CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ ADDRESSEES OF ANTITRUST AND STATE AID LEGISLATION IN EUROPEAN… It is possible to distinguish between different kinds of international agreements on competition law. In this article, I will start with the association agreements, as their provisions on competition law are modelled according to the primary EU law, and go on to agreements with other countries, where the situation is more diverse. In addition to that, it is also necessary to discuss the Agreement on the European Economic Area (hereinafter referred to as the “EEA Agreement”), entered into by the European Union and its Members States on the one part, and Iceland, the Principality of Lichtenstein, and the Kingdom of Norway on the other part. 1. The EEA Agreement The provisions on antitrust 14 and state aid, 15 contained in the EEA Agreement, are in principle identical to those contained in the TFEU, including the usage of the term undertaking. In addition to that, however, the EEA Agreement defines an undertaking as any entity carrying out activities of a commercial or economic nature . 16 Such a definition in itself would be too simplistic to satisfy the requirements of EU law. The provisions of the EEA Agreement, in so far as they are identical in substance to the corresponding rules of the TFEU, shall nonetheless be interpreted in conformity with the relevant rulings of the CJ EU, given prior to the date of signature of this agreement. 17 It is important to point out that for the purposes of interpretation and application of the EEA Agreement’s provisions on competition in the EFTA Member States, special EFTA institutions, the EFTA Surveillance Authority and the EFTA Court, 18 are responsible, not the EU ones, i.e. the Commission and the CJ EU. It is clear from the EFTA Court’s case law that the court is fully in line with the CJ EU’s jurisprudence on undertakings. For example, in the case Landsorganisasjonen i Norge , the EFTA Court observed that: “Pursuant to Article 1 of Protocol 22 to the EEA Agreement, an undertaking is an entity carrying out activities of a commercial or economic nature. This definition follows the established case law of the Court of Justice of the European Communities, according to which the concept of an undertaking in the context of the competition rules covers all entities engaged in an economic activity […]”. 19 It is thus clear that the EEA Agreement uses the same terminology and the term undertaking contained in it is interpreted in the same way as under EU Law. For the sake of completeness, it ought to be added that the rules on antitrust and state aid are also addressed by the Convention Establishing the European Free Trade Association 14 Definition of prohibited agreements is contained in Article 53 of the EEA Agreement and definition of abuse of dominance in Article 54 of the EEA Agreement. 15 Definition of state aid is contained in Article 61 of the EEA Agreement. 16 EEA Agreement, Protocol 22 concerning the definition of “undertaking” and “turnover” (Article 56), Art. 1. Admittedly, this definition is stipulated only “for the purposes of the attribution of individual cases pursuant to Article 56 of the Agreement” , i.e. for the purposes of delineating jurisdiction between the EFTA Surveillance Authority and the Commission. 17 EEA Agreement, Art. 6. 18 EEA Agreement, Art. 56 and Art. 108 (2) (b). 19 EFTA Court Judgement of 22 March 2002 Norwegian Federation of Trade Unions and Others v Norwegian Association of Local and Regional Authorities and Others , 2002] EFTA Ct. Rep. 114. par. 63.

177