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This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL REGULATION (EEC)No 479/92
of 25 February 1992
on the application of Article 85 (3)of the Treaty to certain categories of agreements, decisions and
concerted practices between liner shipping companies (consortia)
(OJ L 55, 29.2.1992, p. 3)
Amended by:
Official Journal
No page date
►A1 Actof Accession of Aust ria, Sweden and Finland C 241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
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COUNCIL REGULATION (EEC)No 479/92
of 25 February 1992
on the application of Article 85 (3)of the Treaty to certain catego-
ries of agreements, decisions and concerted practices between liner
shipping companies (consortia)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European EconomicCommunity, and in particular Article 87 thereof,
Having regard to the proposal from the Commission (
1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas Article 85 (1) of the Treaty may in accordance with Article 85
(3) thereof be declared inapplicable to categories of agreements, deci-sions and concerted practices which fulfil the conditions contained inArticle 85 (3);
Whereas, pursuant to Article 87 of the Treaty, the provisions for the
application of Article 85 (3) of the Treaty should be adopted by way ofRegulation; whereas, according to Article 87 (2) (b), such a Regulationmust lay down detailed rules for the application of Article 85 (3), takinginto account the need to ensure effective supervision, on the one hand,and to simplify administration to the greatest possible extent on theother; whereas, according to Article 87 (2) (d), such a Regulation isrequired to define the respective functions of the Commission and of theCourtof Just ice;
Whereas liner shipping is a capital intensive industry; whereas contain-
erization has increased pressures for cooperation and rationalization;whereas the Community shipping industry needs to attain the necessaryeconomies of scale in order to compete successfully on the world linershipping market;
Whereas joint-service agreements between liner shipping companies
with the aim of rationalizing their operations by means of technical,operational and/or commercial arrangements (described in shippingcircles as consortia) can help to provide the necessary means forimproving the productivity of liner shipping services and promotingtechnical and economic progress;
Having regard to the importance of maritime transport for the develop-
ment of the Community’s trade and the role which consortia agreementscan fulfil in this respect, taking account of the special features ofinternational liner shipping;
Whereas the legalization of these agreements is a measure which can
make a positive contribution to improving the competitiveness of ship-ping in the Community;
Whereas users of the shipping services offered by consortia can obtain a
share of the benefits resulting from the improvements in productivityand service, by means of, inter alia , regularity, cost reductions derived
from higher levels of capacity utilization, and better service qualitystemming from improved vessels and equipment;
Whereas the Commission should be enabled to declare by way of
Regulation that the provisions of Article 85 (1) of the Treaty do notapply to certain categories of consortia agreements, decisions andconcerted practices, in order to make it easier for undertakings to
(1) OJ No C 167, 10. 7. 1990, p. 9.
(2) OJ No C 305, 25. 11. 1991, p. 39.
(3) OJ No C 69, 18. 3. 1991, p. 16.
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cooperate in ways which are economically desirable and without
adverse effect from the point of view of competition policy;
Whereas the Commission, in close and constant liaison with the
competent authorities of the Member States, should be able to defineprecisely the scope of these exemptions and the conditions attached tothem;
Whereas consortia in liner shipping are a specialized and complex type
of joint venture; whereas there is a great variety of different consortiaagreements operating in different circumstances; whereas the scope,parties, activities or terms of consortia are frequently altered; whereasthe Commission should therefore be given the responsibility of definingfrom time to time the consortia to which a group exemption shouldapply;
Whereas, in order to ensure that all the conditions of Article 85 (3) of
the Treaty are met, conditions should be attached to group exemptionsto ensure in particular that a fair share of the benefits will be passed onto shippers and that competition is not eliminated;
Whereas pursuant to Article 11 (4) of Council Regulation (EEC) No
4056/86 of 22 December 1986 laying down detailed rules for theapplication of Articles 85 and 86 of the Treaty to maritime transport (
1)
the Commission may provide that a decision taken in accordance withArticle 85 (3) of the Treaty shall apply with retroactive effect; whereasit is desirable that the Commission be empowered to adopt, by Regula-tion, provisions to that effect;
Whereas notification of agreements, decisions and concerted practices
falling within the scope of this Regulation must not be made compul-sory, it being primarily the responsibility of undertakings to see to itthat they conform to the rules on competition, and in particular to theconditions laid down by the subsequent Commission Regulation imple-menting this Regulation;
Whereas there can be no exemption if the conditions set out in Article
85 (3) of the Treaty are not satisfied; whereas the Commission shouldtherefore have power to take the appropriate measures where an agree-ment proves to have effects incompatible with Article 85 (3) of theTreaty; whereas the Commission should be able first to address recom-mendations to the parties and then to take decisions,
HAS ADOPTED THIS REGULATION:
Article 1
1. Without prejudice to the application of Regulation (EEC) No
4056/86, the Commission may by regulation and in accordance withArticle 85 (3) of the Treaty, declare that Article 85 (1) of the Treatyshall not apply to certain categories of agreements between undertak-ings, decisions of associations of undertakings and concerted practicesthat have as an object to promote or establish cooperation in the jointoperation of maritime transport services between liner shipping compa-nies, for the purpose of rationalizing their operations by means oftechnical, operational and/or commercial arrangements — with theexception of price fixing (consortia).
2. Such regulation adopted pursuant to paragraph 1 shall define the
categories of agreements, decisions and concerted practices to which itapplies and shall specify the conditions and obligations under which,pursuant to Article 85 (3) of the Treaty, they shall be consideredexempted from the application of Article 85 (1) of the Treaty.
(1) OJ No L 378, 31. 12. 1986, p. 4.
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Article 2
1. The regulation adopted pursuant to Article 1 shall apply for a
period of five years, calculated as from the date of its entry into force.
2. Itmay be repealed or amended where circumst ances have changed
with respect to any of the facts which were basic to its adoption.
Article 3
The regulation adopted pursuant to Article 1 may include a provision
stating that it applies with retroactive effect to agreements, decisionsand concerted practices which were in existence at the date of entry intoforce of such regulation, provided they comply with the conditionsestablished in that regulation.
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A1
Article 3a
A Regulation pursuant to Article 1 may stipulate that the prohibition
cointained in Article 85 (1) of the Treaty shall not apply, for such aperiod as fixed by that Regulation, to agreements, decisions andconcerted practices already in existence at the date of accession towhich Article 85 (1) applies by virtue of the accession of Austria,Finland and Sweden and which do not satisfy the conditions of Article85 (3). However, this Article shall not apply to agreements, decisionsand concerted practices which at the date of accession already fall underArticle 53 (1) of the EEA Agreement.
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B
Article 4
Before adopting its regulation, the Commission shall publish a draft
thereof to enable all the persons and organizations concerned to submittheir comments within such reasonable time limit as the Commissionshall fix, but in no case less than one month.
Article 5
1. Before publishing the draft regulation and before adopting the
regulation, the Commission shall consult the Advisory Committee onAgreements and Dominant Positions in Maritime Transport establishedby Article 15 (3) of Regulation (EEC) No 4056/86.
2. Paragraphs 5 and 6 of Article 15 of Regulation (EEC) No 4056/86
relating to consultation with the Advisory Committee, shall apply, itbeing understood that joint meetings with the Commission shall takeplace not earlier than one month after dispatch of the notice conveningthem.
Article 6
1. Where the persons concerned are in breach of a condition or
obligation attaching to an exemption granted by the Regulation adoptedpursuant to Article 1, the Commission may, in order to put an end tosuch a breach:
— address recommendations to the persons concerned, and— in the event of failure by such persons to observe those recommen-
dations, and depending on the gravity of the breach concerned,adopt a decision that either prohibits them from carrying out, orrequires them to perform specific acts or, while withdrawing thebenefit of the group exemption which they enjoyed, grants them anindividual exemption in accordance with Article 11 (4) of Regula-tion (EEC) No 4056/86, or withdraws the benefit of the groupexemption which they enjoyed.
2. Where the Commission, either on its own initiative or at the
request of a Member State or of natural or legal persons claiming alegitimate interest, finds that in a particular case an agreement, decisionor concerted practice to which the group exemption granted by theRegulation adopted pursuant to Article 1 applies, nevertheless haseffects which are incompatible with Article 85 (3) of the Treaty or with
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the prohibition laid down in Article 86 of the Treaty, it may withdrawthe benefit of the group exemption from those agreements, decisions orconcerted practices and take all appropriate measures for the purpose ofbringing these infringements to an end, pursuant to Article 13 of Regu-lation (EEC) No 4056/86.
3. Before taking a decision under paragraph 2, the Commission may
address recommendations for termination of the infringement to thepersons concerned.
Article 7
This Regulation shall enter into force on the day following its publica-
tion in the Official Journal of the European Communities .
This Regulation shall be binding in its entirety and directly applicable in
all Member States.