COMMISSION REGULATION (EC) No 3385/94 of 21 December 1994 on the form, content and other details of applications and notifications provided for in Council Regulation No 17 (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 No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (1), as last amended by the Act of Accession of Spain and Portugal, and in particular Article 24 thereof,
Whereas Commission Regulation No 27 of 3 May 1962, First Regulation implementing Council Regulation No 17 (2), as last amended by Regulation (EC) No 3666/93 (3), no longer meets the requirements of efficient administrative procedure; whereas it should therefore be replaced by a new regulation;
Whereas, on the one hand, applications for negative clearance under Article 2 and notifications under Articles 4, 5 and 25 of Regulation No 17 have important legal consequences, which are favourable to the parties to an agreement, a decision or a practice, while, on the other hand, incorrect or misleading information in such applications or notifications may lead to the imposition of fines and may also entail civil law disadvantages for the parties; whereas it is therefore necessary in the interests of legal certainty to define precisely the persons entitled to submit applications and notifications, the subject matter and content of the information which such applications and notifications must contain, and the time when they become effective;
Whereas each of the parties should have the right to submit the application or the notification to the Commission; whereas, furthermore, a party exercising the right should inform the other parties in order to enable them to protect their interests; whereas applications and notifications relating to agreements, decisions or practices of associations of undertakings should be submitted only by such association;
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 for coming to a decision on the agreements, decisions or practices concerned;
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 notifications relating 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;
Whereas the Commission, in appropriate cases, will 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 will, after the application or notification, 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;
Whereas the provisions of this Regulation must also cover cases in which applications for negative clearance relating to Article 53 (1) or Article 54 of the EEA Agreement, or notifications, relating to Article 53 (3) of the EEA Agreement are submitted to the Commission,
HAS ADOPTED THIS REGULATION:
Article 1
Persons entitled to submit applications and notifications
1. The following may submit an application under Article 2 of Regulation No 17 relating to Article 85 (1) of the Treaty or a notification under Articles 4, 5 and 25 of Regulation No 17:
(a) any undertaking and any association of undertakings being a party to agreements or to concerted practices; and
(b) any association of undertakings adopting decisions or engaging in practices;
which may fall within the scope of Article 85 (1).
Where the application or notification is submitted by some, but not all, of the parties, referred to in point (a) of the first subparagraph, they shall give notice to the other parties.
2. Any undertaking which may hold, alone or with other undertakings, a dominant position within the common market or in a substantial part of it, may submit an application under Article 2 of Regulation No 17 relating to Article 86 of the Treaty.
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 authorized to act.
4. Where a joint application or notification is made, a joint representative should be appointed who is authorized 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 2 of Regulation No 17 relating to Article 85 (1) of the Treaty and notifications under Articles 4, 5 and 25 of Regulation No 17 shall be submitted in the manner prescribed by Form A/B as shown in the Annex to this Regulation. Form A/B may also be used for applications under Article 2 of Regulation No 17 relating to Article 86 of the Treaty. Joint applications and joint notifications shall be submitted on a single form.
2. Seventeen copies of each application and notification and three copies of the Annexes thereto shall be submitted to the Commission at the address indicated in Form A/B.
3. The documents annexed to the application or notification shall be either originals or copies of the originals; in the latter case the applicant or notifying party shall confirm that they are true copies of the originals and complete.
4. Applications and notifications shall be in one of the official languages of the Community. 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 languages, a translation into the language of the proceeding shall be attached.
5. Where applications for negative clearance relating to Article 53 (1) or Article 54 of the EEA Agreement or notifications relating to Article 53 (3) of the EEA Agreement are submitted, they may also be in one of the official languages of the EFTA States or the working language of the EFTA Surveillance Authority. If the language chosen for the application or notification is not an official language of the Community, the applicant or notifying party shall supplement all documentation with a translation into an official language of the Community. The language which is chosen for the translation shall be the language of the proceeding for the applicant or notifying party.
Article 3
Content of applications and notifications
1. Applications and notifications shall contain the information, including documents, required by Form A/B. The information must be correct and complete.
2. Applications under Article 2 of Regulation No 17 relating to Article 86 of the Treaty shall contain a full statement of the facts, specifying, in particular, the practice concerned and the position of the undertaking or undertakings within the common market or a substantial part thereof in regard to the products or services to which the practice relates.
3. The Commission may dispense with the obligation to provide any particular information, including documents, required by Form A/B where the Commission considers that such information is not necessary for the examination of the case.
4. 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 a 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 completion of the 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 must 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
Repeal
Regulation No 27 is repealed.
Article 6
Entry into force
This Regulation shall enter into force on 1 March 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 December 1994.