of full information. In such cases, the application or notification shall become effective on the date on which the complete information is received by the Commission.
3. Material changes in the facts contained in the application or notification which the applicant or notifying party knows or ought to know shall be communicated to the Commission voluntarily and without delay.
4. Incorrect or misleading information shall be considered to be incomplete information.
5. Where, at the expiry of a period of one month following the date on which the application or notification has been received, the Commission has not provided the applicant or notifying party with the information referred to in paragraph 2, the application or notification shall be deemed to have become effective on the date of its receipt by the Commission.
Article 5
Notifications of awards given at arbitration and recommendations
1. Awards at arbitration and recommendations by conciliators accepted by the parties shall be notified to the Commission when they concern the settlement of disputes relating to the practices of conferences referred to in Article 4 and points 2 and 3 of Article 5 of 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 one of the official languages of the Union.
4. Supporting documents shall be either originals or copies. Copies shall be certified as true copies of the original. They shall be submitted in their original language. Where the original language is not one of the official languages of the Union, a translation in one of the official Union languages shall be attached.
5. 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 authorised to act.
Article 6
Applications and notifications under Articles 53 and 54 of the EEA Agreement
Where applications and notifications as provided for in Articles 2(1) and 5(1) are made under Articles 53 or 54 of the Agreement on the European Economic Area, they may be made in one of the official Union languages or in one of the official languages of the EFTA States.
Article 7
Repeal
Regulations (EEC) No 1629/69, (EEC) No 4260/88 and (EEC) No 4261/88 are repealed.
Article 8
Entry into force
This Regulation shall enter into force on l February 1999.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 December 1998.