Surveillance and Court Agreement

Jurisdiction - Organisation

ESA / Court Agreement

Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (Surveillance and Court Agreement) (main part)
Protocol 2 on the Functions and Powers of the EFTA Surveillance Authority – Procurement
Protocol 3 on the functions and powers of the EFTA Surveillance Authority in the field of State aid
Protocol 4 on the Functions and Powers of the EFTA Surveillance Authority in the Field of Competition
Protocol 5 on the Statute of the EFTA Court
Protocol 7 to the Surveillance and Court Agreement on the Legal Capacity, Privileges and Immunities of the EFTA Court

 

Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (Surveillance and Court Agreement) (main part)

 

THE REPUBLIC OF ICELAND,
THE PRINCIPALITY OF LIECHTENSTEIN AND
THE KINGDOM OF NORWAY
HAVING REGARD to the EEA Agreement;

 

CONSIDERING that, in accordance with Article 108(1) of the EEA Agreement, the EFTA States shall establish an independent surveillance authority (EFTA Surveillance Authority) as well as create procedures similar to those existing in the European Community including procedures for ensuring the fulfilment of the obligations under the EEA Agreement and for control of the legality of acts of the EFTA Surveillance Authority regarding competition;

 

FURTHER CONSIDERING that, in accordance with Article 108(2) of the EEA Agreement, the EFTA States shall establish a court of justice of the EFTA States;

 

RECALLING the objective of the Contracting Parties to the EEA Agreement, in full deference to the independence of the courts, to arrive at and maintain a uniform interpretation and application of the EEA Agreement and those provisions of the Community legislation which are substantially reproduced in that Agreement and to arrive at an equal treatment of individuals and economic operators as regards the four freedoms and the conditions of competition;

 

REITERATING that the EFTA Surveillance Authority and the Commission of the European Communities shall cooperate, exchange information and consult each other on surveillance policy issues and individual cases;

 

CONSIDERING that the preambles to acts adopted in application of the Treaties establishing the European Economic Community and the European Coal and Steel Community shall, in so far as those acts correspond to the provisions of Protocols 1 to 4 and to the provisions of the acts corresponding to those listed in Annexes I and II to this Agreement, be relevant to the extent necessary for the proper interpretation and application of the provisions of these Protocols and Annexes;

 

WHEREAS in the application of Protocols 1 to 4 to this Agreement due account shall be paid to the legal and administrative practices of the Commission of the European Communities prior to the entry into force of this Agreement;

HAVE DECIDED to conclude the following Agreement:

 

PART I

 

PART II – THE EFTA SURVEILLANCE AUTHORITY

 

PART III – THE EFTA STATES’ FULFILMENT OF THEIR OBLIGATIONS UNDER THE EEA AGREEMENT AND THE PRESENT AGREEMENT

 

PART IV – THE EFTA COURT

 

PART V – GENERAL AND FINAL PROVISIONS

 

 

PART I

 

Article 1

For the purposes of this Agreement:
(a) the term ’EEA Agreement’ means the main part of the EEA Agreement, its Protocols and Annexes as well as the acts referred to therein;

(b) the term ’EFTA States’ means the Republic of Iceland and the Kingdom of Norway and, under the conditions laid down by Article 1(2) of the Protocol Adjusting the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, the Principality of Liechtenstein.

 

Article 2

The EFTA States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Agreement. They shall abstain from any measure which could jeopardize the attainment of the objectives of this Agreement.

 

Article 3

1. Without prejudice to future developments of case law, the provisions of Protocols 1 to 4 and the provisions of the acts corresponding to those listed in Annexes I and II to 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 the EEA Agreement.

 

2. In the interpretation and application of the EEA Agreement and this Agreement, the EFTA Surveillance Authority and the EFTA Court shall pay due account to the principles laid down by the relevant rulings by the Court of Justice of the European Communities given after the date of signature of the EEA Agreement and which concern the interpretation of that Agreement or of such rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community in so far as they are identical in substance to the provisions of the EEA Agreement or to the provisions of Protocols 1 to 4 and the provisions of the acts corresponding to those listed in Annexes I and II to the present Agreement.

 

 

PART II

 

THE EFTA SURVEILLANCE AUTHORITY

 

Article 4

An independent surveillance authority among the EFTA States, the EFTA Surveillance Authority, is hereby established.

 

Article 5

1. The EFTA Surveillance Authority shall, in accordance with the provisions of this Agreement and the provisions of the EEA Agreement and in order to ensure the proper functioning of the EEA Agreement:
(a) ensure the fulfilment by the EFTA States of their obligations under the EEA Agreement and this Agreement;
(b) ensure the application of the rules of the EEA Agreement on competition;
(c) monitor the application of the EEA Agreement by the other Contracting Parties to that Agreement.

2. To this end, the EFTA Surveillance Authority shall:
(a) take decisions and other measures in cases provided for in this Agreement and in the EEA Agreement;
(b) formulate recommendations, deliver opinions and issue notices or guidelines on matters dealt with in the EEA Agreement, if that Agreement or the present Agreement expressly so provides or if the EFTA Surveillance Authority considers it necessary;
(c) carry out cooperation, exchange of information and consultations with the Commission of the European Communities as provided for in this Agreement and the EEA Agreement;
(d) carry out the functions which, through the application of Protocol 1 to the EEA Agreement, follow from the acts referred to in the Annexes to that Agreement, as specified in Protocol 1 to the present Agreement.

 

Article 6

In accordance with the provisions of this Agreement and the EEA Agreement, the EFTA Surveillance Authority may, in carrying out the duties assigned to it, request all the necessary information from the Governments and competent authorities of the EFTA States and from undertakings and associations of undertakings.

 

Article 7

The EFTA Surveillance Authority shall consist of three members, who shall be chosen on the grounds of their general competence and whose independence is beyond doubt.
Save as in the circumstances set out in the third paragraph of Article 9 at least two of the three members shall be nationals of the EFTA States.

 

Article 8

The members of the EFTA Surveillance Authority shall be completely independent in the performance of their duties. They shall neither seek nor take instructions from any Government or other body. They shall refrain from any action incompatible with their duties. Each EFTA State undertakes to respect this principle and not to seek to influence the members of the EFTA Surveillance Authority in the performance of their tasks.
The members of the EFTA Surveillance Authority shall not, during their term of office, engage in any other occupation, whether gainful or not.
When entering upon their duties they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. In the event of any breach of these obligations, the EFTA Court may, on application by the EFTA Surveillance Authority, rule that the member concerned be, according to the circumstances, either compulsorily retired or deprived of his right to a pension or other benefits in its stead

 

Article 9

The members of the EFTA Surveillance Authority shall be appointed by common accord of the Governments of the EFTA States.
Their term of office shall be four years. It shall be renewable.
In case one of the members, in the opinion of the two other members, is disqualified from acting in a particular case, the two other members shall agree on a person to replace him chosen from a list established by common accord by the Governments of the EFTA States. If they cannot agree that person shall be chosen from the list by lot by the President of the EFTA Court. With regard to a member chosen in this way the rules applicable to regular members shall apply mutatis mutandis. In any case Article 8, second paragraph, and Article 10 shall not apply.

 

Article 10

Apart from normal replacement, or death, the duties of a member of the EFTA Surveillance Authority shall end when he resigns or is compulsorily retired. The vacancy thus caused shall be filled for the remainder of the member’s term of office.

 

Article 11

If a member of the EFTA Surveillance Authority no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the EFTA Court may, on application by the EFTA Surveillance Authority, compulsorily retire him.

 

Article 12

The President of the EFTA Surveillance Authority shall be appointed from among its members for a period of two years by common accord of the Governments of the EFTA States.

 

Article 13

The EFTA Surveillance Authority shall adopt its own rules of procedure.

 

Article 14

The EFTA Surveillance Authority shall appoint officials and other servants to enable it to function. The EFTA Surveillance Authority may consult experts or decide to set up such committees and other bodies as it considers necessary to assist it in accomplishing its tasks. In the performance of their duties, officials and other servants of the EFTA Surveillance Authority shall neither seek nor accept instructions from any Government or from any body external to the EFTA Surveillance Authority. Members of the EFTA Surveillance Authority, officials and other servants thereof as well as members of committees shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components.

 

Article 15

The EFTA Surveillance Authority shall act by majority of its Members. The rules of procedure shall determine the quorum.

 

Article 16

Decisions of the EFTA Surveillance Authority shall state the reasons on which they are based.

 

Article 17

Save as otherwise provided in this Agreement or in the EEA Agreement, decisions of the EFTA Surveillance Authority shall be notified to those to whom they are addressed and shall take effect upon such notification.

 

Article 18

Decisions of the EFTA Surveillance Authority shall be published in accordance with the provisions of this Agreement and of the EEA Agreement.

 

Article 19

Decisions of the EFTA Surveillance Authority which impose a pecuniary obligation on persons other than States, shall be enforceable in accordance with Article 110 of the EEA Agreement.

 

Article 20

Individuals and economic operators shall be entitled to address and be addressed by the EFTA Surveillance Authority in any official language of the EFTA States and the European Communities as regards notifications, applications and complaints. This shall also cover all instances of a proceeding, whether it be

opened on notification, application or complaint or ex officio by the EFTA Surveillance Authority.

 

Article 21

The EFTA Surveillance Authority shall annually publish a general report on its activities.
 

 

PART III

 

THE EFTA STATES’ FULFILMENT OF THEIR OBLIGATIONS UNDER THE EEA AGREEMENT AND THE PRESENT AGREEMENT

 

Article 22

In order to ensure the proper application of the EEA Agreement, the EFTA Surveillance Authority shall monitor the application of the provisions of the EEA Agreement and of the present Agreement by the EFTA States.

 

Article 23

The EFTA Surveillance Authority shall, in accordance with Articles 22 and 37 of this Agreement and Articles 65(1) and 109 of, and Annex XVI to, the EEA Agreement as well as subject to the provisions contained in Protocol 2 to the present Agreement, ensure that the provisions of the EEA Agreement concerning

procurement are applied by the EFTA States.

 

Article 24

The EFTA Surveillance Authority shall, in accordance with Articles 49, 61 to 64 and 109 of, and Protocols 14, 26, 27, and Annexes XIII, section I(iv), and XV to, the EEA Agreement, as well as subject to the provisions contained in Protocol 3 to the present Agreement, give effect to the provisions of the EEA Agreement concerning State aid as well as ensure that those provisions are applied by the EFTA States.
In application of Article 5(2)(b), the EFTA Surveillance Authority shall, in particular, upon the entry into force of this Agreement, adopt acts corresponding to those listed in Annex I.

 

Article 25

The EFTA Surveillance Authority shall, in accordance with Articles 53 to 60 and 109 of, and Protocols 21 to 25 and Annex XIV to, the EEA Agreement, as well as subject to the provisions contained in Protocol 4 to the present Agreement, give effect to the provisions of the EEA Agreement relating to the implementation of the competition rules applicable to undertakings as well as ensure that those provisions are applied.
In application of Article 5(2)(b), the EFTA Surveillance Authority shall, in particular, upon the entry into force of this Agreement, adopt acts corresponding to those listed in Annex II. Article 26 Provisions governing the cooperation, exchange of information and consultation between the EFTA Surveillance Authority and the Commission of the European Communities concerning the application of the EEA Agreement are laid down in Article 109 as well as in Articles 58 and 62(2) of, and Protocols 1, 23, 24 and 27 to, the EEA Agreement.
 

 

PART IV

 

THE EFTA COURT

 

Article 27

A court of justice of the EFTA States, hereinafter referred to as the EFTA Court, is hereby established. It shall function in accordance with the provisions of this Agreement and of the EEA Agreement.

 

Article 28

The EFTA Court shall consist of three judges.

 

Article 29

Decisions of the Court shall be valid only when all its members are sitting in the deliberations.

 

Article 30

The Judges shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognized competence. They shall be appointed by common accord of the Governments of the EFTA States for a term of six years.
Retiring Judges shall be eligible for reappointment.
The Judges shall elect the President of the EFTA Court from among their number for a term of three years. He may be re-elected.
In case one of the Judges, in the opinion of the two other Judges, is disqualified from acting in a particular case, the two other Judges shall agree on a person to replace him chosen from a list established by common accord by the Governments of the EFTA States. If they cannot agree that person shall be chosen from the list by lot by the President. With regard to a Judge chosen in this way the rules applicable to regular Judges shall apply mutatis mutandis. In any case Article 4, second paragraph, and Article 13, of Protocol 5 shall not apply.

 

Article 31

If the EFTA Surveillance Authority considers that an EFTA State has failed to fulfil an obligation under the EEA Agreement or of this Agreement, it shall, unless otherwise provided for in this Agreement, deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the EFTA Surveillance Authority, the latter may bring the matter before the EFTA Court.

 

Article 32

The EFTA Court shall have jurisdiction in actions concerning the settlement of disputes between two or more EFTA States regarding the interpretation or application of the EEA Agreement, the Agreement on a Standing Committee of the EFTA States or the present Agreement.

 

Article 33

The EFTA States concerned shall take the necessary measures to comply with the judgments of the EFTA Court.

 

Article 34

The EFTA Court shall have jurisdiction to give advisory opinions on the interpretation of the EEA Agreement.
Where such a question is raised before any court or tribunal in an EFTA State, that court or tribunal may, if it considers it necessary to enable it to give judgment, request the EFTA Court to give such an opinion.
An EFTA State may in its internal legislation limit the right to request such an advisory opinion to courts and tribunals against whose decisions there is no judicial remedy under national law.

 

Article 35

The EFTA Court shall have unlimited jurisdiction in regard to penalties imposed by the EFTA Surveillance Authority.

 

Article 36

The EFTA Court shall have jurisdiction in actions brought by an EFTA State against a decision of the EFTA Surveillance Authority on grounds of lack of competence, infringement of an essential procedural requirement, or infringement of this Agreement, of the EEA Agreement or of any rule of law relating to their application, or misuse of powers.
Any natural or legal person may, under the same conditions, institute proceedings before the EFTA Court against a decision of the EFTA Surveillance Authority addressed to that person or against a decision addressed to another person, if it is of direct and individual concern to the former.
The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
If the action is well founded the decision of the EFTA Surveillance Authority shall be declared void.

 

Article 37

Should the EFTA Surveillance Authority, in infringement of this Agreement or the provisions of the EEA Agreement, fail to act, an EFTA State may bring an action before the EFTA Court to have the infringement established.
The action shall be admissible only if the EFTA Surveillance Authority has first been called upon to act. If, within two months of being so called upon, the EFTA Surveillance Authority has not defined its position, the action may be brought within a further period of two months.
Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the EFTA Court that the EFTA Surveillance Authority has failed to address to that person any decision.

 

Article 38

If a decision of the EFTA Surveillance Authority has been declared void or if it has been established that the EFTA Surveillance Authority, in infringement of this Agreement or of the provisions of the EEA Agreement, has failed to act, the EFTA Surveillance Authority shall take the necessary measures to comply with the judgment.
This obligation shall not affect any obligation which may result from the application of Article 46, second paragraph.

 

Article 39

Save as otherwise provided for in Protocol 7 to this Agreement, the EFTA Court shall have jurisdiction in actions against the EFTA Surveillance Authority relating to compensation for damage provided for in Article 46, second paragraph.

 

Article 40

Actions brought before the EFTA Court shall not have suspensory effect. The EFTA Court may, however, if it considers that circumstances so require, order that application of the contested act be suspended.

 

Article 41

The EFTA Court may in any case before it prescribe any necessary interim measures.

 

 

PART V

 

GENERAL AND FINAL PROVISIONS

 

Article 42

The Protocols and Annexes to this Agreement shall form an integral part thereof.

 

Article 43

1. The Statute of the EFTA Court is laid down in Protocol 5 to this Agreement.

2. The EFTA Court shall adopt its rules of procedure to be approved by the Governments of the EFTA States by common accord.

 

Article 44

1. The legal capacity, privileges and immunities to be recognized and granted by the EFTA States in connection with the EFTA Surveillance Authority and the EFTA Court are laid down in Protocols 6 and 7 to this Agreement, respectively.
2. The EFTA Surveillance Authority and the EFTA Court, respectively, may conclude with the Government of the States in whose territory their seats are situated an agreement relating to the privileges and immunities to be recognized and granted in connection with it.

 

Article 45

The seat of the EFTA Surveillance Authority and the EFTA Court, respectively, shall be determined by common accord of the Governments of the EFTA States.

 

Article 46

The contractual liability of the EFTA Surveillance Authority shall be governed by the law applicable to the contract in question. In the case of non-contractual liability, the EFTA Surveillance Authority shall, in accordance with the general principles of law, make good any damage caused by it, or by its servants, in the performance of its duties.

 

Article 47

The Governments of the EFTA States shall, on a proposal from the EFTA Surveillance Authority and after consulting a committee consisting of the members of Parliament of the EFTA States who are members of the EEA Joint Parliamentary Committee, each year before 1 January by common accord establish a budget for the coming year and the apportionment of those expenses between the EFTA States.
The EFTA Surveillance Authority shall be consulted before a decision modifying or amending its proposal for a budget is adopted.

 

Article 48

The Governments of the EFTA States shall, on a proposal from the EFTA Court, each year before 1 January by common accord establish a budget for the EFTA Court for the coming year and the apportionment of those expenses between them.

 

Article 49

The Governments of the EFTA States may, unless otherwise provided in this Agreement, on a proposal from or after hearing the EFTA Surveillance Authority, by common accord amend the main Agreement as well as Protocols 1 to 4 and 6 and 7. Such an amendment shall be submitted to the EFTA States for acceptance and shall enter into force provided it is approved by all EFTA States. Instruments of acceptance shall be deposited with the Government of Sweden which shall notify all other EFTA States.

 

Article 50

1. Any EFTA State which withdraws from the EEA Agreement shall ipso facto cease to be a Party to the present Agreement on the same day as that withdrawal takes effect.
2. Any EFTA State which accedes to the European Community shall ipso facto cease to be a Party to the present Agreement on the same day as that accession takes effect.
3. The Governments of the remaining EFTA States shall, by common accord, decide on the necessary amendments to be made to the present Agreement.

 

Article 51

Any EFTA State acceding to the EEA Agreement shall accede to the present Agreement on such terms and conditions as may be laid down by common accord by the EFTA States. The instrument of accession shall be deposited with the Government of Sweden which shall notify the other EFTA States.

 

Article 52

The EFTA States shall communicate to the EFTA Surveillance Authority the measures taken for the implementation of this Agreement.

 

Article 53

1. This Agreement, drawn up in a single copy and authentic in the English language, shall be ratified by the Contracting Parties in accordance with their respective constitutional requirements. Before the entry into force of this Agreement, it shall also be drawn up and authenticated in Finnish, French, German, Icelandic, Italian, Norwegian and Swedish.
2. This Agreement shall be deposited with the Government of Sweden which shall transmit a certified copy to each EFTA State. The instruments of ratification shall be deposited with the Government of Sweden which shall notify all other EFTA States.
3. This Agreement shall enter into force on the date and under the conditions provided for in the Protocol Adjusting the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized thereto, have signed the present Agreement.
DONE at Oporto, this 2nd day of May 1992, in a single authentic copy in the English language which shall be deposited with the Government of Sweden. The Depositary shall transmit certified copies to all Signatory States and States acceding to this Agreement.

 

 

Protocol 2 on the functions and powers of the EFTA Surveillance Authority in the field of procurement

 

(extracts)

 

Article 1

Without prejudice to Articles 31 and 32 of this Agreement, the EFTA Surveillance Authority may invoke the procedure for which the present Article provides when, prior to a contract being concluded, it considers that a clear and manifest infringement of the provisions of the EEA Agreement in the field of procurement has been committed during a contract award procedure falling within the scope of the acts referred to in points 2 and 3 of Annex XVI to the EEA Agreement.
The EFTA Surveillance Authority shall notify the EFTA State and the contracting authority concerned of the reasons which have led it to conclude that a clear and manifest infringement has been committed and request its correction. Within 21 days of receipt of the notification referred to in paragraph 2, the EFTA State concerned shall communicate to the EFTA Surveillance Authority:
 

  • its confirmation that the infringement has been corrected;
  • or a reasoned submission as to why no correction has been made;
  • or a notice to the effect that the contract award procedure has been suspended either by the contracting authority on its own initiative or on the basis of the powers specified in Article 2(1)(a) of the act referred to in point 5 of Annex XVI to the EEA Agreement.

 

A reasoned submission in accordance with paragraph 3(b) of this Article may rely among other matters on the fact that the alleged infringement is already the subject of judicial or other review proceedings or of a review as referred to in Article 2(8) of the act referred to in point 5 of Annex XVI to the EEA Agreement. In such a case, the EFTA State shall inform the EFTA Surveillance Authority of the result of those proceedings as soon as it becomes known.
Where notice has been given that a contract award procedure has been suspended in accordance with paragraph 3(c) of this Article, the EFTA State shall notify the EFTA Surveillance Authority when the suspension is lifted or another contract procedure relating in whole or in part to the same subject matter is begun. That notification shall confirm that the alleged infringement has been corrected or include a reasoned submission as to why no correction has been made.

 

 

Protocol 3 on the functions and powers of the EFTA Surveillance Authority in the field of State aid

 

Article 1

The EFTA Surveillance Authority shall, in cooperation with the EFTA States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the EEA Agreement.
If, after giving notice to the parties concerned to submit their comments, the EFTA Surveillance Authority finds that aid granted by an EFTA State or through EFTA State resources is not compatible with the functioning of the EEA Agreement having regard to Article 61 of the EEA Agreement, or that such aid is being misused, it shall decide that the EFTA State concerned shall abolish or alter such aid within a period of time to be determined by the Authority.
If the EFTA State concerned does not comply with this decision within the prescribed time, the EFTA Surveillance Authority or any other interested EFTA State may, in derogation from Articles 31 and 32 of this Agreement, refer the matter to the EFTA Court directly.
On application by an EFTA State, the EFTA States may, by common accord, decide that aid which that State is granting or intends to grant shall be considered to be compatible with the functioning of the EEA Agreement, in derogation from the provisions of Article 61 of the EEA Agreement, if such a decision is justified by exceptional circumstances. If, as regards the aid in question, the EFTA Surveillance Authority has already initiated the procedure provided for in the first subparagraph of this paragraph, the fact that the State concerned has made its application to the EFTA States shall have the effect of suspending that procedure until the EFTA States, by common accord, have made their attitude known.
If, however, the EFTA States have not made their attitude known within three months of the said application being made, the EFTA Surveillance Authority shall give its decision on the case.

 

The EFTA Surveillance Authority shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the functioning of the EEA Agreement having regard to Article 61 of the EEA Agreement, it shall without delay initiate the procedure provided for in paragraph 2. The State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision.

 

 

Protocol 4 on the functions and powers of the EFTA Surveillance Authority in the field of competition

 

PART I – GENERAL RULES

 

Chapter II – GENERAL PROCEDURAL RULES IMPLEMENTING

 

ARTICLES 53 AND 54 OF THE EEA AGREEMENT

 

Article 9

Powers1. Subject to review of its decision by the EFTA Court in accordance with Article 108(2) of the EEA Agreement and with the relevant provisions of this Agreement, the EFTA Surveillance Authority shall have sole power to declare Article 53(1) inapplicable pursuant to Article 53(3) of the EEA Agreement on the conditions set out in Article 56 of the EEA Agreement.

 

Article 17

Review by the EFTA Court
The EFTA Court, in accordance with Article 108(2) of the EEA Agreement and with the relevant provisions of this Agreement, shall have unlimited jurisdiction within the meaning of Article 35 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed.

 

 

PART II – TRANSPORT

 

Chapter VI – APPLICATION OF RULES OF COMPETITION TO TRANSPORT BY RAIL, ROAD AND INLAND WATERWAY

 

Article 24

Review by the EFTA Court
The EFTA Court shall, in accordance with Article 108(2) of the EEA Agreement and with the relevant provisions of this Agreement, have unlimited jurisdiction within the meaning of Article 35 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed.

 

 

Chapter IX – RULES FOR THE APPLICATION OF ARTICLES 53 AND 54 OF THE EEA AGREEMENT TO MARITIME TRANSPORT

 

Article 21

Review by the EFTA Court
The EFTA Court, in accordance with Article 108(2) of the EEA Agreement and with the relevant provisions of this Agreement, shall have unlimited jurisdiction within the meaning of Article 35 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed. Chapter XI – PROCEDURE FOR THE APPLICATION OF THE RULES ON COMPETITION TO UNDERTAKINGS IN THE AIR TRANSPORT SECTOR Article 14 Review by the EFTA Court The EFTA Court, in accordance with Article 108(2) of the EEA Agreement and with the relevant provisions of this Agreement, shall have unlimited jurisdiction within the meaning of Article 35 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed.

 

 

PART III – CONTROL OF CONCENTRATIONS

 

Chapter XIII – RULES RELATING TO CONTROL OF CONCENTRATIONS BETWEEN UNDERTAKINGS

 

Article 16

Review by the EFTA Court
The EFTA Court, in accordance with Article 108(2) of the EEA Agreement and with the relevant provisions of this Agreement, shall have unlimited jurisdiction within the meaning of Article 36 of this Agreement to review decisions whereby the EFTA Surveillance Authority has fixed a fine or periodic penalty payments; it may cancel, reduce or increase the fine or periodic penalty payments imposed.

 

 

PART IV – COAL AND STEEL

 

Chapter XV – RULES APPLICABLE TO UNDERTAKINGSIN THE FIELD OF COAL AND STEEL

 

Section I – GENERAL RULES REGARDING AGREEMENTS AND CONCENTRATIONS

 

Article 2

13. Persons fined under paragraph 12 may appeal to the EFTA Court as provided in Article 35 of this Agreement.

 

 

Protocol 5 to the ESA/Court Agreement on the Statute of the EFTA Court

 

Article 1

The EFTA Court established by Article 27 of this Agreement shall be constituted and function in accordance with the provisions of this Agreement and of this Statute.

PART I – JUDGES
PART II – ORGANIZATION
PART III – PROCEDURE
PART IV – GENERAL PROVISIONS

 

 

PART I – JUDGES

 

Article 2

Before taking up his duties each Judge shall, in open court, take an oath to perform his duties impartially and conscientiously and to preserve the secrecy of the deliberations of the Court.

 

Article 3

[Article 3 was deleted by the Adjusting Agreement on 29 December 1994].

 

Article 4

The Judges may not hold any political or administrative office. They may not engage in any occupation, whether gainful or not, unless exemption is granted by the Governments of the EFTA States acting by common accord. When taking up their duties, they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom, in particular the duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. Any doubt on this point shall be settled by decision of the Court.

 

Article 5

Apart from normal replacement, or death, the duties of a Judge shall end when he resigns. Where a Judge resigns, his letter of resignation shall be addressed to the President of the Court for transmission to the Governments of the EFTA States. Upon this notification a vacancy shall arise on the bench. Save where Article 6 applies, a Judge shall continue to hold office until his successor takes up his duties.

 

Article 6

A Judge may be deprived of his office or of his right to a pension or other benefits in its stead only if, in the unanimous opinion of the Court in plenary, he no longer fulfils the requisite conditions or meets the obligations arising from his office. The Judge concerned shall not take part in any such deliberations. The Registrar of the Court shall notify such a decision to the Governments of the EFTA States.

 

Article 7

A Judge who is to replace a member of the Court whose term of office has not expired shall be appointed for the remainder of his predecessor’s term.

 

 

PART II – ORGANIZATION

 

Article 8

Decisions of the Court shall be taken by a majority of the Judges sitting in the deliberations and in accordance with conditions laid down in the rules of procedure.

 

Article 9

The Court shall appoint its Registrar and lay down the rules governing his service.

 

Article 10

The Registrar shall take an oath before the Court to perform his duties impartially and conscientiously and to preserve the secrecy of the deliberations of the Court.

 

Article 11

The Court determines the extent to which the Registrar shall attend the Court, and shall arrange for replacement of the Registrar on occasions when he is prevented from attending the Court.

 

Article 12

Officials and other servants shall be attached to the Court to enable it to function. They shall be responsible to the Registrar under the authority of the President.

 

Article 13

The Judges and the Registrar shall be required to reside at the place where the Court has its seat.

 

Article 14

The Court shall remain permanently in session. The duration of the judicial vacations shall be determined by the Court with due regard to the needs of its business.

 

Article 15

No Judge may take part in the disposal of a case in which he has previously taken part as agent or adviser or has acted for one of the parties, or in which he has been called upon to pronounce as a member of a court or tribunal, of a commission of inquiry or in any other capacity.
If, for some special reason, any Judge considers that he should not take part in the judgment or examination of a particular case, he shall so inform the President of the Court. If, for some reason, the President considers that any Judge should not sit in a particular case, he shall notify him accordingly.
Any difficulty arising as to the application of this Article shall be settled according to the fourth paragraph of Article 30 of this Agreement.
If according to this Article a Judge shall not take part in a particular case, a person to replace him shall be chosen in accordance with Article 30, fourth paragraph, of the Agreement, among those persons on the list who have been nominated by the Government which has nominated the regular Judge who is to be replaced.
A party may not apply for a change in the composition of the Court on the grounds of either nationality of a Judge or the absence from the Court of a Judge of the nationality of that party.

 

Article 16

Rules governing the languages of the Court shall be laid down in the rules of procedure of the Court.

 

 

PART III – PROCEDURE

 

Article 17

The EFTA States, the EFTA Surveillance Authority, the Union and the European Commission shall be represented before the Court by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer. Other parties must be represented by a lawyer. Only a lawyer authorized to practice before a court of a Contracting Party to the EEA Agreement may represent or assist a party before the Court. Such agents, advisers and lawyers shall, when they appear before the Court, enjoy the rights and immunities necessary to the independent exercise of their duties, under conditions laid down in the rules of procedure of the Court. As regards such advisers and lawyers who appear before it, the Court shall have the powers normally accorded to courts of law, in accordance with the rules of procedure of the Court.

 

Article 18

The procedure before the Court shall consist of two parts: written and oral. The written procedure shall consist of the communication to the parties of applications, statements of case, defences and observations, and of replies, if any, as well as of all papers and documents in support or of certified copies of them. Communications shall be made by the Registrar in the order and within the time laid down in the rules of procedure of the Court. The oral procedure shall consist of the reading of the report presented by a Judge acting as Rapporteur, the hearing by the Court of agents, advisers and lawyers, as well as the hearing, if any, of witnesses and experts.

 

Article 19

A case shall be brought before the Court by a written application addressed to the Registrar. The application shall contain the applicant’s name and permanent address and the description of the signatory, the name of the party or names of the parties against whom the application is made, the subject matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based. The application shall be accompanied, where appropriate, by the measure the annulment of which is sought or by any other relevant documents. If the documents are not submitted with the application, the Registrar shall ask the party concerned to produce them within a reasonable period, but in that event the rights of the party shall not lapse even if such documents are produced after the time-limit for bringing proceedings.

 

Article 20

The Registrar shall notify the Governments of the EFTA States, the EFTA Surveillance Authority, the Union and the European Commission of any case pending before the Court. Within two months of this notification, the EFTA States, the EFTA Surveillance Authority, the Union and the European Commission shall be entitled to submit statements of case or written observations to the Court.

 

Article 21

The Court may require the parties to produce all documents and to supply all information which the Court considers desirable. Formal note shall be taken of any refusal. The Court may also require the EFTA States not being parties to the case to supply all information which the Court considers necessary for the proceedings.

 

Article 22

The Court may at any time entrust any individual, body, authority, committee or other organization it chooses with the task of giving an expert opinion.

 

Article 23

Witnesses may be heard in accordance with the rules of procedure of the Court.

 

Article 24

Witnesses and experts may be heard on oath taken in accordance with the rules of procedure of the Court or in the manner laid down by the law of the country of the witness or expert.

 

Article 25

The Court may order that a witness or expert be heard by the judicial authority of his place of permanent residence. The order shall be sent for implementation to the competent judicial authority under conditions laid down in the rules of procedure of the Court. The documents drawn up in compliance with the letters rogatory shall be returned to the Court under the same conditions. The Court shall defray the expenses, without prejudice to the right to charge them, where appropriate, to the parties.

 

Article 26

An EFTA State shall treat any defaulting witness or any violation of an oath by a witness or expert in the same manner as if the offence had been committed before one of its courts with jurisdiction in civil proceedings. At the instance of the Court, the EFTA State concerned shall prosecute the offender before its competent court.

 

Article 27

The hearing in court shall be public, unless the Court, of its own motion or on application by the parties, decides otherwise for serious reasons.

 

Article 28

During the hearings the Court may examine the experts, the witnesses and the parties themselves. The latter, however, may address the Court only through their representatives.

 

Article 29

Minutes shall be made of each hearing and signed by the President and the Registrar or a Judge designated to provide for the minutes.

 

Article 30

The case list shall be established by the President.

 

Article 31

The deliberations of the Court shall be and shall remain secret.

 

Article 32

Judgments shall state the reasons on which they are based. They shall contain the names of the Judges who took part in the deliberations.

 

Article 33

Judgments shall be signed by the President and the Registrar. They shall be read in open court.

 

Article 34

The Court shall adjudicate upon costs.

 

Article 35

The President of the Court may, by way of summary procedure, which may, in so far as necessary, differ from some of the rules contained in this Agreement and which shall be laid down in the rules of procedure, adjudicate upon applications to suspend execution as provided for in Article 40 of this Agreement, or to prescribe interim measures in pursuance of Article 41 of this Agreement, or to suspend enforcement in accordance with Article 110, fourth paragraph, of the EEA Agreement.
Should the President be prevented from attending, his place shall be taken by another Judge in accordance with the rules of procedure.
The ruling of the President or of the Judge replacing him shall be provisional and shall in no way prejudice the decision of the Court on the substance of the case.

 

Article 36

Any EFTA State, the EFTA Surveillance Authority, the Union and the European Commission may intervene in cases before the Court. The same right shall be open to any person establishing an interest in the result of any case submitted to the Court, save in cases between EFTA States or between EFTA States and the EFTA Surveillance Authority. An application to intervene shall be limited to supporting the form of order sought by one of the parties.

 

Article 37

Where the defending party, after having been duly summoned, fails to file written submissions in defence, judgment shall be given against that party by default. An objection may be lodged against the judgment within one month of it being notified. The objection shall not have the effect of staying enforcement of the judgment by default unless the Court decides otherwise.

 

Article 38

EFTA States, and any other natural or legal persons may, in cases and under conditions to be determined by the rules of procedure, institute third-party proceedings to contest a judgment rendered without their being heard, where the judgment is prejudicial to their rights.

 

Article 39

If the meaning or scope of a judgment is in doubt, the Court shall construe it on application by any party establishing an interest therein or by the EFTA Surveillance Authority.

 

Article 40

An application for revision of a judgment may be made to the Court only on discovery of a fact which is of such nature as to be a decisive factor, and which, when the judgment was given, was unknown to the Court and to the party claiming the revision. The revision shall be opened by a judgment of the Court expressly recording the existence of a new fact, recognizing that it is of such a character as to lay the case open to revision and declaring the application admissible on this ground. No application for revision may be made after the lapse of ten years from the date of the judgment.

 

Article 41

Periods of grace based on considerations of distance shall be determined by the rules of procedure of the Court. No right shall be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure.

 

Article 42

Proceedings against the EFTA Surveillance Authority in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. The period of limitation shall be interrupted if proceedings are instituted before the Court or if prior to such proceedings an application is made by the aggrieved party to the EFTA Surveillance Authority. In the latter event the proceedings must be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

PART IV – GENERAL PROVISIONS

 

Article 43

The rules of procedure of the Court shall contain, apart from the provisions contemplated by this Statute, any other provisions necessary for applying and, where required, supplementing it.

 

Article 44

The Governments of the EFTA States may, on a proposal from or after hearing the Court, by common accord amend this Statute.

 

 

Protocol 7 to the ESA/Court Agreement on the Legal Capacity, Privileges and Immunities of the EFTA Court

 

PART I – THE EFTA COURT

PART II – THE JUDGES, THE REGISTRAR, THE OFFICIALS AND OTHER SERVANTS OF THE COURT

PART III – GENERAL PROVISIONS

 

PART I – THE EFTA COURT

 

Article 1

The EFTA Court shall possess legal personality. It shall in particular have the capacity to contract, to acquire and dispose of movable and immovable property, and to be a party to legal proceedings.

 

Article 2

Within the scope of its official activities, the Court shall have immunity from jurisdiction and execution, except:
(a) in so far as it has expressly waived such immunity in a particular case;
(b) in respect of a civil action by a third party for damage arising from an accident caused by a vehicle or other means of transport belonging to or operated on behalf of the Court or in respect of a traffic offence involving such means of transport;
(c) in the event of the attachment, pursuant to a decision by the administrative or judicial authorities, of the salaries and emoluments, including pension rights, owed by the Court to a Judge, the Registrar, an official or other servant or to a former Judge, Registrar, official or other servant;
(d) in respect of a counterclaim directly connected with judicial proceedings initiated by the Court.

The property of the Court, wherever located, shall be immune:
(a) from any form of requisition, confiscation or expropriation;
(b) from any form of sequestration and administrative or provisional judicial constraint, except in the cases provided for in the preceding paragraph.

 

Article 3

The archives of the Court and all documents belonging to it or held by it shall be inviolable wherever located.

 

Article 4

Without being restricted by financial controls, regulations or moratoria of any kind the Court may:
(a) hold funds or currency of any kind and operate accounts in any currency;
(b) freely transfer its funds or currency from one country to another or within any country and convert any currency held by it into any other currency.
In exercising its rights under paragraph 1 of this Article the Court shall pay due regard to any representations made by any State Party to this Protocol and shall give effect to such representations in so far as it is considered possible to do so without detriment to the interests of the Court.

 

Article 5

The Court, its assets, income and other property shall be exempt:
(a) from all direct taxes; the Court shall not, however, claim exemption from rates, taxes or dues which are in fact charges for public utility services;
(b) from customs duties and prohibitions and restrictions on imports and exports in respect of articles directly imported or exported by the Court for its official use. Articles imported under such exemption shall not be sold in the territory of the State into which they were imported except under conditions agreed with the Government of that State;
(c) from customs duties and prohibitions and restrictions on imports and exports in respect of its publications. When purchases or services of substantial value and necessary for the exercise of the official activities of the Court are made or used by the Court and when the price of such purchases and services includes taxes or duties, the State Party to this Protocol that has levied the taxes or duties shall take appropriate measures to grant exemption from such taxes or duties or to provide for their reimbursement, if they are identifiable.

 

Article 6

The Court shall enjoy in the territory of each State Party to this Protocol, for its official communications, treatment not less favourable than that accorded by the Government of that State to any other comparable international organization, in the matter of priorities, rates and taxes for posts and telecommunications and press rates for information to the press and radio.
No censorship shall be applied to the official correspondence and other official communications of the Court.
The Court shall have the right to use codes and to dispatch and receive correspondence by courier or in sealed bags, which shall have the same immunities and privileges as diplomatic couriers and bags.

 

PART II – THE JUDGES, THE REGISTRAR, THE OFFICIALS AND OTHER SERVANTS OF THE COURT

 

Article 7

The Judges shall be immune from legal proceedings. After they have ceased to hold office, they shall continue to enjoy immunity in respect of acts performed by them in their official capacity, including words spoken or written. The Court, sitting in plenary session, may waive the immunity. Where immunity has been waived and criminal proceedings are instituted against a Judge, he shall be tried, in any of the EFTA States, only by the Court competent to judge the members of the highest national judiciary.

 

Article 8

The Judges, the Registrar, the officials and other servants of the Court shall enjoy the following privileges and immunities:
(a) inviolability for all their official papers and documents;
(b) exemption from all obligations in respect of national service, including military service;
(c) together with members of their families forming part of their households, exemption from all measures restricting immigration and from aliens’ registration formalities;
(d) together with members of their families forming part of their households, the same facilities as to repatriation, in time of international crisis, as are normally accorded to staff members of international organizations;
(e) the same treatment in respect of currency and exchange regulations as is normally accorded to staff members of international organizations;
(f) exemption from all national income tax on their salaries and emoluments paid to them by the Court, excluding pensions and other similar benefits paid by the Court. The States Parties to this Protocol reserve the right to take those salaries and emoluments into account when assessing the amount of tax to be applied to income from other sources.

In addition to the privileges and immunities provided for above, the Registrar, the officials and other servants shall enjoy immunity from jurisdiction, even after they have left the service of the Court, in respect of acts, including words written or spoken, done by them in the exercise of their function. This immunity shall, however, not apply in the case of a traffic offence committed by the Registrar, an official or other servant, nor in the case of damage caused by a vehicle or other means of transport belonging to or driven by him.
The Court shall specify the classes of officials and other servants to whom paragraphs 1 and 2 applies and shall inform the EFTA States of its decision. The names of the officials and other servants included in these classes shall regularly be made known to the EFTA States.

 

Article 9

In addition to the privileges and immunities provided for in Article 8(1), the Judges shall enjoy:
(a) immunity from civil and administrative jurisdiction and execution enjoyed by diplomatic agents, except in the case of damage caused by a vehicle or other means of transport belonging to or driven by him;
(b) the same customs facilities as regards his personal luggage as are accorded to diplomatic agents.

 

PART III – GENERAL PROVISIONS

 

Article 10

The Court has a duty to waive its immunity in all cases where reliance upon it would impede the course of justice and it can be waived without prejudicing the interests of the Court.
Privileges and immunities are granted to the Registrar, the officials and other servants of the Court in the interests of the Court and not for the personal benefit of the individuals themselves. The Court shall have the right, and is under a duty, to waive the immunity of the Registrar, an official or other servant in any case where, in its opinion, the immunity would impede the course of justice and could be waived without prejudice to the interests of the Court.

 

Article 11

No State Party to this Protocol shall be obliged to accord the privileges and immunities referred to in Article 8(1)(b), (c) and (d) to its own nationals or permanent residents.

 

Article 12

The provisions of this Protocol shall not prejudice the right of each State Party to this Protocol to take all precautionary measures necessary in the interest of its security.

 

Article 13

If any State Party to this Protocol considers that there has been an abuse of a privilege or immunity conferred by this Protocol, consultations shall be held between that State and the Court to determine whether any such abuse has occurred, and, if so, to ensure that no repetition occurs. A State which considers that any person has abused any privilege or immunity granted to him under this Protocol may require him to leave its territory.

 

 

Protocol 8 on the Functions and Powers of the EFTA Surveillance Authority in the field of Financial Supervision

 

Article 1

(scope)

 

This Protocol sets out the functions and powers of the EFTA Surveillance Authority within the field of financial services where the EFTA Surveillance Authority in accordance with Article 25a in this Agreement acts pursuant to the specific supervisory powers conferred to it by acts in Annex IX of the EEA Agreement.

This Protocol is without prejudice to the powers of the EFTA Surveillance Authority, in particular under Article 31 of this Agreement, to ensure compliance with the EEA Agreement and this Agreement.

 

 

Article 2

(cooperation and participation)

 

When carrying out its tasks referred to in Article 1, the EFTA Surveillance Authority shall consult and cooperate with the relevant European Supervisory Authority and the other relevant EU institutions.

When the EFTA Surveillance Authority is carrying out its tasks referred to in Article 1, the relevant European Supervisory Authority shall, but for the right to vote, have the right to participate in the work of the EFTA Surveillance Authority and its preparatory bodies.

The EFTA Surveillance Authority shall provide authorisation to the representatives of the relevant European Supervisory Authority who shall take part in on-site inspections in accordance with the relevant acts incorporated in Annex IX to the EEA Agreement.

The EFTA Surveillance Authority may enter into administrative arrangements with the European Banking Authority (EBA), the European Insurance and Occupational Pensions Authority (EIOPA) and the European Securities and Markets Authority (ESMA) providing details for such cooperation and participation.

 

 

 

Article 3

(decisions)

 

The EFTA Surveillance Authority’s decisions within the scope of this Protocol shall be adopted by its College on the basis of drafts prepared by the relevant European Supervisory Authority. When taking such decisions, the EFTA Surveillance Authority shall act without undue delay upon receipt of such drafts. The EFTA Surveillance Authority may request the relevant European Supervisory Authority to prepare a draft.

The EFTA Surveillance Authority shall act in full independence. A representative from the relevant European Supervisory Authority shall have the right to be present, without the right to vote, at the College meetings where decisions within the scope of this Protocol are taken.

The EFTA Surveillance Authority may adopt specific rules of procedure for decisions within the scope of this Protocol, including provisions providing for representation from the relevant European Supervisory Authority.

 

 

 

Article 4

(transparency)

Before taking a decision within the scope of this Protocol, the EFTA Surveillance Authority shall invite the competent authorities of the EFTA States to provide technical expertise within a time limit set by the EFTA Surveillance Authority.

The EFTA Surveillance Authority shall, when setting the time limit, take full account of the urgency, complexity and potential consequences of the matter.
If such technical expertise is provided by one or more of the authorities concerned, the EFTA Surveillance Authority shall, in order to ensure transparency, keep the other authorities duly informed.

 

 

 

Article 5

(right to be heard)

 

Before taking decisions within the scope of this Protocol, the EFTA Surveillance Authority shall, subject to the provisions of the relevant acts referred to in Article 1, inform any named addressee of its intention to adopt the decision, and set a time limit within which the addressee may express its views on the matter, taking full account of the urgency, complexity and potential consequences of the matter and to what extent the right to be heard has been exercised at an earlier stage.

 

 

 

Article 6

(judicial review)

 

Proceedings may be brought before the EFTA Court by the EFTA States or any natural or legal person, in accordance with Article 36 of the Surveillance and Court Agreement, contesting a decision taken by the EFTA Surveillance Authority.

In the event that the EFTA Surveillance Authority has an obligation to act and fails to take a decision, proceedings for failure to act may be brought before the EFTA Court in accordance with Article 37 of the Surveillance and Court Agreement.

Where the Acts referred to in Article 1 in this Protocol foresee that fines and/or periodic penalty payments may be imposed by a decision adopted by the EFTA Surveillance Authority, the EFTA Court shall, in accordance with Article 35 of the Surveillance and Court Agreement, have unlimited jurisdiction to review such decisions. The EFTA Court may annul, reduce or increase the fine or periodic penalty payment imposed.