Notice pursuant to Article 4 of Council Regulation (EEC) No 479/92 of 25 February 1992 on the application of Article 81(3) of the EC Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia)(1)

(2003/C 233/05)

(Text with EEA relevance)

In accordance with Article 4 of Council Regulation (EEC) No 479/92, the Commission invites interested parties to send their comments concerning the attached draft Commission Regulation (EC) on the application of Article 81(3) of the EC Treaty to categories of agreements in the field of maritime transport. The proposed procedural amendments are necessary in order to align Regulation (EC) No 823/2000 with Council Regulation (EC) No 1/2003, which abolishes the notification system as from 1 May 2004. Comments should be sent within six weeks of the date of publication of this notice, to: European Commission Directorate-General for Competition

Unit COMP/D2,

Office J70 2/55 B - 1049 Brussels Fax (32-2) 296 98 12 E-mail: Nieves.Navarro-blanco@cec.eu.int

(1) OJ L 55, 29.2.1992, p. 3. Editorial Note:

The title of Regulation (EEC) No 479/92 has been adjusted to take account of the renumbering of the Articles of the Treaty establishing the European Community in accordance with Article 12 of the Treaty of Amsterdam; the original reference was to Article 85(3) of the Treaty.

Preliminary Draft Commission amending Regulation (EC) No 823/2000 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EEC) No 479/92 of 25 February 1992 on the application of Article 85(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia)(1), as last amended by Regulation (EC) No 1/2003(2), and in particular Article 2(2) thereof,

Having published a draft of this Regulation,

Having consulted the Advisory Committee on Restrictive Practices and Dominant Positions in Maritime Transport,

Whereas:

(1) Council Regulation (EEC) No 479/92 empowers the Commission to apply Article 81(3) of the Treaty by regulation to certain categories of agreements, decisions and concerted practices between shipping companies (consortia) relating to the joint operation of liner transport services.

(2) Regulation (EC) No 823/2000(3) grants a general exemption to liner shipping consortia from the prohibition contained in Article 81(1) of the Treaty, subject to certain conditions and obligations.

(3) One of the conditions concerns the market share held by the consortium on each market upon which it operates. Any consortium with a market share below 30 % (if the consortium operates within a conference) or 35 % (if the consortium operates outside a conference) is automatically exempt if it fulfils the other conditions of the Regulation. A consortium with a market share above that ceiling but below 50 % may still benefit from the block exemption if the agreement is notified to the Commission and, the Commission does not oppose the exemption within six months. A consortium with a market share above 50 % does not fall within the scope of Regulation (EC) No 823/2000 but may, until 1 May 2004, be notified under Article 12 of 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(4), as last amended by Regulation (EC) No 1/2003, to benefit, if appropriate, from an individual exemption.

(4) Regulation (EC) No 1/2003 introduces a directly applicable exception system in which the competition authorities and the courts of the Member States have the power to apply Article 81(3) of the Treaty, in addition to Article 81(1) and Article 82. Undertakings no longer have the obligation or option to notify agreements to the Commission with a view to obtaining an exemption decision. Under the new system, agreements that fulfil the conditions of Article 81(3) are legally valid and enforceable without the adoption of an administrative decision. Undertakings will be able to invoke the exception from the prohibition on agreements which restrict competition laid out in Article 81(3) as a defence in all proceedings.

(5) The provisions of Regulation (EC) No 823/2000 should be aligned with those of Regulations (EEC) No 479/92 and (EEC) No 4056/86 as amended by Regulation (EC) No 1/2003. In particular the opposition procedure should be abolished and references to notification of consortia deleted. Transitional provisions should be introduced in respect of notifications already made under the opposition procedure. It is also necessary to introduce references to the new powers of the national competition authorities.

(6) Regulation (EC) No 823/2000 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 823/2000 is amended as follows:

1. Article 7 is deleted.

2. Article 9 is amended as follows:

(a) Paragraph 4 is deleted.

(b) Paragraph 5 is replaced by the following:

"5. Any consortium claiming the benefit of this Regulation must be able, on being given a period of notice which the Commission or the Member States' competition authorities shall determine on a case-by-case basis and which shall be not less than one month, to demonstrate at the request of the Commission or the Member States' competition authorities that the conditions and obligations imposed by Articles 5 to 8 and paragraphs 2 and 3 of this article are met and must submit to the Commission or the Member States' competition authorities as appropriate the consortium agreement in question within this period".

3. In Article 11(1), the words "Article 7 and" are deleted.

4. Article 12 is replaced by the following:

"Article 12

Withdrawal of block exemption

1. The Commission may withdraw the benefit of this Regulation, in accordance with Article 29 of Council Regulation (EC) No 1/2003(5), where it finds in a particular case that an agreement, decision or concerted practice to which Article 3 or Article 13(1) of this Regulation apply nevertheless has certain effects which are incompatible with Article 81(3) in particular where:

(a) in a given trade, competition from outside the conference within which the consortium operates or from outside a particular consortium is not effective;

(b) a consortium fails repeatedly to comply with the obligations provided for in Article 9;

(c) such effects result from an arbitration award.

2. Where, in any particular case, agreements, decisions by associations of undertakings or concerted practices referred to in paragraph 1 have effects which are incompatible with Article 81(3) of the Treaty in the territory of a Member State, or in a part thereof, which has all the characteristics of a distinct geographic market, the competition authority of that Member State may withdraw the benefit of this Regulation in respect of that territory."

5. In Article 13, paragraph 2 is replaced by the following:

"2. A notification made pursuant to Article 7 of Regulation (EC) No 823/2000 in respect of which the period of six months referred to in the second subparagraph of paragraph 1 of that Article has not expired shall lapse as from 1 May 2004."

Article 2

This Regulation shall enter into force on 1 May 2004. It shall apply until 25 April 2005.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, ...

For the Commission

...

Member of the Commission

(1) OJ L 55, 29.2.1992, p. 3.

(2) OJ L 1, 4.1.2003, p. 1.

(3) OJ L 100, 20.4.2000, p. 24.

(4) OJ L 378, 31.12.1986, p. 4.

(5) OJ L 1, 4.1.2003, p. 1.