1986R4056 — EN — 01.05.2004 — 002.001 — 1
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►B COUNCIL REGULATION (EEC) No 4056/86
of 22 December 1986
laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime
transport
(OJ L 378, 31.12.1986, p. 4)
Amended by:
Official Journal
No page date
►M1 Council Regulation (EC) No 1/2003 of 16 December 2002 L 1 1 4.1.2003
Amended by:
►A1 Act 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
►A2 Act 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 ofMalta, the Republic of Poland, the Republic of Slovenia and the SlovakRepublic and the adjustments to the Treaties on which the European
Union is foundedL 236 33 23.9.2003
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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COUNCIL REGULATION (EEC) No 4056/86
of 22 December 1986
laying down detailed rules for the application of Articles 85 and 86
of the Treaty to maritime transport
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Articles 84 (2) 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 the rules on competition form part of the Treaty's general
provisions which also apply to maritime transport; whereas detailedrules for applying those provisions are set out in the Chapter of the
Treaty dealing with the rules on competition or are to be determined
by the procedures laid down therein;
Whereas according to Council Regulation No 141 (
3), Council Regula-
tion No 17 (4) does not apply to transport; whereas Council Regulation
(EEC) No 1017/68 (5) applies to inland transport only; whereas, conse-
quently, the Commission has no means at present of investigating
directly cases of suspected infringement of Articles 85 and 86 in mari-time transport; whereas, moreover, the Commission lacks such powersof its own to take decisions or impose penalties as are necessary for itto bring to an end infringements established by it;
Whereas this situation necessitates the adoption of a Regulation
applying the rules of competition to maritime transport; whereasCouncil Regulation (EEC) No 954/79 of 15 May 1979 concerning theratification by Member States of, or their accession to, the UnitedNations Convention on a Code of Conduct for Liner Conference (
6)
will result in the application of the Code of Conduct to a considerable
number of conferences serving the Community; whereas the Regulationapplying the rules of competition to maritime transport foreseen in thelast recital of Regulation (EEC) No 954/79 should take account of theadoption of the Code;
whereas, as far as conferences subject to the Code of Conduct are
concerned, the Regulation should supplement the Code or make itmore precise;
Whereas it appears preferable to exclude tramp vessel services from the
scope of this Regulation, rates for these services being freely nego-
tiated on a case-by-case basis in accordance with supply and demand
conditions;
Whereas this Regulation should take account of the necessity, on the
one hand to provide for implementing rules that enable the Commis-sion to ensure that competition is not unduly distorted within the
common market, and on the other hand to avoid excessive regulation
of the sector;
Whereas this Regulation should define the scope of the provisions of
Articles 85 and 86 of the Treaty, taking into account the distinctivecharacteristics of maritime transport; whereas trade between Member
States may be affected where restrictive practices or abuses concern
international maritime transport, including intra-Community transport,from or to Community ports; whereas such restrictive practices or1986R4056 — EN — 01.05.2004 — 002.001 — 2
(1) OJ No C 172, 2. 7. 1984, p. 178; OJ No C 255, 13. 10. 1986, p. 169.
(2) OJ No C 77, 21. 3. 1983, p. 13; OJ No C 344, 31. 12. 1985, p. 31.
(3) OJ No 124, 28. 11. 1962, p. 2751/62.
(4) OJ No 13, 21. 2. 1962, p. 204/62.
(5) OJ No L 175, 23. 7. 1968, p. 1.
(6) OJ No L 121, 17. 5. 1979, p. 1.
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abuses may influence competition, firstly, between ports in different
Member States by altering their respective catchment areas, andsecondly, between activities in those catchment areas, and disturb trade
patterns within the common market;
Whereas certain types of technical agreement, decisions and concerted
practices may be excluded from the prohibition on restrictive practiceson the ground that they do not, as a general rule, restrict competition;
Whereas provision should be made for block exemption of liner confer-
ences; whereas liner conferences have a stabilizing effect, assuring
shippers of reliable services; whereas they contribute generally toproviding adequate efficient scheduled maritime transport services andgive fair consideration to the interests of users; whereas such resultscannot be obtained without the cooperation that shipping companiespromote within conferences in relation to rates and, where appropriate,
availability of capacity or allocation of cargo for shipment, and
income; whereas in most cases conferences continue to be subject toeffective competition from both non-conference scheduled servicesand, in certain circumstances, from tramp services and from othermodes of transport; whereas the mobility of fleets, which is a charac-teristic feature of the structure of availability in the shipping field,
subjects conferences to constant competition which they are unable as
a rule to eliminate as far as a substantial proportion of the shippingservices in question is concerned;
Whereas, however, in order to prevent conferences from engaging in
practices which are incompatible with Article 85 (3) of the Treaty,
certain conditions and obligations should be attached to the exemption;
Whereas the aim of the conditions should be to prevent conferences
from imposing restrictions on competition which are not indispensableto the attainment of the objectives on the basis of which exemption isgranted; whereas, to this end, conferences should not, in respect of agiven route, apply rates and conditions of carriage which are differen-
tiated solely by reference to the country of origin or destination of the
goods carried and thus cause within the Community deflections oftrade that are harmful to certain ports, shippers, carriers or providersof services ancillary to transport; whereas, furthermore, loyalty arrange-ments should be permitted only in accordance with rules which do notrestrict unilaterally the freedom of users and consequently competition
in the shipping industry, without prejudice, however, to the right of a
conference to impose penalties on users who seek by improper meansto evade the obligation of loyalty required in exchange for the rebates,reduced freight rates or commission granted to them by the conference;whereas users must be free to determine the undertakings to which they
have recourse in respect of inland transport or quayside services not
covered by the freight charge or by other charges agreed with the ship-ping line;
Whereas certain obligations should also attached to the exemption;
whereas in this respect users must at all times be in a position toacquaint themselves with the rates and conditions of carriage applied
by members of the conference, since in the case of inland transports
organized by shippers, the latter continue to be subject to Regulation(EEC) No 1017/68; whereas provision should be made that awardsgiven at arbitration and recommendations made by conciliators andaccepted by the parties be notified forthwith to the Commission in
order to enable it to verify that conferences are not thereby exempted
from the conditions provided for in the Regulation and thus do notinfringe the provisions of Articles 85 and 86;
Whereas consultations between users or associations of users and
conferences are liable to secure a more efficient operation of maritimetransport services which takes better account of users' requirements;
whereas, consequently, certain restrictive practices which could ensue
from such consultations should be exempted;
Whereas there can be no exemption if the conditions set out in Article
85 (3) are not satisfied; whereas the Commission must therefore havepower to take the appropriate measures where an agreement orconcerted practice owing to special circumstances proves to have1986R4056 — EN — 01.05.2004 — 002.001 — 3
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certain effects incompatible with Article 85 (3); whereas, in view of the
specific role fulfilled by the conferences in the sector of the linerservices, the reaction of the Commission should be progressive and
proportionate; whereas the Commission should consequently have the
power first to address recommendations, then to take decisions;
Whereas the automatic nullity provided for in Article 85 (3) in respect
of agreements or decisions which have not been granted exemption
pursuant to Article 85 (3) owing to their discriminatory or otherfeatures applies only to the elements of the agreement covered by theprohibition of Article 85 (1) and applies to the agreement in its entiretyonly if those elements do not appear to be severable from the whole ofthe agreement whereas the Commission should therefore, if it finds an
infringement of the block exemption, either specify what elements of
the agreement are by the prohibition and consequently automaticallyvoid, or indicate the reasons why those elements are not severablefrom the rest of the agreement and why the agreement is thereforevoid in its entirety;
Whereas, in view of the characteristics of international maritime trans-
port, account should be taken of the fact that the application of thisRegulation to certain restrictive practices or abuses may result inconflicts with the laws and rules of certain third countries and proveharmful to important Community trading and shipping interests;
whereas consultations and, where appropriate, negotiations authorized
by the Council should be undertaken by the Commission with thosecountries in pursuance of the maritime transport policy of the Commu-nity;
Whereas this Regulation should make provision for the procedures,
decision-making powers and penalties that are necessary to ensurecompliance with the prohibitions laid down in Article 85 (1) andArticle 86, as well as the conditions governing the application ofArticle 85 (3);
Whereas account should be taken in this respect of the procedural
provisions of Regulation (EEC) No 1017/68 applicable to inland trans-port operations which takes account of certain distinctive features oftransport operations viewed as a whole;
Whereas, in particular, in view of the special characteristics of mari-
time transport, it is primarily the responsibility of undertakings to seeto it that their agreements, decisions and concerted practices conformto the rules on competition, and consequently their notification to the
Commission need not be made compulsory;
Whereas in certain circumstances undertakings may, however, wish to
apply to the Commission for confirmation that their agreements, deci-sions and concerted practices are in conformity with the provisions in
force; whereas a simplified procedure should be laid down for such
cases,
HAS ADOPTED THIS REGULATION:
SECTION I
Article 1
Subject-matter and scope of the Regulation
1. This Regulation lays down detailed rules for the application of
Articles 85 and 86 of the Treaty to maritime transport services.
2. It shall apply only to international maritime transport services
from or to one or more Community ports, other than tramp vesselservices.
3. For the purposes of this Regulation:
(a) tramp vessel services means the transport of goods in bulk or in
break-bulk in a vessel chartered wholly or partly to one or moreshippers on the basis of a voyage or time charter or any other1986R4056 — EN — 01.05.2004 — 002.001 — 4
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form of contract for non-regularly scheduled or non-advertised sail-
ings where the freight rates are freely negotiated case by case inaccordance with the conditions of supply and demand;
(b) liner conference means a group of two or more vessel-operating
carriers which provides international liner services for the carriageof cargo on a particular route or routes within specified geogra-phical limits and which has an agreement or arrangement,
whatever its nature, within the framework of which they operate
under uniform or common freight rates and any other agreed condi-tions with respect to the provision of liner services;
(c) transport user means an undertaking (e.g. shippers, consignees,
forwarders, etc.) provided it has entered into, or demonstrates an
intention to enter into, a contractual or other arrangement with a
conference or shipping line for the shipment of goods, or any asso-ciation of shippers.
Article 2
Technical agreements
1. The prohibition laid down in Article 85 (1) of the Treaty shall not
apply to agreements, decisions and concerted practices whose soleobject and effect is to achieve technical improvements or cooperationby means of:
(a) the introduction or uniform application of standards or types in
respect of vessels and other means of transport, equipment, suppliesor fixed installations;
(b) the exchange or pooling for the purpose of operating transport
services, of vessels, space on vessels or slots and other means oftransport, staff, equipment or fixed installations;
(c) the organization and execution of successive or supplementary
maritime transport operations and the establishment or application
of inclusive rates and conditions for such operations;
(d) the coordination of transport timetables for connecting routes;
(e) the consolidation of individual consignments;
(f) the establishment or application of uniform rules concerning the
structure and the conditions governing the application of transporttariffs.
2. The Commission shall, if necessary, submit to the Council propo-
sals for the amendment of the list contained in paragraph 1.
Article 3
Exemption for agreements between carriers concerning the opera-
tion of scheduled maritime transport services
Agreements, decisions and concerted practices of all or part of the
members of one or more liner conferences are hereby exempted fromthe prohibition in Article 85 (1) of the Treaty, subject to the condition
imposed by Article 4 of this Regulation, when they have as their objec-
tive the fixing of rates and conditions of carriage, and, as the case maybe, one or more of the following objectives:
(a) the coordination of shipping timetables, sailing dates or dates of
calls;
(b) the determination of the frequency of sailings or calls;
(c) the coordination or allocation of sailings or calls among members
of the conference;
(d) the regulation of the carrying capacity offered by each member;
(e) the allocation of cargo or revenue among members.1986R4056 — EN — 01.05.2004 — 002.001 — 5
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Article 4
Condition attaching to exemption
The exemption provided for in Articles 3 and 6 shall be granted subject
to the condition that the agreement, decision or concerted practice shallnot, within the common market, cause detriment to certain ports, trans-port users or carriers by applying for the carriage of the same goods
and in the area covered by the agreement, decision or concerted prac-
tice, rates and conditions of carriage which differ according to thecountry of origin or destination or port of loading or discharge, unlesssuch rates or conditions can be economically justified.
Any agreement or decision or, if it is severable, any part of such an
agreement or decision not complying with the preceding paragraphshall automatically be void pursuant to Article 85 (2) of the Treaty.
Article 5
Obligations attaching to exemption
The following obligations shall be attached to the exemption provided
for in Article 3:
1.Consultations
There shall be consultations for the purpose of seeking solutions on
general issues of principle between transport users on the one hand
and conferences on the other concerning the rates, conditions andquality of scheduled maritime transport services.
These consultations shall take place whenever requested by any of
the abovementioned parties.
2.Loyalty arrangements
The shipping lines' members of a conference shall be entitled to
institute and maintain loyalty arrangements with transport users, the
form and terms of which shall be matters for consultation betweenthe conference and transport users' organizations. These loyaltyarrangements shall provide safeguards making explicit the rights oftransport users and conference members. These arrangements shall
be based on the contract system or any other system which is also
lawful.
Loyalty arrangements must comply with the following conditions:
(a) Each conference shall offer transport users a system of
immediate rebates or the choice between such a system and asystem of deferred rebates:
— under the system of immediate rebates each of the parties
shall be entitled to terminate the loyalty arrangement at anytime without penalty and subject to a period of notice of not
more than six months; this period shall be reduced to three
months when the conference rate is the subject of a dispute;
— under the system of deferred rebates neither the loyalty
period on the basis of which the rebate is calculated nor thesubsequent loyalty period required before payment of therebate may exceed six months; this period shall be reduced
to three months where the conference rate is the subject of
a dispute.
(b) The conference shall, after consulting the transport users
concerned, set out:
(i) a list of cargo and any portion of cargo agreed with trans-
port users which is specifically excluded from the scope ofthe loyalty arrangement; 100 % loyalty arrangements maybe offered but may not be unilaterally imposed;
(ii) a list of circumstances in which transport users are released
from their obligation of loyalty; these shall include:
— circumstances in which consignments are dispatched
from or to a port in the area covered by the conference1986R4056 — EN — 01.05.2004 — 002.001 — 6
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but not advertised and where the request for a waiver
can be justified, and
— those in which waiting time at a port exceeds a period to
be determined for each port and for each commodity or
class of commodities following consultation of the trans-port users directly concerned with the proper servicing ofthe port.
The conference must, however, be informed in advance by
the transport user, within a specified period, of his intention
to dispatch the consignment from a port not advertised bythe conference or to make use of a non-conference vesselat a port served by the conference as soon as he has beenable to establish from the published schedule of sailingsthat the maximum waiting period will be exceeded.
3.Services not covered by the freight charges
Transport users shall be entitled to approach the undertakings of
their choice in respect of inland transport operations and quaysideservices not covered by the freight charge or charges on which the
shipping line and the transport user have agreed.
4.Availability of tariffs
Tariffs, related conditions, regulations and any amendments thereto
shall be made available on request to transport users at reasonablecost, or they shall be available for examination at offices of shipping
lines and their agents. They shall set out all the conditions
concerning loading and discharge, the exact extent of the servicescovered by the freight charge in proportion to the sea transport andthe land transport or by any other charge levied by the shipping lineand customary practice in such matters.
5.Notification to the Commission of awards at arbitration and recom-
mendations
Awards given at arbitration and recommendations made by concilia-
tors that are accepted by the parties shall be notified forthwith to theCommission when they resolve disputes relating to the practices of
conferences referred to in Article 4 and in points 2 and 3 above.
Article 6
Exemption for agreements between transport users and conferences
concerning the use of scheduled maritime transport services
Agreements, decisions and concerned practices between transport users,
on the one hand, and conferences, on the other hand, and agreementsbetween transport users which may be necessary to that end,concerning the rates, conditions and quality of liner services, as longas they are provided for in Article 5 (1) and (2) are hereby exempted
from the prohibition laid down in Article 85 (1) of the Treaty.
Article 7
Monitoring of exempted agreements
1.Breach of an obligation
Where the persons concerned are in breach of an obligation which,
pursuant to Article 5, attaches to the exemption provided for inArticle 3, the Commission may, in order to put an end to such
breach and under the conditions laid down in Council Regulation
(EC) No 1/2003 of 16 December 2002 on the implementation ofthe rules on competition laid down in Articles 81 and 82 of theTreaty (
1) adopt a decision that either prohibits them from carrying
out or requires them to perform certain specific acts, or withdrawsthe benefit of the block exemption which they enjoyed.1986R4056 — EN — 01.05.2004 — 002.001 — 7
(1) OJ L 1, 4.1.2003, p. 1.▼M1
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2.Effects incompatible with Article 85 (3)
(a) Where, owing to special circumstances as described below,
agreements, decisions and concerted practices which qualify for
the exemption provided for in Articles 3 and 6 have neverthelesseffects which are incompatible with the conditions laid down inArticle 85 (3) of the Treaty, the Commission, on receipt of acomplaint or on its own initiative, ►
M1 under the conditions
laid down in Regulation (EC) No 1/2003 ◄, shall take the
measures described in (c) below. The severity of these measuresmust be in proportion to the gravity of the situation.
(b) Special circumstances are, inter alia , created by:
(i) acts of conferences or a change of market conditions in a
given trade resulting in the absence or elimination of actualor potential competition such as restrictive practiceswhereby the trade is not available to competition; or
(ii) acts of conference which may prevent technical or
economic progress or user participation in the benefits;
(iii) acts of third countries which:
— prevent the operation of outsiders in a trade,
— impose unfair tariffs on conference members,
— impose arrangements which otherwise impede technical
or economic progress (cargo-sharing, limitations on
types of vessels).
(c) (i) If actual or potential competition is absent or may be elimi-
nated as a result of action by a third country, theCommission shall enter into consultations with the compe-
tent authorities of the third country concerned, followed if
necessary by negotiations under directives to be given bythe Council, in order to remedy the situation.
If the special circumstances result in the absence or elimina-
tion of actual or potential competition contrary to Article 85(3) (b) of the Treaty the Commission shall withdraw thebenefit of the block exemption. ►
M1 At the same time it
shall decide, in accordance with Article 9 of Regulation
(EC) No 1/2003, whether to accept commitments offered
by the undertakings concerned with a view, inter alia ,t o
obtaining access to the market for non-conference lines. ◄
(ii) If, as a result of special circumstances as set out in (b), there
are effects other than those referred to in (i) hereof, theCommission shall take one or more of the measuresdescribed in paragraph 1.
Article 8
Effects incompatible with Article 86 of the Treaty
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 the conduct of
conferences benefiting from the exemption laid down in Article 3
nevertheless has effects which are incompatible with Article 86 of theTreaty, it may withdraw the benefit of the block exemption and take,►
M1 pursuant to Regulation (EC) No 1/2003 ◄, all appropriate
measures for the purpose of bringing to an end infringements of Article86 of the Treaty.1986R4056 — EN — 01.05.2004 — 002.001 — 8
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Article 9
Conflicts of international law
1. Where the application of this Regulation to certain restrictive
practices or clauses is liable to enter into conflict with the provisions
laid down by law, regulation or administrative action of certain thirdcountries which would compromise important Community trading andshipping interests, the Commission shall, at the earliest opportunity,undertake with the competent authorities of the third countries
concerned, consultations aimed at reconciling as far as possible the
abovementioned interest with the respect of Community law. TheCommission shall inform the ►
M1 Advisory Committee referred to
in Article 14 of Regulation (EC) No 1/2003 ◄of the outcome of these
consultations.
2. Where agreements with third countries need to be negotiated, the
Commission shall make recommendations to the Council, which shall
authorize the Commission to open the necessary negotiations.
The Commission shall conduct these negotiations in consultation with
an►M1 Advisory Committee referred to in Article 14 of Regulation
(EC) No 1/2003 ◄and within the framework of such directives as the
Council may issue to it.
3. In exercising the powers conferred on it by this Article, the
Council shall act in accordance with the decision-making procedure
laid down in Article 84 (2) of the Treaty.
SECTION II
RULES OF PROCEDURE
Article 13
Duration and revocation of decisions applying Article 85 (3)
3. The Commission may revoke or amend its decision or prohibit
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; or
(d) where the parties abuse the exemption from the provisions of
Article 85 (1) granted to them by the decision.
In cases falling within (b), (c) or (d), the decision may be revoked with
retroactive effect.
Article 26
Implementing provisions
The Commission shall have power to adopt implementing provisions
concerning the scope of the obligation of communication pursuant toArticle 5 (5) ►
M1 ◄.1986R4056 — EN — 01.05.2004 — 002.001 — 9
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Article 26a
The prohibition in Article 81(1) of the Treaty shall not apply to agree-
ments, decisions and concerted practices which were in existence at the
date of accession of Austria, Finland and Sweden or at the date of
accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania,Hungary, Malta, Poland, Slovenia and Slovakia and which, by reasonof accession, fall within the scope of Article 81(1) if, within six monthsfrom the date of accession, they are so amended that they comply withthe conditions laid down in Articles 3 to 6 of this Regulation. However,
this Article shall not apply to agreements, decisions and concerted
practices which at the date of accession already fall under Article53(1) of the EEA Agreement.
Article 27
Entry into force
This Regulation shall enter into force on 1 July 1987.
This Regulation shall be binding in its entirety and directly applicable
in all Member States.1986R4056 — EN — 01.05.2004 — 002.001 — 10
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