No C 77/20 Official Journal of the European Communities 21. 3. 83 
conferences, competing with them on a normal commercial footing and, (b) that new members could 
join the conferences on the same terms as existing members, i.e. the cargoes they are allocated enable 
them to operate viably. Conditions of entry for new members should obviously be compatible with the 
general principle of non-discrimination on grounds of nationality laid down in the EEC Treaty, and 
should therefore not be based on any criteria which might be considered discriminatory within the 
Community, e.g. the ship's flag or the origin of her cargo. 
Voting 
For: 25, Against: 52, Abstentions: 16. 
2. The following parts of the Section's opinion were deleted in the discussion: 
Page 3, point 1.1.3 
'As regards the proposed legal basis for the rules applying Articles 85 and 86 to sea transport, the 
Section considers that the proposed Regulation should be based solely on Article 84 (2) in view of its 
importance for this sector.' 
Voting 
For: 16, Against: 84, Abstentions: 9. 
Page 8, Article 3, end of point 2.3.3 
'. . . the structure of these conferences is defined, including fair conditions of admission for 
non-member shipping companies'. 
Voting 
Rejected unanimously. 
Opinion on the proposal for a Council Regulation applying Articles 85 and 86 of the Treaty 
(rules on competition applying to undertakings) to air transport 
The text referred to the Committee has been published in Official Journal of the European 
Communities No C 291 of 12 November 1981, page 4, and No C 317 of 3 December 1981, 
page 3. 
A. LEGAL BASIS FOR THE OPINION 
On 27 August 1981 the Council referred the abovementioned proposal to the Economic and 
Social Committee in accordance with Articles 4 and 87 of the Treaty establishing the European 
Economic Community. 
B. OPINION OF THE ECONOMIC AND SOCIAL COMMITTEE 
The Economic and Social Committee prepared its opinion on the above matter at its 
204th plenary session held in Brussels on 26 and 27 January 1983. 
The full text.of the opinion is as follows: 
21. 3. 83 Official Journal of the European Communities No C 77/21 
THE ECONOMIC AND SOCIAL COMMITTEE, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Articles 84 and 
87 thereof, 
Having regard to the request made by the Council on 
27 August 1981 for an opinion on the proposal for a 
Council Regulation applying Articles 85 and 86 of 
the Treaty (rules on competition applying to 
undertakings) to air transport (*), 
Having regard to Council Regulations No 17 of 
6 February 1962 (2), No 141 of 26 November 1962 (3) 
and (EEC) No 1017/68 of 19 July 1968 (4), 
Having regard to the programme of priorities for* air 
transport approved by the Council in June 1978, which 
includes an examination of the extent to which the rules 
of competition are applicable to air transport, 
Having regard to the Commission's memorandum of 
16 July 1979 to the Council entitled 'Contribution of the 
European Communities to the development of air 
transport services' and the Committee's opinion thereon 
of 3 July 1980 (5), 
Having regard to the decision taken by the Committee 
chairman on 9 September 1981, instructing the Section 
for Transport and Communications to draw up an 
opinion on the said proposal (Article 22 of the Rules of 
Procedure), 
Having regard to the opinion adopted by the said Section 
at its 146th meeting, held on 10 November 1982, 
Having regard to the report submitted by the rapporteur, 
Mr Bos, 
Having regard to the discussions on 27 January 1983, 
during the 204th plenary session, held on 26 and 
27 January 1983, 
HAS ADOPTED THE FOLLOWING OPINION 
by a majority vote (six votes against and four 
abstentions): 
The Committee approves the Commission's proposal, 
subject to the following general and specific 
comments: 
1. General comments 
1.1. Legal basis 
1.1.1. The Committee examined the scope of Council 
Regulations No 17 of 6 February 1962, No 141 of 
(>) OJNoC317, 3. 12. 1982, p. 3. 
(2) OJ No 13, 21. 2. 1962, p. 204/62. 
(3) OJ No 124, 28. 11. 1962, p. 2751/62. 
(4) OJ No L 175, 23. 7. 1968, p. 1. 
(s) OJ No C 230, 8. 9. 1980, p. 30. 26 November 1962 and (EEC) No 1017/68 of 19 July 
1968 and noted that, pursuant to the abovementioned 
RegulationsNo 141 and(EEC)No 1017/68, Regulation 
No 17 (the first Regulation implementing Articles 85 and 
86) does not apply to air and sea transport. 
1.1.2. According to the Court of Justice rulings of 
4 April 1974 and 12 October 1978 in Cases 167/73 and 
156 / 77, air and sea transport are, however, subject to the 
provisions of Articles 85 and 86, although under 
Article 84 (2) they are not covered by the provisions of 
Title IV relating to the common transport policy until 
such time as the Council decides to include them. In the 
light of this interpretation, the Commission bases its 
proposals for applying Treaty Articles 85 and 86 to air 
transport solely on Article 87, which states, inter alia, 
that such provisions shall be 'laid down by the Council, 
acting by a qualified majority on a proposal from the 
Commission'. 
1.1.3. Without going into all the details and legal 
nuances raised in the course of its discussions, the 
Committee considers that the Council should adopt a 
dual legal basis for its proposal, namely Articles 84 (2) 
and 87, in view of the fact that rules applying Articles 85 
and 86 to air transport are very important for this 
sector. 
1.1.4. To back up this view, the Committee recalls 
that, since the publication of the memorandum on air 
transport in 1979, the Commission has submitted to the 
Council a series of proposals, some of which have been 
adopted. All of these Council decisions were based on 
Article 84 (2). The Committee therefore wonders why 
the Commission, in an area so important as competition 
in sea and air transport - which ipso facto has 
repercussions beyond the Community - has not adopted 
the same approach as in the past. 
1.2. Scope of and case for competition rules in air 
transport 
1.2.1. The Committee considers that a Commission 
proposal on competition should take special account of 
the specific problems of transport, and particularly those 
of international commercial air transport. 
1.2.2. The Committee notes with regret, however, 
that (a) there has so far been no common transport policy 
or common air transport policy, (b) the present proposal 
lays down more than mere procedural rules without 
formulating a coherent competition policy and, (c) there 
has so far been no common social policy for the 
employees of airlines and of airport operators. Any 
attempt to regulate sub-sectors is doomed to failure from 
the outset because there are no principles governing the 
No C 77/22 Official Journal of the European Communities 21. 3. 83 
areas in question. The Committee is therefore more than 
sceptical in its attitude to the present version of the 
Commission proposal. 
1.2.3. The Committee considers that it does not make 
sense either to regulate certain aspects of 
intra-Community air transport without reference to the 
international air transport organizations (ICAO, IATA, 
ECAC). 
1.2.4. The Committee can support rules to ensure 
orderly competition in air transport only on the following 
conditions: 
— existing international agreements /agreements with 
third countries must be taken into account, 
— the aim of transport policy or competition policy 
measures should be to seek to balance out the interests 
of all concerned, 
— the measures must not be implemented at the expense 
of either air safety or the safeguarding of employment 
or the possible creation of new jobs, 
— air transport policy measures must take due account 
of problems in the areas of energy and environmental 
protection, 
— measures for increasing productivity and / or reducing 
tariffs which would have a negative effect on working 
conditions are to be rejected. 
2. Specific comments on the individual Articles 
2.1. Article 1 
2.1.1. According to Article 1, the proposed 
Regulation is to apply to 'international air transport from 
or to one or more Community airports'. Under this 
Article, the Regulation may affect agreements between 
EC airlines as well as agreements between EC airlines and 
non-EC airlines. It is understood, in the light of Articles 
85 and 86 of the Treaty, that such agreements may only 
be effected if they involve distortion of competition in air 
transport between EC Member States and between 
Member States and third countries. Such situations on 
route segments outside the Community, however, can 
certainly have an impact on the overall calculation of 
tariffs for subsequent or preceding route segments in the 
Community. 
2.1.2. The Committee assumes that the Commission 
wishes the Regulation to apply also to travel agents if they offer services which normally come within the province of 
airlines. 
2.1.3. The Committee would, however, express its 
deep concern in view of the apparent risk of the EC taking 
unilateral measures which could affect the interests of 
consumers, workers, airlines and third countries. 
2.1.4. It also considers that air transport as carried 
out so far in the Community is predominantly a 
manifestation of national sovereignty (public service 
obligations, use of airspace, safeguarding of 
employment, tariff coordination, etc.) and therefore 
cannot simply be the subject of competition rules 
according to which supply and demand should be the sole 
factors governing the market. Unqualified approval of 
the latter idea would be bound to lead to the ruin of many 
airlines and result in the disappearance of a number of 
jobs and unprofitable routes that the Member States 
consider it necessary to maintain on overriding 
grounds. 
2.1.5. The Committee thinks that competition rules 
can only be introduced in stages in this sector and that this 
process must go hand in hand with reforms in areas such 
as the following: 
— harmonization of cost structures and social 
conditions in airlines, 
— rules governing the transparency of State subsidies, 
— recovery of the air transport market. 
2.1.6. Finally, in view of the international character 
of air transport, this sector should qualify for a series of 
exemptions, since otherwise the international air 
transport system as we have known it up to now would 
break down or be exposed to serious dangers. 
2.1.7. The Committee considers that the term 
'international air transport' should at all events be more 
precisely defined and cover in particular the following 
spheres: 
(a) scheduled commercial air transport; 
(b) non-scheduled commercial air transport; 
(c) general aviation (in so far as this crosses 
frontiers); 
(d) airports; 
(e) ground handling; 
(f) travel agents and shipping agents offering air 
transport services or acting as intermediaries in this 
sphere; 
(g) air transport to and from third countries. 
21. 3. 83 Official Journal of the European Communities No C 77/23 
2.1.8. Since the activities listed above under (a) to (f) 
are carried out in different forms in the Member States 
and Article 85 of the Treaty does not take into account 
the problem of third countries, the scope of the 
Regulation should be defined all the more precisely. 
3.2. Article 2 
2.2.1. On the basis of the present wording of 
Article 2, the Committee takes the view that the 
Commission proposal goes far beyond a Regulation of an 
essentially procedural nature. The omission of: 
(a) certain criteria to be observed by the Commission in 
applying the rules on competition with regard to 
specific agreements, decisions or concerted 
practices; and 
(b) specific exemptions relating to current types of 
commercial agreement 
would lead in practice to policy-making (which ought to 
be the role of the Council) by ad hoc investigations and 
decisions. 
2.2.2. Some of the types of 'technical agreement' listed 
in Article 2 are not purely technical either, since they also 
have commercial implications. In practice, some of them 
are related to, or based upon, agreements of a commercial 
nature. The Committee would like to know how far 
consequences of this kind would be covered by the 
proposed Regulation. 
2.2.3. The Committee also notes that the list of 
exemptions in Article 2 does not mention the two main 
types of agreement which currently exist, namely pooling 
agreements and tariff agreements. Besides a number of 
competition-limiting elements, these types of agreement 
have significant advantages for users and for airlines. 
2.2.4. The fact that pooling agreements and tariff 
agreements are not exempted in the proposed Regulation 
could give rise to uncertainty among the airlines which are 
parties to such agreements. There is therefore an urgent 
need for the Commission to decide what effect the 
application of the rules on competition will have on 
pooling agreements and tariff agreements. In this respect 
the Commission is asked to take into account the 
advantages of these types of agreement and is requested to 
explain how it sees these advantages being safeguarded, 
should these types of agreement be prohibited. 2.2.5. As regards the exemptions provided for in 
Article 2, the Commission should consider whether the 
agreements to be exempted are possible in the absence of 
agreed fare structures and levels. The Commission has 
already indicated its wish to preserve the interlining and 
prorate features of the present system through the 
exemptions of Article 2 (f) and (g). 
2.2.6. To sum up, the Commission has not recognized 
the essential linkage between the benefits for the 
passenger, which it rightly wishes to protect, and fares 
which are known and accepted among several different 
airlines. IATA could certainly act as a forum here. 
2.2.7. The above comments have attempted to show 
that the coordination of fares on a multilateral basis 
(which the Commission is not willing to exempt at this 
stage) is an essential prerequisite for some elements of the 
present system (which the Commission is willing to 
exempt) which are of benefit to the passenger. It is evident 
that if certain effects are to be exempted, then the 
necessary cause of these effects should also be 
exempted. 
2.2.8. In the Committee's view there are the following 
arguments in favour of pooling agreements: 
— when there are two or more airlines operating on a 
route it makes objective sense for them to coordinate 
their flights. This provides a better spread of services 
for the passenger, coupled with reduced costs for the 
airlines, for the airports and for air traffic control, 
— the sharing of revenue (in strictly limited ratios) is 
intended to compensate one airline for providing 
services at the less-popular slots, 
— tight limits on revenue transfer preserve the 
competitive stimulus between the airlines involved. 
2.2.9. The Committee thinks that subparagraphs (a) 
and (b) should be changed to provide for an obligation to 
obtain approval. 
2.2.10. On the basis of collective agreements 
operative at national level it is often impossible for the 
trade unions and the competent supervisory authorities, 
too, to influence the kind of behaviour prohibited by 
Article 85 of the Treaty. 
No C 77/24 Official Journal of the European Communities 21. 3. 83 
2.2.11. The Committee also has certain reservations 
about subparagraph (f), which provides for an indirect 
reversal of the prohibition of Article 85(1) and an 
automatic exemption. 
2.2.12. The Committee also asks that the present text 
of Article 2 be revised in both content and wording, with 
reference to the text of Article 2 of the proposal for a 
Regulation on competition in sea transport. 
2.3. Article 3 
2.3.1. The Committee suggests that the various 
language versions of Article 3 (b) be revised, since it is 
obvious that the parties entitled to submit complaints are 
not clearly defined. The Committee considers that 
provision should at all events be made for the submission 
of complaints by entrepreneurs, consumers' associations 
and trade unions as well as other persons and associations 
claiming a legitimate interest. 
2.4. Article 4 
2.4.1. The Committee considers that if the 
Commission finds that there has been an infringement it 
must require those concerned to bring the infringement to 
an end. The present text states that the Commission 'may 
. . . require', i.e. it gives the Commission powers of 
discretion unlimited by any legal provisions, with the 
result that this Article loses significance. 
2.5. Article 5 
2.5.1. The Committee takes the view that 
paragraph 2 of Article 5 should be amended to read: 
'If on the basis of the evidence at its disposal the 
Commission judges an application admissible ... it 
shall publish forthwith in the Official Journal . . . 
business secrets.' 
The present wording 'in possession of all the available 
evidence' could lead to unnecessary delay. 
2.5.2. The Commission must also effect publication 
without culpable delay, i.e. forthwith and not 'as soon as 
possible'. 
2.6. Article 6 
No comments. 2.7. Article 7 
2.7.1. The Committee thinks that the second 
paragraph 'the authorities of the Member States . . . first 
subparagraph of Article 5 {3)' should be deleted, since it is 
superfluous. 
2.7.2. It considers that the Court of Justice will in any 
case review the Commission's decision on application. 
The Member States are also obliged under the EEC 
Treaty to ensure observance of Community acts and are 
in any case supervisory authorities. 
2.8. Article 8 
2.8.1. The Committee takes the view that it should be 
laid down in this Article that the Commission is to consult 
not only the Advisory Committee on Restrictive Practices 
and Dominant Positions in the Transport Industry but 
also a technical body composed of the interest groups in 
this sector, e.g. the governments of the Member States, 
undertakings, consumers and trade unions. In addition to 
specialist knowledge, such a body could provide the 
necessary balance of interests. 
2.8.2. The Committee referred to in Article 8 is 
composed merely of two officials per Member State. If 
this committee were consulted before any decision, the 
balance of interests mentioned earlier would by no means 
be guaranteed. A technical body is necessary, however, to 
prevent the Court of Justice from being overloaded. The 
composition of that committee should be laid down 
separately. 
2.9. Article 9 
The term 'air transport sector' (paragraph 3) should 
accord with the definition in Article 1 (2). 
2.10. Article 10 
The employment situation should form an additional 
factor in assessing the trends in air transport. It would be 
quite conceivable for an undertaking to get into financial 
straits but be obliged by law or under collective 
agreements to continue to employ its staff. Such 
situations should be taken into account especially in view 
of the numbers of unemployed in the industry and in the 
Member States. 
2.11 to 2.17. Articles 11 to 17 
No comments. 
21. 3. 83 Official Journal of the European Communities No C 77/25 
2.18. Article 18 
2.18.1. Independently of the technical body called for 
in connection with Article 8, specific mention should be 
made of the trade unions in paragraphs 1 and 2 of 
Article 18. 
2.18.2. Article 18 (3) of the English version contains 
the term 'negative clearance'. This is, however, a mistake. 
The text should refer to the exemption which can be 
provided under Article 85 (3) of the Treaty. 
2.19 to 2.22. Articles 19 to 22 
No comments. 3. Final comments 
In general, the Commission proposal, as it stands, 
hampers the decision-making process. A competition 
Regulation that takes more account of the political 
aspects and overall Community transport policy is an 
absolute necessity. 
Given the current restrictions of competition, it is 
essential to clarify the basic principles in the field of air 
transport from the political and competition angles. 
Done at Brussels, 27 January 1983. 
The Chairman 
of the Economic and Social Committee 
Francois CEYRAC 
APPENDIX 
to the opinion of the Economic and Social Committee 
1. Rejected amendments 
The following amendments, tabled in accordance with the Rules of Procedure, were rejected by the 
Committee during plenary session discussions: 
Page 3, point 1.1.3. 
Replace 'Article 84 (2)' in point 1.1.3 by 'Article 87". 
Reasons 
The Court of Justice of the Community has decided that air and sea transport fall under Articles 85 and 
86 of the Treaty. 
Voting 
For: 16, Against: 84, Abstentions: 9. 
Pages 4 and 5, points 1.2.2, 1.2.3 and 1.2.4 
Replace points 1.2.2, 1.2.3 and 1.2.4 by the following text: 
'1.2.2. Notwithstanding serious reservations about Article 2, which can be regarded as the core 
of the document, the Committee concurs with the Commission's proposal, which seeks to bring 
about reasonable competition in the international air transport sector; it considers that the proposal 
is a step in this direction. 
1.2.3. The Committee is also of the view that for the first time rules have been laid down, in the 
Commission proposal, which make it possible to implement the principle of free competition in air 
transport, while paying due regard to the legitimate interests of users. 
No C 77/26 Official Journal of the European Communities 21. 3. 83 
1.2.4. The proposal can help to bring about a balance between the airlines on the one hand and 
users on the other.' 
Reasons 
See above. 
Voting 
For: 13, Against: 60, Abstentions: 9. 
Pages 6, 7 and 8 - points 2.1.2, 2.1.4, 2.1.5, 2.1.6, 2.1.7 and 2.1.8 
Delete all the above points and replace them by the following: 
'2.1.2. Having regard to the remarks made under point 2.1.1, the Committee endorses the 
scope of the proposal for a Regulation.' 
Reasons 
So many conditions and objections are listed in the original text that the end result is maintenance of the 
status quo. The text now proposed endorses the Commission's proposal. 
Voting 
For: 3, Against: majority, Abstentions: 0. 
2. The following passage in the Section opinion was replaced in the course of the discussions: 
Page 3, .point 1.1.3 
'As regards the proposed legal basis for the rules applying Articles 85 and 86 to air transport, the 
Section considers that the proposed Regulation should be based solely on Article 84 (2) in view of 
its importance for this sector.' 
Voting 
For: 16, Against: 84, Abstentions: 9. 
Opinion on the proposal for a Council Directive on tariffs for scheduled air transport between 
Member States 
The text referred to the Committee has been published in Official Journal of the European 
Communities No C 78 of 30 March 1982, page 6. 
A. LEGAL BASIS FOR THE OPINION 
On 11 November 1981 the Council referred the abovementioned proposal to the Economic 
and Social Committee in accordance with Article 84 of the Treaty establishing the European 
Economic Community.