1968R1017 — EN — 01.01.1995 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B REGULATION (EEC)No 1017/68 OF THE COUNCIL
of 19 July 1968
applying rules of competition to transport by rail, road and inland waterway
(OJ L 175, 23.7.1968, p. 1)
Amended by:
Official Journal
No page date
►A1Act of Accession of Denmark, Ireland and the United Kingdom of Great
Britain and Northern Ireland L 73 14 27.3.1972
►A2Act of Accession of Greece L 291 17 19.11.1979
►A3Act of Accession of Austria, Sweden and Finland C 241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
Corrected by:
►C1Corrigendum, OJ L 999, 1.1.1973, p. 28 (1017/68)
NB: This consolidated version contains references to the European unit of account and/or the ecu, which from 1 January 1999
should be understood as references to the euro — Council Regulation (EEC) No 3308/80 (OJ L 345, 20.12.1980, p. 1) andCouncil Regulation (EC) No 1103/97 (OJ L 162, 19.6.1997, p. 1).
1968R1017 — EN — 01.01.1995 — 001.001 — 2
▼B
REGULATION (EEC)No 1017/68 OF THE COUNCIL
of 19 July 1968
applying rules of competition to transport by rail, road and inland
waterway
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European EconomicCommunity, and in particular Articles 75 and 87 thereof;
Having regard to the proposal from the Commission;Having regard to the Opinion of the European Parliament (
1);
Having regard to the Opinion of the Economic and Social
Committee (2);
Whereas Council Regulation No 141 (3) exempting transport from the
application of Regulation No 17 provides that the said Regulation No17 (
4) shall not apply to agreements, decisions and concerted practices
in the transport sector the effect of which is to fix transport rates andconditions, to limit or control the supply of transport or to sharetransport markets, nor to dominant positions, within the meaning ofArticle 86 of the Treaty, on the transport market;
Whereas, for transport by rail, road and inland waterway, Regulation No
1002/67/CEE (
5) provides that such exemption shall not extend beyond
30 June 1968;
Whereas the establishing of rules of competition for transport by rail,
road and inland waterway is part of the common transport policy and ofgeneral economic policy;
Whereas, when rules of competition for these sectors are being settled,
account must be taken of the distinctive features of transport;
Whereas, since the rules of competition for transport derogate from the
general rules of competition, it must be made possible for undertakingsto ascertain what rules apply in any particular case;
Whereas, with the introduction of a system of rules on competition for
transport, it is desirable that such rules should apply equally to the jointfinancing or acquisition of transport equipment for the joint operation ofservices by certain groupings of undertakings, and also to certain opera-tions in connection with transport by rail, road or inland waterway ofproviders of services ancillary to transport;
Whereas, in order to ensure that trade between Member States is not
affected or competition within the common market distorted, it is neces-sary to prohibit in principle for the three modes of transport specifiedabove all agreements between undertakings, decisions of associations ofundertakings and concerted practices between undertakings and allinstances of abuse of a dominant position within the common marketwhich could have such effects;
Whereas certain types of agreement, decision and concerted practice in
the transport sector the object and effect of which is merely to applytechnical improvements or to achieve technical co-operation may beexempted from the prohibition on restrictive agreements since theycontribute to improving productivity; whereas, in the light of experiencefollowing application of this Regulation, the Council may, on a proposalfrom the Commission, amend the list of such types of agreement;
(1) OJ No 205, 11.12.1964, p. 3505/64.
(2) OJ No 103, 12.6.1965, p. 1792/65.
(3) OJ No 124, 28.11.1962, p. 2751/62.
(4) OJ No 13, 21.21.1962, p. 204/62.
(5) OJ No 306, 16.12.1967, p. 1.
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Whereas, in order that an improvement may be fostered in the some-times too dispersed structure of the industry in the road and inlandwaterway sectors, there should also be exempted from the prohibitionon restrictive agreements those agreements, decisions and concertedpractices providing for the creation and operation of groupings ofundertakings in these two transport sectors whose object is the carryingon of transport operations, including the joint financing or acquisition oftransport equipment for the joint operation of services; whereas suchoverall exemption can be granted only on condition that the totalcarrying capacity of a grouping does not exceed a fixed maximum, andthat the individual capacity of undertakings belonging to the groupingdoes not exceed certain limits so fixed as to ensure that no one under-taking can hold a dominant position within the grouping; whereas theCommission must, however, have power to intervene if, in specificcases, such agreements should have effects incompatible with the condi-tions under which a restrictive agreement may be recognised as lawful,and should constitute an abuse of the exemption; whereas, nevertheless,the fact that a grouping has a total carrying capacity greater than thefixed maximum, orcannot claim the over all exemption because of theindividual capacity of the undertakings belonging to the grouping, doesnot in itself prevent such a grouping from constituting a lawful agree-ment, decision or concerted practice if it satisfies the conditions thereforlaid down in this Regulation;
Whereas, where an agreement, decision or concerted practice contri-
butes towards improving the quality of transport services, or towardspromoting greater continuity and stability in the satisfaction of transportneeds on markets where supply and demand may be subject to consider-able temporal fluctuation, or towards increasing the productivity ofundertakings, or towards furthering technical or economic progress, itmust be made possible for the prohibition to be declared not to apply,always provided, however, that the agreement, decision or concertedpractice takes fair account of the interests of transport users, and neitherimposes on the undertakings concerned any restriction not indispensableto the attainment of the above objectives normakes it possible forsuchundertakings to eliminate competition in respect of a substantial part ofthe transport market concerned, having regard to competition fromalternative modes of transport;
Whereas it is desirable until such time as the Council, acting in pursu-
ance of the common transport policy, introduces appropriate measuresto ensure a stable transport market, and subject to the condition that theCouncil shall have found that a state of crisis exists, to authorise, for themarket in question, such agreements as are needed in order to reducedisturbance resulting from the structure of the transport market;
Whereas, in respect of transport by rail, road and inland waterway, it is
desir able that MemberStates should neitherenact normaintain in for cemeasures contrary to this Regulation concerning public undertakings orundertakings to which they grant special or exclusive rights; whereas itis also desirable that undertakings entrusted with the operation ofservices of general economic importance should be subject to the provi-sions of this Regulation in so faras the application ther eof does notobstruct, in law or in fact, the accomplishment of the particular tasksassigned to them, always provided that the development of trade is notthereby affected to such an extent as would be contrary to the interestsof the Community; whereas the Commission must have power to seethat these principles are applied and to address the appropriate direct-ives ordecisions forthis pur pose to MemberStates;
Whereas the detailed rules for application of the basic principles of this
Regulation must be so drawn that they not only ensure effective super-vision while simplifying administration as far as possible but also meetthe needs of undertakings for certainty in the law;
Whereas it is for the undertakings themselves, in the first instance, to
judge whetherthe pr edominant effects of theiragr eements, decisions orconcerted practices are the restriction of competition or the economicbenefits acceptable as justification for such restriction and to decideaccordingly, on their own responsibility, as to the illegality or legalityof such agreements, decisions or concerted practices;
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Whereas, therefore, undertakings should be allowed to conclude oroperate agreements without declaring them; whereas this exposes suchagreements to the risk of being declared void with retroactive effectshould they be examined following a complaint oron the Commis-sions’s own initiative, but does not prevent their being retroactivelydeclared lawful in the event of such subsequent examination;
Whereas, however, undertakings may, in certain cases, desire the assis-
tance of the competent authorities to ensure that their agreements,decisions or concerted practices are in conformity with the rules applic-able; whereas for this purpose there should be made available to under-takings a procedure whereby they may submit applications to theCommission and a summary of each such application is published in theOfficial Journal of the European Communities , enabling any interested
third parties to submit their comments on the agreement in question;whereas, in the absence of any complaint from Member States orinterested third parties and unless the Commission notifies applicantswithin a fixed time limit, that there are serious doubts as to the legalityof the agreement in question, that agreement should be deemed exemptfrom the prohibition for the time already elapsed and for a furtherperiod of three years;
Whereas, in view of the exceptional nature of agreements needed in
order to reduce disturbances resulting from the structure of the transportmarket, once the Council has found that a state of crisis exists undertak-ings wishing to obtain authorisation for such an agreement should berequired to notify it to the Commission; whereas authorisation by theCommission should have effect only from the date when it is decided togrant it; whereas the period of validity of such authorisation should notexceed three years from the finding of a state of crisis by the Council;whereas renewal of the decision shoulddepend upon renewal of thefinding of a state of crisis by the Council; whereas, in any event, theauthorisation should cease to be valid not later than six months from thebringing into operation by the Council of appropriate measures toensure the stability of the transport market to which the agreementrelates;
Whereas, in order to secure uniform application within the common
market of the rules of competition for transport, rules must be madeunderwhich the Commission, acting in close and constant liaison withthe competent authorities of the Member States, may take the measuresrequired for the application of such rules of competition;
Whereas for this purpose the Commission must have the co-operation of
the competent authorities of the Member States and be empoweredthroughout the common market to request such information and to carryout such investigations as are necessary to bring to light any agreement,decision or concerted practice prohibited under this Regulation, or anyabuse of a dominant position prohibited under this Regulation.
Whereas, if, on the application of the Regulation to a specific case, a
Member State is of the opinion that a question of principle concerningthe common transport policy is involved, it should be possible for suchquestions of principle to be examined by the Council; whereas it shouldbe possible for any general questions raised by the implementation ofthe competition policy in the transport sector to be referred to theCouncil; whereas a procedure must be provided for which ensures thatany decision to apply the Regulation in a specific case will be taken bythe Commission only afterthe questions of pr inciple have been exam-ined by the Council, and in the light of the policy guidelines thatemerge from that examination;
Whereas, in order to carry out its duty of ensuring that the provisions of
this Regulation are applied, the Commission must be empowered toaddress to undertakings or associations of undertakings recommenda-tions and decisions for the purose of bringing to an end infringements ofthe provisions of this Regulation prohibiting certain agreements, deci-sions orpr actices;
Whereas compliance with the prohibitions laid down in this Regulation
and the fulfilment of obligations imposed on undertakings and associa-
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tions of undertakings under this Regulation must be enforceable by
means of fines and periodic penalty payments;
Whereas undertakings concerned must be accorded the right to be heard
by the Commission, third parties whose interests may be affected by adecision must be given the opportunity of submitting their commentsbeforehand, and it must be ensured that wide publicity is given todecisions taken;
Whereas it is desirable to confer upon the Court of Justice, pursuant to
Article 172, unlimited jurisdiction in respect of decisions under whichthe Commission imposes fines orper iodic penalty payments;
Whereas it is expedient to postpone for six months, as regards agree-
ments, decisions and concerted practices in existence at the date ofpublication of this Regulation in the Official Journal of the European
Communities , the entry into force of the prohibition laid down in the
Regulation, in or derto make it easierforunder takings to adjust theiroperations so as to conform to its provisions;
Whereas, following discussions with the third countries signatories to
the Revised Convention forthe Navigation of the Rhine, and within anappropriate period of time from the conclusion of those discussions, thisRegulation as a whole should be amended as necessary in the light ofthe obligations arising out of the Revised Convention for the Navigationof the Rhine;
Whereas the Regulation should be amended as necessary in the light of
the experience gained over a three-year period; whereas it will inparticular be desirable to consider whether, in the light of the develop-ment of the common transport policy over that period, the scope of theRegulation should be extended to agreements, decisions and concertedpractices, and to instances of abuse of a dominant position, not affectingtrade between Member States;
HAS ADOPTED THIS REGULATION:
Article 1
Basic provision
The provisions of this Regulation shall, in the field of transport by rail,
road and inland waterway, apply both to all agreements, decisions andconcerted practices which have as their object or effect the fixing oftransport rates and conditions, the limitation or control of the supply oftransport, the sharing of transport markets, the application of technicalimpr ovements ortechnical co-oper ation, orthe joint financing oracqui-sition of transport equipment or supplies where such operations aredirectly related to the provision of transport services and are necessaryfor the joint operation of services by a grouping within the meaning ofArticle 4 of road or inland waterway transport undertakings, and to theabuse of a dominant position on the transport market. These provisionsshall apply also to operations of providers of services ancillary totransport which have any of the objects or effects listed above.
Article 2
Prohibition of restrictive practices
Subject to the provisions of Articles 3 to 6, the following shall be
prohibited as incompatible with the common market, no prior decisionto that effect being required; all agreements between undertakings,decisions by associations of undertakings and concerted practices liableto affect tr ade between MemberStates which have as theirobject oreffect the prevention, restriction or distortion of ►
C1competition ◄
within the common market, and in particular those which:
(a) directly or indirectly fix transport rates and conditions or any other
trading conditions;
(b) limit or control the supply of transport, markets, technical develop-
ment orinvestment;
1968R1017 — EN — 01.01.1995 — 001.001 — 6
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(c) share transport markets;
(d) apply dissimilarconditions to equivalent tr ansactions with other
trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other
parties of additional obligations which, by their nature or accordingto commercial usage, have no connection with the provision oftransport services.
Article 3
Exception for technical agreements
1. The prohibition laid down in Article 2 shall not apply to agree-
ments, decisions or concerted practices the object and effect of which isto apply technical improvements or to achieve technical co-operation bymeans of:
(a) the standardisation of equipment, transport supplies, vehicles or
fixed installations;
(b) the exchange or pooling, for the purpose of operating transport
services, of staff, equipment, vehicles or fixed installations;
(c) the organisation and execution of successive, complementary,
substitute or combined transport operations, and the fixing andapplication of inclusive rates and conditions for such operations,including special competitive rates;
(d) the use, for journeys by a single mode of transport, of the routes
which are most rational from the operational point of view;
(e) the co-ordination of transport timetables for connecting routes;
(f) the grouping of single consignments;
(g) the establishment of uniform rules as to the structure of tariffs and
their conditions of application, provided such rules do not lay downtransport rates and conditions.
2. The Commission shall, where appropriate, submit proposals to the
Council with a view to extending or reducing the list in paragraph 1.
Article 4
Exemption for groups of small and medium-sized undertakings
1. The agreements, decisions and concerted practices referred to in
Article 2 shall be exempt from the prohibition in that Article wheretheirpur pose is:
— the constitution and operation of groupings of road or inland
waterway transport undertakings with a view to carrying on trans-port activities;
— the joint financing or acquisition of transport equipment or supplies,
where these operations are directly related to the provision of trans-port services and are necessary for the joint operations of the afore-said groupings;
always provided that the total carrying capacity of any grouping does
not exceed:
— 10 000 metric tons in the case of road transport,— 500 000 metric tons in the case of transport by inland waterway.
The individual capacity of each undertaking belonging to a grouping
shall not exceed 1 000 metric tons in the case of road transport or50 000 metric tons in the case of transport by inland waterway.
2. If the implementation of any agreement, decision or concerted
practice covered by paragraph 1 has, in a given case, effects which areincompatible with the requirements of Article 5 and which constitute anabuse of the exemption from the provisions of Article 2, undertakings orassociations of undertakings may be required to make such effectscease.
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Article 5
Non-applicability of the prohibition
The prohibition in Article 2 may be declared inapplicable with retroac-
tive effect to:
— any agreement or category of agreement between undertakings,— any decision or category of decision of an association of undertak-
ings, or
— any concerted practice or category of concerted practice which
contributes towards:
— improving the quality of transport services; or— promoting greater continuity and stability in the satisfaction of
transport needs on markets where supply and demand are subject toconsiderable temporal fluctuation; or
— increasing the productivity of undertakings; or— furthering technical or economic progress;
and at the same time takes fair account of the interests of transport users
and neither:
(a) imposes on the transport undertakings concerned any restriction
not essential to the attainment of the above objectives; nor
(b) makes it possible forsuch under takings to eliminate competition
in respect of a substantial part of the transport marketconcerned.
Article 6
Agreements intended to reduce disturbances resulting from the
structure of the transport market
1. Until such time as the Council, acting in pursuance of the common
transport policy, introduces appropriate measures to ensure a stabletransport market, the prohibition laid down in Article 2 may be declaredinapplicable to any agreement, decision or concerted practice whichtends to reduce disturbances on the market in question.
2. A decision not to apply the prohibition laid down in Article 2,
made in accordance with the procedure laid down in Article 14, may notbe taken until the Council, either acting by a qualified majority or,where any Member State considers that the conditions set out in Article75 (3) of the Treaty are satisfied, acting unanimously, has found, on thebasis of a report by the Commission, that a state of crisis exists in all orpart of a transport market.
3. Without prejudice to the provisions of paragraph 2, the prohibition
in Article 2 may be declared inapplicable only where:
(a) the agreement, decision or concerted practice in question does not
impose upon the undertakings concerned any restriction not indis-pensable to the reduction of disturbances; and
(b) does not make it possible forsuch under takings to eliminate
competition in respect of a substantial part of the transport marketconcerned.
Article 7
Invalidity of agreements and decisions
Any agreement or decision prohibited under the foregoing provisions
shall be automatically void.
Article 8
Prohibition of abuse of dominant positions
Any abuse by one or more undertakings of a dominant position within
the common market or in a substantial part of it shall be prohibited asincompatible with the common market in so far as trade betweenMemberStates may be affected ther eby.
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Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair transport rates or conditions;
(b) limiting the supply of transport, markets or technical development
to the prejudice of consumers;
(c) applying dissimilarconditions to equivalent tr ansactions with other
trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the
other parties of supplementary obligations which, by their nature oraccording to commercial usage, have no connection with the provi-sion of transport services.
Article 9
Public undertakings
1. In the case of public undertakings and undertakings to which
Member States grant special or exclusive rights, Member States shallneither enact nor maintain in force any measure contrary to the provi-sions of the foregoing Articles.
2. Undertakings entrusted with the operation of services of general
economic importance shall be subject to the provisions of the foregoingArticles, in so far as the application thereof does not obstruct, in law orin fact, the accomplishment of the particular tasks assigned to them. Thedevelopment of trade must not be affected to such an extent as would becontrary to the interests of the Community.
3. The Commission shall see that the provisions of this Article are
applied and shall, where necessary, address appropriate directives ordecisions to MemberStates.
Article 10
Procedures on complaint or on the Commission’s own initiative
Acting on receipt of a complaint or on its own initiative, the Commis-
sion shall initiate procedures to terminate any infringement of theprovisions of Article 2 or of Article 8 or to enforce Article 4 (2).
Complaints may be submitted by:
(a) MemberStates;
(b) natural or legal persons who claim a legitimate interest.
Article 11
Result of procedures on complaint or on the Commission’s own
initiative
1. Where the Commission finds that there has been an infringement
of Article 2 or Article 8, it may by decision require the undertakings orassociations of undertakings concerned to bring such an infringement toan end.
Without prejudice to the other provisions of this Regulation, the
Commission may, before taking a decision under the preceding subpara-graph, address to the undertakings or associations of undertakingsconcerned recommendations for termination of the infringement.
2. Paragraph 1 shall apply also to cases falling within Article 4 (2).3. If the Commission, acting on a complaint received, concludes that
on the evidence before it there are no grounds for intervention underArticle 2, Article 4 (2) or Article 8 in respect of any agreement,decision or practice, it shall issue a decision rejecting the complaint asunfounded.
4. If the Commission, whetheracting on a complaint r eceived oron
its own initiative, concludes that an agreement, decision or concertedpractice satisfies the provisions both of Article 2 and of Article 5, itshall issue a decision applying Article 5. Such a decision shall indicate
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the date from which it is to take effect. This date may be prior to that of
the decision.
Article 12
Application of Article 5 — objections
1. Undertakings and associations of undertakings which seek applica-
tion of Article 5 in respect of agreements, decisions and concertedpractices falling within the provisions of Article 2 to which they areparties may submit applications to the Commission.
2. If the Commission judges an application admissible and is in
possession of all the available evidence, and no action underAr ticle 10has been taken against the agreement, decision or concerted practice inquestion, then it shall publish as soon as possible in the Official Journal
of the European Communities a summary of the application and invite
all interested third parties to submit their comments to the Commissionwithin thirty days. Such publication shall have regard to the legitimateinterest of undertakings in the protection of their business secrets.
3. Unless the Commission notifies applicants, within ninety days
from the date of such publication in the Official Journal of the Euro-
pean Communities , that there are serious doubts as to the applicability
of Article 5, the agreement, decision or concerted practice shall bedeemed exempt, in so far as it conforms with the description given inthe application, from the prohibition for the time already elapsed and fora maximum of three years from the date of publication in the Official
Journal of the European Communities .
If the Commission finds, afterexpir y of the ninety-day time limit, but
before expiry of the three-year period, that the conditions for applyingArticle 5 are not satisfied, it shall issue a decision declaring that theprohibition in Article 2 is applicable. Such a decision may be retroactivewhere the parties concerned have given inaccurate information or wherethey abuse the exemption from the provisions of Article 2.
4. If, within the ninety-day time limit, the Commission notifies appli-
cants as referred to in the first subparagraph of paragraph 3, it shallexamine whether the provisions of Article 2 and of Article 5 aresatisfied.
If it finds that the provisions of Article 2 and of Article 5 are satisfied it
shall issue a decision applying Article 5. The decision shall indicate thedate from which it is to take effect. This date may be prior to that of theapplication.
Article 13
Duration and revocation of decisions applying Article 5
1. Any decision applying Article 5 taken under Article 11 (4) or
under the second subparagraph of Article 12 (4) shall indicate theperiod for which it is to be valid; normally such a period shall not beless than six years. Conditions and obligations may be attached to thedecision.
2. The decision may be renewed if the conditions for applying
Article 5 continue to be satisfied.
3. The Commission may r evoke oramend its decision orpr ohibit
specified acts by the parties:
(a) where there has been a change in any of the facts which were basic
to the making of the decision;
(b) where the parties commit a breach of any obligation attached to the
decision;
(c) where the decision is based on incorrect information or was induced
by deceit;
(d) where the parties abuse the exemption from the provisions of
Article 2 granted to them by the decision.
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In cases falling within (b), (c) or(d), the decision may be r evoked withretroactive effect.
Article 14
Decisions applying Article 6
1. Any agreement, decision or concerted practice covered by Article
2 in respect of which the parties seek application of Article 6 shall benotified to the Commission.
2. Any decision by the Commission to apply Article 6 shall have
effect only from the date of its adoption. It shall state the period forwhich it is to be valid. Such a period shall not exceed three years fromthe finding of a state of crisis by the Council provided for in Article 6(2).
3. Such decision may be renewed by the Commission if the Council
again finds, acting under the procedure provided for in Article 6 (2),that there is a state of crisis and if the other conditions laid down inArticle 6 continue to be satisfied.
4. Conditions and obligations may be attached to the decision.5. The decision of the Commission shall cease to have effect not
later than six months from the coming into operation of the measuresreferred to in Article 6 (1).
6. The provisions of Article 13 (3) shall apply.
Article 15
Powers
Subject to review of its decision by the Court of Justice, the Commis-
sion shall have sole power:
— to impose obligations pursuant to Article 4 (2);— to issue decisions pursuant to Article 5 and 6.
The authorities of the Member States shall retain the power to decide
whether any case falls within the provisions of Article 2 or Article 8,until such time as the Commission has initiated a procedure with a viewto formulating a decision in the case in question or has sent notificationas provided for in the first subparagraph of Article 12 (3).
Article 16
Liaison with the authorities of the Member States
1. The Commission shall carry out the procedures provided for in
this Regulation in close and constant liaison with the competent authori-ties of the Member States; these authorities shall have the right toexpress their views on such procedures.
2. The Commission shall immediately forward to the competent
authorities of the Member States copies of the complaints and applica-tions, and of the most important documents sent to it or which it sendsout in the course of such procedures.
3. An Advisory Committee on Restrictive Practices and Monopolies
in the Transport Industry shall be consulted prior to the taking of anydecision following upon a procedure under Article 10 or of any decisionunder the second subparagraph of Article 12 (3), or under the secondsubparagraph of paragraph 4 of the same Article, or under paragraph 2or paragraph 3 of Article 14. The Advisory Committee shall also beconsulted prior to adoption of the implementing provisions provided forin Article 29.
4. The Advisory Committee shall be composed of officials
competent in the matter of restrictive practices and monopolies intransport. Each Member State shall appoint two officials to represent it,each of whom, if prevented from attending, may be replaced by someotherofficial.
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5. Consultation shall take place at a joint meeting convened by the
Commission; such a meeting shall be held not earlier than fourteen daysafterdispatch of the notice convening it. This notice shall, in r espect ofeach case to be examined, be accompanied by a summary of the casetogetherwith an indication of the most impor tant documents, and apreliminary draft decision.
6. The Advisory Committee may deliver an opinion notwithstanding
that some of its members or their alternates are not present. A report ofthe outcome of the consultative proceedings shall be annexed to thedraft decision. It shall not be made public.
Article 17
Consideration by the Council of questions of principle concerning
the common transport policy raised in connection with specific
cases
1. The Commission shall not give a decision in respect of which
consultation as laid down in Article 16 is compulsory until after theexpiry of twenty days from the date on which the Advisory Committeehas delivered its Opinion.
2. Before the expiry of the period specified in paragraph 1, any
MemberState may r equest that the Council be convened to examinewith the Commission any question of principle concerning the commontransport policy which such Member State considers to be involved inthe particular case for decision.
The Council shall meet within thirty days from the request by the
Member State concerned for the sole purpose of considering suchquestions of principle.
The Commission shall not give its decision until afterthe Council
meeting.
3. Further, the Council may at any time, at the request of a Member
State or of the Commission, consider general questions raised by theimplementation of the competition policy in the transport sector.
4. In all cases where the Council is asked to meet to consider under
paragraph 2 questions of principle or under paragraph 3 general ques-tions, the Commission shall, forthe pur poses of this Regulation, takeinto account the policy guidelines which emerge from that meeting.
Article 18
Inquiries into transport sectors
1. If trends in transport, fluctuations in or inflexibility of transport
rates, or other circumstances, suggest that competition in transport isbeing restricted or distorted within the common market in a specificgeographical area, or over one or more transport links, or in respect ofthe carriage of passengers or goods belonging to one or more specificcategories, the Commission may decide to conduct a general inquiryinto the sector concerned, in the course of which it may request trans-port undertakings in that sector to supply the information and documen-tation necessary for giving effect to the principles formulated in Articles2t o8 .
2. When making inquiries pursuant to paragraph 1, the Commission
shall also request undertakings or groups of undertakings whose sizesuggests that they occupy a dominant position within the commonmarket or a substantial part thereof to supply such particulars of thestructure of the undertakings and of their behaviour as are requisite toan appraisal of their position in the light of the provisions of Article 8.
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3. Article 16 (2) to (6) and Articles 17, 19, 20 and 21 shall apply.
Article 19
Requests for information
1. In carrying out the duties assigned to it by this Regulation, the
Commission may obtain all necessary information from the Govern-ments and competent authorities of the Member States and from under-takings and associations of undertakings.
2. When sending a request for information to an undertaking or
association of undertakings, the Commission shall at the same timeforward a copy of the request to the competent authority of the MemberState in whose territory the seat of the undertakings is situated.
3. In its request, the Commission shall state the legal basis and the
purpose of the request, and also the penalties provided for in Article 22(1) (b) for supplying incorrect information.
4. The owners of the undertakings or their representatives and, in the
case of legal persons, companies or firms, or of associations having nolegal personality, the person authorised to represent them by law or bytheir constitution, shall be bound to supply the information requested.
5. Where an undertaking or association of undertakings does not
supply the information requested within the time limit fixed by theCommission, orsupplies incomplete infor mation, the Commission shallby decision require the information to be supplied. The decision shallspecify what information is required, fix an appropriate time limitwithin which it is to be supplied and indicate the penalties provided forin Article 22 (1) (b) and Article 23 (1) (c), and the right to have thedecision reviewed by the Court of Justice.
6. The Commission shall at the same time forward a copy of its
decision to the competent authority of the Member State in whoseterritory the seat of the undertaking or association of undertakings issituated.
Article 20
Investigations by the authorities of the Member States
1. At the request of the Commission, the competent authorities of the
MemberStates shall under take the investigations which the Commis-sion considers to be necessary under Article 21 (1), or which it hasordered by decision pursuant to Article 21 (3). The officials of thecompetent authorities of the Member States responsible for conductingthese investigations shall exercise their powers upon production of anauthorisation in writing issued by the competent authority of theMember State in whose territory the investigation is to be made. Suchauthorisation shall specify the subject matter and purpose of the invest-igation.
2. If so requested by the Commission or by the competent authority
of the Member State in whose territory the investigation is to be made,the officials of the Commission may assist the officials of suchauthority in carrying out their duties.
Article 21
Investigating powers of the Commission
1. In carrying out the duties assigned to it by this Regulation, the
Commission may undertake all necessary investigations into undertak-ings and associations of undertakings. To this end the officials author-ised by the Commission are empowered:
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(a) to examine the books and other business records;
(b) to take copies of or extracts from the books and business records;
(c) to ask foror al explanations on the spot;
(d) to enter any premises, land and vehicles of undertakings.
2. The officials of the Commission authorised for the purpose of
these investigations shall exercise their powers upon production of anauthorisation in writing specifying the subject matter and purpose of theinvestigation and the penalties provided for in Article 22 (1) (c) in caseswhere production of the required books or other business records isincomplete.
In good time before the investigation, the Commission shall inform the
competent authority of the Member State in whose territory the same isto be made of the investigation and of the identity of the authorisedofficials.
3. Undertakings and associations of undertakings shall submit to
investigations ordered by decision of the Commission. The decisionshall specify the subject matterand pur pose of the investigation, appointthe date on which it is to begin and indicate the penalties provided forin Article 22 (1) (c) and Article 23 (1) (d) and the right to have thedecision reviewed by the Court of Justice.
4. The Commission shall take decisions referred to in paragraph 3
afterconsultation with the competent author ity of the MemberState inwhose territory the investigation is to be made.
5. Officials of the competent authority of the Member State in whose
territory the investigation is to be made, may at the request of suchauthority or of the Commission, assist the officials of the Commissionin carrying out their duties.
6. Where an undertaking opposes an investigation ordered pursuant
to this Article, the Member State concerned shall afford the necessaryassistance to the officials authorised by the Commission to enable themto make theirinvestigation. MemberStates shall, afterconsultation withthe Commission, take the necessary measures to this end before 1January 1970. ►
A1New MemberStates shall, afterconsulting the
Commission, take the necessary measures to this end within six monthsfrom the date of accession. ◄►
A2The Hellenic Republic shall, after
consultation with the Commission, take the necessary measures to thisend within a period of six months following accession. ◄
Article 22
Fines
1. The Commission may by decision impose on undertakings or
associations of undertakings fines of one hundred to five thousand unitsof account where, intentionally or negligently:
(a) they supply incorrect or misleading information in an application
pursuant to Article 12 or in a notification pursuant to Article 14; or
(b) they supply incorrect information in response to a request made
pursuant to Article 18 or to Article 19 (3) or (5), or do not supplyinformation within the time limit fixed by a decision taken underArticle 19 (5); or
(c) they produce the required books or other business records in incom-
plete form during investigations under Article 20 or Article 21, orrefuse to submit to an investigation ordered by decision issued inimplementation of Article 21 (3).
2. The Commission may by decision impose on undertakings or
associations of undertakings fines of one thousand to one million unitsof account, ora sum in excess ther eof but not exceeding 10 % of theturnover in the preceding business year of each of the undertakingsparticipating in the infringement, where either intentionally or negli-gently:
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(a) they infringe Article 2 or Article 8; or
(b) they commit a breach of any obligation imposed pursuant to Article
13 (1) orAr ticle 14 (4).
In fixing the amount of the fine, regard shall be had both to the gravity
and to the duration of the infringement.
3. Article 16 (3) to (6) and Article 17 shall apply.4. Decisions taken pursuant to paragraphs 1 and 2 shall not be of a
criminal law nature.
Article 23
Periodic penalty payments
1. The Commission may by decision impose on undertakings or
associations of undertakings periodic penalty payments of fifty to onethousand units of account perday, calculated fr om the date appointedby the decision, in order to compel them:
(a) to put an end to an infringement of Article 2 or Article 8 of this
Regulation the termination of which it has ordered pursuant toArticle 11 or to comply with an obligation imposed pursuant toArticle 4 (2);
(b) to refrain from any act prohibited under Article 13 (3);
(c) to supply complete and correct information which it has requested
by decision taken pursuant to Article 19 (5);
(d) to submit to an investigation which it has ordered by decision taken
pursuant to Article 21 (3).
2. Where the undertakings or associations of undertakings have satis-
fied the obligation which was the purpose of the periodic penaltypayment to enforce, the Commission may fix the total amount of theperiodic penalty payment at a lower figure than that which would ariseunderthe or iginal decision.
3. Article 16 (3) to (6) and Article 17 shall apply.
Article 24
Review by the Court of Justice
The Court of Justice shall have unlimited jurisdiction within the
meaning of Article 172 of the Treaty to review decisions whereby theCommission has fixed a fine orper iodic penalty payment; it maycancel, reduce or increase the fine or periodic penalty payment imposed.
Article 25
Unit of account
For the purpose of applying Articles 23 to 24 the unit of account shall
be that adopted in drawing up the budget of the Community in accord-ance with Articles 207 and 209 of the Treaty.
Article 26
Hearing of the parties and of third persons
1. Before taking decisions as provided for in Articles 11, 12 (3),
second subparagraph, and 12 (4), 13 (3), 14 (2) and (3), 22 and 23, theCommission shall give the undertakings or associations of undertakingsconcerned the opportunity of being heard on the matters to which theCommission has taken objection.
2. If the Commission orthe competent author ities of the Member
States considerit necessar y, they may also hearothernatur al of legalpersons. Applications to be heard on the part of such persons wherethey show a sufficient interest shall be granted.
3. Where the Commission intends to give negative clearance
pursuant to Article 5 or Article 6, it shall publish a summary of therelevant agreement, decision or concerted practice and invite all inter-
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ested third parties to submit their observations within a time limit which
it shall fix being not less than one month. Publication shall have regardto the legitimate interest of undertakings in the protection of theirbusiness secrets.
Article 27
Professional secrecy
1. Information acquired as a result of the application of Articles 18,
19, 20 and 21 shall be used only for the purpose of the relevant requestorinvestigation.
2. Without prejudice to the provisions of Articles 26 and 28, the
Commission and the competent authorities of the Member States, theirofficials and other servants shall not disclose information acquired bythem as a result of the application of this Regulation and of the kindcovered by the obligation of professional secrecy.
3. The provisions of paragraphs 1 and 2 shall not prevent publication
of general information or surveys which do not contain informationrelating to particular undertakings or associations of undertakings.
Article 28
Publication of decisions
1. The Commission shall publish the decisions which it takes
pursuant to Articles 11, 12 (3), second subparagraph, 12 (4), 13 (3) and14 (2) and (3).
2. The publication shall state the names of the parties and the main
content of the decision; it shall have regard to the legitimate interest ofundertakings in the protection of their business secrets.
Article 29
Implementing provisions
The Commission shall have powerto adopt implementing pr ovisions
concerning the form, content and other details of complaints pursuant toArticle 10, applications pursuant to Article 12, notifications pursuant toArticle 14 (1) and the hearings provided for in Article 26 (1) and (2).
Article 30
Entry into force, existing agreements
1. This Regulation shall enterinto for ce on 1 July 1968.2. Notwithstanding the provisions of paragraph 1, Article 8 shall
enterinto for ce on the day following the publication of this Regulationinthe Official Journal of the European Communities .
3. The prohibition in Article 2 shall apply from 1 January 1969 to all
agreements, decisions and concerted practices falling within Article 2which were in existence at the date of entry into force of this Regulationorwhich came into being between that date and the date of publicationof this Regulation in the Official Journal of the European Communities .
▼
A3
The prohibition in Article 85 (1) of the Treaty shall not apply toagreements, decisions and concerted practices which were in existenceat the date of accession of Austria, Finland and Sweden and which, byreason of that accession, fall within the scope of Article 85 (1) if, withinsix months from the date of accession, they are so amended that theycomply with the conditions laid down in Articles 4 and 5 of thisRegulation. This subparagraph 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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4. Paragraph 3 shall not be invoked against undertakings or associa-tions of undertakings which, before the day following publication of thisRegulation in the Official Journal of the European Communities , shall
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have terminated any agreements, decisions or concerted practices towhich they are party.
Article 31
Review of the Regulation
1. Within six months of the conclusion of discussions with the third
countries signatories to the Revised Convention for the Navigation ofthe Rhine; the Council, on a proposal from the Commission, shall makeany amendments to this Regulation which may prove necessary in thelight of the obligations arising out of the Revised Convention for theNavigation of the Rhine.
2. The Commission shall submit to the Council, before 1 January
1971, a general report on the operation of this Regulation and, before 1July 1971, a proposal for a Regulation to make the necessary amend-ments to this Regulation.
This Regulation shall be binding in its entirety and directly applicable in
all Members States.