1 There are also a number of protocols, annexes and declarations attached to the Agreement. For the Text of the Agreement and its protocols, annexes and declarations, see the Agreement on the European Economic Area, published by the Swedish Foreign Ministry in February 1992.Google Scholar

2 Treaty of Rome, 1957.Google Scholar

3 The European Court of Justice, Opinion 1/1991.Google Scholar

4 Id., Paragraphs 15-29 and 47-53.Google Scholar

5 Articles 89-94.Google Scholar

6 Article 95.Google Scholar

7 Articles 97-1-4.Google Scholar

8 Articles 105-107.Google Scholar

9 Articles 108-110.Google Scholar

10 See annual surveys on competition law and practice by Ian S. Forrester and Christopher Norall, 7 Yearbook, of European Law 308-338 (1987); 8 Yearbook of European Law 215-251 (1988); 9 Yearbook, of European Law 271-314 (1988); 10 Yearbook of European Law 407-436 (1990); 11 Yearbook of European Law 419-487 (1991).Google Scholar

11 For the text of Articles on competition in the EEC, see Treaties Establishing the European Communities (Luxembourg: Office for Official Publication of the European Communities, 987). Note that the Treaty on the European Coal and Steel Community imposes special competition rules on enterprises operating in the coal or steel industry. Special rules also apply in the agriculture and transport sectors, and in the nuclear energy field.Google Scholar

12 For a comprehensive study of the EEC competition rules, sec Barry E. Hawk, ed., The United States, Common Market and International Anti-Trust, A Comparative Guide 2d ed. (Clifton, NJ: Prentice Hall Law and Business, 1985-86), Vol. 2, passim.Google Scholar

13 See Kulms, Rainer, “Competition, Trade Policy and Competition Policy in the EEC: The Example of Antidumping”, 27 Common Market Law Review 285-313 (1990)Google Scholar

14 Article 85. In this connection, see, Philippa Watson and Karen Williams, “The Application of the EEC Competition Rules to Trade Associations”, 8 Yearbook of European Law 122-138 (1988).Google Scholar

15 Article 85(3). Concerning the application of Article 85(5), see Judgments of the European Court of Justice (EC Court) in Metro I and Metro II, Cases 26/76 (Metro I) and 75/84 (Metro II) respectively.Google Scholar

16 See Articles 92 to 94.Google Scholar

17 Supra, note 1.Google Scholar

18 See Article 53(1).Google Scholar

19 Note that according to EC practice, which is also applicable to EEA, certain types of horizontal agreements which have a negligible affect on competition (de minimis rule) and specialization agreements are exempted.Google Scholar

20 In order to apply the provisions of Article 53(1) to vertical agreements, there must be an agreement between independent undertakings. Hence, Article 53(1) is not applicable in case of a distribution by the manufacturer himself or through a branch office, or where a true agency agreement exists. Where a local subsidiary is entrusted with the distribution of the supplier's goods, according to EC practice which will be applied to EEA as well, the prohibitory provision may not apply if the subsidiary has no autonomous commercial freedom.Google Scholar

21 The term “undertaking” must be viewed in the broadest sense, covering any entity engaged in economic or commercial activities.Google Scholar

22 Cf., supra, note 19.Google Scholar

23 Article 53(2).Google Scholar

24 Article 53(3).Google Scholar

25 Article 54.Google Scholar

26 Concerning the EFTA Surveillance Authority (ESA), see supra, note 9.Google Scholar

27 It should be noted that the EC Merger Control Law applies to the EEA. In this context, see the EC Council Regulation No 4064/89, December 21, 1989, on the control of concentrations between undertakings (OJ No L 395, December 30, 1989, p.1, as corrected by OJ).Google Scholar

28 Protocol 23 contains provisions on cooperation between the surveillance authorities, i.e., EC Commission and EFTA Surveillance Authority. Protocol 24 is on cooperation and proceeding in the field of control of concentrations.Google Scholar

29 See Article 59. Note that Article 4 of the Agreement contains rules on non-discrimination.Google Scholar

30 Annex XIV provides rules on applicability of the EC rules and regulations with respect to Articles 53, 54, 57 and 59. It makes references to the EC's established rules on merger control, exclusive dealing agreements, patent licensing agreements, specialization and research and development agreements, franchise agreements, know-how licensing agreements, transport, public undertakings, and coal and steel. Additional acts concerning rules on coal and steel are contained in Protocol 21 on the Implementation of Competition Rules Applicable to Undertakings.Google Scholar

31 See Article 61.Google Scholar

32 Part VII of the Agreement deals with institutional provisions.Google Scholar

33 Article 93 deals with the role of the EC Commission and the duty of Member States to notify the Commission of plans to introduce new aid schemes or alter the existing ones.Google Scholar

34 According to Protocol 26 on the powers and functions of the EFTA Surveillance Authority in the field of State Aid, the Authority, shall, in an agreement between the EFTA States, be entrusted with equivalent powers and similar functions to those of the EC Commission.Google Scholar

35 See Article 62. Note that Protocol 27 contains rules on cooperation in the field of State Aid.Google Scholar

36 For further discussions on the role of the Joint Committee, see infra, Final Remarks.Google Scholar

37 Article 64.Google Scholar

38 Reference to Annex XV is made in Article 63.Google Scholar

39 See Protocol 28 on Intellectual Property.Google Scholar

40 Note that there are special provisions on the application of competition rules regarding coal and steel. See Protocol 25 on Competition Regarding Coal and Steel. See also Annex XIV and Article 3 of Protocol 21 on the implementation of competition rules applicable to undertakings.Google Scholar

41 See supra, note 9.Google Scholar

42 See Article 58.Google Scholar

43 See Article 119.Google Scholar

44 See Article 56.Google Scholar

45 Supra, note 40.Google Scholar

46 Supra, note 28.Google Scholar

47 Supra, note 30.Google Scholar

48 Protocol 22 describes an “undertaking” as an entity carrying out activities of a commercial or economic nature. A “turnover” comprises the amounts derived by the undertakings concerned, in the territory covered by the Agreement, in the preceding financial year from the sale of products and the provision of services after deduction of sales rebates and of value added tax and other taxes directly related to turnover.Google Scholar

49 Note that although Article 1 of Protocol 21, on the Implementation of Competition Rules Applicable to Undertakings, provides that the ESA should be entrusted with equivalent powers and similar functions to those of the EC Commission, the latter through the EEA Agreement has maintained certain exclusive powers vis-à-vis its counter-part ESA. For instance, while the EC Commission, in conformity with the provisions of Article 99, can propose new legislation in a field which is governed by the Agreement, the ESA is not entrusted with such power.Google Scholar

50 See, Article 57.Google Scholar

51 Supra, note 27.Google Scholar

52 See notes 28 and 30. Article 8 of Protocol 24 empowers i.a., the EC Commission to obtain all necessary information from the ESA and EFTA States in carrying out its duties for the implementation of Article 57.Google Scholar

53 According to the provisions of Article 1 of the Regulation 4064/89, as applicable to the EEA Agreement, a concentration has an EC Community dimension where: (a) the combined aggregate worldwide turnover of all the undertakings concerned is more than ECU 5000 million, and (b) the aggregate EC Community-wide turnover of each of at least two of the undertakings concerned is more than ECU 250 million.Google Scholar

54 Supra, note 30.Google Scholar

55 According to Article 7(1) of Protocol 24, notwithstanding the sole competence of the EC Commission to deal with concentrations of a Community dimension (Regulation 4064/89), the EFTA States may take appropriate measures to protect legitimate interests other than those taken into consideration according to the provisions of said Regulation and compatible with the general principles and other provisions as provided for, directly or indirectly, under the Agreement.Google Scholar

56 Supra, note 29.Google Scholar

57 See Article 59. This article makes particular references to Article 4 on non-discrimination and Articles 53 to 64.Google Scholar

58 See Article 62.Google Scholar

59 See, supra note 33.Google Scholar

60 Protocol 26 is on the powers and functions of the ESA in the field of State aid.Google Scholar

61 Protocol 27, on Cooperation in the Field of State Aid, provides, i.a., for the exchange of information and views on general policy between the EC Commission and the ESA. Furthermore, the two authorities have to periodically prepare surveys on State aid in their respective States. Note that Article 65 contains a provision by which both the EC Commission and the ESA are under an obligation to take due account of certain principles and rules contained in Annex XV on the EC practice in the field of State aid.Google Scholar

62 Article 5 of Protocol 14 prescribes that the Contracting Parties must comply with the rules laid down for the steel industry, and the future commitment to integrate into the EEA Agreement new Community rules for aid to the steel industry.Google Scholar

63 See supra, note 61.Google Scholar

64 See Article 64.Google Scholar

65 See supra, note 8.Google Scholar

66 See Article 7.Google Scholar

67 See Article 6.Google Scholar

68 Since the national courts of the EFTA countries, like the courts in the EC countries, must deal with most of the issues covered by the Agreement, Protocol 34, which is optional, provides: “when a question of interpretation of provisions of the Agreement, which are identical in substance to the provisions of the Treaties establishing the European Communities, as amended or supplemented or of facts adopted in pursuance thereof, arises in a case pending before a court or tribunal of an EFTA State, the court or tribunal may, if it considers this necessary, ask the Court of Justice of the European Communities to decide on such a question.Google Scholar

69 Supra, notes 3 and 4.Google Scholar

70 Supra, notes 5-9.Google Scholar

71 Id.Google Scholar

72 See Articles 92-94 and 97-106.Google Scholar

73 Article 102.Google Scholar

74 See Article 111.Google Scholar