1987R3976 — EN — 01.05.2004 — 002.002 — 1
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►B COUNCILREGULATION(EEC)No3976/87
of14December 1987
ontheapplicationofArticle85(3)oftheTreatytocertaincategoriesofagreementsandconcerted
practices intheairtransportsector
(OJ L 374, 31.12.1987, p. 9)
Amended by:
Official Journal
No page date
►M1Council Regulation (EEC) No 2344/90 of 24 July 1990 L 217 15 11.8.1990
►M2Council Regulation (EEC) No 2411/92 of 23 July 1992 L 240 19 24.8.1992
►M3Council Regulation (EC) No 1/2003 of 16 December 2002 L 1 1 4.1.2003
►M4Council Regulation (EC) No 411/2004 of 26 February 2004 L 68 1 6.3.2004
Amended by:
►A1Act of Accession of Austria, Sweden and Finland C241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
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COUNCILREGULATION(EEC)No3976/87
of14December 1987
on the application of Article 85 (3) of the Treaty to certain cate-
gories of agreements and concerted practices in the air transport
sector
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community and in particular Article 87 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinions of the European Parliament (2),
Having regard to the opinions of the Economic and Social
Committee (3),
Whereas Council Regulation (EEC) No 3975/87 (4) lays down the
procedure for the application of the rules on competition to undertak-ings in the air transport sector; whereas Regulation No 17 of theCouncil (
5) lays down the procedure for the application of these rules
to agreements, decisions and concerted practices other than thosedirectly relating to the provision of air transport services;
Whereas Article 85 (1) of the Treaty may be declared inapplicable to
certain categories of agreements, decisions and concerted practiceswhich fulfil the conditions contained in Article 85 (3);
Whereas common provisions for the application of Article 85 (3)
should be adopted by way of Regulation pursuant to Article 87;
whereas, according to Article 87 (2) (b), such a Regulation must lay
down detailed rules for the application of Article 85 (3), taking intoaccount the need to ensure effective supervision, on the one hand, andto simplify administration to the greatest possible extent, on the other;whereas, according to Article 87 (2) (d), such a Regulation is requiredto define the respective functions of the Comission and of the Court of
Justice;
Whereas the air transport sector has to date been governed by a
network of international agreements, bilateral agreement betweenStates and bilateral and multilateral agreements between air carriers;whereas the changes required to this international regulatory system to
ensure increased competition should be effected gradually so as to
provide time for the air-transport sector to adapt;
Whereas the Commission should be enabled for this reason to declare
by way of Regulation that the provisions of Article 85 (1) do not applyto certain categories of agreements between undertakings, decisions byassociations of undertakings and concerted practices;
Whereas it should be laid down under what specific conditions and in
what circumstances the Commission may exercise such powers in closeand constant liaison with the competent authorities of the MemberStates;
Whereas it is desirable, in particular, that block exemptions be granted
for certain categories of agreements, decisions and concerted practices;
whereas these exemptions should be granted for a limited period duringwhich air carriers can adapt to a more competitive environment;whereas the Commission, in close liaison with the Member States,should be able to define precisely the scope of these exemptions andthe conditions attached to them;1987R3976 — EN — 01.05.2004 — 002.002 — 2
(1) OJ No C 182, 9. 7. 1984, p. 3.
(2) OJ No C 262, 14. 10. 1985, p. 44;
OJ No C 190, 20. 7. 1987, p. 182 and OJ No C 345, 21. 12. 1987.
(3) OJ No C 303, 25. 11. 1985, p. 31 and
OJ No C 333, 29. 12. 1986, p. 27.
(4) See page 1 of this Official Journal.
(5) OJ No 13, 21. 2. 1962, p. 204/62.
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Whereas there can be no exemption if the conditions set out in Article
85 (3) are not satisfied; whereas the Commission should therefore havepower to take the appropriate measures where an agreement proves to
have effects incompatible with Article 85 (3); whereas the Commission
should consequently be able first to address recommendations to theparties and then to take decisions;
Whereas this Regulation does not prejudge the application of Article 90
of the Treaty;
Whereas the Heads of State and Government, at their meeting in June
1986, agreed that the internal market in air transport should be
completed by 1992 in pursuance of Community actions leading to thestrengthening of its economic and social cohesion; whereas the provi-sions of this Regulation, together with those of Council Directive 87/601/EEC of 14 December 1987 on fares for scheduled air servicesbetween Member States (
1) and those of Council Decision 87/602/EEC
of 14 December 1987on the sharing of passenger capacity between air
carriers on scheduled air services between Member States and onaccess for air carriers to scheduled air service routes between MemberStates (
2), are a first step in this direction and the Council will there-
fore, in order to meet the objective set by the Heads of State and
Government, adopt further measures of liberalization at the end of a
three year initial period,
HAS ADOPTED THIS REGULATION:
Article 1
This Regulation shall apply to ►M2 ◄air transport
►M4 ◄.
Article 2
1. Without prejudice to the application of Regulation (EEC) No
3975/87 and in accordance with Article 85(3) of the Treaty, theCommission may by regulation declare that Article 85 (1) shall notapply to certain categories of agreements between undertakings, deci-sions of associations of undertakings and concerted practices.
2. The Commission may, in particular, adopt such Regulations in
respect of agreements, decisions or concerted practices which have astheir object any of the following:
— joint planning and coordination of airline schedules,
— consultations on tariffs for the carriage of passengers and baggage
and of freight on scheduled air services,
— joint operations on new less busy scheduled air services,
— slot allocation at airports and airport scheduling; the Commision
shall take care to ensure consistency with the Code of Conduct
adopted by the Council,
— common purchase, development and operation of computer reserva-
tion systems relating to timetabling, reservations and ticketing byair transport undertakings; the Commission shall take care to ensureconsistency with the Code of Conduct adopted by the Council.
3. Without prejudice to paragraph 2, such Commission regulations
shall define the categories of agreements, decisions or concerted prac-tices to which they apply and shall specify in particular:
(a) the restrictions or clauses which may, or may not, appear in the
agreements, decisions and concerted practices;1987R3976 — EN — 01.05.2004 — 002.002 — 3
(1) See p. 12 of this Official Journal.
(2) See p. 19 of this Official Journal..▼M2
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(b) the clauses which must be contained in the agreements, decisions
and concerted practices, or any other conditions which must besatisfied.
Article 3
Any Regulation adopted pursuant to Article 2 shall be for a specified
period.
It may be repealed or amended where circumstances have changed with
respect to any of the factors which prompted its adoption; in such acase, a period shall be fixed for amendment of the agreements andconcerted practices to which the earlier Regulation applied beforerepeal or amendment.
Article 4
Regulations adopted pursuant to Article 2 shall include a provision that
they apply with retroactive effect to agreements, decisions andconcerted practices which were in existence at the date of the entryinto force of such Regulations.
Article 4a.
A Regulation pursuant to Article 2 may stipulate that the prohibition
contained in Article 85(1) of the Treaty shall not apply, for such aperiod as fixed by that Regulation, to agreements, decisions and
concerted practices already in existence at the date of accession to
which Article 85(1) applies by virtue of the accession of Austria,Finland and Sweden and which do not satisfy the conditions of Article85(3). However, this Article shall not apply to agreements, decisionsand concerted practices which at the date of accession already fall
under Article 53(1) of the EEA Agreement.
Article 5
Before adopting a regulation, the Commission shall publish a draft
thereof and invite all persons and organizations concerned to submittheir comments within such reasonable time limit, being not less thanone month, as the Commission shall fix.
Article 6
The Commission shall consult the Advisory Committee referred to in
Article 14 of Council Regulation (EC) No 1/2003 of 16 December
2002 on the implementation of the rules on competition laid down in
Articles 81 and 82 of the Treaty (
1) before publishing a draft Regula-
tion and before adopting a Regulation.
Article 9
This Regulation shall enter into force on 1 January 1988.
This Regulation shall be binding in its entirety and directly applicable
in all Member States.1987R3976 — EN — 01.05.2004 — 002.002 — 4
(1) OJ L 1, 4.1.2003, p. 1.▼M2
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