1968R1017 — EN — 01.05.2004 — 002.001 — 1
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►B REGULATION (EEC) No 1017/68 OF THE COUNCIL
of 19 July 1968
applying rules of competition to transport by rail, road and inland waterway
(OJ L 175, 23.7.1968, p. 1)
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 Denmark, Ireland and the United Kingdom of Great
Britain and Northern IrelandL 73 14 27.3.1972
►A2 Act of Accession of Greece L 291 17 19.11.1979
►A3 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
►A4 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 Slovak
Republic and the adjustments to the Treaties on which the European
Union is foundedL 236 33 23.9.2003
Corrected by:
►C1 RECTIF, p. 28 (1017/68/EC)
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).
▼B
REGULATION (EEC) No 1017/68 OF THE COUNCIL
of 19 July 1968
applying rules of competition to transport by rail, road and inland
waterway
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Articles 75 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 Council Regulation No 141 (3) exempting transport from the
application of Regulation No 17 provides that the said Regulation No17 (
4) shall not apply to agreements, decisions and concerted practices
in the transport sector the effect of which is to fix transport rates andconditions, to limit or control the supply of transport or to share trans-
port markets, nor to dominant positions, within the meaning of Article
86 of the Treaty, on the transport market;
Whereas, for transport by rail, road and inland waterway, Regulation
No 1002/67/CEE (
5) provides that such exemption shall not extend
beyond 30 June 1968;
Whereas the establishing of rules of competition for transport by rail,
road and inland waterway is part of the common transport policy andof general economic policy;
Whereas, when rules of competition for these sectors are being settled,
account must be taken of the distinctive features of transport;
Whereas, since the rules of competition for transport derogate from the
general rules of competition, it must be made possible for undertakingsto ascertain what rules apply in any particular case;
Whereas, with the introduction of a system of rules on competition for
transport, it is desirable that such rules should apply equally to the joint
financing or acquisition of transport equipment for the joint operation
of services by certain groupings of undertakings, and also to certainoperations in connection with transport by rail, road or inland waterwayof providers of services ancillary to transport;
Whereas, in order to ensure that trade between Member States is not
affected or competition within the common market distorted, it is
necessary to prohibit in principle for the three modes of transport speci-fied above all agreements between undertakings, decisions ofassociations of undertakings and concerted practices between undertak-ings and all instances of abuse of a dominant position within the
common market which could have such effects;
Whereas certain types of agreement, decision and concerted practice in
the transport sector the object and effect of which is merely to applytechnical improvements or to achieve technical co-operation may beexempted from the prohibition on restrictive agreements since theycontribute to improving productivity; whereas, in the light of experi-
ence following application of this Regulation, the Council may, on a
proposal from the Commission, amend the list of such types of agree-ment;
Whereas, in order that an improvement may be fostered in the some-
times too dispersed structure of the industry in the road and inland1968R1017 — EN — 01.05.2004 — 002.001 — 2
(1) OJ No 205, 11.12.1964, p. 3505/64.
(2) OJ No 103, 12.6.1965, p. 1792/65.
(3) OJ No 124, 28.11.1962, p. 2751/62.
(4) OJ No 13, 21.2.1962, p. 204/62.
(5) OJ No 306, 16.12.1967, p. 1.
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waterway sectors, there should also be exempted from the prohibition
on restrictive agreements those agreements, decisions and concertedpractices providing for the creation and operation of groupings of
undertakings in these two transport sectors whose object is the carrying
on of transport operations, including the joint financing or acquisitionof transport equipment for the joint operation of services; whereassuch overall exemption can be granted only on condition that the totalcarrying capacity of a grouping does not exceed a fixed maximum, and
that the individual capacity of undertakings belonging to the grouping
does not exceed certain limits so fixed as to ensure that no one under-taking can hold a dominant position within the grouping; whereas theCommission must, however, have power to intervene if, in specificcases, such agreements should have effects incompatible with theconditions under which a restrictive agreement may be recognised as
lawful, and should constitute an abuse of the exemption; whereas,
nevertheless, the fact that a grouping has a total carrying capacitygreater than the fixed maximum, or cannot claim the overall exemptionbecause of the individual capacity of the undertakings belonging to thegrouping, does not in itself prevent such a grouping from constituting a
lawful agreement, decision or concerted practice if it satisfies the
conditions therefor laid down in this Regulation;
Whereas, where an agreement, decision or concerted practice contri-
butes towards improving the quality of transport services, or towardspromoting greater continuity and stability in the satisfaction of trans-port needs on markets where supply and demand may be subject toconsiderable temporal fluctuation, or towards increasing the produc-
tivity of undertakings, or towards furthering technical or economic
progress, it must be made possible for the prohibition to be declarednot to apply, always provided, however, that the agreement, decisionor concerted practice takes fair account of the interests of transportusers, and neither imposes on the undertakings concerned any restric-
tion not indispensable to the attainment of the above objectives nor
makes it possible for such undertakings to eliminate competition inrespect of a substantial part of the transport market concerned, havingregard to competition from alternative modes of transport;
Whereas it is desirable until such time as the Council, acting in pursu-
ance of the common transport policy, introduces appropriate measuresto ensure a stable transport market, and subject to the condition that the
Council shall have found that a state of crisis exists, to authorise, for
the market in question, such agreements as are needed in order toreduce disturbance resulting from the structure of the transport market;
Whereas, in respect of transport by rail, road and inland waterway, it is
desirable that Member States should neither enact nor maintain in forcemeasures contrary to this Regulation concerning public undertakings orundertakings to which they grant special or exclusive rights; whereas it
is also desirable that undertakings entrusted with the operation of
services of general economic importance should be subject to theprovisions of this Regulation in so far as the application thereof doesnot obstruct, in law or in fact, the accomplishment of the particulartasks assigned to them, always provided that the development of trade
is not thereby affected to such an extent as would be contrary to the
interests of the Community; whereas the Commission must have powerto see that these principles are applied and to address the appropriatedirectives or decisions for this purpose to Member States;
Whereas the detailed rules for application of the basic principles of this
Regulation must be so drawn that they not only ensure effective super-vision while simplifying administration as far as possible but also meet
the needs of undertakings for certainty in the law;
Whereas it is for the undertakings themselves, in the first instance, to
judge whether the predominant effects of their agreements, decisions orconcerted practices are the restriction of competition or the economicbenefits acceptable as justification for such restriction and to decideaccordingly, on their own responsibility, as to the illegality or legalityof such agreements, decisions or concerted practices;1968R1017 — EN — 01.05.2004 — 002.001 — 3
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Whereas, therefore, undertakings should be allowed to conclude or
operate agreements without declaring them; whereas this exposes suchagreements to the risk of being declared void with retroactive effect
should they be examined following a complaint or on the Commis-
sions's own initiative, but does not prevent their being retroactivelydeclared lawful in the event of such subsequent examination;
Whereas, however, undertakings may, in certain cases, desire the assis-
tance of the competent authorities to ensure that their agreements,
decisions or concerted practices are in conformity with the rules applic-
able; whereas for this purpose there should be made available toundertakings a procedure whereby they may submit applications to theCommission and a summary of each such application is published inthe Official Journal of the European Communities , enabling any inter-
ested third parties to submit their comments on the agreement in
question; whereas, in the absence of any complaint from Member
States or interested third parties and unless the Commission notifiesapplicants within a fixed time limit, that there are serious doubts as tothe legality of the agreement in question, that agreement should bedeemed exempt from the prohibition for the time already elapsed and
for a further period of three years;
Whereas, in view of the exceptional nature of agreements needed in
order to reduce disturbances resulting from the structure of the trans-port market, once the Council has found that a state of crisis existsundertakings wishing to obtain authorisation for such an agreementshould be required to notify it to the Commission; whereas authorisa-
tion by the Commission should have effect only from the date when it
is decided to grant it; whereas the period of validity of such authorisa-tion should not exceed three years from the finding of a state of crisisby the Council; whereas renewal of the decision should depend uponrenewal of the finding of a state of crisis by the Council; whereas, inany event, the authorisation should cease to be valid not later than six
months from the bringing into operation by the Council of appropriate
measures to ensure the stability of the transport market to which theagreement relates;
Whereas, in order to secure uniform application within the common
market of the rules of competition for transport, rules must be made
under which the Commission, acting in close and constant liaison with
the competent authorities of the Member States, may take the measuresrequired for the application of such rules of competition;
Whereas for this purpose the Commission must have the co-operation
of the competent authorities of the Member States and be empoweredthroughout the common market to request such information and to
carry out such investigations as are necessary to bring to light any
agreement, decision or concerted practice prohibited under this Regula-tion, or any abuse of a dominant position prohibited under thisRegulation.
Whereas, if, on the application of the Regulation to a specific case, a
Member State is of the opinion that a question of principle concerning
the common transport policy is involved, it should be possible for such
questions of principle to be examined by the Council; whereas it shouldbe possible for any general questions raised by the implementation ofthe competition policy in the transport sector to be referred to theCouncil; whereas a procedure must be provided for which ensures that
any decision to apply the Regulation in a specific case will be taken by
the Commission only after the questions of principle have been exam-ined by the Council, and in the light of the policy guidelines thatemerge from that examination;
Whereas, in order to carry out its duty of ensuring that the provisions
of this Regulation are applied, the Commission must be empowered to
address to undertakings or associations of undertakings recommenda-
tions and decisions for the purose of bringing to an end infringementsof the provisions of this Regulation prohibiting certain agreements,decisions or practices;
Whereas compliance with the prohibitions laid down in this Regulation
and the fulfilment of obligations imposed on undertakings and associa-1968R1017 — EN — 01.05.2004 — 002.001 — 4
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tions of undertakings under this Regulation must be enforceable by
means of fines and periodic penalty payments;
Whereas undertakings concerned must be accorded the right to be
heard by the Commission, third parties whose interests may be affectedby a decision must be given the opportunity of submitting theircomments beforehand, and it must be ensured that wide publicity is
given to decisions taken;
Whereas it is desirable to confer upon the Court of Justice, pursuant to
Article 172, unlimited jurisdiction in respect of decisions under which
the Commission imposes fines or periodic penalty payments;
Whereas it is expedient to postpone for six months, as regards agree-
ments, decisions and concerted practices in existence at the date ofpublication of this Regulation in the Official Journal of the European
Communities , the entry into force of the prohibition laid down in the
Regulation, in order to make it easier for undertakings to adjust theiroperations so as to conform to its provisions;
Whereas, following discussions with the third countries signatories to
the Revised Convention for the Navigation of the Rhine, and withinan appropriate period of time from the conclusion of those discussions,this Regulation as a whole should be amended as necessary in the lightof the obligations arising out of the Revised Convention for the Navi-gation of the Rhine;
Whereas the Regulation should be amended as necessary in the light of
the experience gained over a three-year period; whereas it will in parti-cular be desirable to consider whether, in the light of the development
of the common transport policy over that period, the scope of the
Regulation should be extended to agreements, decisions and concertedpractices, and to instances of abuse of a dominant position, notaffecting trade between Member States;
HAS ADOPTED THIS REGULATION:
Article 1
Basic provision
The provisions of this Regulation shall, in the field of transport by rail,
road and inland waterway, apply both to all agreements, decisions and
concerted practices which have as their object or effect the fixing of
transport rates and conditions, the limitation or control of the supplyof transport, the sharing of transport markets, the application of tech-nical improvements or technical co-operation, or the joint financing oracquisition of transport equipment or supplies where such operationsare directly related to the provision of transport services and are neces-
sary for the joint operation of services by a grouping within the
meaning of Article 4 of road or inland waterway transport undertak-ings, and to the abuse of a dominant position on the transport market.These provisions shall apply also to operations of providers of servicesancillary to transport which have any of the objects or effects listedabove.
Article 3
Exception for technical agreements
1.►M1 The prohibition in Article 81(1) of the Treaty ◄shall not
apply to agreements, decisions or concerted practices the object and
effect of which is to apply technical improvements or to achieve tech-
nical co-operation by means of:
(a) the standardisation of equipment, transport supplies, vehicles or
fixed installations;1968R1017 — EN — 01.05.2004 — 002.001 — 5
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(b) the exchange or pooling, for the purpose of operating transport
services, of staff, equipment, vehicles or fixed installations;
(c) the organisation and execution of successive, complementary,
substitute or combined transport operations, and the fixing andapplication of inclusive rates and conditions for such operations,including special competitive rates;
(d) the use, for journeys by a single mode of transport, of the routes
which are most rational from the operational point of view;
(e) the co-ordination of transport timetables for connecting routes;
(f) the grouping of single consignments;
(g) the establishment of uniform rules as to the structure of tariffs and
their conditions of application, provided such rules do not lay down
transport rates and conditions.
2. The Commission shall, where appropriate, submit proposals to the
Council with a view to extending or reducing the list in paragraph 1.
Article 4
Exemption for groups of small and medium-sized undertakings
1.►
M1 Agreements, decisions and concerted practices pursuant to
Article 81(1) of the Treaty ◄shall be exempt from the prohibition in
that Article where their purpose is:
— the constitution and operation of groupings of road or inland
waterway transport undertakings with a view to carrying on trans-port activities;
— the joint financing or acquisition of transport equipment or supplies,
where these operations are directly related to the provision of trans-
port services and are necessary for the joint operations of theaforesaid groupings;
always provided that the total carrying capacity of any grouping does
not exceed:
— 10 000 metric tons in the case of road transport,
— 500 000 metric tons in the case of transport by inland waterway.
The individual capacity of each undertaking belonging to a grouping
shall not exceed 1 000 metric tons in the case of road transport or50 000 metric tons in the case of transport by inland waterway.
2. If the implementation of any agreement, decision or concerted
practice covered by paragraph 1 has, in a given case, effects which
are incompatible with the requirements of Article 81(3) of the Treaty,undertakings or associations of undertakings may be required to makesuch effects cease.
Article 13
Duration and revocation of decisions applying Article 5
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;1968R1017 — EN — 01.05.2004 — 002.001 — 6
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(d) where the parties abuse the exemption from the provisions of
Article 2 granted to them by the decision.
In cases falling within (b), (c) or (d), the decision may be revoked with
retroactive effect.
Article 30
Entry into force, existing agreements
1. This Regulation shall enter into force on 1 July 1968.
Article 31
Review of the Regulation
1. Within six months of the conclusion of discussions with the third
countries signatories to the Revised Convention for the Navigation of
the Rhine; the Council, on a proposal from the Commission, shallmake any amendments to this Regulation which may prove necessaryin the light of the obligations arising out of the Revised Conventionfor the Navigation of the Rhine.
2. The Commission shall submit to the Council, before 1 January
1971, a general report on the operation of this Regulation and, before
1 July 1971, a proposal for a Regulation to make the necessary amend-
ments to this Regulation.
This Regulation shall be binding in its entirety and directly applicable
in all Members States.1968R1017 — EN — 01.05.2004 — 002.001 — 7
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