1986R4056 — EN — 01.01.1995 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►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
►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
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 EconomicCommunity, 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 theTreaty dealing with the rules on competition or are to be determined bythe 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 investigatingdirectly 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 it tobring 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 ther atification by MemberStates of, ortheiraccession to, the UnitedNations Convention on a Code of Conduct forLinerConfer ence (
6) will
result in the application of the Code of Conduct to a considerablenumber 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 it moreprecise;
Whereas it appears preferable to exclude tramp vessel services from the
scope of this Regulation, rates for these services being freely negotiatedon a case-by-case basis in accordance with supply and demand condi-tions;
Whereas this Regulation should take account of the necessity, on the
one hand to provide for implementing rules that enable the Commissionto ensure that competition is not unduly distorted within the commonmarket, and on the other hand to avoid excessive regulation of thesector;
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 MemberStates may be affected where restrictive practices or abuses concerninternational maritime transport, including intra-Community transport,from or to Community ports; whereas such restrictive practices or
(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 tradepatterns 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, assuringshippers 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 orallocation of car go forshipment, and income;whereas in most cases conferences continue to be subject to effectivecompetition from both non-conference scheduled services and, incertain circumstances, from tramp services and from other modes oftransport; whereas the mobility of fleets, which is a characteristicfeature of the structure of availability in the shipping field, subjectsconferences to constant competition which they are unable as a rule toeliminate as far as a substantial proportion of the shipping services inquestion 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 thegoods carried and thus cause within the Community deflections of tradethat are harmful to certain ports, shippers, carriers or providers ofservices 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 competitionin the shipping industry, without prejudice, however, to the right of aconference to impose penalties on users who seek by improper means toevade 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 theyhave recourse in respect of inland transport or quayside services notcovered by the freight charge or by other charges agreed with theshipping 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 bymembers of the conference, since in the case of inland transportsorganized 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 orderto enable it to verify that conferences are not thereby exempted from theconditions provided for in the Regulation and thus do not infringe theprovisions 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 ensuefrom 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 havecertain effects incompatible with Article 85 (3); whereas, in view of the
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specific role fulfilled by the conferences in the sector of the liner
services, the reaction of the Commission should be progressive andproportionate; whereas the Commission should consequently have thepower 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 exemptionpursuant to Article 85 (3) owing to their discriminatory or other featuresapplies only to the elements of the agreement covered by the prohibitionof Article 85 (1) and applies to the agreement in its entirety only ifthose elements do not appear to be severable from the whole of theagreement whereas the Commission should therefore, if it finds aninfringement of the block exemption, either specify what elements ofthe agreement are by the prohibition and consequently automaticallyvoid, or indicate the reasons why those elements are not severable fromthe rest of the agreement and why the agreement is therefore void in itsentirety;
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 authorizedby the Council should be undertaken by the Commission with thosecountries in pursuance of the maritime transport policy of theCommunity;
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) and Article86, as well as the conditions governing the application of Article 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 maritime
transport, it is primarily the responsibility of undertakings to see to itthat their agreements, decisions and concerted practices conform to therules on competition, and consequently their notification to theCommission need not be made compulsory;
Whereas in certain circumstances undertakings may, however, wish to
apply to the Commission forconfir mation that theiragr eements, deci-sions and concerted practices are in conformity with the provisions inforce; whereas a simplified procedure should be laid down for suchcases,
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. Forthe pur poses 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 moreshipper s on the basis of a voyage ortime char terorany otherfor mof contract for non-regularly scheduled or non-advertised sailings
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where the freight rates are freely negotiated case by case in accord-
ance 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 geograph-ical limits and which has an agreement or arrangement, whatever itsnature, within the framework of which they operate under uniformor common freight rates and any other agreed conditions withrespect 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 anintention to enterinto, a contr actual orotherar r angement with aconfer ence orshipping line forthe shipment of goods, oranyassociation 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, suppliesorfixed installations;
(b) the exchange or pooling for the purpose of operating transport
ser vices, of vessels, space on vessels orslots and othermeans oftransport, staff, equipment or fixed installations;
(c) the organization and execution of successive or supplementary
maritime transport operations and the establishment or applicationof 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
proposals 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 conditionimposed by Article 4 of this Regulation, when they have as theirobjective the fixing of rates and conditions of carriage, and, as the casemay be, one ormor e 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 coor dination orallocation of sailings orcalls among member s of
the conference;
(d) the regulation of the carrying capacity offered by each member;
(e) the allocation of cargo or revenue among members.
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-
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port users or carriers by applying for the carriage of the same goods andin the area covered by the agreement, decision or concerted practice,rates and conditions of carriage which differ according to the country oforigin or destination or port of loading or discharge, unless such rates orconditions 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 paragraph shallautomatically 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
forin Ar ticle 3:
1.Consultations
There shall be consultations for the purpose of seeking solutions on
general issues of principle between transport users on the one handand conferences on the other concerning the rates, conditions andquality of scheduled maritime transport services.
These consultations shall take place wheneverr equested 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, theform 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 shallbe based on the contr act system orany othersystem which is alsolawful.
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 notmore than six months; this period shall be reduced to threemonths 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 tothree months where the conference rate is the subject of adispute.
(b) The conference shall, after consulting the transport users
concerned, set out:
(i) a list of cargo and any portion of cargo agreed with transport
users which is specifically excluded from the scope of theloyalty arrangement; 100 % loyalty arrangements may beoffered 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 conferencebut not advertised and where the request for a waiver canbe justified, and
— those in which waiting time at a port exceeds a period to
be determined for each port and for each commodity orclass of commodities following consultation of the trans-port users directly concerned with the proper servicing ofthe port.
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The conference must, however, be informed in advance by the
transport user, within a specified period, of his intention todispatch the consignment from a port not advertised by theconference or to make use of a non-conference vessel at a portserved by the conference as soon as he has been able toestablish from the published schedule of sailings that themaximum 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 quayside servicesnot covered by the freight charge or charges on which the shippingline 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, orthey shall be available forexamination at offices of shippinglines and theiragents. They shall set out all the conditionsconcerning 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 ofconferences 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, concerningthe rates, conditions and quality of liner services, as long as they areprovided for in Article 5 (1) and (2) are hereby exempted from theprohibition 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 breachand underthe conditions laid down in Section II:
— address recommendations to the persons concerned;— in the event of failure by such persons to observe those recom-
mendations and depending upon the gravity of the breachconcerned, adopt a decision that either prohibits them fromcarrying out or requires them to perform specific acts or, whilewithdrawing the benefit of the block exemption which theyenjoyed, grants them an individual exemption according toArticle 11 (4) or withdraws the benefit of the block exemptionwhich they enjoyed.
2.Effects incompatible with Article 85 (3)
(a) Where, owing to special circumstances as described below,
agreements, decisions and concerted practices which qualify forthe 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 oron its own initiative, underthe conditions laiddown in Section II, shall take the measures described in (c)
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below. The severity of these measures must be in proportion tothe 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 ontypes of vessels).
(c) (i) If actual orpotential competition is absent ormay be elimi-
nated as a result of action by a third country, the Commis-sion shall enterinto consultations with the competent author -ities of the third country concerned, followed if necessary bynegotiations underdir ectives to be given by the Council, inorder 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. At the same time it shall ruleon whetherand, if so, underwhat additional conditions andobligations an individual exemption should be granted to therelevant conference agreement 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
1. The abuse of a dominant position within the meaning of Article 86
of the Treaty shall be prohibited, no prior decision to that effect beingrequired.
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 ofconferences benefiting from the exemption laid down in Article 3nevertheless has effects which are incompatible with Article 86 of theTreaty, it may withdraw the benefit of the block exemption and take,pursuant to Article 10, all appropriate measures for the purpose ofbringing to an end infringements of Article 86 of the Treaty.
3. Before taking a decision under paragraph 2, the Commission may
address to the conference concerned recommendations for terminationof the infringement.
Article 9
Conflicts of international law
1. Where the application of this Regulation to certain restrictive
pr actices orclauses is liable to enterinto conflict with the pr ovisionslaid 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 countriesconcerned, consultations aimed at reconciling as far as possible theabovementioned interest with the respect of Community law. The
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Commission shall inform the Advisory Committee referred to in Article
15 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 shallauthorize the Commission to open the necessary negotiations.
The Commission shall conduct these negotiations in consultation with
an Advisory Committee as referred to in Article 15 and within theframework 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 laiddown in Article 84 (2) of the Treaty.
SECTION II
RULES OF PROCEDURE
Article 10
Procedures on complaint or on the Commission’s own initiative
Acting on receipt of a complaint or on its own initiative, the Commis-
sion shall initiate procedures to terminate any infringement of theprovisions of Articles 85 (1) or 86 of the Treaty or to enforce Article 7of this Regulation.
Complaints may be submitted by:
(a) MemberStates;
(b) natural or legal persons who claim a legitimate interest.
Article 11
Result of procedures on complaint or on the Commission’s own
initiative
1. Where the Commission finds that there has been an infringement
of Articles 85 (1) or 86 of the Treaty, it may by decision require theundertakings or associations of undertakings concerned to bring suchinfringement to an end.
Without prejudice to the other provisions of this Regulation, the
Commission may, before taking a decision under the preceding subpara-graph, address to the undertakings or associations of undertakingsconcerned recommendations for termination of the infringement.
2. Paragraph 1 shall apply also to cases falling within Article 7 of
this Regulation.
3. If the Commission, acting on a complaint received, concludes that
on the evidence before it there are no grounds for intervention underArticles 85 (1) or 86 of the Treaty or Article 7 of this Regulation, inrespect of any agreement, decision or practice, it shall issue a decisionrejecting the complaint as unfounded.
4. If the Commission, whetheracting on a complaint r eceived oron
its own initiative, concludes that an agreement, decision or concertedpractice satisfies the provisions both of Article 85 (1) and of Article 85(3) of the Treaty, it shall issue a decision applying Article 85 (3). Suchdecision shall indicate the date from which it is to take effect. This datemay be prior to that of the decision.
Article 12
Application of Article 85 (3)— objections
1. Undertakings and associations of undertakings which seek applica-
tion of Article 85 (3) of the Treaty in respect of agreements, decisionsand concerted practices falling within the provisions of Article 85 (1) towhich they are parties shall submit applications to the Commission.
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2. If the Commission judges an application admissible and is in
possession of all the available evidence, and no action underAr ticle 10has been taken against the agreement, decision or concerted practice inquestion, then it shall publish as soon as possible in the Official Journal
of the European Communities a summary of the application and invite
all interested third parties and the Member States to submit theircomments to the Commission within 30 days. Such publications shallhave regard to the legitimate interest of undertakings in the protectionof theirbusiness secr ets.
3. Unless the Commission notifies applicants, within 90 days from
the date of such publication in the Official Journal of the European
Communities , that there are serious doubts as to the applicability of
Article 85 (3), the agreement, decision or concerted practice shall bedeemed exempt, insofar as it conforms with the description given in theapplication, from the prohibition for the time already elapsed and for amaximum of six years from the date of publication in the Official
Journal of the European Communities .
If the Commission finds, afterexpir y of the 90-day time limit, but
before expiry of the six year period, that the conditions for applyingArticle 85 (3) are not satisfied, it shall issue a decision declaring that theprohibition in Article 85 (1) is applicable. Such decision may be retro-active where the parties concerned have given inaccurate information orwhere they abuse the exemption from the provisions of Article 85 (1).
4. The Commission may notify applicants as referred to in the first
subparagraph of paragraph 3 and shall do so if requested by a MemberState within 45 days of the forwarding to the Member State of theapplication in accordance with Article 15 (2). This request must bejustified on the basis of considerations relating to the competition rulesof the Treaty.
If it finds that the conditions of Article 85 (1) and of Article 85 (3) are
satisfied, the Commission shall issue a decision applying Article 85 (3).The decision shall indicate the date from which it is to take effect. Thisdate may be prior to that of the application.
Article 13
Duration and revocation of decisions applying Article 85 (3)
1. Any decision applying Article 85 (3) taken under Article 11 (4) or
under the second subparagraph of Article 12 (4) shall indicate theperiod for which it is to be valid; normally such period shall not be lessthan six years. Conditions and obligations may be attached to thedecision.
2. The decision may be renewed if the conditions for applying
Article 85 (3) continue to be satisfied.
3. The Commission may r evoke oramend its decision orpr ohibit
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 r evoked with
retroactive effect.
Article 14
Powers
Subject to review of its decision by the Court of Justice, the Commis-
sion shall have sole power:
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— to impose obligations pursuant to Article 7;
— to issue decisions pursuant to Article 85 (3).
The authorities of the Member States shall retain the power to decide
whether any case falls within the provisions of Article 85 (1) or Article86, until such time as the Commission has initiated a procedure with aview to formulating a decision in the case in question or has sentnotification as provided for in the first subparagraph of Article 12 (3).
Article 15
Liaison with the authorities of the Member States
1. The Commission shall carry out the procedures provided for in
this Regulation in close and constant liaison with the competent authori-ties of the Member States; these authorities shall have the right toexpress their views on such procedures.
2. The Commission shall immediately forward to the competent
authorities of the Member States copies of the complaints and applica-tions, and of the most important documents sent to it or which it sendsout in the course of such procedures.
3. An Advisory Committee on agreements and dominant positions in
maritime transport shall be consulted prior to the taking of any decisionfollowing upon a procedure under Article 10 or of any decision issuedunder the second subparagraph of Article 12 (3), or under the secondsubparagraph of paragraph 4 of the same Article. The AdvisoryCommittee shall also be consulted prior to the adoption of the imple-menting provisions provided for in Article 26.
4. The Advisory Committee shall be composed of officials
competent in the sphere of maritime transport and agreements anddominant positions. Each MemberState shall nominate two officials torepresent it, each of whom may be replaced, in the event of his beingprevented from attending, by another official.
5. Consultation shall take place at a joint meeting convened by the
Commission; such meeting shall be held not earlier than fourteen daysafterdispatch of the notice convening it. This notice shall, in r espect ofeach case to be examined, be accompanied by a summary of the casetogetherwith an indication of the most impor tant documents, and apreliminary draft decision.
6. The Advisory Committee may deliver an opinion notwithstanding
that some of its members or their alternates are not present. A report ofthe outcome of the consultative proceedings shall be annexed to thedraft decision. It shall not be made public.
Article 16
Requests for information
1. In carrying out the duties assigned to it by this Regulation, the
Commission may obtain all necessary information from the Govern-ments and competent authorities of the Member States and from under-takings and associations of undertakings.
2. When sending a request for information to an undertaking or
association of undertakings, the Commission shall at the same timeforward a copy of the request to the competent authority of the MemberState in whose territory the seat of the undertaking or association ofundertakings is situated.
3. In its request, the Commission shall state the legal basis and the
purpose of the request, and also the penalties provided for in Article 19(1) (b) for supplying incorrect information.
4. The owners of the undertakings or their representatives and, in the
case of legal persons, companies or firms, or of associations having nolegal personality, the person authorized to represent them by law or bytheir constitution, shall be bound to supply the information requested.
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5. Where an undertaking or association of undertakings does not
supply the information requested within the time limit fixed by theCommission, orsupplies incomplete infor mation, the Commission shallby decision require the information to be supplied. The decision shallspecify what information is required, fix an appropriate time limitwithin which it is to be supplied and indicate the penalties provided forin Article 19 (1) (b) and Article 20 (1) (c) and the right to have thedecision reviewed by the Court of Justice.
6. The Commission shall at the same time forward a copy of its
decision to the competent authority of the Member State in whoseterritory the seat of the undertaking or association of undertakings issituated.
Article 17
Investigations by the authorities of the Member States
1. At the request of the Commission, the competent authorities of the
MemberStates shall under take the investigations which the Commis-sion considers to be necessary under Article 18 (1), or which it hasordered by decision pursuant to Article 18 (3). The officials of thecompetent authorities of the Member States responsible for conductingthese investigations shall exercise their powers upon production of anauthorization in writing issued by the competent authority of theMember State in whose territory the investigation is to be made. Suchauthorization shall specify the subject matter and purpose of the invest-igation.
2. If so requested by the Commission or by the competent authority
of the Member State in whose territory the investigation is to be made,Commission officials may assist the officials of such authority incarrying out their duties.
Article 18
Investigating powers of the Commission
1. In carrying out the duties assigned to it by this Regulation, the
Commission may undertake all necessary investigations into undertak-ings and associations of undertakings.
To this end the officials authorized by the Commission are empowered:
(a) to examine the books and other business records;
(b) to take copies of or extracts from the books and business records;
(c) to ask foror al explanations on the spot;
(d) to enter any premises, land and vehicles of undertakings.
2. The officials of the Commission authorized for the purpose of
these investigations shall exercise their powers upon production of anauthorization in writing specifying the subject matter and purpose of theinvestigation and the penalties provided for in Article 19 (1) (c) in caseswhere production of the required books or other business records isincomplete. In good time before the investigation, the Commission shallinform the competent authority of the Member State in whose territorythe same is to be made of the investigation and of the identity of theauthorized officials.
3. Undertakings and associations of undertakings shall submit to
investigations ordered by decision of the Commission. The decisionshall specify the subject matterand pur pose of the investigation, appointthe date on which it is to begin and indicate the penalties provided forin Article 19 (1) (c) and Article 20 (1) (d) and the right to have thedecision reviewed by the Court of Justice.
4. The Commission shall take decisions referred to in paragraph 3
afterconsultation with the competent author ity of the MemberState inwhose territory the investigation is to be made.
5. Officials of the competent authority of the Member State in whose
territory the investigation is to be made, may at the request of such
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authority or of the Commission, assist the officials of the Commission
in carrying out their duties.
6. Where an undertaking opposes an investigation ordered pursuant
to this Article, the Member State concerned shall afford the necessaryassistance to the officials authorized by the Commission to enable themto make theirinvestigation. To this end, MemberStates shall take thenecessary measures, after consulting the Commission, before 1 January1989.
Article 19
Fines
1. The Commission may by decision impose on undertakings or
associations of undertakings fines of 100 to 5 000 ECU where, inten-tionally ornegligently:
(a) they supply incorrect or misleading information, either in a
communication pursuant to Article 5 (5) or in an applicationpursuant to Article 12; or
(b) they supply incorrect information in response to a request made
pursuant to Article 16 (3) or (5), or do not supply informationwithin the time limit fixed by a decision taken underAr ticle 16 (5);or
(c) they produce the required books or other business records in incom-
plete form during investigations under Article 17 or Article 18, orrefuse to submit to an investigation ordered by decision issued inimplementation of Article 18 (3).
2. The Commission may by decision impose on undertakings or
associations of undertakings fines of 1 000 to one million ECU, or asum in excess thereof but not exceeding 10 % of the turnover in thepreceding business year of each of the undertakings participating in theinfringement, where either intentionally or negligently:
(a) they infringe Article 85 (1) or Article 86 of the Treaty, or do not
comply with an obligation imposed underAr ticle 7 of this Regula-tion;
(b) they commit a breach of any obligation imposed pursuant to Article
5 orto Ar ticle 13 (1).
In fixing the amount of the fine, regard shall be had both to the gravity
and to the duration of the infringement.
3. Article 15 (3) and (4) shall apply.4. Decisions taken pursuant to paragraphs 1 and 2 shall not be of
criminal law nature.
The fines provided for in paragraph 2 (a) shall not be imposed in
respect of acts taking place after notification to the Commission andbefore its Decision in application of Article 85 (3) of the Treaty,provided they fall within the limits of the activity described in thenotification.
However, this provision shall not have effect where the Commission has
informed the undertakings concerned that after preliminary examinationit is of the opinion that Article 85 (1) of the Treaty applies and thatapplication of Article 85 (3) is not justified.
Article 20
Periodic penalty payments
1. The Commission may by decision impose on undertakings or
associations of undertakings periodic penalty payments of 50 to1 000 ECU perday, calculated fr om the date appointed by the decision,in order to compel them:
(a) to put an end to an infringement of Article 85 (1) or Article 86 of
the Treaty the termination of which it has ordered pursuant to
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Article 11, or to comply with an obligation imposed pursuant toArticle 7;
(b) to refrain from any act prohibited under Article 13 (3);
(c) to supply complete and correct information which it has requested
by decision taken pursuant to Article 16 (5);
(d) to submit to an investigation which it has ordered by decision taken
pursuant to Article 18 (3).
2. Where the undertakings or associations of undertakings have satis-
fied the obligation which it was the purpose of the periodic penaltypayment to enforce, the Commission may fix the total amount of theperiodic penalty payment at a lower figure than that which would ariseunderthe or iginal decision.
3. Article 15 (3) and (4) shall apply.
Article 21
Review by the Court of Justice
The Court of Justice shall have unlimited jurisdiction within the
meaning of Article 172 of the Treaty to review decisions whereby theCommission has fixed a fine orper iodic penalty payment; it maycancel, reduce or increase the fine or periodic penalty payment imposed.
Article 22
Unit of account
For the purpose of applying Articles 19 to 21 the ECU shall be that
adopted in drawing up the budget of the Community in accordance withArticles 207 and 209 of the Treaty.
Article 23
Hearing of the parties and of third persons
1. Before taking decisions as provided for in Articles 11, 12 (3)
second subparagraph, and 12 (4), 13 (3), 19 and 20, the Commissionshall give the undertakings or associations of undertakings concernedthe opportunity of being heard on the matters to which the Commissionhas taken objection.
2. If the Commission orthe competent author ities of the Member
States considerit necessar y, they may also hearothernatur al orlegalpersons. Applications to be heard on the part of such persons wherethey show a sufficient interest shall be granted.
3. Where the Commission intends to give negative clearance
pursuant to Article 85 (3) of the Treaty, it shall publish a summary ofthe relevant agreement, decision or concerted practice and invite allinterested third parties to submit their observations within a time limitwhich it shall fix being not less than one month. Publication shall haveregard to the legitimate interest of undertakings in the protection of theirbusiness secrets.
Article 24
Professional secrecy
1. Information acquired as a result of the application of Articles 17
and 18 shall be used only for the purpose of the relevant request orinvestigation.
2. Without prejudice to the provisions of Articles 23 and 25, the
Commission and the competent authorities of the Member States, theirofficials and other servants shall not disclose information acquired bythem as a result of the application of this Regulation and of the kindcovered by the obligation of professional secrecy.
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3. The provisions of paragraphs 1 and 2 shall not prevent publicationof general information or surveys which do not contain informationrelating to particular undertakings or associations of undertakings.
Article 25
Publication of decisions
1. The Commission shall publish the decisions which it takes
pursuant to Articles 11, 12 (3), second paragraph, 12 (4) and 13 (3).
2. The publication shall state the names of the parties and the main
content of the decision; it shall have regard to the legitimate interest ofundertakings in the protection of their business secrets.
Article 26
Implementing provisions
The Commission shall have powerto adopt implementing pr ovisions
concerning the scope of the obligation of communication pursuant toArticle 5 (5), the form, content and other details of complaints pursuantto Article 10, applications pursuant to Article 12 and the hearingsprovided for in Article 23 (1) and (2).
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Article 26a
The prohibition in Article 85 (1) of the Treaty shall not apply to
agreements, decisions and concerted practices which were in existenceat the date of accession of Austria, Finland and Sweden and which, byreason of that accession, fall within the scope of Article 85 (1) if, withinsix months from the date of accession, they are so amended that theycomply with the conditions laid down in Articles 3 to 6 of this Regula-tion. However, this Article shall not apply to agreements, decisions andconcerted practices which at the date of accession already fall underArticle 53 (1) of the EEA Agreement.
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Article 27
Entry into force
This Regulation shall enterinto for ce on 1 July 1987.
This Regulation shall be binding in its entirety and directly applicable in
all MemberStates.