2000R0823 — EN — 01.05.2004 — 001.002 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COMMISSIONREGULATION(EC)No823/2000
of19April2000
ontheapplicationofArticle81(3)oftheTreatytocertaincategoriesofagreements,decisionsand
concerted practices betweenlinershippingcompanies(consortia)
(TextwithEEArelevance)
(OJ L 100, 20.4.2000, p. 24)
Amended by:
Official Journal
No page date
►M1Commission Regulation (EC) No 463/2004 of 12 March 2004 L 77 23 13.3.2004
Amended by:
►A1Act concerning the conditions of accession of the Czech Republic, the
Republic of Estonia, the Republic of Cyprus, the Republic of Latvia,the Republic of Lithuania, the Republic of Hungary, the Republic of
Malta, the Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the EuropeanUnion isfoundedL 236 33 23.9.2003
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COMMISSIONREGULATION(EC)No823/2000
of19April2000
on the application of Article 81(3) of the Treaty to certain cate-
gories of agreements, decisions and concerted practices between
linershippingcompanies(consortia)
(TextwithEEArelevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 479/92 of 25 February
1992 on the application of Article 85(3) of the Treaty to certain cate-
gories of agreements, decisions and concerted practices between linershipping companies (consortia) (
1), as amended by the Act of Accession
of Austria, Finland and Sweden, and in particular Article 1 thereof,
Having published a draft of this Regulation (2),
Having consulted the Advisory Committee on Restrictive Practices and
Dominant Positions in Maritime Transport,
Whereas:
(1)Regulation (EEC) No 479/92 empowers the Commission to
apply Article 81(3) of the Treaty to certain categoriesof agree-ments, decisions and concerted practices between shipping
companies(cons ortia) relating to the joint operation of liner
transport services, which, through the cooperation they bringabout between the shipping companies that are parties thereto,are liable to restrict competition within the common market andto affect trade between Member Statesand may therefore be
caught by the prohibition contained in Article 81(1) of the
Treaty.
(2)The Commission has made use of this power by adoptingCommission Regulation (EC) No 870/95 (
3). In the light of
experience thus acquired so far, it is possible to define a cate-
gory of consortia which are capable of falling within the scope
Article 81(1) but which can normally be regarded as satisfyingthe conditionslaid down in Article 81(3).
(3)The Commission has taken due account of the special features of
maritime transport. Those features will also constitute a material
factor in any Commission assessment of consortia not coveredby thisblock exemption.
(4)Consortia, as defined in this Regulation, generally help toimprove the productivity and quality of available liner shipping
services by reason of the rationalisation they bring to the activ-
itiesof member companiesand through the economiesof s calethey allow in the operation of vessels and utilisation of portfacilities. They also help to promote technical and economicprogress by facilitating and encouraging greater utilisation ofcontainers and more efficient use of vessel capacity.
(5)Users of the shipping services provided by consortia generallyobtain a fair share of the benefits resulting from the improve-mentsin productivity and s ervice quality which they bringabout. Those benefits may also take the form of an improvement
in the frequency of railingsand port calls , or an improvement in
scheduling as well as better quality and personalised servicesthrough the use of more modern vessels and other equipment,including port facilities. Users can benefit effectively fromconsortia only if there is sufficient competition in the trades inwhich the consortia operate.2000R0823 — EN — 01.05.2004 — 001.002 — 2
(1) OJ L 55, 29.2.1992, p. 3.
(2) OJ C 379, 31.12.1999, p. 13.
(3) OJ L 89, 21.4.1995, p. 7.
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(6)Those agreements should therefore enjoy a block exemption,
provided that they do not give the companiesconcerned the
possibility of eliminating competition in a substantial part ofthe trades in question. In order to take account of the constantfluctuationsin the maritime trans port market and the frequentchangesmade by the partiesto the termsof cons ortium agree-mentsor to the activitiescovered by the agreements , one of the
objectsof thisRegulation isto clarify the conditionsto be met
by consortia in order to benefit from the block exemption itgrants.
(7)For the purpose of establishing and running a joint service, anessential feature inherent in consortia is the ability to make capa-city adjustments. The non-utilisation of a certain percentage ofvessel capacity within a consortium is not an essential feature
of consortia.
(8)The block exemption granted by thisRegulation s hould cover
both consortia operating within a liner conference and consortiaoperating outside such conferences, except that it does not coverthe joint fixing of freight rates.
(9)Rate-fixing activitiescome under Council Regulation (EEC) No4056/86 of 22 December 1986 laying down detailed rulesfor theapplication of Articles85 and 86 of the Treaty to maritime trans -
port (
1), as amended by the Act of Accession of Austria, Finland
and Sweden. Consortium members that wish to fix rates jointlyand do not satisfy the criteria of Regulation (EFC) No 4056/86must apply for individual exemption.
(10)The first of the conditions attaching to the block exemptionshould be that a fair share of the benefits resulting from the
improved efficiency, aswell asthe other benefitsoffered by
consortia, are passed on to transport users.
(11)Thisrequirement of Article 81(3) s hould be regarded asbeingmet when a consortium is in one or more of the three situationsdescribed below:
— there iseffective price competition between the membersof
the conference within which the consortium operates as aresult of independent rate action,
— there exists within the conference within which the consor-
tium operatesa s ufficient degree of effective competition in
terms of services provided between consortium members andother conference membersthat are not membersof theconsortium, as a result of the fact that the conference agree-ment expressly allows consortia to offer their own service
arrangements, e.g. the provision by the consortium. alone of
a ‘just-in-time delivery’ service or an advanced ‘electronicdata interchange’ (EDI) service allowing users to be keptinformed at all timesof the whereaboutsof their goods , or asignificant increase in the frequency of sailings and calls inthe service offered by a consortium compared with that
offered by the conference,
— consortium members are subject to effective, actual or poten-
tial competition from non-consortium lines, whether or not aconference operatesin the trade or tradesin ques tion.
(12)In order to satisfy this same requirement of Article 81(3), provi-sion should be made for a further condition aimed at promoting
individual competition as to quality of service between consor-
tium membersaswell asbetween cons ortium membersandother shipping companies operating in the trade or trades.
(13)It should be a condition that consortia and their members do not,in respect of a given route, apply rates and conditions of carriagewhich are differentiated solely by reference to the country oforigin or destination of the goods carried and thus cause within2000R0823 — EN — 01.05.2004 — 001.002 — 3
(1) OJ L 378, 31.12.1986, p. 4.
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the Community deflectionsof trade that are harmful to certain
ports, shippers, carriers or providers of services ancillary totransport, unless such rates or conditions can be economically
justified.
(14)The aim of the conditions should also be to prevent consortia
from imposing restrictions on competition which are not indis-pensable to the attainment of the objectives justifying the grant
of the exemption. To this end, consortium agreements should
contain a provision enabling each shipping line party to theagreement to withdraw from the consortium provided that itgives reasonable notice. However, provision should be made fora longer notice period in the case of highly integrated and/or
high-investment consortia in order to take account of the higher
investments undertaken to set them up and the more extensivereorganisation entailed in the event of a member's leaving. Itshould also be stipulated that, where a consortium operates witha joint marketing structure, each member should have the rightto engage in independent marketing activitiesprovided that it
givesreas onable notice.
(15)Exemption must be limited to consortia which do not have the
possibility of eliminating competition in a substantial part ofthe services in question.
(16)In order to determine for the purposes of exemption whetherexemption competition exists on each market upon which theconsortium operates, account should be taken not only of directtrade between the ports served by a consortium but also of anycompetition from other liner services sailing from ports which
may be substituted for those served by the consortium and,
where appropriate, of other modesof trans port.
(17)The block exemption granted by thisRegulation isthereforeapplicable only on condition that on each market upon which
the consortium operates the market share held by a consortium
doesnot exceed a given s ize.
(18)The market share held by a consortium within a conferenceshould be smaller in view of the fact that the agreements is ques-
tion are superimposed on an existing restrictive agreement.
(19)However, it isappropriate to offer cons ortia which exceed the
limitslaid down in thisRegulation by a given percentage butwhich continue to be subject to effective competition in thetrades in which they operate a simplified procedure so that they
may benefit from the legal certainty afforded by block exemp-
tions. Such a procedure should also enable the Commission tocarry out effective monitoring and simplify the administrativecontrol of agreements.
(20)However, consortia which exceed the limit should be able toobtain exemption by individual decision, provided that theysatisfy the tests of Article 81(3), regard being had to the specialfeaturesof maritime trans port.
(21)ThisRegulation s hould apply only to agreementsconcludedbetween the membersof a cons ortium. Therefore, the blockexemption should not cover restrictive agreements concludedbetween, on the one hand, consortia or one or more of theirmembers, and, on the other hand, other shipping companies.Nor should it apply to restrictive agreements between different
consortia operating in the same trade or between the members
of such consortia.
(22)Certain obligations should also be attached to the exemption. Inthis respect, transport users should at all times be in a position to
acquaint themselves with the conditions for the provision of the
maritime transport services jointly operated by the members ofthe consortium. Provision should be made for real and effectiveconsultations between the consortia and transport users on theactivities covered by the agreements. This Regulation also speci-fies what is meant by ‘real and effective consultations’ and what2000R0823 — EN — 01.05.2004 — 001.002 — 4
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main procedural stages are to be followed for such consultations.
Provision should be made for such mandatory consultation,limited to the activities of consortia as such.
(23)Such consultations are likely to secure a more efficient operation
of maritime transport services which takes account of users'
requirements. Consequently, certain restrictive practices whichcould ensue from such consultations should be exempted.
(24)For the purposes of this Regulation, the concept of force majeure
isthat laid down by the Court of Jus tice of the EuropeanCommunities in its established case-law.
(25)Provision should be made whereby awards given at arbitrationand recommendationsmade by conciliatorsand accepted by thepartiesare to he notified to the Commis s ion forthwith, in order
to enable it to verify that consortia are not thereby exempted
from the conditionsand obligationsprovided for in the Regula-tion and thusdo not infringe the provis ionsof Articles81 and82.
(26)It is necessary to specify, in accordance with Article 6 of Regu-lation (EEC) No 479/92, the cases in which the Commissionmay withdraw from companiesthe benefit of the block exemp-
tion.
(27)11 consortia benefited from the block exemption contained inRegulation (EC) No 870/95 by application of the opposition
procedure in that Regulation which enabled the Commission inparticular to check that they were subject to effective competi-tion. There is no indication that circumstances have sincebecome such that those consortia are no longer subject to effec-tive competition. Those consortia should therefore continue to be
exempted on the termslaid down in thisRegulation.
(28)No applicationsunder Article 12 of Regulation (EEC) No 4056/
86 should need to be made in respect of agreements automati-cally exempted by thisRegulation. However, when real doubtsexist, companies should be permitted to request the Commissionto declare whether their agreementscomply with thisRegulation.
(29)ThisRegulation iswithout prejudice to the application of Article82 of the Treaty.
(30)In view of the expiry of Regulation (EC) No 870/95, it isappro-priate to adopt a new Regulation renewing the block exemption,
HAS ADOPTED THIS REGULATION:
CHAPTER I
SCOPEANDDEFINITIONS
Article 1
Scope
This Regulation shall apply to consortia only in so far as they provide
international liner transport services from or to one or more Commu-nity ports.
Article 2
Definitions
For the purposes of this Regulation:1. ‘consortium’ means an agreement between two or more vessel-oper-
ating carriers which provide international liner shipping services
exclusively for the carriage of cargo, chiefly by container, relatingto one or more trades, and the object of which is to bring aboutcooperation in the joint operation of a maritime transport service,and which improvesthe s ervice that would be offered individuallyby each of its members in the absence of the consortium, in order2000R0823 — EN — 01.05.2004 — 001.002 — 5
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to rationalise their operations by means of technical, operational
and/or commercial arrangements, with the exception of price fixing;
2. ‘liner shipping’ means the transport of goods on a regular basis on a
particular route or routesbetween portsand in accordance with
timetables and sailing dates advertised in advance and available,even on an occasional basis, to any transport user against payment;
3. ‘service arrangement’ means a contractual arrangement concluded
between one or more transport users and an individual member ofa consortium or a consortium itself under which, in return for an
undertaking to commission the transportation of a certain quantity
of goodsover a given period of time, a us er receivesan individualundertaking from the consortium member or the consortium toprovide an individualised service which is of a given quality andspecially tailored to its needs;
4. ‘transport user’ means any undertaking (such as shipper, consignee,
forwarder) which hasentered into, or demons trated an intention to
enter into, a contractual agreement with a consortium (or one of its
members) for the shipment of goods, or any association of shippers;
5. ‘independent rate action’ meansthe right of a maritime conference
member to offer, on a case-by-case basis and in respect of goods,freight rateswhich differ from thos e laid down in the conferencetariff, provided that notice isgiven to the other conference members .
CHAPTER II
EXEMPTIONS
Article 3
Exemptedagreements
1. Pursuant to Article 81(3) of the Treaty and subject to the condi-
tionsand obligationslaid down in thisRegulation, it ishereby declaredthat Article 81(1) of the Treaty shall not apply to the activities listed inparagraph 2 of thisArticle when contained in cons ortium agreementsasdefined in Articles1 and 2 of thisRegulation.
2. The declaration of non-applicability shall apply only to the
following activities:
(a) the joint operation of liner shipping transport services which
comprise solely the following activities:
(i) the coordination and/or joint fixing of sailing timetables and
the determination of portsof call;
(ii) the exchange, sale or cross-chartering of space or slots on
vessels;
(iii) the pooling of vessels and/or port installations;
(iv) the use of one or more joint operations offices;
(v) the provision of containers, chassis and other equipment and/or
the rental, leasing or purchase contracts for such equipment;
(vi) the use of a computerised data exchange system and/or joint
documentation system;
(b) temporary capacity adjustments;
(c) the joint operation or use of port terminals and related services
(such as lighterage or stevedoring serrices);
(d) the participation in one or more of the following pools: cargo,
revenue or net revenue;
(e) the joint exercise of voting rights held by the consortium in the
conference within which itsmembersoperate, in s o far asthe votebeing jointly exercised concerns the consortium's activities as such;
(f) a joint marketing structure and/or the issue of a joint bill of lading;
(g) any other activity ancillary to those referred to above in points (a)
to (f) which is necessary for their implementation.2000R0823 — EN — 01.05.2004 — 001.002 — 6
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3. The following clauses shall in particular be considered ancillary
activitieswithin the meaning of paragraph 2(g):
(a) an obligation on members of the consortium to use on the trade or
trades in question vessels allocated to the consortium and to refrain
from chartering space on vessels belonging to third parties;
(b) an obligation on members of the consortium not to assign or
charter space to other vessel-operating carriers on the trade ortrades in question except with the prior consent of the othermembersof the cons ortium.
Article 4
Non-utilisationofcapacity
The exemption provided for in Article 3 shall not apply to a consor-
tium when the consortium includes arrangements concerning the non-utilisation of existing capacity whereby shipping line members of theconsortium refrain from using a certain percentage of the capacity of
vessels operated within the framework of the consortium.
CHAPTER III
CONDITIONSFOREXEMPTION
Article 5
Basicconditionforthegrantofexemption
The exemption provided for in Article 3 shall apply only if one or
more of the conditionss et out below are met:
(a) there iseffective price competition between the membersof the
conference within which the consortium operates, due to the factthat the members are expressly authorised by the conference agree-
ment, whether by virtue of a statutory obligation or otherwise, to
apply independent rate action to any freight rate provided for inthe conference tariff; or
(b) there exists within the conference within which the consortium
operatesa s ufficient degree of effective competition between the
conference membersin termsof the s ervicesprovided, due to the
fact that the conference agreement expressly allows the consortiumto offer its own service arrangements, irrespective of form,concerning the frequency and quality of transport services providedaswell asfreedom at all timesto adapt the s ervicesit offersinresponse to specifc requests from transport users; or
(c) whether or not a conference operatesin the trade or tradesin ques -
tion, the consortium members are subject to effective competition,actual or potential, from shipping lines which are not members ofthat consortium.
Article 6
Conditionsrelatingtomarketshare
1. In order to qualify for the exemption provided for in Article 3, a
consortium must possess on each market upon which it operates amarket share of under 30 % calculated by reference to the volume ofgoodscarried (freight tonnesor 20-foot equivalent units ) when it oper-ateswithin a conference, and under 35 % when it operatesouts ide a
conference.
2. The exemption provided for in Article 3 shall continue to apply if
the market share referred to in paragraph 1 of this Article is exceededduring any period of two consecutive calendar years by not more thanone tenth.
3. Where one of the limitss pecified in paragraphs1 and 2 is
exceeded, the exemption provided for in Article 3 shall continue toapply for a period of six months following the end of the calendaryear during which it wasexceeded. Thisperiod s hall be extended to2000R0823 — EN — 01.05.2004 — 001.002 — 7
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12 monthsif the exces sisdue to the withdrawal from the market of a
carrier which isnot a member of the cons ortium.
Article 8
Otherconditions
Eligibility for the exemptionsprovided for in Articles3 and 10 s hall be
subject to the following conditions:
(a) the consortium must allow each of its members to offer, on the
basis of an individual contract, its own service arrangements;
(b) the consortium agreement must give member companies the right
to withdraw from the consortium without financial or other penalty
such as, in particular, an obligation to cease all transport activity in
the trade or tradesin ques tion, whether or not coupled with thecondition that such activity may be resumed only after a certainperiod has elapsed. This right shall be subject to a maximum noticeperiod of six months which may be given after an initial period of
18 monthss tarting from the entry into force of the agreement.
However, in the case of a highly integrated consortium which has a
net revenue pool and/or high level of investment due to thepurchase or charter by its members of vessels specifically for thepurpose of setting up the consortium, the maximum notice periodshall be six months, which may be given after an initial period of30 monthss tarting from the entry into force of the agreement;
(c) where a consortium operates with a joint marketing structure, each
member of the consortium must be free to engage in independent
marketing without penalty subject to a maximum period of noticeof six months;
(d) neither the consortium nor consortia members shall, within the
common market, cause detriment to certain ports, users or carriersby applying to the canriage of the same goods and in the area
covered by the agreement, ratesand conditionsof carriage which
differ according to the country of origin or destination or port ofloading or discharge, unless such rates or conditions can beeconomically justified.
CHAPTER IV
OBLIGATIONS
Article 9
Obligationsattachingtoexemption
1. The obligationsprovided for in paragraphs2 to of thisArticle
shall be attached to the exemptions provided for in Article 3 andArticle 13(1).
2. There shall be real and effective consultations between users or
their representative organisations, on the one hand, and the consortium,on the other hand, for the purpose of seeking solutions on all important
matters, other than purely operational matters of minor importance,
concerning the conditions and quality of scheduled maritime transportservices offered by the consortium or its members.
These consultations shall take place whenever requested by any of the
abovementioned parties.
The consultations must take place, except in cases of force majeure ,
prior to the implementation of the measure forming the subject of the
consultation. if, for reasons of force majeure , the membersof the
consortium are obliged to put a decision into effect before consultationshave taken place, any consultations requested shall take place within 10working days of the date of the request. Save in the case of such force
majeure , to which reference shall be made in the notice announcing the2000R0823 — EN — 01.05.2004 — 001.002 — 8
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measure, no public announcement of the measure shall be made before
the consultations.
The consultations shall take place in accordance with the following
procedural stages:
(a) prior to the consultation, details of the subject matter of the consul-
tation shall be notified in writing by the consortium to the other
party;
(b) an exchange of viewss hall take place between the partieseither in
writing or at meetings or both in the course of which the represen-tatives of the consortium members and of the shippers taking partshall have authority to reach a common point of view and theparties shall use their best efforts to achieve that end;
(c) where no common point of view can be reached despite the efforts
of both parties, the disagreement shall be acknowledged andpublicly announced. It may be brought to the Commission's atten-
tion by either party;
(d) a reasonable period for the completion of consultations may be
fixed, if possible, by common agreement between the two parties.
That period shall be not less than one month, save in exceptionalcases or by agreement between the parties.
3. The conditions concerning the maritime transport services
provided by the consortium and its members, including those relating
to the quality of such services and all relevant modifications, shall bemade available on request to transport users at reasonable cost andshall be available for examination without cost at the offices of theconsortium members, or the consortium itself, and their agents.
5. Any consortium claiming the benefit of this Regulation must beable, on being given a period of notice which the Commission or theMember States' competition authorities shall determine on a case-by-case basis and which shall be not less than one month, to demonstrateat the request of the Commission or the Member States' competition
authoritiesthat the conditionsand obligationsimpos ed by Articles5
to 8 and paragraphs 2 and 3 of this Article are met. It must submitthe consortium agreement in question to the Commission or theMember States' competition authorities as appropriate within thatperiod.
Article 10
Exemption for agreements between transport users and consortia
ontheuseofscheduledmaritime transportservices
Agreements, decisions and concerted practices between transport users
or their representative organisations, on the one hand, and a consortium
exempted under Article 3, on the other hand, concerning the conditions
and quality of liner shipping services provided by the consortium andall general questions connected with such services in so far as theyarise out of the consultations provided for in paragraph 2 of Article 9,are hereby exempted from the prohibition laid down in Article 81(1) of
the Treaty.
CHAPTER V
MISCELLANEOUSPROVISIONS
Article 11
Professionalsecrecy
1. Information acquired asa res ult of the application of Article 9(5)
shall be used only for the purposes of this Regulation.2000R0823 — EN — 01.05.2004 — 001.002 — 9
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2. The Commission and the authorities of the Member States, their
officials and other servants shall not disclose information acquired bythem asa res ult of the application of thisRegulation which isof the
kind covered by the obligation of professional secrecy.
3. The provisions of paragraphs 1 and 2 shall not prevent publica-
tion of general information or studios which do not containinformation relating to particular undertakings or associations of under-takings.
Article 12
Withdrawalinindividualcases
1. The Commission may withdraw the benefit of this Regulation, in
accordance with Article 29 of Council Regulation (EC) No 1/2003 (
1),
where it finds in a particular case that an agreement, decision by anassociation of undertakings or concerted practice to which Article 3 orArticle 13(1) of thisRegulation apply nevertheles shascertain effects
which are incompatible with Article 81(3) in particular where:
(a) in a given trade, competition from outside the conference within
which the consortium operates or from outside a particular consor-
tium isnot effective;
(b) a consortium fails repeatedly to comply with the obligations
provided for in Article 9 of thisRegulation;
(c) such effects result from an arbitration award.
2. Where, in any particular case, an agreement, decision by an asso-
ciation of undertakingsor concerted practice referred to in paragraph 1
haseffectswhich are incompatible with Article 81(3) of the Treaty inthe territory of a Member State, or in a part thereof, which hasall thecharacteristics of a distinct geographic market, the competitionauthority of that Member State may withdraw the benefit of thisRegu-
lation in respect of that territory.
Article 13
Transitionalprovisions
1. Article 81(1) of the Treaty shall not apply to agreements in force
on 25 April 2000 which fulfil, on that date, the exemption requirementslaid down by Regulation (EC) No 870/95 and to which the opposition
procedure provided for by Article 7 of that Regulation wasapplied.
2. A notification made pursuant to Article 7 in respect of which the
period of six months referred to in the second subparagraph of para-graph 1 of that Article has not expired shall lapse as from 1 May 2004.
3. The prohibition in Article 81(1) of the Treaty shall not apply to
agreements, decisions and concerted practices which were in existenceat the date of accession of the Czech Republic, Estonia, Cyprus, Latvia,Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia and which,
by reason of accession, fall within the scope of Article 81(1) if, within
six months from the date of accession, they are so amended that theycomply with the conditionslaid down in thisRegulation.
Article 14
Entryintoforce
ThisRegulation s hall enter into force on 26 April 2000.
It shall apply until 25 April 2005.2000R0823 — EN — 01.05.2004 — 001.002 — 10
(1) OJ L 1, 4.1.2003, p. 1.▼M1
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ThisRegulation s hall be binding in itsentirety and directly applicable
in all Member States.2000R0823 — EN — 01.05.2004 — 001.002 — 11