1993R1617 — EN — 01.05.2004 — 006.001 — 1
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►B COMMISSION REGULATION (EEC) No 1617/93
of 25 June 1993
on the application of Article 85 (3) of the Treaty to certain categories of agreements and concerted
practices concerning joint planning and coordination of schedules, joint operations, consultations
on passenger and cargo tariffs on scheduled air services and slot allocation at airports
(OJ L 155, 26.6.1993, p. 18)
Amended by:
Official Journal
No page date
►M1 Commission Regulation (EC) No 1523/96 of 24 July 1996 L 190 11 31.7.1996
►M2 Commission Regulation (EC) No 1083/1999 of 26 May 1999 L 131 27 27.5.1999
►M3 Commission Regulation (EC) No 1324/2001 of 29 June 2001 L 177 56 30.6.2001
►M4 Commission Regulation (EC) No 1105/2002 of 25 June 2002 L 167 6 26.6.2002
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 of
Malta, the Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the EuropeanUnion is foundedL 236 33 23.9.2003
Corrected by:
►C1 Corrigendum, OJ L 15, 18.1.1994, p. 20 (1617/93)
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
COMMISSION REGULATION (EEC) No 1617/93
of 25 June 1993
on the application of Article 85 (3) of the Treaty to certain cate-
gories of agreements and concerted practices concerning jointplanning and coordination of schedules, joint operations, consulta-tions on passenger and cargo tariffs on scheduled air services and
slot allocation at airports
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community,
Having regard to Council Regulation (EEC) No 3976/87 of 14
December 1987 on the application of Article 85 (3) of the Treaty tocertain categories of agreements and concerted practices in the airtransport sector (
1), as last amended by Regulation (EEC) No 2411/
92 (2), and in particular Article 2 thereof,
Having published a draft of this Regulation (3),
Having consulted the Advisory Committee on Agreements and Domi-
nant Positions in Air Transport,
Whereas:
(1) Regulation (EEC) No 3976/87 empowers the Commission to
apply Article 85 (3) of the Treaty by regulation to certain cate-gories of agreements, decisions or concentrated practices relating
directly or indirectly to the provision of air transport services.
(2) Agreements, decisions or concerted practices concerning joint
planning and coordination of schedules, joint operations, consul-tations on tariffs and slot allocation at airports are liable to
restrict competition and affect trade between Member States.
(3) Joint planning and coordination of the schedule of an air service
can help to ensure the maintenance of services at less busy timesof the day, during less busy periods or on less busy routes, and
to develop onward connections, thus benefiting air transport
users. However, any clauses concerning extra flights must notrequire the approval of the other parties or involve financialpenalties. The arrangements must also allow parties to withdrawfrom them at reasonably short notice.
(4) Arrangements whereby a smaller airline receives marketing andfinancial support from another airline may help that smallerairline to operate air services on new or less busy routes.However, in order to avoid restrictions which are not indispen-sable to the attainment of that aim, the duration of such joint
operations must be limited to the time necessary to gain suffi-
cient commercial standing. The block exemption must not begranted to joint operations where both parties could reasonablybe expected to operate the air service independently. Thoseconditions are without prejudice to the possibility, in appropriate
cases, of an application made under Article 5 of Council Regula-
tion (EEC) No 3975/87 (
4), as last amended by Regulation (EEC)
No 2410/92 (5), with a view to obtaining an individual exemption
where the conditions are not met or where the parties need toextend the duration of the joint operation. In particular wherethe parties wish to avail themselves ►
C1 , through a joint
operation, of the market access ◄opportunities created by
Council Regulation (EEC) No 2408/92 (6) on routes which are
neither new nor less busy, but which otherwise fulfil the condi-1993R1617 — EN — 01.05.2004 — 006.001 — 2
(1) OJ No L 374, 31. 12. 1987, p. 9.
(2) OJ No L 240, 24. 8. 1992, p. 19.
(3) OJ No C 253, 30. 9. 1992, p. 5.
(4) OJ No L 374, 31. 12. 1987, p. 1.
(5) OJ No L 240, 24. 8. 1992, p. 18.
(6) OJ No L 240, 24. 8. 1992, p. 8.
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tions set forth herein, an individual exemption may be
warranted.
(5) Consultations on passenger and cargo tariffs may contribute tothe generalized acceptance of interlinable fares and rates to the
benefit of air carriers as well as air transport users. However,
consultations must not exceed the aim of facilitating interlining.Council Regulation (EEC) No 2409/92 of 23 July 1992 on faresand rates for air services (
1), is based on the principle of free
pricing and therefore increases the possibility of price competi-
tion in air transport. Hence, competition may not be eliminated
thereby. Consultations between air carriers on passenger andcargo tariffs may therefore be permitted for the time being,provided that they are limited to fares and rates which give riseto actual interlining, that the participation in such consultationsis optional, that they do not lead to an agreement in respect of
fares, rates or related conditions, that in the interests of transpar-
ency the Commission and the Member States concerned cansend observers to them, and that air carriers participating in theconsultation mechanism are obliged to interline with all othercarriers concerned, at the tariffs applied by the carrying airline
for the tariff category under discussion.
The Commission will reassess the effects of tariff consultations
on price competition in the light of the operation of Regulation(EEC) No 2409/92 and in the light of the development of the
Community air transport industry, and may make appropriate
changes to the exemption in the course of its lifetime;
(6) Arrangements on slot allocation at airports and airport sche-duling can improve the utilization of airport capacity andairspace, facilitate air-traffic control and help to spread thesupply of air transport services from the airport. However,►
C1 if competition is not to be eliminated ◄, entry to
congested airports must remain possible. In order to provide a
satisfactory degree of security and transparency, such arrange-ments can only be accepted if all air carriers concerned canparticipate in the negotiations, and if the allocation is made ona non-discriminatory and transparent basis.
(7) In accordance with Article 4 of Regulation (EEC) No 3976/87,
this Regulation should apply with retroactive effect to agree-
ments, decisions and concerted practices in existence on thedate of entry into force of this Regulation, provided that theymeet the conditions for exemption set out in this Regulation.
(8) In conformity with Article 7 of Regulation (EEC) No 3976/87,this Regulation should also specify the circumstances in whichthe Commission may withdraw the block exemption in indivi-
dual cases.
(9) No applications under Article 3 or 5 of Regulation (EEC) No
3975/87 need be made in respect of agreements automaticallyexempted by this Regulation. However, when real doubt exists,undertakings may request the Commission to declare whethertheir arrangements comply with this Regulation.
(10) This Regulation is without prejudice to the application of Article86 of the Treaty,1993R1617 — EN — 01.05.2004 — 006.001 — 3
(1) OJ No L 240, 24. 8. 1992, p. 15.
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HAS ADOPTED THIS REGULATION:
TITLE I
EXEMPTIONS
Article 1
Pursuant to Article 85 (3) of the Treaty and subject to the provisions of
this Regulation, it is hereby declared that Article 85 (1) of the Treatyshall not apply to agreements between undertakings in the air transport
sector, decisions by associations of such undertakings and concerted
practices between such undertakings which have as their purpose oneor more of the following:
— the holding of consultations on tariffs for the carriage of passengers,
with their baggage, on scheduled air services between Communityairports,
— slot-allocation and airport scheduling in so far as they concern air
services between airports in the Community.
TITLE II
SPECIAL PROVISIONS
Article 4
Special provisions for consultations on passenger tariffs
1.►M1 The exemption concerning the holding of consultations on
passenger tariffs shall apply only if the following conditions aremet:◄
(a) the participants only discuss air fares to be paid by air transport
users directly to a participating air carrier or to its authorizedagents, for carriage as passengers on a scheduled service, as well
as the conditions relating to those fares and rates. The consultations
shall not extend to the capacity for which such tariffs are to beavailable;
(b) the consultations give rise to interlining, that is to say, air transport
users must be able, in respect of the types of fares or rates and ofthe seasons which were the subject of the consultations:
(i) to combine on a single transportation document the service
which was the subject of the consultations, with services onthe same or on connecting routes operated by other air carriers,
whereby the applicable fares, rates and conditions are set by
the airline(s) effecting carriage; and
(ii) in so far as is permitted by the conditions governing the initial
reservation, to change a reservation on a service which was thesubject of the consultations onto a service on the same routeoperated by another air carrier at the fares, rates and conditionsapplied by that other carrier;
provided that an air carrier may refuse to allow such combinations
and changes of reservation for objective and non-discriminatoryreasons of a technical or commercial nature, in particular wherethe air carrier effecting carriage is concerned with the credi worthi-ness of the air carrier who would be collecting payment for this1993R1617 — EN — 01.05.2004 — 006.001 — 4
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carriage; in such case the latter air carrier must be notified thereof
in writing;
(c) the passenger tariffs which are the subject of the consultations are
applied by participating air carriers without discrimination ongrounds of passenger nationality or place of residence;
(d) participation in the consultations is voluntary and open to any air
carrier who operates or intends to operate direct or indirect serviceson the route concerned;
(e) the consultations are not binding on participants, that is to say,
following the consultations the participants retain the right to actindependently in respect of passenger tariffs;
(f) the consultations do not entail agreement on agents' remuneration
or other elements of the tariffs discussed;
(g) where filing of tariffs is required, each participant individually files
each tariff which was not the subject of the consultations, with thecompetent authorities of the Member States concerned; in so doingit may act itself or through its filing agent or through its generalsales agent.
2. (a) The Commission and the Member States concerned shall be
entitled to send observers to tariff consultations. For thispurpose, air carriers shall give the Member States concernedand the Commission the same notice as is given to participants,but not less than 10 days' notice, of the date, venue and subject
matter of the consultations.
(b) Such notice shall be given:
(i) to the Member States concerned according to procedures to
be established by the competent authorities of those MemberStates;
(ii) to the Commission according to procedures to be published
in the Official Journal of the European Communities .
(c) A full report on these consultations shall be submitted to the
Commission by or on behalf of the air carriers involved at the
same time as it is submitted to participants, but not later thansix weeks after those consultations were held.
3. Air carriers participating in consultations on passenger tariffs
shall collect data as from 1 September 2002 with regard to:
(a) the relative part of tariffs set in the consultations of all fare traffic
within the EEA;
(b) the extent to which tickets at tariffs set in the consultations are
actually used for interlining;
(c) the extent to which tickets which are not at tariffs set in the consul-
tations are actually used for interlining.
The data collected shall be provided to the Commission by or on behalf
of the air carriers involved at six-monthly intervals.
Article 5
Special provisions for slot allocation and airport scheduling
1. The exemption concerning slot allocation and airport scheduling
shall apply only if the following conditions are met:
(a) the consultations on slot allocation and airport scheduling are open
to all air carriers having expressed an interest in the slots which arethe subject of the consultations;1993R1617 — EN — 01.05.2004 — 006.001 — 5
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(b) rules of priority are established and supplied without discrimina-
tion, that is to say that they neither directly nor indirectly relate tocarrier identity or nationality or category of service, take into
account constraints or air traffic distribution rules laid down by
competent national or international authorities and give due consid-eration to the needs of the travelling publics and of the airportconcerned. Subject to paragraph (d), such rules of priority maytake account of rights acquired by air carriers through the use of
particular slots in the previous corresponding season;
(c) the rules of priority, once established are made available on request
to any interested party;
(d) new entrants as defined in Article 2 (b) of Council Regulation
(EEC) No 95/93 (
1) are allocated 50 % of newly created or unused
slots and slots which have been given up by a carrier during or bythe end of the season or which otherwise become available, to theextent that those new entrants have outstanding slot requests;
(e) air carriers participating in the consultations have access, at the
time of the consultations at the latest, to information relating to:
— historical slots by airline, chronologically, for all air carriers at
the airport,
— requested slots (initial submissions) by air carriers and chrono-
logically for all air carriers,
— allocated slots, and outstanding slot requests listed individually
in chronological order, by air carriers, for air carriers,
— remaining slots available,
— full details on the criteria being used in the allocation.
If a request for slots is not accepted, the air carrier concerned shall
be entitled to a statement of the reasons therefor.
2. (a) The Commission and the Member States concerned shall be
entitled to send observers to consultations on slot allocationand airport scheduling held in the context of a multilateralmeeting in advance of each season. For this purpose, air carriersshall give the Member States concerned and the Commission the
same notice as is given to participants, but not less than 10 days'
notice, of the date, venue and subject matter of the consulta-tions.
(b) Such notice shall be given:
(i) to the Member States concerned according to procedures to
be established by the competent authorities of those MemberStates;
(ii) to the Commission according to procedures to be published
in the Official Journal of the European Communities .
TITLE III
FINAL PROVISIONS
Article 6
Withdrawal of the block exemption
The Commission may withdraw the benefit of the block exemption
under this Regulation, pursuant to Article 7 of Regulation (EEC) No3976/87 where it finds in a particular case that an agreement, decisionor concerted practice exempted by this Regulation nevertheless hascertain effects which are incompatible with the conditions laid downby Article 85 (3) or are prohibited by Article 86 of the Treaty, and in
particular where:
(i) there is no effective price competition on any route or group of
routes which was the subject of tariff consultations. In such casesthe benefit of this Regulation shall be withdrawn ►
C1 in respect
of the route or group of routes in question, and from the air1993R1617 — EN — 01.05.2004 — 006.001 — 6
(1) OJ No L 14, 22. 1. 1993, p. 1.
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carriers which participated ◄ in the tariff consultations
concerning such routes;
(iii) the operation of Article 5 has not enabled new entrants to obtain
such slots as may be required at a congested airport in order toestablish schedules which enable those carriers to compete effec-tively with established carriers on any route to and from thatairport, and where competition on those routes is thereby substan-
tially impaired. In such cases the withdrawal of the benefit of this
Regulation shall be in respect of the slot allocation at the airport inquestion.
Article 6a
The prohibition in Article 81(1) of the Treaty shall not apply to agree-
ments, decisions and concerted practices which were in existence at thedate of accession of Austria, Finland and Sweden or at the date ofaccession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania,
Hungary, Malta, Poland, Slovenia and Slovakia and which, by reason
of accession, fall within the scope of Article 81(1) if, within six monthsfrom the date of accession, they are so amended that they comply withthe conditions laid down in this Regulation. However, this Article shallnot apply to agreements, decisions and concerted practices which at the
date of accession already fall under Article 53(1) of the EEA Agree-
ment.
Article 7
This Regulation shall enter into force on 1 July 1993.
It shall apply until 30 June 2005.This Regulation shall apply with retroactive effect to agreements, deci-
sions and concerted practices in existence when it enters into force,
from the time when the conditions of application of this Regulation
were fulfilled.
This Regulation shall be binding in its entirety and directly applicable
in all Member States.1993R1617 — EN — 01.05.2004 — 006.001 — 7
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