1987R3976 — EN — 01.01.1995 — 001.001 — 1
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►B COUNCIL REGULATION (EEC)No 3976/87
of 14 December 1987
on the application of Article 85 (3)of the Treaty to certain categories of agreements and concerted
practices in the air transport sector
(OJ L 374, 31.12.1987, p. 9)
Amended by:
Official Journal
No page date
►M1Council Regulation (EEC) No 2344/90 of 24 July 1990 L217 15 11.8.1990
►M2Council Regulation (EEC) No 2411/92 of 23 July 1992 L240 19 24.8.1992
Amended by:
►A1Act of Accession of Austria, Sweden and Finland C241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L1 1 1.1.1995
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COUNCIL REGULATION (EEC)No 3976/87
of 14 December 1987
on the application of Article 85 (3)of the Treaty to certain catego-
ries of agreements and concerted practices in the air transport
sector
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 opinions of the European Parliament(2),
Having regard to the opinions of the Economic and Social
Committee(3),
Whereas Council Regulation (EEC) No 3975/87(4) lays down the
procedure for the application of the rules on competition to undertak-ings in the air transport sector; whereas Regulation No 17 of theCouncil(
5)laysdowntheprocedurefortheapplicationoftheserulesto
agreements, decisions and concerted practices other than those directlyrelating to the provision of air transport services;
Whereas Article 85 (1) of the Treaty may be declared inapplicable to
certain categories of agreements, decisions and concerted practiceswhich fulfil the conditions contained in Article 85 (3);
WhereascommonprovisionsfortheapplicationofArticle85(3)should
be adopted by way of Regulation pursuant to Article 87; whereas,according to Article 87 (2) (b), such a Regulation must lay downdetailed rules for the application of Article 85 (3), taking into accountthe need to ensure effective supervision, on the one hand, and tosimplify administration to the greatest possible extent, on the other;whereas, according to Article 87 (2) (d), such a Regulation is requiredtodefinetherespectivefunctionsoftheComissionandoftheCourtofJustice;
Whereastheairtransportsectorhastodatebeengovernedbyanetwork
of international agreements, bilateral agreement between States andbilateral and multilateral agreements between air carriers; whereas thechanges required to this international regulatory system to ensureincreasedcompetitionshouldbeeffectedgraduallysoastoprovidetimefor the air-transport sector to adapt;
Whereas the Commission should be enabled for this reason to declare
bywayofRegulationthattheprovisionsofArticle85(1)donotapplyto certain categories of agreements between undertakings, decisions byassociations of undertakings and concerted practices;
Whereas it should be laid down under what specific conditions and in
whatcircumstancestheCommissionmayexercisesuchpowersincloseand constant liaison with the competent authorities of the MemberStates;
Whereas it is desirable, in particular, that block exemptions be granted
forcertaincategoriesofagreements,decisionsandconcertedpractices;whereastheseexemptionsshouldbegrantedforalimitedperiodduringwhich air carriers can adapt to a more competitive environment;whereas the Commission, in close liaison with the Member States,
(1) OJ No C 182, 9. 7. 1984, p. 3.
(2) OJ No C 262, 14. 10. 1985, p. 44;
OJ No C 190, 20. 7. 1987, p. 182 and OJ No C 345, 21. 12. 1987.
(3) OJ No C 303, 25. 11. 1985, p. 31 and
OJ No C 333, 29. 12. 1986, p. 27.
(4) See page 1 of this Official Journal.
(5) OJ No 13, 21. 2. 1962, p. 204/62.
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shouldbeabletodefinepreciselythescopeoftheseexemptionsandthe
conditions attached to them;
Whereas there can be no exemption if the conditions set out in Article
85(3)arenotsatisfied;whereastheCommissionshouldthereforehavepower to take the appropriate measures where an agreement proves tohaveeffectsincompatiblewithArticle85(3);whereastheCommissionshould consequently be able first to address recommendations to theparties and then to take decisions;
WhereasthisRegulationdoesnotprejudgetheapplicationofArticle90
of the Treaty;
Whereas the Heads of State and Government, at their meeting in June
1986, agreed that the internal market in air transport should becompleted by 1992 in pursuance of Community actions leading to thestrengthening of its economic and social cohesion; whereas the provi-sions of this Regulation, together with those of Council Directive 87/601/EEC of 14 December 1987 on fares for scheduled air servicesbetween Member States(
1) and those of Council Decision 87/602/EEC
of 14 December 1987on the sharing of passenger capacity between aircarriersonscheduledairservicesbetweenMemberStatesandonaccessfor air carriers to scheduled air service routes between MemberStates(
2),areafirststepinthisdirectionandtheCouncilwilltherefore,
in order to meet the objective set by the Heads of State and Govern-ment,adoptfurthermeasuresofliberalizationattheendofathreeyearinitial period,
HAS ADOPTED THIS REGULATION:
Article 1
This Regulation shall apply to ►M2 ◄air transport
between Community airports.
Article 2
1. Without prejudice to the application of Regulation (EEC) No
3975/87 and in accordance with Article 85(3) of the Treaty, theCommission may by regulation declare that Article 85 (1) shall notapply to certain categories of agreements between undertakings, deci-sions of associations of undertakings and concerted practices.
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2. The Commission may, in particular, adopt such Regulations inrespect of agreements, decisions or concerted practices which have astheir object any of the following:
— joint planning and coordination of airline schedules,— consultations on tariffs for the carriage of passengers and baggage
and of freight on scheduled air services,
— joint operations on new less busy scheduled air services,— slot allocation at airports and airport scheduling; the Commision
shall take care to ensure consistency with the Code of Conductadopted by the Council,
— commonpurchase,developmentandoperationofcomputerreserva-
tionsystemsrelatingtotimetabling,reservationsandticketingbyairtransport undertakings; the Commission shall take care to ensureconsistency with the Code of Conduct adopted by the Council.
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3. Without prejudice to paragraph 2, such Commission regulationsshall define the categories of agreements, decisions or concerted prac-tices to which they apply and shall specify in particular:
(1) See p. 12 of this Official Journal.
(2) See p. 19 of this Official Journal..
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(a) the restrictions or clauses which may, or may not, appear in the
agreements, decisions and concerted practices;
(b) the clauses which must be contained in the agreements, decisions
and concerted practices, or any other conditions which must besatisfied.
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M2
Article 3
Any Regulation adopted pursuant to Article 2 shall be for a specified
period.
Itmayberepealedoramendedwherecircumstanceshavechangedwith
respect to any of the factors which prompted its adoption; in such acase, a period shall be fixed for amendment of the agreements andconcertedpracticestowhichtheearlierRegulationappliedbeforerepealor amendment.
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Article 4
RegulationsadoptedpursuanttoArticle2shallincludeaprovisionthat
they apply with retroactive effect to agreements, decisions andconcertedpracticeswhichwereinexistenceatthedateoftheentryintoforce of such Regulations.
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A1
Article 4a.
A Regulation pursuant to Article 2 may stipulate that the prohibition
contained 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,FinlandandSwedenandwhichdonotsatisfytheconditionsofArticle85(3). However, this Article shall not apply to agreements, decisionsandconcertedpracticeswhichatthedateofaccessionalreadyfallunderArticle 53(1) of the EEA Agreement.
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Article 5
Before adopting a regulation, the Commission shall publish a draft
thereof and invite all persons and organizations concerned to submittheir comments within such reasonable time limit, being not less thanone month, as the Commission shall fix.
Article 6
TheCommissionshallconsulttheAdvisoryCommitteeonAgreements
andDominantPositionsinAirTransportestablishedbyArticle8(3)ofRegulation(EEC)No3975/87beforepublishingadraftRegulationandbefore adopting a Regulation.
Article 7
1. Where the persons concerned are in breach of a condition or
obligation which attaches to an exemption granted by a RegulationadoptedpursuanttoArticle2,theCommissionmay,inordertoputanend to such a breach:
— address recommendations to the persons concerned,
and
— intheeventoffailurebysuchpersonstoobservethoserecommen-
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 thebenefitoftheblockexemptionwhichtheyenjoyed,grantsthemanindividualexemptioninaccordancewithArticle4(2)ofRegulation
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(EEC)No3975/87orwithdrawsthebenefitoftheblockexemptionwhich 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 any particular case an agreement,decisionorconcertedpracticetowhichablockexemptiongrantedbyaregulation adopted pursuant to Article 2 (2) applies, nevertheless haseffectswhichareincompatiblewithArticle85(3)orareprohibitedbyArticle 86, it may withdraw the benefit of the block exemption fromthoseagreements,decisionsorconcertedpracticesandtake,pursuanttoArticle 13 of Regulation (EEC) No 3975/87, all appropriate measuresfor the purpose of bringing these infringements to an end.
3. Beforetakingadecisionunderparagraph2,theCommissionmay
address recommendations for termination of the infringement to thepersons concerned.
Article 8
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Article 9
This Regulation shall enter into force on 1 January 1988.
ThisRegulationshallbebindinginitsentiretyanddirectlyapplicablein
all Member States.