The Agreement on the European Economic Area (EEA)

Transcription

1 The Agreement on the European Economic Area (EEA) A Guide to the Free Movement of Goods and Competition Rules THERESE BLANCHET Legal Officer EFT A Secretariat RISTOPIIPPONEN Legal Officer EFT A Secretariat MARIA WESTMAN-CLEMENT Legal Officer EFT A Court CLARENDON PRESS OXFORD 1994

2 CONTENTS I. INTRODUCTION i 1. GENERAL i 1.1 Why the EEA Agreement? i 1.2 EEA negotiations Ratification process The EEA Agreement in perspective 4 2. EEA INSTITUTIONS 4 3. SUBSTANTIVE RULES OF THE EEA AGREEMENT General Product coverage and rules of origin Technical barriers to trade Intellectual property Product liability Public procurement Competition rules State monopolies and public undertakings State aid The situation of Switzerland 11 II. STRUCTURE, OBJECTIVES, AND FUNCTIONING OF THE EEA AGREEMENT STRUCTURE OF THE EEA AGREEMENT OBJECTIVES OF THE AGREEMENT AND MEANS TO ACHIEVE THEM Objectives of the EEA Agreement (Article 1 (1)) Means to attain the objectives of the EEA Agreement (Article 1 (2)) The four freedoms Horizontal provisions relevant to the four freedoms and co-operation outside the four freedoms Reduction of economic and social disparities between regions 18

3 3. GENERAL PROVISIONS OF THE EEA Notion of'contracting Parties' and territorial scope of the Agreement (Articles 2 (c) and 126) Scope and limitations (Article 118, 120, 121, and 123) Principle of loyalty and general non-discrimination provision (Articles 3 and 4) Legal effects of EC acts listed in the annexes to the Agreement (Article 7) INTEGRATION OF THE ACQ_UIS CO MM UNA UTAIRE IN THE AGREEMENT The legislative technique used Protocol 1 and other adaptations to EC acts Protocol 1 on horizontal adaptations Sectoral adaptations Specific adaptations INSTITUTIONAL SOLUTIONS Common EEA institutions EEA Council (Articles 89 et seq.) EEA Joint Committee (Articles 92 et seq.) EEA Joint Parliamentary Committee and co-operation between economic and social partners (Articles 95 and 96) New EFTA institutions EFTA Surveillance Authority EFTA Court Standing Committee of the EFTA States DECISION-SHAPING AND DECISION-MAKING PROCEDURES Decision-shaping Decision-making UNIFORM SURVEILLANCE, JUDICIAL MECHANISM, AND DISPUTE SETTLEMENT Uniform interpretation Uniform surveillance Dispute settlement General safeguard measures 38

4 8. IMPLEMENTATION OF THE EEA AGREEMENT 39 xi HI. PRODUCT COVERAGE AND RULES OF ORIGIN PRODUCT COVERAGE Paragraph 2: originating products Paragraph 3: categories of products Subparagraph (a): industrial products Subparagraph (b): processed agricultural products Special arrangements as regards agricultural products and fish and other marine products Agricultural products Fish and other marine products Coal and steel products PRICE COMPENSATION ARRANGEMENTS RULES OF ORIGIN Definition of originating products and full cumulation Wholly obtained products Sufficiently worked or processed products General tolerance rule Specific tolerance rules for textiles Territorial requirements Prohibition of drawback and exemption Simplification of evidence of origin EUR. 1 movement certificate Invoice declaration Supplier's declaration Issues related to third countries 60 IV. TECHNICAL BARRIERS TO TRADE HARMONIZATION OF NATIONAL LAWS Technical regulations, standards, testing, and certification 63 I.I.I Optional or full harmonization directives Derogations, transitional periods, and other special solutions for the EFTA countries Motor vehicles/motorcycles Measuring instruments 65

5 xii Foodstuffs Medicinal products Fertilizers Dangerous substances (chemicals) Toys Construction products MUTUAL RECOGNITION Measures having equivalent effect to quantitative restrictions What are 'measures having equivalent effect'? Price controls Rules concerning the production, designation, and marketing of products Buy-national policies Duplication of tests, inspections, and administrative practices The Cassis de Dijon case-law Case 120/78: Cassis de Dijon Communication from the Commission concerning the consequences of the Cassis de Dijon judgment Mandatory requirements Measures having equivalent effect to quantitative restrictions justified under Article 13 EEA The notion of public morality The notion of public policy and public security The protection of health and life of humans, animals, or plants Articles in relation to other provisions of the EEA Agreement THE INFORMATION PROCEDURE ON DRAFT TECHNICAL REGULATIONS Notifications Comments, detailed opinions, and triggering of standstills Questions of non-validity of national regulations not notified THE NEW APPROACH TO TECHNICAL HARMONIZATION AND STANDARDS The new approach directives The concept of'placing on the market' The concept of'putting into service' 84

6 4.1.3 The concept of'manufacturer' and 'authorized representative' Standardization work Presumption of conformity Voting rules: a threat to a homogeneous EEA? CONFORMITY ASSESSMENT AND THE CE MARK Global approach Notified bodies CEmark Use of the CE mark by non-eea countries MARKET CONTROL AND GENERAL PRODUCT SAFETY 6.1 Market control Safeguard measures The rapid exchange of information system General product safety Objectives and scope of the Directive Notification procedures and emergency situations 94 V. INTELLECTUAL PROPERTY GENERAL ASPECTS OF INTELLECTUAL PROPERTY RIGHTS The concept The branches Industrial and commercial property Copyright Other rights Rights granted, enforcement, and registration systems Exclusive rights Enforcement Registration Purpose of IPRs Limitations to IPRs Statutory limitations Case-law limitations International conventions in the field of IPRs Industrial property Copyright 104 xiii 9o

7 xiv 2. THE JURISPRUDENCE OF THE EUROPEAN COURT OF JUSTICE CONCERNING IPRs The issue: IPRs versus EEC Treaty objectives The Court case-law on Article 222 EEC and on the existence and exercise of IPRs The Court case-law applying the competition rules to IPRs (Articles 85 and 86 EEC) Application of Article 85 (1) EEC Application of Article 86 EEC Limits on the use of the competition rules The Court case-law applying the rules on free movement of goods to IPRs (Articles 30 to 36 EEC, the EC-wide exhaustion principle) The Deutsche Grammophon case no The EC-wide exhaustion principle: contents and limits in in Limits Structure of the Court's reasoning Codification of the Community exhaustion rule in the EC secondary legislation The particular issue of compulsory licensing INTELLECTUAL PROPERTY PROVISIONS IN THE EEA Article 65 (2) EEA Protocol 28 EEA Substance of the protection (Article 1) Exhaustion of rights (Article 2) The drafting of Article Consequences of the introduction of an EEA-wide exhaustion rule in the EFTA States Participation of EFTA States in EC-wide measures for the protection of IPRs (Articles 3 and 8) Community Patent Agreement (Article 3) Other EC-wide measures (Article 8) Adherence to different international conventions and reference to the results of the GATT-TRIPs negotiations (Articles 5 and 6) Relations with third countries and activities in international fora (Articles 4 and 7) Extension of the semiconductor protection to persons from third countries (Article 4) 128

8 International fora and agreements (Article 7) Annex XVII Acquis communautaire included in the original Annex XVII Subsequent and pending acquis communautaire INTELLECTUAL PROPERTY PROVISIONS OF THE EC AND EFTA AGREEMENTS WITH CENTRAL AND EASTERN EUROPEAN COUNTRIES 132 xv VI. PRODUCT LIABILITY COUNCIL DIRECTIVE 85/374/EEC Strict liability Defences for the producer THE IMPORTER'S LIABILITY Imports into the EEA Intra-EEA trade 137 VII. PUBLIC PROCUREMENT THE SUBSTANTIVE RULES Scope of application Thresholds Tender award procedures Technical specifications Publication and advertising Criteria for the selection of candidates or tenders Criteria for the award of contracts PROCEDURAL RULES Enforcement at national level Enforcement at EEA level 149 VIII. COMPETITION WHERE TO FIND THE EEA COMPETITION RULES 152

9 xvi 2. OBJECTIVE AND INTERPRETATION OF THE EEA COMPETITION RULES Objective of the EEA competition rules Interpretation of the EEA competition rules SUBSTANTIVE COMPETITION RULES Primary rules Article 53 EEA (restrictive practices) Adaptations for EEA purposes Prohibition under Article 85 (1) EEC/53 ( : ) EEA Nullity under Article 85(2) EEC/53(2) EEA Exemptions under Article 85 (3) EEC/53 (3) EEA Article 54 EEA (abuse of dominant position) Adaptations for EEA purposes Prohibition under Article 86 EEC/54 EEA Article 57 EEA (merger control) Adaptations for EEA purposes The Merger Regulation in general Mergers incompatible under Article 2 (3) of Regulation 4064/89 and Article 57 (1) EEA Protocol 25 EEA (coal and steel) Adaptations for EEA purposes Conditions of application of Articles 65 and 66 ECSC/i and 2 Protocol 25 EEA Secondary legislation Adaptations for EEA purposes The new EC legislation (adopted after 31 July 1991) PARTICULAR ASPECTS OF THE EEA SUBSTANTIVE COMPETITION RULES Consequences in the field of competition of the limited product coverage of the EEA Agreement The particular case of fisheries (Protocol 9 EEA) Anti-dumping measures in the EEA (Article 26 EEA) Jurisdiction over undertakings located outside the EC/EEA ENFORCEMENT BODIES AND ATTRIBUTION OF CASES The 'two pillar' system Two enforcement bodies and the 'one-stop shop' principle 183

10 xvii Attribution of cases ^ Article 53 EEA cases Article 54 EEA cases Merger cases PROCEDURAL RULES Procedures for cases falling under Articles 53 and 54 EEA Applications and notifications Complaints and ex officio procedures Forms and language to be used The different procedural steps Fact-finding procedures Formal initiation of procedure Hearing of the parties and third persons Liaison with the States Decision Merger control Notifications, forms, and language The different procedural steps Rights of individual States Coal and steel Transitional rules Article 53 cases New agreements Existing agreements Merger cases Coal and steel COOPERATION BETWEEN THE TWO SURVEILLANCE AUTHORITIES General principles of co-operation Co-operation in Article 53/54 cases Mutual information and consultation during the different stages of the procedure Transmission of cases Mutual administrative assistance in fact-finding Co-operation in merger cases Information and consultation Transmission of cases Administrative assistance in fact-finding Enforcement of decisions of the surveillance authorities 210

11 xviii 8. HARMONIZING EFFECTS OF THE EEA COMPETITION RULES AND POSSIBLE FUTURE DEVELOPMENTS IN A WIDER CONTEXT 211 IX. STATE MONOPOLIES AND PUBLIC UNDERTAKINGS STATE MONOPOLIES OF A COMMERCIAL CHARACTER The EEA obligations (Article 16 EEA) Interpretation given to Article 37 EEC by the ECJ and the Commission Objective of Article 37 EEC Definition and scope of Article 37 EEC Exclusive rights and adjustments required The procedure applicable for enforcing Article 37 EEC The monitoring of adjusted monopolies PUBLIC UNDERTAKINGS The EEA obligations (Article 59 EEA) Interpretation given to Article 90 EEC by the ECJ and the Commission Use by the Commission of the legislative powers granted to it by Article 90 (3) EEC Examples of application of Article 90 (1) EEC to specific cases Features of Article 90 (3) decisions and the procedure applied by the Commission when taking such decisions 227 X. STATE AID IMPORTANCE OF THE STATE AID RULES IN THE EEA CONTEXT SUBSTANTIVE STATE AID RULES Article 61 EEA Secondary legislation General issues related to Annex XV EEA Regional aid Aid to shipbuilding Steel sector 236

12 3. PROCEDURAL RULES General issues Notification of new aid measures Decisions following the notification of proposed aid measures Clearance of a proposed aid measure without opening a formal procedure Opening of a formal procedure Final decision Unlawful aid Existing aid Judicial review CO-OPERATION BETWEEN THE TWO SURVEILLANCE BODIES SPECIFIC ISSUES Product coverage Fisheries sector Processed agricultural products and forestry Article 64 (1) EEA Importance of common State aid rules for the EC and EFTA as regards their relations with Central and Eastern European countries 244 XI. THE SITUATION OF SWITZERLAND SWITZERLAND AND EUROPEAN INTEGRATION Brief history of EC Switzerland relations Eurolex The referendum of 6 December 1992 and its consequences for the EEA Swisslex THE 'SWISS INTERNAL MARKET' CURRENT RELATIONS WITH THE COMMUNITY Rules of origin Processed agricultural products Technical barriers to trade 254 xix

13 xx 3.4 Public procurement Product liability Intellectual property SOME WORDS ABOUT LIECHTENSTEIN 256 ANNEXES Annexe A: Excerpts of Relevant Parts of the EEA Agreement and of the ESA/Court Agreement 258 Annexe B: Table of Correspondence between EEA and EC Provisions 368 Annexe C: Example of Application of the Reference Technique 372 Annexe D: Organigrams and Addresses of the EFTA Institutions 384 Annexe E: List of HS Chapters Excluded from the Scope of the EEA Agreement (Chapters 1-24) 387 Annexe F: ECJ Cases under Articles 30 to 36 EEC with Short Descriptions 389 Annexe G: International Conventions in the Fields of Industrial Property and Copyright 417 Annexe H: Excerpts of Relevant Cases in the Field of Intellectual Property 423 Annexe I: Provisions Concerning Exhaustion in the Different Existing or Draft EC Legislation 430 Annexe J: International Exhaustion in EC and EFTA Countries 434 Table of Legislation 441 Table of Cases (numerical) 455 Table of Cases (alphabetical) 464 Bibliography 476 Glossary 481 Index 485