1993R1617 — EN — 29.06.2002 — 005.001 — 1
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►B COMMISSIONREGULATION(EEC)No1617/93
of25June1993
ontheapplicationofArticle85(3)oftheTreatytocertaincategoriesofagreementsandconcerted
practices concerning joint planning and coordination of schedules, joint operations, consultations
onpassengerandcargotariffsonscheduledairservicesandslotallocationatairports
(OJ L 155, 26.6.1993, p. 18)
Amended by:
Official Journal
No page date
►M1Commission Regulation (EC) No 1523/96 of 24 July 1996 L 190 11 31.7.1996
►M2Commission Regulation (EC) No 1083/1999 of 26 May 1999 L 131 27 27.5.1999
►M3Commission Regulation (EC) No 1324/2001 of 29 June 2001 L 177 56 30.6.2001
►M4Commission Regulation (EC) No 1105/2002 of 25 June 2002 L 167 6 26.6.2002
Amended by:
►A1Act 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 15, 18.1.1994, p. 20 (1617/93)
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).
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COMMISSIONREGULATION(EEC)No1617/93
of25June1993
on the application of Article 85 (3) of the Treaty to certain cate-
gories of agreements and concerted practices concerning jointplanning and coordination of schedules, joint operations, consulta-tions on passenger and cargo tariffs on scheduled air services and
slotallocationatairports
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community,
Having regard to Council Regulation (EEC) No 3976/87 of 14
December 1987 on the application of Article 85 (3) of the Treaty tocertain categoriesof agreementsand concerted practicesin the airtransport sector(
1), aslas t amended by Regulation (EEC) No 2411/
92(2), and in particular Article 2 thereof,
Having published a draft of this Regulation(3),
Having consulted the Advisory Committee on Agreements and Domi-
nant Positions in Air Transport,
Whereas:
(1)Regulation (EEC) No 3976/87 empowers the Commission to
apply Article 85 (3) of the Treaty by regulation to certain cate-gories of agreements, decisions or concentrated practices relating
directly or indirectly to the provision of air transport services.
(2)Agreements, decisions or concerted practices concerning joint
planning and coordination of schedules, joint operations, consul-tationson tariffsand s lot allocation at airportsare liable to
restrict competition and affect trade between Member States.
(3)Joint planning and coordination of the schedule of an air service
can help to ensure the maintenance of services at less busy timesof the day, during less busy periods or on less busy routes, and
to develop onward connections, thus benefiting air transport
users. However, any clauses concerning extra flights must notrequire the approval of the other partiesor involve financialpenalties. The arrangements must also allow parties to withdrawfrom them at reasonably short notice.
(4)Arrangementswhereby a s maller airline receivesmarketing andfinancial support from another airline may help that smallerairline to operate air services on new or less busy routes.However, in order to avoid restrictions which are not indispen-sable to the attainment of that aim, the duration of such joint
operations must be limited to the time necessary to gain suffi-
cient commercial standing. The block exemption must not begranted to joint operationswhere both partiescould reas onablybe expected to operate the air service independently. Thoseconditions are without prejudice to the possibility, in appropriate
cases, of an application made under Article 5 of Council Regula-
tion (EEC) No 3975/87(
4), aslas t amended by Regulation (EEC)
No 2410/92(5), with a view to obtaining an individual exemption
where the conditionsare not met or where the partiesneed toextend the duration of the joint operation. In particular wherethe parties wish to avail themselves ►
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operation, of the market access ◄opportunitiescreated by
Council Regulation (EEC) No 2408/92(6) on routeswhich are
neither new nor less busy, but which otherwise fulfil the condi-1993R1617 — EN — 29.06.2002 — 005.001 — 2
(1) OJ No L 374, 31. 12. 1987, p. 9.
(2) OJ No L 240, 24. 8. 1992, p. 19.
(3) OJ No C 253, 30. 9. 1992, p. 5.
(4) OJ No L 374, 31. 12. 1987, p. 1.
(5) OJ No L 240, 24. 8. 1992, p. 18.
(6) OJ No L 240, 24. 8. 1992, p. 8.
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tionss et forth herein, an individual exemption may be
warranted.
(5)Consultations on passenger and cargo tariffs may contribute tothe generalized acceptance of interlinable faresand ratesto the
benefit of air carriers as well as air transport users. However,
consultations must not exceed the aim of facilitating interlining.Council Regulation (EEC) No 2409/92 of 23 July 1992 on faresand ratesfor air s ervices (
1), isbas ed on the principle of free
pricing and therefore increases the possibility of price competi-
tion in air transport. Hence, competition may not be eliminated
thereby. Consultations between air carriers on passenger andcargo tariffsmay therefore be permitted for the time being,provided that they are limited to faresand rateswhich give ris eto actual interlining, that the participation in such consultationsisoptional, that they do not lead to an agreement in res pect of
fares, rates or related conditions, that in the interests of transpar-
ency the Commission and the Member States concerned cansend observers to them, and that air carriers participating in theconsultation mechanism are obliged to interline with all othercarriersconcerned, at the tariffsapplied by the carrying airline
for the tariff category under discussion.
The Commission will reassess the effects of tariff consultations
on price competition in the light of the operation of Regulation(EEC) No 2409/92 and in the light of the development of the
Community air transport industry, and may make appropriate
changesto the exemption in the cours e of itslifetime;
(6)Arrangements on slot allocation at airports and airport sche-duling can improve the utilization of airport capacity andairspace, facilitate air-traffic control and help to spread thesupply of air transport services from the airport. However,►
C1if competition isnot to be eliminated ◄, entry to
congested airports must remain possible. In order to provide a
satisfactory degree of security and transparency, such arrange-mentscan only be accepted if all air carriersconcerned canparticipate in the negotiations, and if the allocation is made ona non-discriminatory and transparent basis.
(7)In accordance with Article 4 of Regulation (EEC) No 3976/87,
thisRegulation s hould apply with retroactive effect to agree-
ments, decisions and concerted practices in existence on thedate of entry into force of thisRegulation, provided that theymeet the conditionsfor exemption s et out in thisRegulation.
(8)In conformity with Article 7 of Regulation (EEC) No 3976/87,this Regulation should also specify the circumstances in whichthe Commission may withdraw the block exemption in indivi-
dual cases.
(9)No applicationsunder Article 3 or 5 of Regulation (EEC) No
3975/87 need be made in respect of agreements automaticallyexempted by this Regulation. However, when real doubt exists,undertakings may request the Commission to declare whethertheir arrangementscomply with thisRegulation.
(10)ThisRegulation iswithout prejudice to the application of Article86 of the Treaty,1993R1617 — EN — 29.06.2002 — 005.001 — 3
(1) OJ No L 240, 24. 8. 1992, p. 15.
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HAS ADOPTED THIS REGULATION:
TITLE I
EXEMPTIONS
Article 1
Pursuant to Article 85 (3) of the Treaty and subject to the provisions of
thisRegulation, it ishereby declared that Article 85 (1) of the Treatyshall not apply to agreements between undertakings in the air transportsector, decisions by associations of such undertakings and concertedpractices between such undertakings which have as their purpose oneor more of the following:
— the holding of consultations on tariffs for the carriage of passengers,
with their baggage, on scheduled air services between Communityairports,
— slot-allocation and airport scheduling in so far as they concern air
services between airports in the Community.
TITLE II
SPECIALPROVISIONS
Article 4
Specialprovisionsforconsultationsonpassengertariffs
1.►M1The exemption concerning the holding of consultations on
passenger tariffs shall apply only if the following conditions are
met:◄
(a) the participants only discuss air fares to be paid by air transport
users directly to a participating air carrier or to its authorizedagents, for carriage as passengers on a scheduled service, as well
as the conditions relating to those fares and rates. The consultations
shall not extend to the capacity for which such tariffs are to beavailable;
(b) the consultations give rise to interlining, that is to say, air transport
users must be able, in respect of the types of fares or rates and ofthe seasons which were the subject of the consultations:
(i) to combine on a single transportation document the service
which was the subject of the consultations, with services onthe same or on connecting routes operated by other air carriers,
whereby the applicable fares, rates and conditions are set by
the airline(s) effecting carriage; and
(ii) in so far as is permitted by the conditions governing the initial
reservation, to change a reservation on a service which was thesubject of the consultations onto a service on the same route
operated by another air carrier at the fares, rates and conditions
applied by that other carrier;
provided that an air carrier may refuse to allow such combinations
and changes of reservation for objective and non-discriminatory
reasons of a technical or commercial nature, in particular wherethe air carrier effecting carriage isconcerned with the credi worthi-ness of the air carrier who would be collecting payment for thiscarriage; in such case the latter air carrier must be notified thereofin writing;1993R1617 — EN — 29.06.2002 — 005.001 — 4
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(c) the passenger tariffs which are the subject of the consultations are
applied by participating air carrierswithout dis crimination ongrounds of passenger nationality or place of residence;
(d) participation in the consultations is voluntary and open to any air
carrier who operatesor intendsto operate direct or indirect s erviceson the route concerned;
(e) the consultations are not binding on participants, that is to say,
following the consultations the participants retain the right to actindependently in respect of passenger tariffs;
(f) the consultations do not entail agreement on agents' remuneration
or other elements of the tariffs discussed;
(g) where filing of tariffsisrequired, each participant individually files
each tariff which was not the subject of the consultations, with thecompetent authoritiesof the Member Statesconcerned; in s o doingit may act its elf or through itsfiling agent or through itsgeneralsales agent.
2. (a) The Commission and the Member States concerned shall be
entitled to send observers to tariff consultations. For this
purpose, air carriers shall give the Member States concernedand the Commission the same notice as is given to participants,but not less than 10 days' notice, of the date, venue and subjectmatter of the consultations.
(b) Such notice shall be given:
(i) to the Member Statesconcerned according to proceduresto
be established by the competent authorities of those Member
States;
(ii) to the Commission according to procedures to be published
in the Official Journal of the European Communities .
(c) A full report on these consultations shall be submitted to the
Commission by or on behalf of the air carriers involved at thesame time as it is submitted to participants, but not later than
six weeks after those consultations were held.
3. Air carriers participating in consultations on passenger tariffs
shall collect data as from 1 September 2002 with regard to:
(a) the relative part of tariffs set in the consultations of all fare traffic
within the EEA;
(b) the extent to which tickets at tariffs set in the consultations are
actually used for interlining;
(c) the extent to which tickets which are not at tariffs set in the consul-
tationsare actually us ed for interlining.
The data collected shall be provided to the Commission by or on behalf
of the air carriers involved at six-monthly intervals.
Article 5
Specialprovisionsforslotallocation andairportscheduling
1. The exemption concerning slot allocation and airport scheduling
shall apply only if the following conditions are met:
(a) the consultations on slot allocation and airport scheduling are open
to all air carriers having expressed an interest in the slots which arethe subject of the consultations;
(b) rules of priority are established and supplied without discrimina-
tion, that isto s ay that they neither directly nor indirectly relate tocarrier identity or nationality or category of service, take intoaccount constraints or air traffic distribution rules laid down bycompetent national or international authoritiesand give due cons id-1993R1617 — EN — 29.06.2002 — 005.001 — 5
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eration to the needsof the travelling publicsand of the airport
concerned. Subject to paragraph (d), such rules of priority maytake account of rightsacquired by air carriersthrough the us e of
particular slots in the previous corresponding season;
(c) the rules of priority, once established are made available on request
to any interested party;
(d) new entrantsasdefined in Article 2 (b) of Council Regulation
(EEC) No 95/93(
1) are allocated 50 % of newly created or unused
slots and slots which have been given up by a carrier during or by
the end of the season or which otherwise become available, to theextent that those new entrants have outstanding slot requests;
(e) air carriers participating in the consultations have access, at the
time of the consultations at the latest, to information relating to:
— historical slots by airline, chronologically, for all air carriers at
the airport,
— requested slots (initial submissions) by air carriers and chrono-
logically for all air carriers,
— allocated slots, and outstanding slot requests listed individually
in chronological order, by air carriers, for air carriers,
— remaining slots available,
— full detailson the criteria being us ed in the allocation.
If a request for slots is not accepted, the air carrier concerned shall
be entitled to a statement of the reasons therefor.
2. (a) The Commission and the Member States concerned shall be
entitled to send observers to consultations on slot allocationand airport scheduling held in the context of a multilateralmeeting in advance of each season. For this purpose, air carriersshall give the Member States concerned and the Commission the
same notice as is given to participants, but not less than 10 days'
notice, of the date, venue and subject matter of the consulta-tions.
(b) Such notice shall be given:
(i) to the Member Statesconcerned according to proceduresto
be established by the competent authorities of those Member
States;
(ii) to the Commission according to procedures to be published
in the Official Journal of the European Communities .
TITLE III
FINALPROVISIONS
Article 6
Withdrawaloftheblockexemption
The Commission may withdraw the benefit of the block exemption
under thisRegulation, purs uant to Article 7 of Regulation (EEC) No3976/87 where it finds in a particular case that an agreement, decisionor concerted practice exempted by thisRegulation nevertheles shascertain effectswhich are incompatible with the conditionslaid down
by Article 85 (3) or are prohibited by Article 86 of the Treaty, and in
particular where:
(i) there isno effective price competition on any route or group of
routes which was the subject of tariff consultations. In such casesthe benefit of thisRegulation s hall be withdrawn ►
C1in respect
of the route or group of routesin ques tion, and from the aircarrierswhich participated ◄in the tariff consultations
concerning such routes;1993R1617 — EN — 29.06.2002 — 005.001 — 6
(1) OJ No L 14, 22. 1. 1993, p. 1.
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(iii) the operation of Article 5 hasnot enabled new entrantsto obtain
such slots as may be required at a congested airport in order to
establish schedules which enable those carriers to compete effec-tively with established carriers on any route to and from thatairport, and where competition on those routes is thereby substan-tially impaired. In such cases the withdrawal of the benefit of this
Regulation shall be in respect of the slot allocation at the airport in
question.
Article 6a
The prohibition in Article 85 (1) of the Treaty shall not apply to agree-
ments, decisions and concerted practices which were in existence at thedate of accession of Austria, Finland and Sweden and which, by reasonof that accession, fall within the scope of Article 85 (1) if, within six
months from the date of accession, they are so amended that they
comply with the conditionslaid down in thisRegulation. However,this Article shall not apply to agreements, decisions and concertedpractices which at the date of accession already fall under Article 53(1) of the EEA Agreement.
Article 7
ThisRegulation s hall enter into force on 1 July 1993.
It shall apply until 30 June 2005.
ThisRegulation s hall apply with retroactive effect to agreements , deci-
sions and concerted practices in existence when it enters into force,from the time when the conditionsof application of thisRegulationwere fulfilled.
ThisRegulation s hall be binding in itsentirety and directly applicable
in all Member States.1993R1617 — EN — 29.06.2002 — 005.001 — 7
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