title: EFTA Surveillance Authority Decision No 442/12/COL of 29 November 2012 on the function and terms of reference of the hearing officer in certain competition proceedings

text:
               11.7.2013

               EN

               Official Journal of the European Union

               L 190/93

         EFTA SURVEILLANCE AUTHORITY DECISION

   No 442/12/COL
   of 29 November 2012
   on the function and terms of reference of the hearing officer in certain competition proceedings
   THE EFTA SURVEILLANCE AUTHORITY,
   HAVING REGARD to the Agreement on the European Economic Area (the “EEA Agreement”), in particular Article 55 thereof,
   HAVING REGARD to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (the “Surveillance and Court Agreement”), in particular Articles 13 and 14 thereof and Protocol 4 thereto,
   HAVING REGARD to Article 15 of the Rules of Procedure of the EFTA Surveillance Authority (the “Authority”),
   Whereas:

               (1)

               Under the system for competition law enforcement established under the EEA Agreement, the Authority investigates and decides on cases by administrative decision, subject to judicial review by the EFTA Court.

               (2)

               The Authority has to conduct its competition proceedings fairly, impartially and objectively and must ensure respect of the procedural rights of the parties concerned as set out in Chapter II of Protocol 4 to the Surveillance and Court Agreement (Implementation of the rules on competition laid down in Articles 53 and 54 of the EEA Agreement), Chapter III of Protocol 4 to the Surveillance and Court Agreement (Rules relating to the conduct of proceedings by the Authority pursuant to Articles 53 and 54 of the EEA Agreement), Chapter IV of Protocol 4 to the Surveillance and Court Agreement (Rules relating to control of concentrations between undertakings), and Chapter V of Protocol 4 to the Surveillance and Court Agreement (Implementing Chapter IV on the control of concentrations between undertakings), as well as in the relevant case-law of the EFTA Court and the Court of Justice of the European Union (the “Court of Justice”). In particular, the right of the parties concerned to be heard is a fundamental right recognised by the European Convention on Human Rights. (1)

               (3)

               In order to ensure the effective exercise of the procedural rights of the parties concerned, other involved parties within the meaning of Article 11(b) of Chapter V of Protocol 4 to the Surveillance and Court Agreement (hereinafter “other involved parties”), complainants within the meaning of Article 7(2) of Chapter II of Protocol 4 to the Surveillance and Court Agreement (hereinafter “complainants”) and persons other than those referred to in Articles 5 and 11 of Chapter III of Protocol 4 to the Surveillance and Court Agreement and third persons within the meaning of Article 11 of Chapter V of Protocol 4 to the Surveillance and Court Agreement (hereinafter “third persons”) involved in competition proceedings, responsibility for safeguarding the observance of such rights should be entrusted to an independent person experienced in competition matters who has the integrity necessary to contribute to the objectivity, transparency and efficiency of those proceedings.

               (4)

               Authority Decision No 177/02/COL of 30 October 2002 set out the terms of reference of Hearing Officers in certain competition proceedings. Decision No 177/02/COL was revised by Decision No 792/08/COL of 17 December 2008 delegating certain powers in the field of competition to the Hearing Officers. It is now necessary to clarify and further strengthen the role of the hearing officer and to adapt the terms of reference of the hearing officer in the light of developments in EEA competition law.

               (5)

               The function of the hearing officer has been generally perceived as an important contribution to the competition proceedings before the Authority due to the independence and expertise that hearing officers have brought to these proceedings. In order to ensure the continued independence of the hearing officer from the Directorate for Competition and State Aid, he or she should be attached, for administrative purposes, to the member of the College with special responsibility for competition.

               (6)

               The Authority may, when necessary, appoint one or more hearing officers. Where the hearing officer perceives a conflict of interests in the performance of his or her functions, the hearing officer should cease from acting on a case. If the hearing officer is unable to act, his or her role should be carried out by another hearing officer.

               (7)

               The hearing officer should operate as an independent arbiter who seeks to resolve issues affecting the effective exercise of the procedural rights of the parties concerned, other involved parties, complainants or interested third persons where such issues could not be resolved through prior contacts with the Directorate of the Authority responsible for the conduct of competition proceedings, which must respect these procedural rights.

               (8)

               The terms of reference of the hearing officer in competition proceedings should be framed in such a way as to safeguard the effective exercise of procedural rights throughout proceedings before the Authority pursuant to Articles 53, 54 and 57 of the EEA Agreement, in particular the right to be heard.

               (9)

               In order to strengthen this role, the hearing officer should be attributed with the function of safeguarding the effective exercise of procedural rights of undertakings and associations of undertakings in the context of the Authority’s powers of investigation under Chapter II of Protocol 4 to the Surveillance and Court Agreement, as well as pursuant to Article 14 of Chapter IV of Protocol 4 to the Surveillance and Court Agreement which empowers the Authority to impose fines on undertakings and associations of undertakings. The hearing officer should also be attributed with specific functions during this investigative phase in relation to claims for legal professional privilege, the privilege against self-incrimination, deadlines for replying to decisions requesting information pursuant to Article 18(3) of Chapter II of Protocol 4 to the Surveillance and Court Agreement, as well as with regard to the right of undertakings and associations of undertakings subject to an investigative measure by the Authority under Chapter II of Protocol 4 to the Surveillance and Court Agreement to be informed of their procedural status, namely whether they are subject to an investigation and, if so, the subject matter and purpose of that investigation. In assessing claims made in relation to the privilege against self-incrimination, the hearing officer may consider whether undertakings make clearly unfounded claims for protection merely as a delaying tactic.

               (10)

               The hearing officer should be able to facilitate the resolution of claims that a document is covered by legal professional privilege. To this end, if the undertaking or association of undertakings making the claim agrees, the hearing officer will be allowed to examine the document concerned and make an appropriate recommendation, referring to the applicable case-law of the EFTA Court and the Court of Justice.

               (11)

               The hearing officer should be responsible for deciding whether a third person shows a sufficient interest to be heard. Consumer associations that apply to be heard should be generally regarded as having a sufficient interest, where the proceedings concern products or services used by end-consumers or products or services that constitute a direct input into such products or services.

               (12)

               The hearing officer should decide whether to admit complainants and interested third persons to the oral hearing, taking into account the contribution they can make to the clarification of the relevant facts of the case.

               (13)

               The right of the parties concerned to be heard before a final decision adversely affecting their interests is taken is guaranteed through their right to reply in writing to the preliminary position of the Authority, as set out in the statement of objections, and their right to develop their arguments, if they so request, at the oral hearing. In order to exercise these rights effectively, parties to whom a statement of objections has been addressed have the right of access to the Authority’s investigation file.

               (14)

               In order to safeguard the effective exercise of the rights of defence of parties to whom a statement of objections has been addressed, the hearing officer should be responsible for ensuring that disputes about access to the file or about the protection of business secrets and other confidential information between those parties and the Authority’s Directorate for Competition and State Aid are resolved. In exceptional circumstances, the hearing officer may suspend the running of the time period in which an addressee of a statement of objections should reply to that statement until a dispute about access to file has been resolved, if the addressee would not be in a position to reply within the deadline granted and an extension would not be an adequate solution at that point in time.

               (15)

               In order to safeguard the effective exercise of procedural rights while respecting the legitimate interests of confidentiality, the hearing officer should, where appropriate, be able to order specific measures for access to the Authority’s file. In particular, the hearing officer should have the power to decide that parts of the file are made accessible to the party requesting access in a restricted manner, for example by limiting the number or category of persons having access, and the use of the information being accessed.

               (16)

               The hearing officer should be responsible for deciding on requests for the extension of time limits set for the reply to a statement of objections, a supplementary statement of objections or a letter of facts or time limits within which other involved parties, complainants or interested third persons may make comments, in case of disagreement between any such person and the Directorate for Competition and State Aid.

               (17)

               The hearing officer should promote the effectiveness of the oral hearing by, inter alia, taking all appropriate preparatory measures, including the circulation, in due time before the hearing, of a provisional list of participants and a provisional agenda.

               (18)

               The oral hearing allows the parties to whom the Authority has addressed a statement of objections and other involved parties to further exercise their right to be heard by developing their arguments orally before the Authority, which should be represented by the Competition and State Aid Directorate as well as any other Directorates that contribute to the further preparation of a decision to be taken by the Authority. It should provide an additional opportunity to ensure that all relevant facts – whether favourable or unfavourable to the parties concerned, including the factual elements relating to the gravity and duration of the alleged infringement – are clarified as much as possible. The oral hearing should also allow the parties to present their arguments as to the matters that may be of importance for the possible imposition of fines.

               (19)

               To ensure the effectiveness of oral hearings, the hearing officer may allow the parties to whom a statement of objections has been addressed, other involved parties, complainants, other persons invited to the hearing, the Authority’s Directorates, the European Commission, and the authorities of the EEA States to ask questions during the hearing. The oral hearing should not be public so as to guarantee that all participants can express themselves freely. Therefore, information disclosed during the oral hearing should not be used for a purpose other than judicial and/or administrative proceedings for the application of Articles 53 and/or 54 of the EEA Agreement. Where justified to protect business secrets and other confidential information, the hearing officer should be able to hear persons in a closed session.

               (20)

               Parties to the proceedings which offer commitments pursuant to Article 9 of Chapter II of Protocol 4 to the Surveillance and Court Agreement, as well as parties which engage in settlement procedures in cartel cases pursuant to Article 10a of Chapter III of Protocol 4 to the Surveillance and Court Agreement, should be able to call upon the hearing officer in relation to the effective exercise of their procedural rights.

               (21)

               The hearing officer should report on the respect for the effective exercise of procedural rights throughout competition proceedings. Moreover, and separately from his or her reporting function, the hearing officer should also be able to make observations on the further progress and objectivity of the proceedings and thereby contribute to ensuring that competition proceedings are concluded on the basis of a sound assessment of all relevant facts.

               (22)

               Decision 177/02/COL of 30 October 2002 and Decision 792/08/COL of 17 December 2008 should be repealed.

         HAS ADOPTED THIS DECISION:
   CHAPTER 1

      ROLE, APPOINTMENT AND DUTIES OF THE HEARING OFFICER

   Article 1
   The hearing officer
   1.   There shall be one or more hearing officers for competition proceedings, whose powers and functions are laid down in the present decision.
   2.   The hearing officer shall safeguard the effective exercise of procedural rights throughout competition proceedings before the Authority for the implementation of Articles 53, 54 and 57 of the EEA Agreement (hereinafter “competition proceedings”).
   Article 2
   Appointment, termination of appointment and deputising
   1.   The Authority shall appoint the hearing officer(s). The appointment shall be published in the Official Journal of the European Union and the EEA Supplement thereto. Any interruption, termination or transfer of the hearing officer shall be the subject of a reasoned decision of the Authority. That decision shall be published in the Official Journal of the European Union and the EEA Supplement thereto.
   2.   The hearing officer shall be attached, for administrative purposes, to the member of the Authority with special responsibility for competition (hereinafter “the competent College Member”).
   3.   Where the hearing officer is unable to act, his or her role shall be carried out by another hearing officer. If no hearing officer is able to act, the competent College member, where appropriate after consultation of the hearing officer, shall designate another competent Authority official, who is not involved in the case in question, to carry out the hearing officer’s duties.
   4.   In the case of an actual or potential conflict of interests, the hearing officer shall refrain from acting on a case. Paragraph 3 shall apply.
   Article 3
   Method of operation
   1.   In exercising his or her functions, the hearing officer shall act independently.
   2.   In exercising his or her functions, the hearing officer shall take account of the need for effective application of the competition rules in accordance with the EEA legislation in force and the principles laid down by the EFTA Court and the Court of Justice. (2)

   3.   In exercising his or her functions, the hearing officer shall have access to any files relating to competition proceedings.
   4.   The hearing officer shall be kept informed by the director of the Competition and State Aid Directorate about the development of the procedure.
   5.   The hearing officer may present observations on any matter arising out of any Authority competition proceedings to the competent College Member.
   6.   If the hearing officer makes reasoned recommendations to the competent College Member or takes decisions as foreseen in this Decision, the hearing officer shall provide a copy of these documents to the director of the Competition and State Aid Directorate and the Directorate for Legal and Executive Affairs of the Authority.
   7.   Any issue regarding the effective exercise of the procedural rights of the parties concerned, other involved parties within the meaning of Article 11(b) of Chapter V of Protocol 4 to the Surveillance and Court Agreement (hereinafter “the other involved parties”), complainants within the meaning of Article 7(2) of Chapter II of Protocol 4 to the Surveillance and Court Agreement (hereinafter “complainants”) and interested third persons within the meaning of Article 5 of this Decision involved in such proceedings shall first be raised with the Directorate for Competition and State Aid. If the issue is not resolved, it may be referred to the hearing officer for independent review. Requests related to a measure for which a time limit applies must be made in due time, within the original time limit.
   CHAPTER 2

      INVESTIGATION

   Article 4
   Procedural rights in the investigation phase
   1.   The hearing officer shall safeguard the effective exercise of procedural rights which arise in the context of the exercise of the Authority’s powers of investigation under Section V of Chapter II of Protocol 4 to the Surveillance and Court Agreement and in proceedings that can result in the imposition of fines pursuant to Article 14 of Chapter IV of Protocol 4 to the Surveillance and Court Agreement.
   2.   In particular, the hearing officer shall have the following functions, subject to Article 3(7):

               (a)

               The hearing officer may be asked by undertakings or associations of undertakings to examine claims that a document required by the Authority in the exercise of powers conferred on it pursuant to Article 18, 20 or 21 of Chapter II of Protocol 4 to the Surveillance and Court Agreement, in inspections pursuant to Article 13 of Chapter IV of Protocol 4 to the Surveillance and Court Agreement or in the context of investigatory measures in proceedings that can result in the imposition of fines pursuant to Article 14 of Chapter IV of Protocol 4 to the Surveillance and Court Agreement and which was withheld from the Authority is covered by legal professional privilege, within the meaning of the case-law of the Court of Justice and the EFTA Court. The hearing officer may only review the matter if the undertaking or association of undertakings making the claim consent to the hearing officer viewing the information claimed to be covered by legal professional privilege as well as related documents that the hearing officer considers necessary for his or her review. Without revealing the potentially privileged content of the information, the hearing officer shall communicate to the director of the Competition and State Aid Directorate and the undertaking or association of undertakings concerned his or her preliminary view, and may take appropriate steps to promote a mutually acceptable resolution. Where no resolution is reached, the hearing officer may formulate a reasoned recommendation to the competent College Member, without revealing the potentially privileged content of the document. The party making the claim shall receive a copy of this recommendation.

               (b)

               Where the addressee of a request for information pursuant to Article 18(2) of Chapter II of Protocol 4 to the Surveillance and Court Agreement refuses to reply to a question in such a request invoking the privilege against self-incrimination, as determined by the case-law of the Court of Justice and the EFTA Court, it may refer the matter, in due time following the receipt of the request, to the hearing officer. In appropriate cases, and having regard to the need to avoid undue delay in proceedings, the hearing officer may make a reasoned recommendation as to whether the privilege against self-incrimination applies and inform the director of the Competition and State Aid Directorate of the conclusions drawn, to be taken into account in case of any decision taken subsequently pursuant to Article 18(3) of Chapter II of Protocol 4 to the Surveillance and Court Agreement. The addressee of the request shall receive a copy of the reasoned recommendation.

               (c)

               Where the addressee of a decision requesting information pursuant to Article 18(3) of Chapter II of Protocol 4 to the Surveillance and Court Agreement considers that the time limit imposed for its reply is too short, it may refer the matter to the hearing officer, in due time before the expiry of the original time limit set. The hearing officer shall decide on whether an extension of the time limit should be granted, taking account of the length and complexity of the request for information and the requirements of the investigation.

               (d)

               Undertakings or associations of undertakings subject to an investigative measure by the Authority under Section V of Chapter II of Protocol 4 to the Surveillance and Court Agreement shall have the right to be informed of their procedural status, namely whether they are subject to an investigation and, if so, the subject matter and purpose of that investigation. If such an undertaking or association of undertakings considers that it has not been properly informed by the Directorate for Competition and State Aid of its procedural status, it may refer the matter to the hearing officer for resolution. The hearing officer shall take a decision that the Directorate for Competition and State Aid will inform the undertaking or association of undertakings that made the request of their procedural status. This decision shall be communicated to the undertaking or association of undertakings that made the request.

         CHAPTER 3

      APPLICATIONS TO BE HEARD

   Article 5
   Interested third persons
   1.   Applications to be heard from persons other than those referred to in Articles 5 and 11 of Chapter III of Protocol 4 to the Surveillance and Court Agreement and third persons within the meaning of Article 11 of Chapter V of Protocol 4 to the Surveillance and Court Agreement shall be made in accordance with Article 13(1) of Chapter III of Protocol 4 to the Surveillance and Court Agreement and Article 16 of Chapter V of Protocol 4 to the Surveillance and Court Agreement. Applications shall be submitted in writing and explain the applicant’s interest in the outcome of the procedure.
   2.   The hearing officer shall decide as to whether third persons are to be heard after consulting the director of the Competition and State Aid Directorate. In assessing whether a third person shows a sufficient interest, the hearing officer shall take into account whether and to what extent the applicant is sufficiently affected by the conduct which is the subject of the competition proceedings or whether the applicant fulfils the requirements of Article 18(4) of Chapter IV of Protocol 4 to the Surveillance and Court Agreement.
   3.   Where the hearing officer considers that an applicant has not shown a sufficient interest to be heard, he or she shall inform the applicant in writing of the reasons thereof. A time limit shall be fixed within which the applicant may make known its views in writing. If the applicant makes known its views in writing within the time limit set by the hearing officer and the written submission does not lead to a different assessment, that finding shall be stated in a reasoned decision which shall be notified to the applicant.
   4.   The hearing officer shall inform parties to competition proceedings as from the initiation of proceedings pursuant to Article 11(6) of Chapter II of Protocol 4 to the Surveillance and Court Agreement or Article 6(1)(c) of Chapter IV of Protocol 4 to the Surveillance and Court Agreement of the identities of interested third persons to be heard, unless such disclosure would significantly harm a person or undertaking.
   Article 6
   Right to an oral hearing; participation of complainants and third persons in the oral hearing
   1.   At the request of parties to whom the Authority has addressed a statement of objections or other involved parties, the hearing officer shall conduct an oral hearing so that such parties can further develop their written submissions.
   2.   The hearing officer may, where appropriate and after consulting the director of the Competition and State Aid Directorate, decide to afford complainants and interested third persons within the meaning of Article 5 the opportunity to express their views at the oral hearing of the parties to whom a statement of objections has been issued, provided they so request in their written comments. The hearing officer may also invite representatives from competition authorities from third countries to attend the oral hearing as observers.
   CHAPTER 4

      ACCESS TO FILE, CONFIDENTIALITY AND BUSINESS SECRETS

   Article 7
   Access to file and access to documents and information
   1.   Where a party which has exercised its right of access to the file has reason to believe that the Authority has in its possession documents which have not been disclosed to it and that those documents are necessary for the proper exercise of the right to be heard, it may make a reasoned request for access to these documents to the hearing officer, subject to Article 3(7).
   2.   Subject to Article 3(7), other involved parties, complainants and interested third persons within the meaning of Article 5 may make a reasoned request to the hearing officer in the circumstances listed hereafter:

               (a)

               Other involved parties who have reason to believe that they have not been informed of the objections addressed to the notifying parties in accordance with Article 13(2) of Chapter V of Protocol 4 to the Surveillance and Court Agreement.

               (b)

               A complainant who has been informed by the Authority of its intention to reject a complaint pursuant to Article 7(1) of Chapter III of Protocol 4 to the Surveillance and Court Agreement and has reason to believe that the Authority has in its possession documents which have not been disclosed to it and that those documents are necessary for the proper exercise of its rights in accordance with Article 8(1) of Chapter III of Protocol 4 to the Surveillance and Court Agreement.

               (c)

               A complainant who considers that it has not received a copy of the non-confidential version of the statement of objections in accordance with Article 6(1) of Chapter III of Protocol 4 to the Surveillance and Court Agreement or that the non-confidential version of the statement of objections has not been established in a manner which enables it to exercise its rights effectively, with the exception of cases where the settlement procedure applies.

               (d)

               An interested third person within the meaning of Article 5 of this Decision who has reason to believe that it has not been informed of the nature and subject matter of a procedure in accordance with Article 13(1) of Chapter III of Protocol 4 to the Surveillance and Court Agreement and Article 16(1) of Chapter V of Protocol 4 to the Surveillance and Court Agreement. The same applies to a complainant in a case to which the settlement procedure applies who has reason to believe that it has not been informed of the nature and subject matter of the procedure in accordance with Article 6(1) of Chapter III of Protocol 4 to the Surveillance and Court Agreement.

         3.   The hearing officer shall take a reasoned decision on a request addressed to him or her under paragraph 1 or 2 and communicate such decision to the person that made the request and to any other person concerned by the procedure.
   Article 8
   Business secrets and other confidential information
   1.   Where the Authority intends to disclose information which may constitute a business secret or other confidential information of any undertaking or person, the latter shall be informed in writing of this intention and the reasons thereof by the Directorate for Competition and State Aid. A time limit shall be fixed within which the undertaking or person concerned may submit any written comments.
   2.   Where the undertaking or person concerned objects to the disclosure of the information it may refer the matter to the hearing officer. If the hearing officer finds that the information may be disclosed because it does not constitute a business secret or other confidential information or because there is an overriding interest in its disclosure that finding shall be stated in a reasoned decision which shall be notified to the undertaking or person concerned. The decision shall specify the date after which the information will be disclosed. This date shall not be less than 1 week from the date of notification.
   3.   Paragraphs 1 and 2 shall apply mutatis mutandis to the disclosure of information by publication in the Official Journal of the European Union and the EEA Supplement thereto.
   4.   Where appropriate in order to balance the effective exercise of a party’s rights of defence with legitimate interests of confidentiality, the hearing officer may decide that parts of the file which are indispensable for the exercise of the party’s rights of defence will be made accessible to the party requesting access in a restricted manner, the details of which shall be determined by the hearing officer.
   CHAPTER 5

      EXTENSION OF TIME LIMITS

   Article 9
   Requests for extension of time limits
   1.   If an addressee of a statement of objections considers that the time limit imposed for its reply to the statement of objections is too short, it may seek an extension of that time limit by means of a reasoned request addressed to the director of the Competition and State Aid Directorate. Such a request must be made in due time before the expiry of the original time limit in proceedings pursuant to Articles 53 and 54 of the EEA Agreement and at least 5 working days before the expiry of the original time limit in proceedings under Article 57 of the EEA Agreement. If such a request is not granted or the addressee of the statement of objections making the request disagrees with the length of the extension granted, it may refer the matter to the hearing officer for review before the expiry of the original time limit. After hearing the director of the Competition and State Aid Directorate, the hearing officer shall decide on whether an extension of the time limit is necessary to allow the addressee of a statement of objections to exercise its right to be heard effectively, while also having regard to the need to avoid undue delay in proceedings. In proceedings pursuant to Articles 53 and 54 of the EEA Agreement, the hearing officer shall take into account, among others, the following elements:

               (a)

               the size and complexity of the file;

               (b)

               whether the addressee of the statement of objections making the request has had prior access to information;

               (c)

               any other objective obstacles which may be faced by the addressee of the statement of objections making the request in providing its observations.

         For the purposes of assessing point (a) of the first subparagraph, the number of infringements, the alleged duration of the infringement(s), the size and number of documents and the size and complexity of expert studies may be taken into consideration.
   2.   If other involved parties, a complainant or an interested third person within the meaning of Article 5 considers that the time limit to make its views known is too short, it may seek an extension of that time limit by means of a reasoned request addressed to the director of the Competition and State Aid Directorate in due time before the expiry of the original time limit. If such a request is not granted or the other involved party, complainant or interested third person disagrees with this decision, it may refer the matter to the hearing officer for review. After hearing the director of the Competition and State Aid Directorate, the hearing officer shall decide on whether an extension of the time limit should be granted.
   CHAPTER 6

      THE ORAL HEARING

   Article 10
   Organisation and function
   1.   The hearing officer shall organise and conduct the hearings provided for in the provisions implementing Articles 53, 54 and 57 of the EEA Agreement.
   2.   The oral hearing shall be conducted by the hearing officer in full independence.
   3.   The hearing officer shall ensure that the hearing is properly conducted and shall contribute to the objectivity of the hearing itself and of any decision taken subsequently.
   4.   The hearing officer shall ensure that the oral hearing provides addressees of the statement of objections, other involved parties, as well as complainants and interested third persons within the meaning of Article 5 which have been admitted to the oral hearing, with sufficient opportunity to develop their views as to the preliminary findings of the Authority.
   Article 11
   Preparation of the oral hearing
   1.   The hearing officer shall be responsible for the preparation of the oral hearing and shall take all appropriate measures in that regard. In order to ensure the proper preparation of the oral hearing, the hearing officer may, after consulting the director of the Competition and State Aid Directorate, supply in advance to the persons invited to the hearing a list of questions on which they are invited to make known their views. The hearing officer may also indicate to the persons invited to the hearing the focal areas for debate, having regard, in particular, to the facts and issues that the addressees of a statement of objections who have requested an oral hearing want to raise.
   2.   For this purpose, after consulting the director of the Competition and State Aid Directorate, the hearing officer may hold a meeting with the persons invited to the hearing and, where appropriate, the relevant Directorates of the Authority, in order to prepare for the hearing itself.
   3.   The hearing officer may also ask for prior written notification of the essential contents of the intended statements of persons invited to the hearing.
   4.   The hearing officer may set a time limit for all persons invited to the oral hearing to provide a list of participants who will attend on their behalf. The hearing officer shall make this list available to all persons invited to the oral hearing in due time before the date of the hearing.
   Article 12
   Timing and conduct
   1.   After consulting the director of the Competition and State Aid Directorate, the hearing officer shall determine the date, the duration and the place of the hearing. Where a postponement is requested, the hearing officer shall decide whether or not to allow it.
   2.   The hearing officer shall decide whether new documents should be admitted during the hearing and which persons should be heard on behalf of a party.
   3.   The hearing officer may allow the parties to whom a statement of objections has been addressed, other involved parties, complainants, other persons invited to the hearing, Directorates of the Authority and the authorities of the EEA States to ask questions during the hearing. To the extent that, exceptionally, a question cannot be answered in whole or in part at the oral hearing, the hearing officer may allow the reply to be given in writing within a set time limit. Such written reply shall be distributed to all participants in the oral hearing, unless the hearing officer decides otherwise in order to protect the rights of defence of an addressee of a statement of objections or the business secrets or other confidential information of any person.
   4.   Where required by the need to ensure the right to be heard, the hearing officer may, after consulting the director of the Competition and State Aid Directorate, afford the parties concerned, other involved parties, complainants or interested third persons within the meaning of Article 5 the opportunity to submit further written comments after the oral hearing. The hearing officer shall fix a date by which such submissions may be made. The Authority shall not be obliged to take into account written comments received after that date.
   Article 13
   Protection of business secrets and confidentiality at the oral hearing
   Each person shall normally be heard in the presence of all other persons invited to attend the oral hearing. The hearing officer may also decide to hear persons separately in a closed session, having regard to their legitimate interest in the protection of their business secrets and other confidential information.
   CHAPTER 7

      INTERIM REPORT AND RIGHT TO MAKE OBSERVATIONS

   Article 14
   Interim report and observations
   1.   The hearing officer shall submit an interim report to the competent College Member on the hearing and the conclusions he or she draws with regard to the respect for the effective exercise of procedural rights. The observations in this report shall concern procedural issues including the following:

               (a)

               disclosure of documents and access to the file;

               (b)

               time limits for replying to the statement of objections;

               (c)

               the observance of the right to be heard;

               (d)

               the proper conduct of the oral hearing.

         A copy of the report shall be given to the director of the Competition and State Aid Directorate and to the Directorate for Legal and Executive Affairs.
   2.   In addition to, and separately from, the report referred to in paragraph 1, the hearing officer may make observations on the further progress and impartiality of the proceedings. In so doing, the hearing officer shall seek to ensure in particular that, in the preparation of draft decisions by the Authority, due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned, including the factual elements relevant to the gravity and duration of any infringement. Such observations may relate to, inter alia, the need for further information, the withdrawal of certain objections, the formulation of further objections or suggestions for further investigative measures pursuant to Section V of Chapter II of Protocol 4 to the Surveillance and Court Agreement.
   The director of the Competition and State Aid Directorate and the Directorate for Legal and Executive Affairs shall be informed of such observations.
   CHAPTER 8

      COMMITMENTS AND SETTLEMENTS

   Article 15
   Commitments and settlements
   1.   Parties to the proceedings which offer commitments to meet the concerns expressed to them by the Authority in its preliminary assessment pursuant to Article 9 of Chapter II of Protocol 4 to the Surveillance and Court Agreement may call upon the hearing officer at any stage in the procedure pursuant to Article 9, in order to ensure the effective exercise of their procedural rights.
   2.   Parties to proceedings in cartel cases which engage in settlement discussions pursuant to Article 10a of Chapter III of Protocol 4 to the Surveillance and Court Agreement may call upon the hearing officer at any stage during the settlement procedure in order to ensure the effective exercise of their procedural rights.
   CHAPTER 9

      FINAL REPORT

   Article 16
   Content and transmission prior to the adoption of a decision
   1.   The hearing officer shall, on the basis of the draft decision to be submitted to the Advisory Committee in the case in question, prepare a final report in writing on the respect for the effective exercise of procedural rights, as referred to in Article 14(1), at any stage of the proceedings. That report will also consider whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views.
   2.   The final report shall be submitted to the competent College Member, the director of the Competition and State Aid Directorate and the Directorate for Legal and Executive Affairs. It shall be communicated to the competent authorities of the EEA EFTA States and, in accordance with the provisions on cooperation laid down in Protocol 23 to the EEA Agreement, to the European Commission.
   Article 17
   Submission to the Authority and publication
   1.   The hearing officer’s final report shall be presented to the Authority together with the draft decision submitted to it, in order to ensure that, when it reaches a decision on an individual case, the Authority is fully apprised of all relevant information as to the course of the procedure and that the effective exercise of procedural rights has been respected throughout the proceedings.
   2.   The final report may be modified by the hearing officer in the light of any amendments to the draft decision prior to its adoption by the Authority.
   3.   The Authority shall communicate the hearing officer’s final report, together with the decision, to the addressees of the decision. It shall publish the hearing officer’s final report in the Official Journal of the European Union and the EEA Supplement thereto, together with the decision, having regard to the legitimate interest of undertakings in the protection of their business secrets.
   CHAPTER 10

      FINAL PROVISIONS

   Article 18
   Repeal and transitional provision
   1.   Decision No 177/02/COL of 30 October 2002 and Decision No 792/08/COL of 17 December 2008 are repealed.
   2.   Procedural steps already taken under Decision No 177/02/COL and/or Decision No 792/08/COL of 17 December 2008 shall continue to have effect. In relation to investigatory measures that were taken before the entry into force of this Decision, the hearing officer may decline to exercise his or her powers pursuant to Article 4.
   In cases where the initiation of proceedings pursuant to Article 11(6) of Chapter II of Protocol 4 to the Surveillance and Court Agreement or the initiation of proceedings pursuant to Article 6(1)(c) of Chapter IV of Protocol 4 to the Surveillance and Court Agreement took place before the entry into force of the present Decision, the interim report pursuant to Article 14 of the present Decision and the final report pursuant to Article 16 shall not cover the investigation phase, unless the hearing officer decides otherwise.
   Article 19
   Entry into force
   This Decision shall be authentic in the English language and shall enter into force from the day of its adoption. It shall be published in the Official Journal of the European Union and in the EEA Supplement thereto.
   Article 20
   The EFTA States shall be informed by means of a copy of this Decision.
   Article 21
   The European Commission shall be informed by means of a copy of this Decision.

      Done at Brussels, 29 November 2012.

            For the EFTA Surveillance Authority

         Oda Helen SLETNES

            President

         Sverrir Haukur GUNNLAUGSSON

            College Member

      (1)  See, for example, Case E-15/10 - Posten Norge AS v EFTA Surveillance Authority, judgment of 18 April 2012, not yet published, paragraphs 85-92.

      (2)  Article 6 of the EEA Agreement provides that, “without prejudice to future development of case law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two Treaties, shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of this Agreement”. As regards relevant rulings given after the date of signature of the EEA Agreement, it follows from Article 3(2) of the Surveillance and Court Agreement that the EFTA Surveillance Authority and the EFTA Court shall pay due respect to the principles laid down by such rulings.


title: 2004/754/EC: Council decision of 11 October 2004 on the conclusion by the European Community of the Interim Agreement on trade and trade-related matters between the European Community and the European Atomic Energy Community, of the one part, and the Republic of Tajikistan, of the other part

text:
               16.11.2004

               EN

               Official Journal of the European Union

               L 340/1

         COUNCIL DECISION
   of 11 October 2004
   on the conclusion by the European Community of the Interim Agreement on trade and trade-related matters between the European Community and the European Atomic Energy Community, of the one part, and the Republic of Tajikistan, of the other part
   (2004/754/EC)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 133, in conjunction with Article 300(3) thereof,
   Having regard to the proposal from the Commission,
   Whereas:

         HAS DECIDED AS FOLLOWS:
   Article 1
   1.   The Interim Agreement on trade and trade-related matters between the European Community and the European Atomic Energy Community, of the one part, and the Republic of Tajikistan, of the other part, together with the Annexes and Protocol attached thereto and the Declarations made by the Community unilaterally or jointly with the other Party, is hereby approved on behalf of the European Community.
   2.   The text of the Agreement, Annexes, Protocol and Final Act is attached to this Decision.
   Article 2
   The President of the Council is authorised to designate the person(s) empowered to sign the Interim Agreement on behalf of the European Community.
   Article 3
   The President of the Council shall give the notification provided for in Article 37 of the Agreement on behalf of the Community.

      Done at Luxembourg, 11 October 2004.

            For the Council

            The President

         B. R. BOT

    ---documentbreak---

               16.11.2004

               EN

               Official Journal of the European Union

               L 340/2

         INTERIM AGREEMENT
   on trade and trade-related matters between the European community and the European Atomic Energy Community, of the one part, and the Republic of Tajikistan, of the other part
   The EUROPEAN COMMUNITY and the EUROPEAN ATOMIC ENERGY COMMUNITY, herein after referred to as ‘THE COMMUNITY’,
   of the one part,
   and the REPUBLIC OF TAJIKISTAN,
   of the other part,
   WHEREAS an Agreement on Partnership and Cooperation establishing a partnership between the European Communities and their Member States, of the one part, and the Republic of Tajikistan, of the other part, was initialled on 16 December 2003,
   WHEREAS the aim of the Partnership and Cooperation Agreement is to strengthen and widen the relations established previously, notably by the Agreement between the European Economic Community and the European Atomic Energy Community and the Union of Soviet Socialist Republics on Trade and Commercial and Economic Cooperation signed on 18 December 1989,
   WHEREAS it is necessary to ensure the rapid development of trade relations between the Parties,
   WHEREAS to this end it is necessary to implement as speedily as possible, by means of an Interim Agreement, the provisions of the Partnership and Cooperation Agreement concerning trade and trade-related matters,
   WHEREAS the said provisions should, accordingly, replace the relevant provisions of the Trade and Commercial and Economic Cooperation Agreement,
   WHEREAS it is necessary to ensure that pending the entry into force of the Partnership and Cooperation Agreement and the establishment of the Cooperation Council, the Joint Committee set up under the Agreement on Trade and Commercial and Economic Cooperation may exercise the powers assigned by the Partnership and Cooperation Agreement to the Cooperation Council, which are necessary in order to implement the Interim Agreement,
   Por las Comunidades Europeas
   Za Evropská společenství
   For De Europæiske Fællesskaber
   Für die Europäischen Gemeinschaften
   Euroopa ühenduste nimel
   Για τις Ευρωπαϊκές Κοινότητες
   For the European Communities
   Pour les Communautés européennes
   Per le Comunità europee
   Eiropas Kopienu vārdā
   Europos Bendrijų vardu
   Az Európai Közösségek részéről
   Għall-Komunitajiet Ewropej
   Voor de Europese Gemeenschappen
   W imieniu Wspólnot Europejskich
   Pelas Comunidades Europeias
   Za Európske spoločenstvá
   Za Evropske skupnosti
   Euroopan yhteisöjen puolesta
   På europeiska gemenskapernas vägnar

   HAVE AGREED AS FOLLOWS:
   TITLE I
   GENERAL PRINCIPLES

      (PCA Tajikistan: Title I)

   Article 1
   (PCA Tajikistan: Article 2)
   Respect for democratic principles and fundamental and human rights, as defined in particular in the Universal Declaration of Human Rights, the United Nations Charter, the Helsinki Final Act and the Charter of Paris for a New Europe, as well as the principles of market economy, underpin the internal and external policies of the Parties and constitute an essential element of this Agreement.
   Article 2
   (PCA Tajikistan: Article 3)
   The Parties consider that it is essential for their future prosperity and stability that the newly independent States which have emerged from the dissolution of the Union of Soviet Socialist Republics, hereinafter called ‘Independent States’, should maintain and develop cooperation among themselves in compliance with the principles of the Helsinki Final Act and with international law and in the spirit of good neighbourly relations, and will make every effort to encourage this process.
   TITLE II
   TRADE IN GOODS

      (PCA Tajikistan: Title III)

   Article 3
   (PCA Tajikistan: Article 7)
   1.   The Parties shall accord one another most-favoured-nation treatment in all areas in respect of:

               —

               customs duties and charges applied to imports and exports, including the method of collecting such duties and charges,

               —

               provisions relating to customs clearance, transit, warehouses and transhipment,

               —

               taxes and other internal charges of any kind applied directly or indirectly to imported goods,

               —

               methods of payment and the transfer of such payments,

               —

               the rules relating to the sale, purchase, transport, distribution and use of goods on the domestic market.

         2.   The provisions of paragraph 1 shall not apply to:

               (a)

               advantages granted with the aim of creating a customs union or a free-trade area or pursuant to the creation of such a union or area;

               (b)

               advantages granted to particular countries in accordance with WTO rules and with other international arrangements in favour of developing countries;

               (c)

               advantages accorded to adjacent countries in order to facilitate frontier traffic.

         3.   The provisions of paragraph 1 shall not apply, during a transitional period expiring five years after the entry into force of the Partnership and Cooperation Agreement, to advantages defined in Annex I granted by the Republic of Tajikistan to other States which have emerged from the dissolution of the USSR.
   Article 4
   (PCA Tajikistan: Article 8)
   1.   The Parties agree that the principle of free transit is an essential condition of attaining the objectives of this Agreement.
   In this connection each Party shall secure unrestricted transit via or through its territory of goods originating in the customs territory or destined for the customs territory of the other Party.
   2.   The rules described in Article V(2), (3), (4) and (5) of the GATT 1994 are applicable between the Parties.
   3.   The rules contained in this Article are without prejudice to any special rules agreed between the Parties relating to specific sectors, in particular transport or products.
   Article 5
   (PCA Tajikistan: Article 9)
   Without prejudice to the rights and obligations stemming from international conventions on the temporary admission of goods which bind the Parties, each Party shall grant the other Party exemption from import charges and duties on goods admitted temporarily, in the instances and according to the procedures stipulated by any other international convention on this matter binding upon it, in conformity with its legislation. Account shall be taken of the conditions under which the obligations stemming from such a convention have been accepted by the Party in question.
   Article 6
   (PCA Tajikistan: Article 10)
   1.   Goods originating in the Republic of Tajikistan shall be imported into the Community free of quantitative restrictions or measures having equivalent effect, without prejudice to the provisions of Articles 8, 11 and 12 of this Agreement.
   2.   Goods originating in the Community shall be imported into Tajikistan free of quantitative restrictions or measures having equivalent effect, without prejudice to the provisions of Articles 8, 11 and 12 of this Agreement.
   Article 7
   (PCA Tajikistan: Article 11)
   Goods shall be traded between the Parties at market-related prices.
   Article 8
   (PCA Tajikistan: Article 12)
   1.   Where any product is being imported into the territory of one of the Parties in such increased quantities or under such conditions as to cause or threaten to cause injury to domestic producers of like or directly competing products, the Community or the Republic of Tajikistan, as the case may be, may take appropriate measures in accordance with the following procedures and conditions.
   2.   Before taking any measures, or in cases to which paragraph 4 applies as soon as possible thereafter, the Community or the Republic of Tajikistan, as the case may be, shall supply the Joint Committee referred to in Article 22 with all relevant information with a view to seeking a solution acceptable to the Parties as provided for in Title IV.
   3.   If, as a result of the consultations, the Parties do not reach agreement within 30 days of referral to the Joint Committee on actions to remedy the situation, the Party which requested consultations shall be free to restrict imports of the products concerned to the extent and for such time as is necessary to prevent or remedy the injury, or to adopt other appropriate measures.
   4.   In critical circumstances where delay would cause damage difficult to repair, the Parties may take the measures before the consultations, on condition that consultations are offered immediately after taking such action.
   5.   In the selection of measures pursuant to this Article, the Parties shall give priority to those which cause least disturbance to the achievement of the aims of this Agreement.
   6.   Nothing in this Article shall prejudice or affect in any way the taking, by either Party, of anti-dumping or countervailing measures in accordance with Article VI of GATT 1994, the Agreement on implementation of Article VI of the GATT 1994, the Agreement on Subsidies and Countervailing Measures or related internal legislation.
   Article 9
   (PCA Tajikistan: Article 13)
   The Parties undertake to adjust the provisions in this Agreement on trade in goods between them, in the light of circumstances, and in particular of the situation arising from the future accession of the Republic of Tajikistan to the WTO. The Joint Committee may make recommendations on such adjustments to the Parties which could be put into effect, where accepted, by virtue of agreement between the Parties in accordance with their respective procedures.
   Article 10
   (PCA Tajikistan: Article 14)
   This Agreement shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of natural resources; the protection of national treasures of artistic, historic or archaeological value or the protection of intellectual, industrial and commercial property or rules relating to gold and silver. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between the Parties.
   Article 11
   (PCA Tajikistan: Article 15)
   Trade in textile products falling under Chapters 50 to 63 of the Combined Nomenclature is governed by a separate bilateral agreement. After expiry of the separate agreement, textile products shall be included in this Agreement.
   Article 12
   (PCA Tajikistan: Article 16)
   Trade in nuclear materials shall be conducted in accordance with the provisions of the Treaty establishing the European Atomic Energy Community. If necessary, trade in nuclear materials shall be subject to the provisions of a specific Agreement to be concluded between the European Atomic Energy Community and the Republic of Tajikistan.
   TITLE III
   PAYMENTS, COMPETITION, AND OTHER ECONOMIC PROVISIONS

      (PCA Tajikistan: Title IV)

   Article 13
   (PCA Tajikistan: Article 38(1))
   The Parties undertake to authorise in freely convertible currency any payments on the current account of the balance of payments between residents of the Community and of the Republic of Tajikistan connected with the movement of goods, services or persons made in accordance with the provisions of this Agreement.
   Article 14
   (PCA Tajikistan: Article 40(4))
   The Parties agree to examine ways to apply their respective competition laws on a concerted basis in such cases where trade between them is affected.
   Article 15
   (PCA Tajikistan: Article 39(1))
   Pursuant to the provisions of this Article and of Annex II, the Republic of Tajikistan shall continue to improve the protection of intellectual, industrial and commercial property rights in order to provide, by the end of the fifth year after the entry into force of this Agreement, a level of protection similar to that existing in the Community, including effective means of enforcing such rights.
   Article 16
   (PCA Tajikistan: Article 42)

      Cooperation in the field of trade in goods and services

   The Parties will cooperate with a view to ensuring that the Republic of Tajikistan's international trade is conducted in conformity with the rules of the WTO. The Community shall provide the Republic of Tajikistan with technical assistance for this purpose.
   Such cooperation shall include specific issues directly relevant to trade facilitation, in particular with a view to assisting the Republic of Tajikistan to harmonise its legislation and regulations with WTO rules and so fulfil as soon as possible the conditions of accession to that Organisation. These include:

               —

               the formulation of policy on trade and trade-related questions, including payments and clearing mechanisms,

               —

               the drafting of relevant legislation.

         Article 17
   (PCA Tajikistan: Article 45)

      Public procurement

   The Parties shall cooperate to develop conditions for open and competitive award of contracts for goods and services, in particular through calls for tenders.
   Article 18
   (PCA Tajikistan: Article 46)

      Cooperation in the field of standards and conformity assessment

   1.   Cooperation between the Parties shall promote alignment with internationally agreed criteria, principles and guidelines in the field of metrology, standards and conformity assessment, to facilitate progress towards mutual recognition in the field of conformity assessment and to improve the quality of Tajik products.
   2.   To this end the Parties shall seek to cooperate in technical assistance projects which will:

               —

               promote appropriate cooperation with organisations and institutions specialised in these fields;

               —

               promote the use of Community technical regulations and the application of European standards and conformity-assessment procedures;

               —

               permit the sharing of experience and technical information in the field of quality management.

         Article 19
   (PCA Tajikistan: Article 50)

      Agriculture and the agro-industrial sector

   The purpose of cooperation in this area shall be the pursuit of agrarian reform and the reform of agricultural structures, the modernisation, privatisation and restructuring of agriculture, stock farming and the agro-industrial and services sectors in the Republic of Tajikistan, and the development of domestic and foreign markets for Tajik products, in conditions that ensure the protection of the environment, taking into account the necessity to improve security of food supply and to develop agri-business and the processing and distribution of agricultural products. The Parties shall also pursue the gradual approximation of Tajik standards to Community technical regulations concerning industrial and agricultural food products, including sanitary and phytosanitary standards.
   Article 20
   (PCA Tajikistan: Article 63)

      Customs

   1.   The aim of cooperation shall be to guarantee compliance with all the provisions scheduled for adoption in connection with trade and fair trade and to achieve the approximation of the Republic of Tajikistan's customs system to that of the Community.
   2.   Cooperation shall take place particularly through:

               —

               the exchange of information,

               —

               the improvement of working methods,

               —

               the introduction of the Combined Nomenclature and the single administrative document,

               —

               the simplification of controls and formalities in respect of the carriage of goods,

               —

               support for the introduction of modern customs information systems,

               —

               the organisation of seminars and training periods.

         Technical assistance shall be provided where necessary.
   3.   Without prejudice to other cooperation under this Agreement, mutual assistance in customs matters between administrative authorities of the Parties shall take place in accordance with the provisions of the Protocol attached to this Agreement.
   Article 21
   (PCA Tajikistan: Article 64)

      Statistical cooperation

   Cooperation in this area shall pursue the development of an efficient statistical system to provide the reliable statistics needed to support and monitor the process of socio-economic reform and contribute to the development of private enterprise in the Republic of Tajikistan.
   The Parties shall, in particular, cooperate in the following fields:

               —

               the adaptation of the Tajik statistical system to international methods, standards and classification,

               —

               the exchange of statistical information,

               —

               the provision of the macro- and microeconomic statistics necessary to implement and manage economic reforms.

         The Community shall provide the Republic of Tajikistan with technical assistance for this purpose.
   TITLE IV
   INSTITUTIONAL, GENERAL AND FINAL PROVISIONS

      (PCA Tajikistan: Title XI)

   Article 22
   The Joint Committee set up by the Agreement between the European Economic Community and the European Atomic Energy Community and the Union of Soviet Socialist Republics on Trade and Commercial and Economic Cooperation signed on 18 December 1989 shall perform the duties assigned to it by this Agreement until the Cooperation Council provided for in Article 77 of the Partnership and Cooperation Agreement is established.
   Article 23
   The Joint Committee may, for the purpose of attaining the objectives of the Agreement, make recommendations in the cases provided for therein.
   It shall draw up its recommendations by agreement between the Parties.
   Article 24
   (PCA Tajikistan: Article 81)
   When examining any issue arising within the framework of this Agreement in relation to a provision referring to an Article of one of the Agreements constituting the WTO, the Joint Committee shall take into account to the greatest extent possible the interpretation that is generally given to the Article in question by the members of the WTO.
   Article 25
   (PCA Tajikistan: Article 85)
   1.   Within the scope of this Agreement, each Party undertakes to ensure that natural and legal persons of the other Party have access free of discrimination in relation to its own nationals to the competent courts and administrative organs of the Parties to defend their individual rights and their property rights, including those concerning intellectual, industrial and commercial property.
   2.   Within the limits of their respective powers and competences, the Parties:

               —

               shall encourage the adoption of arbitration for the settlement of disputes arising from commercial and cooperation transactions concluded by economic operators of the Community and those of the Republic of Tajikistan,

               —

               agree that where a dispute is submitted to arbitration, each party to the dispute may, except where the rules of the arbitration centre chosen by the parties provide otherwise, choose its own arbitrator, irrespective of his nationality, and that the presiding third arbitrator or the sole arbitrator may be a citizen of a third country,

               —

               shall recommend their economic operators to choose by mutual consent the law applicable to their contracts,

               —

               shall encourage recourse to the arbitration rules elaborated by the United Nations Commission on International Trade Law (Uncitral) and to arbitration by any centre of a State signatory to the Convention on Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958.

         Article 26
   (PCA Tajikistan: Article 86)
   Nothing in this Agreement shall prevent a Party, within the limits of its respective powers and competences, from taking any measures:

               (a)

               which it considers necessary to prevent the disclosure of information contrary to its essential security interests;

               (b)

               which relate to the production of, or trade in arms, munitions or war materials or to research, development or production indispensable for defence purposes, provided that such measures do not impair the conditions of competition in respect of products not intended for specifically military purposes;

               (c)

               which it considers essential to its own security in the event of serious internal disturbances affecting the maintenance of law and order, in time of war or serious international tension constituting threat of war or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security;

               (d)

               which it considers necessary to respect its international obligations and commitments in the control of dual use industrial goods and technology.

         Article 27
   (PCA Tajikistan: Article 87)
   1.   In the fields covered by this Agreement and without prejudice to any special provisions contained therein:

               —

               the arrangements applied by the Republic of Tajikistan in respect of the Community shall not give rise to any discrimination between the Member States, their nationals or their companies or firms,

               —

               the arrangements applied by the Community in respect of the Republic of Tajikistan shall not give rise to any discrimination between Tajik nationals, companies or firms.

         2.   The provisions of paragraph 1 are without prejudice to the right of the Parties to apply the relevant provisions of their fiscal legislation to taxpayers who are not in identical situations as regards their place of residence.
   Article 28
   (PCA Tajikistan: Article 88)
   1.   Each of the Parties may refer to the Joint Committee any dispute relating to the application or interpretation of this Agreement.
   2.   The Joint Committee may settle the dispute by means of a recommendation.
   3.   If it is not possible to settle the dispute in accordance with paragraph 2 of this Article, either Party may notify the other of the appointment of a conciliator; the other Party must then appoint a second conciliator within two months. For the application of this procedure, the Community and the Member States shall be deemed to be a single Party to the dispute.
   The Joint Committee shall appoint a third conciliator.
   The conciliators' recommendations shall be taken by majority vote. Such recommendations shall not be binding upon the Parties.
   Article 29
   (PCA Tajikistan: Article 89)
   The Parties agree to consult each other promptly, through appropriate channels and at the request of either Party, on any matter concerning the interpretation or implementation of this Agreement and other relevant aspects of the relations between the Parties.
   The provisions of this Article shall in no way affect, and are without prejudice to, Articles 8, 28 and 33.
   The Joint Committee may establish rules of procedure for the settlement of disputes.
   Article 30
   (PCA Tajikistan: Article 90)
   The treatment granted to the Republic of Tajikistan under this Agreement shall in no case be more favourable than that granted by the Member States to each other.
   Article 31
   (PCA Tajikistan: Article 92)
   In so far as matters covered by this Agreement are covered by the Energy Charter Treaty and Protocols thereto, such Treaty and Protocols shall upon entry into force apply to such matters but only to the extent that such application is provided for therein.
   Article 32
   1.   This Agreement shall be applicable until the entry into force of the Partnership and Cooperation Agreement initialled on 16 December 2003.
   2.   Either Party may denounce this Agreement by notifying the other Party. This Agreement shall cease to apply six months after the date of such notification.
   Article 33
   (PCA Tajikistan: Article 94)
   1.   The Parties shall take any general or specific measures required to fulfil their obligations under this Agreement. They shall see to it that the objectives set out in this Agreement are attained.
   2.   If either Party considers that the other Party has failed to fulfil an obligation under this Agreement, it may take appropriate measures. Before so doing, except in cases of special urgency, it shall supply the Joint Committee with all relevant information required for a thorough examination of the situation with a view to seeking a solution acceptable to the Parties.
   In the selection of these measures, priority must be given to those which least disturb the functioning of this Agreement. These measures shall be notified immediately to the Joint Committee if the other Party so requests.
   Article 34
   (PCA Tajikistan: Article 95)
   Annexes I and II together with the Protocol on mutual administrative assistance in customs matters shall form an integral part of this Agreement.
   Article 35
   (PCA Tajikistan: Article 97)
   This Agreement shall apply, on the one hand, to the territories in which the Treaties establishing the European Community and the European Atomic Energy Community are applied and under the conditions laid down in those Treaties and, on the other hand, to the territory of the Republic of Tajikistan.
   Article 36
   (PCA Tajikistan: Article 99)
   The original of this Agreement, of which the Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Polish, Portuguese, Slovak, Slovene, Spanish, Swedish and Tajik languages are equally authentic, shall be deposited with the Secretary-General of the Council of the European Union.
   Article 37
   This Agreement will be approved by the Parties in accordance with their own procedures.
   This Agreement shall enter into force on the first day of the second month following the date on which the Parties notify that the procedures referred to in the first paragraph have been completed.

      Upon its entry into force, and as far as relations between Tajikistan and the Community are concerned, this Agreement shall replace Article 2, Article 3, except for the fourth indent thereof, and Articles 4 to 16 of the Agreement between the European Economic Community and the European Energy Community and the Union of Soviet Socialist Republics on Trade and Economic and Commercial Cooperation signed in Brussels on 18 December 1989.

   LIST OF DOCUMENTS ATTACHED

               Annex I

               Indicative list of advantages granted by the Republic of Tajikistan to the Independent States in accordance with Article 3(3) (PCA Tajikistan: Article 7(3))

               Annex II

               Intellectual, industrial and commercial property conventions referred to in Article 15 (PCA Tajikistan: Article 39(1))

         Protocol on mutual administrative assistance in customs matters
   FINAL ACT
   The plenipotentiaries of the EUROPEAN COMMUNITY, and of the EUROPEAN ATOMIC ENERGY COMMUNITY, hereinafter referred to as ‘the Community’,
   of the one part, and
   the plenipotentiaries of THE REPUBLIC OF TAJIKISTAN,
   of the other part,
   meeting at Luxembourg, this 11 October 2004 for the signature of the Interim Agreement on trade and trade-related matters between the European Community and the European Atomic Energy Community, of the one part, and the Republic of Tajikistan, of the other part, hereinafter referred to as ‘the Agreement’, have adopted the following texts:
   the Interim Agreement including its Annexes and the following Protocol:
   the Protocol on mutual administrative assistance in customs matters.
   The plenipotentiaries of the Community and the plenipotentiaries of the Republic of Tajikistan have adopted the texts of the Joint Declarations listed below and annexed to this Final Act:

               Joint Declaration on personal data

               Joint Declaration concerning Article 9 (PCA Tajikistan: Article 13) of the Agreement

               Joint Declaration concerning Article 33 (PCA Tajikistan: Article 94) of the Agreement

         The plenipotentiaries of the Community and the plenipotentiaries of the Republic of Tajikistan have also taken note of the following Exchange of Letters annexed to this Final Act:
   Exchange of Letters between the Community and the Republic of Tajikistan in relation to the establishment of companies

         Por las Comunidades Europeas
         Za Evropská společenství
         For De Europæiske Fællesskaber
         Für die Europäischen Gemeinschaften
         Euroopa ühenduste nimel
         Για τις Ευρωπαϊκές Κοινότητες
         For the European Communities
         Pour les Communautés européennes
         Per le Comunità europee
         Eiropas Kopienu vārdā
         Europos Bendrijų vardu
         Az Európai Közösségek részéről
         Għall-Komunitajiet Ewropej
         Voor de Europese Gemeenschappen
         W imieniu Wspólnot Europejskich
         Pelas Comunidades Europeias
         Za Európske spoločenstvá
         Za Evropske skupnosti
         Euroopan yhteisöjen puolesta
         På europeiska gemenskapernas vägnar


title: 2004/701/EC, Euratom:Council Decision of 11 October 2004 amending the Council’s Rules of Procedure

text:
               20.10.2004

               EN

               Official Journal of the European Union

               L 319/15

      COUNCIL DECISION

   of 11 October 2004
   amending the Council’s Rules of Procedure
   (2004/701/EC, Euratom)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 207(3) thereof,
   Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 121(3) thereof,
   Having regard to the Treaty on European Union, and in particular Articles 28(1) and 41(1) thereof,
   Having regard to Article 12 of the Act concerning the conditions of accession to the European Union of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (1),
   Whereas:

               (1)

               The Act concerning the conditions of accession to the European Union of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded has amended, with effect from 1 November 2004, the provisions of the Treaty establishing the European Community, the Treaty establishing the European Atomic Energy Community and the Treaty on European Union with regard to the weighting of votes in the Council.

               (2)

               In accordance with Article 205(4) of the Treaty establishing the European Community, Article 118(4) of the Treaty establishing the European Atomic Energy Community, the third subparagraph of Article 23(2) and Article 34(3) of the Treaty on European Union, as amended by the said Act of Accession, when a decision is to be adopted by the Council by a qualified majority, a member of the Council may request verification that the Member States constituting the qualified majority represent at least 62 % of the total population of the Union. It is necessary to establish detailed rules for implementing these provisions.

               (3)

               To do so, it is necessary to establish, in accordance with the data supplied by the Statistical Office of the European Communities, the total population figure for each Member State for a period of one year and to provide for the annual updating of these figures.

               (4)

               Point IV.A. of the Recommendations for the 2000 Censuses of Population and Housing in the ECE Region, jointly prepared by the United Nations Economic Commission for Europe and the Statistical Office of the European Communities, defines the concept of total population of a State,

         HAS DECIDED AS FOLLOWS:
   Article 1
   The Rules of Procedure of the Council of 22 March 2004 (2004/338/EC, Euratom) (2) are hereby amended as follows:

               1.

               in Article 11 the following paragraph shall be added:
               ‘5.   When a decision is to be adopted by the Council by a qualified majority, and if a member of the Council so requests, it shall be verified that the Member States constituting the qualified majority represent at least 62 % of the total population of the Union calculated according to the population figures set out in Article 1 of Annex IIa.’;

               2.

               after Annex II the following Annex shall be inserted:

                  ‘ANNEX IIa
                  DETAILED RULES FOR IMPLEMENTING THE PROVISIONS CONCERNING THE WEIGHTING OF VOTES IN THE COUNCIL
                  Article 1
                  For the purposes of implementing Article 205(4) of the Treaty establishing the European Community, Article 118(4) of the Treaty establishing the European Atomic Energy Community, the third subparagraph of Article 23(2) and Article 34(3) of the Treaty on European Union, the total population of each Member State for the period from 1 November 2004 to 31 December 2005 shall be as follows:

                              Member State

                              Population
                              (× 1 000)

                              Germany

                              82 531,7

                              France

                              61 684,7

                              United Kingdom

                              59 651,5

                              Italy

                              57 888,2

                              Spain

                              42 345,3

                              Poland

                              38 190,6

                              Netherlands

                              16 258,0

                              Greece

                              11 041,1

                              Portugal

                              10 474,7

                              Belgium

                              10 396,4

                              Czech Republic

                              10 211,5

                              Hungary

                              10 116,7

                              Sweden

                              8 975,7

                              Austria

                              8 114,0

                              Denmark

                              5 397,6

                              Slovakia

                              5 380,1

                              Finland

                              5 219,7

                              Ireland

                              4 027,5

                              Lithuania

                              3 445,9

                              Latvia

                              2 319,2

                              Slovenia

                              1 996,4

                              Estonia

                              1 350,6

                              Cyprus

                              730,4

                              Luxembourg

                              451,6

                              Malta

                              399,9

                              Total

                              458 599,0

                              Threshold (62 %)

                              284 331,4

                        Article 2
                  1.   Before 1 September each year, Member States shall communicate to the Statistical Office of the European Communities the data concerning their total population as at 1 January of the current year.
                  2.   With effect from 1 January each year, the Council shall, in accordance with the data available to the Statistical Office of the European Communities on 30 September of the preceding year, amend the figures set out in Article 1. This Decision shall be published in the Official Journal of the European Union.’

         Article 2
   This Decision shall take effect on the day of its publication in the Official Journal of the European Union.
   It shall apply from 1 November 2004.

      Done at Luxembourg, 11 October 2004.

            For the Council

            The President

         B. R. BOT

      (1)  OJ L 236, 23.9.2003, p. 33.

      (2)  OJ L 106, 15.4.2004, p. 22.


title: 2012/670/EU: Council Decision of 9 October 2012 on the signing, on behalf of the European Union, of the Fisheries Partnership Agreement between the European Union and the Republic of Mauritius

text:
               30.10.2012

               EN

               Official Journal of the European Union

               L 300/34

         COUNCIL DECISION
   of 9 October 2012
   on the signing, on behalf of the European Union, of the Fisheries Partnership Agreement between the European Union and the Republic of Mauritius
   (2012/670/EU)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43(2), in conjunction with Article 218(5) thereof,
   Having regard to the proposal from the European Commission,
   Whereas:

               (1)

               The Union negotiated with the Republic of Mauritius a Fisheries Partnership Agreement, providing EU vessels with fishing opportunities in the waters over which Republic of Mauritius exercises its sovereignty or jurisdiction.

               (2)

               As a result of these negotiations, a Fisheries Partnership Agreement between the European Union and the Republic of Mauritius (‘the Fisheries Partnership Agreement’) was initialled on 23 February 2012.

               (3)

               The Agreement between the European Economic Community and the Government of Mauritius on fishing in Mauritian waters (1) is to be replaced by the Fisheries Partnership Agreement.

               (4)

               The Fisheries Partnership Agreement should be signed,

         HAS ADOPTED THIS DECISION:
   Article 1
   The signing of the Fisheries Partnership Agreement between the European Union and the Republic of Mauritius is hereby authorised on behalf of the Union, subject to its conclusion (2).
   Article 2
   The President of the Council is hereby authorised to designate the person(s) empowered to sign the Fisheries Partnership Agreement on behalf of the Union.
   Article 3
   This Decision shall enter into force on the day of its adoption.

      Done at Luxembourg, 9 October 2012.

            For the Council

            The President

         V. SHIARLY

      (1)  OJ L 159, 10.6.1989, p. 2.

      (2)  The text of the Agreement will be published together with the decision on its conclusion.


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31993D0724

93/724/EC: Council Decision of 23 November 1993 concerning the conclusion of an Agreement between the European Community and Republic of Hungary on the reciprocal protection and control of wine names

Official Journal L 337 , 31/12/1993 P. 0093 - 0093 Finnish special edition: Chapter 3 Volume 55 P. 0013  Swedish special edition: Chapter 3 Volume 55 P. 0013

COUNCIL DECISION of 23 November 1993 concerning the conclusion of an  Agreement between the European Community and Republic of Hungary on the reciprocal protection and  control of wine names (93/724/EC)THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 113  thereof, Having regard to the proposal from the Commission, Whereas the Agreement negotiated between the European Community and the Republic of Hungary on the  reciprocal protection and control of wine names will help make measures to eliminate unfair  competition in trade more effective, ensure a greater degree of consumer protection and promote  trade in wine between the Contracting Parties; whereas it is therefore desirable to approve the  said Agreement; Whereas, in order to facilitate the implementation of certain provisions of the Agreement, the  Commission should be authorized to make the necessary technical adjustments in accordance with the  procedure laid down in Article 83 of Council Regulation (EEC) No 822/87 of 16 March 1987 on the  common organization of the market in wine (1); Whereas, since the provisions of the Agreement are directly linked to measures covered by the  common commercial and agricultural policy, the said Agreement must be established at Community  level, HAS DECIDED AS FOLLOWS: Article 1 The Agreement between the European Community and the Republic of  Hungary on the reciprocal protection and control of wine names, the Protocol, exchanges of letters  and declarations annexed thereto are hereby approved on behalf of the Community. The text of the acts referred to in the first paragraph are attached to this Decision. Article 2 The President of the Council is hereby authorized to designate the person empowered to  sign the Agreement and to deposit the instrument of approval by the Community. The President of the Council shall make the notification provided for in Article 19 (1) of the  Agreement. Article 3 For the purposes of Article 13 of the Agreement, the Commission is hereby authorized to  conclude the necessary acts amending the Agreement, in accordance with the procedure laid down in  Article 83 of Regulation (EEC) No 822/87. Article 4 This Decision shall be published in the Official Journal of the European Communities. Done at Brussels, 23 November 1993. For the Council The President M. SMET (1) OJ No L 84, 27. 3. 1987, p. 1. Regulation as last amended by Regulation  (EEC) No 1566/93 (OJ No L 154, 25. 6. 1993, p. 39).


title: 2013/202/EU: Council Decision of 23 July 2012 on the signing, on behalf of the Union, and provisional application of a Protocol to the Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part, on a Framework Agreement between the European Union and the Hashemite Kingdom of Jordan on the general principles for the participation of the Hashemite Kingdom of Jordan in Union programmes

text:
27.4.2013              EN                        Official Journal of the European Union                                                 L 117/1
                                                                     II
                                                            (Non-legislative acts)
                                        INTERNATIONAL AGREEMENTS
                                                         COUNCIL DECISION
                                                             of 23 July 2012
               on the signing, on behalf of the Union, and provisional application of a Protocol to the Euro-
               Mediterranean Agreement establishing an Association between the European Communities and
               their Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part,
               on a Framework Agreement between the European Union and the Hashemite Kingdom of Jordan
               on the general principles for the participation of the Hashemite Kingdom of Jordan in Union
                                                               programmes
                                                              (2013/202/EU)
THE COUNCIL OF THE EUROPEAN UNION,                                         Communities and their Member States, of the one part, and the
                                                                           Hashemite Kingdom of Jordan, of the other part, on a
Having regard to the Treaty on the Functioning of the European             Framework Agreement between the European Union and the
Union, and in particular Articles 217, in conjunction with                 Hashemite Kingdom of Jordan on the general principles for the
Article 218(5) and the first subparagraph of Article 218(8)                participation of the Hashemite Kingdom of Jordan in Union
thereof,                                                                   programmes (‘the Protocol’) is hereby authorised on behalf of
                                                                           the Union, subject to its conclusion.
Having regard to the proposal from the European Commission,
Whereas:                                                                   The text of the Protocol is attached to this Decision.
(1)     On 18 June 2007 the Council authorised the                                                         Article 2
        Commission to negotiate a Protocol to the Euro-Medi
        terranean Agreement establishing an Association between            The President of the Council is hereby authorised to designate
        the European Communities and their Member States, of               the person(s) empowered to sign the Protocol on behalf of the
        the one part, and the Hashemite Kingdom of Jordan, of              Union.
        the other part (1), on a Framework Agreement between
        the European Union and the Hashemite Kingdom of                                                    Article 3
        Jordan on the general principles for the participation of
        the Hashemite Kingdom of Jordan in Union programmes                The Protocol shall be applied on a provisional basis as from the
        (‘the Protocol’).                                                  date of its signature (2), pending the completion of the
                                                                           procedures for its conclusion.
(2)     The negotiations have been concluded.
(3)     The Protocol should be signed on behalf of the Union,                                              Article 4
        subject to its conclusion.                                         This Decision shall enter into force on the day of its adoption.
(4)     The Protocol should be applied on a provisional basis in
        accordance with Article 10 thereof, pending the
        completion of the procedures for its conclusion,                   Done at Brussels, 23 July 2012.
HAS ADOPTED THIS DECISION:
                              Article 1                                                                            For the Council
The signing of the Protocol to the Euro-Mediterranean                                                               The President
Agreement establishing an Association between the European                                                           C. ASHTON
                                                                           (2) The date from which the Protocol will be provisionally applied will
                                                                               be published in the Official Journal of the European Union by the
(1) OJ L 129, 15.5.2002, p. 3.                                                 General Secretariat of the Council.


Avis juridique important

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31999D0006(01)

Decision of the European Central Bank of 7 October 1999 amending the Rules of Procedure of the European Central Bank (ECB/1999/6)

Official Journal L 314 , 08/12/1999 P. 0032 - 0033

DECISION OF THE EUROPEAN CENTRAL BANKof 7 October 1999amending the Rules of Procedure of the European Central Bank(ECB/1999/6)(1999/810/EC)THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,Having regard to the Statue of the European System of Central Banks and of the European Central Bank (hereinafter referred to as the "Statute") and in particular to Article 12.3 thereof;Having regard to the proposal of the Executive Board of the European Central Bank (ECB);(1) Whereas, to reinforce the means available for combating fraud and other illegal activities detrimental to the financial interests of the ECB, the ECB is to establish an independent anti-fraud comittee to monitor the activities of the ECB to this end;(2) Whereas, to ensure the effectiveness of the activities of the ECB to this end, the anti-fraud committee needs to be able to carry out its task independently within the organisation of the ECB;(3) Whereas the Rules of Procedure of the European Central Bank, as they stand, do not allow the establishment of an independent anti-fraud committee;(4) Whereas the Rules of Procedure of the European Central Bank, as they stand, only empower the President of the ECB to sign Decisions of the Executive Board of the ECB; whereas in order to ensure flexibility it is necessary to enable members of the Executive Board other than the President to sign the Decisions of the Executive Board of the ECB;(5) Whereas the Rules of Procedure of the European Central Bank need to be amended accordingly,HAS DECIDED AS FOLLOWS:Article 1New Article 9a of the Rules of Procedure of the European Central BankA new Article 9a shall be inserted in the Rules of Procedure of the European Central Bank which shall read as follows: "The Governing Council may decide to establish an independent committee in charge of fraud prevention within the ECB."Article 2Amendment to Article 17 of the Rules of Procedure of the European Central BankArticle 17.4 of the Rules of Procedure of the European Central Bank shall be amended to read as follows: "17.4. ECB decisions and recommendations shall be adopted by the Governing Council or the Executive Board in their respective domain of competence, and shall be signed by the President. ECB Decisions imposing sanctions on third parties shall be signed by the President, the Vice-President or any two other members of the Executive Board. ECB decisions and recommendations shall state the reasons on which they are based. The Recommendations for secondary Community legislation under Article 42 of the Statute shall be adopted by the Governing Council."Article 3Final provisionsThis Decision shall be published in the Official Journal of the European Communities.This Decision shall take effect upon its publication.Done at Frankfurt am Main, 7 October 1999.The President of the ECBWillem F. DUISENBERG