1993R1617 — EN — 01.07.1993 — 000.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►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)
Corrected by:
►C1Corrigendum, OJ L 15, 18.1.1994, p. 20 (1617/93)
▼B
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 categories of agreements and concerted practices in the airtransport sector(
1), as last 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-tations on tariffs and slot allocation at airports are 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 parties or involve financialpenalties. The arrangements must also allow parties to withdrawfrom them at reasonably short notice.
(4)Arrangements whereby a smaller airline receives marketing 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 operations where both parties could reasonablybe 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), as last amended by Regulation (EEC)
No 2410/92(5), witha view to obtaining an individual exemption
where the conditions are not met or where the parties need toextend the duration of the joint operation. In particular wherethe parties wish to avail themselves ►
C1, through a joint
operation, of the market access ◄opportunities created by
Council Regulation (EEC) No 2408/92(6) on routes which are
neither new nor less busy, but which otherwise fulfil the condi-1993R1617 — EN — 01.07.1993 — 000.001 — 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.
▼B
tions set forthh erein, an individual exemption may be
warranted.
(5)Consultations on passenger and cargo tariffs may contribute tothe generalized acceptance of interlinable fares and rates to 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 rates for air services(
1), is based 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 tariffs may therefore be permitted for the time being,provided that they are limited to fares and rates which give riseto actual interlining, that the participation in such consultationsis optional, that they do not lead to an agreement in respect 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 othercarriers concerned, at the tariffs applied 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
changes to the exemption in the course of its lifetime;
(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 is not to be eliminated ◄, entry to
congested airports must remain possible. In order to provide a
satisfactory degree of security and transparency, sucharrange-ments can only be accepted if all air carriers concerned canparticipate in the negotiations, and if the allocation is made ona non-discriminatory and transparent basis.
(7)In accordance withArticle 4 of Regulation (EEC) No 3976/87,
this Regulation should apply with retroactive effect to agree-
ments, decisions and concerted practices in existence on thedate of entry into force of this Regulation, provided that theymeet the conditions for exemption set out in this Regulation.
(8)In conformity withArticle 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 applications under 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 arrangements comply with this Regulation.
(10)This Regulation is without prejudice to the application of Article86 of the Treaty,1993R1617 — EN — 01.07.1993 — 000.001 — 3
(1) OJ No L 240, 24. 8. 1992, p. 15.
▼B
HAS ADOPTED THIS REGULATION:
TITLE I
EXEMPTIONS
Article 1
Pursuant to Article 85 (3) of the Treaty and subject to the provisions of
this Regulation, it is hereby declared that Article 85 (1) of the Treatyshall not apply to agreements between undertakings in the air transportsector, decisions by associations of suchundertakings and concertedpractices between such undertakings which have as their purpose one
or more of the following:
— joint planning and coordination of the schedule of an air service
between Community airports,
— the joint operation of a scheduled air service on a new or on a low-
density route between Community airports,
— the holding of consultations on tariffs for the carriage of passengers,
with their baggage, and of freight on scheduled air services betweenCommunity airports,
— slot-allocation and airport scheduling in so far as they concern air
services between airports in the Community.
TITLE II
SPECIALPROVISIONS
Article 2
Specialprovisionsforjointplanningandcoordinationofschedules
The exemption concerning joint planning and coordination of the sche-
dule of an air service shall apply only if the following conditions are
met:
(a) the planning and coordination are intended
(i) to ensure by means of a non-binding arrangement a satisfactory
supply of services at less busy times of the day, during lessbusy periods or on less busy routes; or
(ii) to establishby means of a binding arrangement sch edules
which will facilitate interline connections ►
C1for passengers
or freight ◄between services operated by the participants and
minimum capacity to be provided for suchsch edules;
(b) the agreements, decisions and concerted practices do not include
arrangements suchas to limit, directly or indirectly, th e capacityto be provided by the participants or to share capacity;
(c) the agreements, decisions and concerted practices do not prevent
carriers taking part in the planning and coordination from introdu-cing additional services, without incurring penalties and withoutbeing required to obtain the approval of the other participants;
(d) the agreements, decisions and concerted practices do not prevent
carriers from withdrawing from the planning and coordination forfuture seasons without penalty, on giving notice of not more than
three months ►
C1 ◄to that effect;
(e) the agreements, decisions and concerted practices do not seek to
influence the schedules adopted by carriers not participating in
them.
Article 3
Specialprovisionsforjointoperations
The exemption concerning the joint operation of an air service shall
apply only if the following conditions are met:
(a) the joint operation concerns the sharing, by one air carrier, of the
costs and revenues of another air carrier in respect of a scheduledair service which the latter is operating;1993R1617 — EN — 01.07.1993 — 000.001 — 4
▼B
(b) (i) there was no direct air service between the two airports
concerned during all of the four traffic seasons preceding thebeginning of the joint operation; or
(ii) the capacity on the route covered by the joint operation does
not exceed 30 000 seats per year in eachdirection; th is capa-
city may be doubled on routes of over 750 kilometres on
which there is at most a twice-daily direct air service;
(c) the air carrier operating the air service offers a capacity, in addition
to the jointly operated air service, of no more than 90000 seats peryear at one of the airports involved;
(d) the revenues from air transport within the geographical scope of
this Regulation for the air carrier operating the air service and forany other air carriers which directly or indirectly participate in acontrolling shareholding in the operating air carrier, do not exceedECU 400 million per year;
(e) neither party is prevented from operating additional air services on
its own account between the two airports concerned nor from inde-pendently determining the fares, capacity and schedules of such airservices;
(f) the duration of the joint operation does not exceed three years;
(g) either party can terminate the joint operation on giving notice of
not more than three months, to expire at the end of a traffic season.
Article 4
Specialprovisionsforconsultationsonpassengerandcargotariffs
1. The exemption concerning the holding of consultations on
passenger and cargo tariffs shall apply only if the following conditionsare met:
(a) the participants only discuss air fares and cargo rates to be paid by
air transport users directly to a participating air carrier or to itsauthorized agents, for carriage as passengers or for the airport-to-airport transport of freight 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 be available;
(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 bythe 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 the
subject of the consultations onto a service on the same route
operated by another air carrier at the fares, rates and conditionsapplied by that other carrier;
provided that an air carrier may refuse to allow such combinations
and changes of reservation for objective and non-discriminatoryreasons of a technical or commercial nature, in particular wherethe air carrier effecting carriage is concerned with the credi worthi-
ness of the air carrier who would be collecting payment for this
carriage; in such case the latter air carrier must be notified thereofin writing;
(c) the passenger or cargo tariffs which are the subject of the consulta-
tions are applied by participating air carriers without discrimination
on grounds of passengers nationality or place of residence or on
ground of the origin of the freight within the Community;
(d) participation in the consultations is voluntary and open to any air
carrier who operates or intends to operate direct or indirect serviceson the route concerned;1993R1617 — EN — 01.07.1993 — 000.001 — 5
▼B
(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 and cargo tariffs;
(f) the consultations do not entail agreement on agents' remuneration
or other elements of the tariffs discussed;
(g) where filing of tariffs is required, each participant individually files
each tariff which was not the subject of the consultations, with thecompetent authorities of the Member States concerned; in so doingit may act itself or through its filing agent or through its general
sales agent.
2. (a) The Commission and the Member States concerned shall be
entitled to send observers to tariff consultations. For thispurpose, 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 subject
matter of the consultations.
(b) Suchnotice sh all be given:
(i) to the Member States concerned according to procedures to
be established by the competent authorities of those MemberStates;
(ii) to the Commission according to procedures to be published
in theOfficial 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 the
same time as it is submitted to participants, but not later than
six weeks after those consultations were held.
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 is to say 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 by
competent national or international authorities and give due consid-
eration to the needs of the travelling publics and of the airportconcerned. Subject to paragraph(d), suchrules of priority maytake account of rights acquired by air carriers through the use ofparticular slots in the previous corresponding season;
(c) the rules of priority, once established are made available on request
to any interested party;
(d) new entrants as defined 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 bythe 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,1993R1617 — EN — 01.07.1993 — 000.001 — 6
(1) OJ No L 14, 22. 1. 1993, p. 1.
▼B
— remaining slots available,
— full details on the criteria being used 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 allocation
and airport scheduling held in the context of a multilateral
meeting in advance of eachseason. For th is purpose, air carriersshall give the Member States concerned and the Commission thesame 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) Suchnotice sh all be given:
(i) to the Member States concerned according to procedures to
be established by the competent authorities of those MemberStates;
(ii) to the Commission according to procedures to be published
in theOfficial Journal of the European Communities .
TITLE III
FINALPROVISIONS
Article 6
Withdrawaloftheblockexemption
The Commission may withdraw the benefit of the block exemption
under this Regulation, pursuant to Article 7 of Regulation (EEC) No3976/87 where it finds in a particular case that an agreement, decisionor concerted practice exempted by this Regulation nevertheless hascertain effects which are incompatible with the conditions laid down
by Article 85 (3) or are prohibited by Article 86 of the Treaty, and in
particular where:
(i) there is no effective price competition on any route or group of
routes which was the subject of tariff consultations. In such cases
the benefit of this Regulation shall be withdrawn ►
C1in respect
of the route or group of routes in question, and from the aircarriers which participated ◄in the tariff consultations
concerning suchroutes;
(ii) an air service which is jointly operated under Article 3 is not
exposed to effective competition by direct or indirect air transport
services between the two airports connected or between nearbyairports, or by other modes of transport which offer speed, conve-nience and prices comparable to air transport between the citiesserved by the two airports connected. In such cases the withdrawalof the benefit of this Regulation shall be in respect of the jointly
operated service in question;
(iii) the operation of Article 5 has not enabled new entrants to obtain
suchslots as may be required at a congested airport in order toestablish 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 inquestion.
Article 7
This Regulation shall enter into force on 1 July 1993.
It shall apply until 30 June 1998.
This Regulation shall apply with retroactive effect to agreements, deci-
sions and concerted practices in existence when it enters into force,from the time when the conditions of application of this Regulationwere fulfilled.1993R1617 — EN — 01.07.1993 — 000.001 — 7
▼B
This Regulation shall be binding in its entirety and directly applicable
in all Member States.1993R1617 — EN — 01.07.1993 — 000.001 — 8