No C 69/16 Official Journal of the European Communities 18. 3. 91 
question. The Committee asks the Commission to for- as possible, to enable its Opinion to be taken on an 
ward the studies referred to in point 2 above as soon informed basis. 
Done at Brussels, 30 January 1991. 
The Chairman 
of the Economic and Social Committee 
Francois STAEDELIN 
Opinion on the proposal for a Council Regulation (EEC) on the application of Article 85(3) 
of the Treaty to certain categories of agreements, decisions and concerted practices between 
shipping companies^) 
(91/C 69/05) 
On 3 July 1990 the Council decided to consult the Economic and Social Committee, 
under Article 198 of the Treaty establishing the European Economic Community, on the 
abovementioned proposal. 
The Section for Transport and Communications, which was responsible for preparing the 
Committee's work on the subject, adopted its Opinion on 16 January 1991. The Rapporteur 
was Mrs Bredima-Savopoulou. 
At its 283rd plenary session (meeting of 30 January 1991) the Economic and Social Committee 
adopted, by 84 votes to 11, with 26 abstentions, the following Opinion. 
1. Introduction 
1.1. In December 1986 the Council adopted four 
regulations in the maritime transport sector (2) which 
constituted the first stage of a common EC policy. In 
the context of this report, Regulation (EEC) No 4056/ 
86 is the most relevant. On the legal basis of Articles 
84(2) and 87 of the Treaty this laid down detailed rules 
for the application of Articles 85 and 86 to maritime 
transport. A block exemption was granted in respect 
of liner conferences subject to certain conditions and 
obligations to protect the interests of transport users. 
The Regulation entered into force on 1 July 1987. tramp shipping, consortia in liner shipping and agree­
ments between transport users. The Commission under­
took to report to the Council within a year on whether 
it was necessary to provide for block exemptions for 
passenger-transport services and consortia in liner ship­
ping. The Council noted at that time that 'where the 
object and effect of joint ventures and consortia is either 
to achieve technical improvement or cooperation as 
provided for in Article 2 of the Regulation or where 
close-knit consortia only cover minor market shares the 
prohibition laid down in Article 85(1) of the Treaty 
does not apply to them.' 
1.2. At the time of the adoption of the four regu­
lations, the Council also invited the Commission to 
consider whether it was necessary to submit new pro­
posals regarding competition in passenger transport, 
0) OJ No C 167, 10. 7. 1990, p. 9. 
(2) OJ No L 378, 31. 12. 1986. 1.3. With respect to consortia, the Commission had 
already held a hearing in April 1986 in which all sides 
of the shipping industry and representatives of the 
Member States were heard. The objective was to clarify 
the replies to a questionnaire distributed by the Com­
mission and to obtain additional information on the 
nature of consortia and in particular how they differed 
from conferences. Fairly regular discussions between 
the Commission and industry have taken place in the 
intervening period. 
18. 3. 91 Official Journal of the European Communities No C 69/17 
1.4. In January 1988 the Commission made an 
interim report in which it concluded that it was not 
in possession of sufficient evidence to justify a block 
exemption for consortia. Further information from 
shipowners was requested in order to facilitate the 
Commission's deliberations and analysis. 
1.5. An examination of certain specific consortium 
agreements led the Commission to find that there were 
certain types of clauses which could be regarded as 
being likely to meet the requirements for an exemption 
under Article 85(3) of the Treaty and could therefore 
be granted an individual exemption under the acceler­
ated and simplified opposition procedure pursuant to 
Article 12 of Council Regulation (EEC) No 4056/86. 
With respect to other clauses and arrangements in con­
sortia agreements in particular regarding pooling of 
costs and revenues it was felt that the Commission 
would need to examine them case by case. 
1.6. The need for clarification of the position of 
consortia vis-a-vis the competition rules was identified 
by the Commission in its report on 'Measures to 
improve the operating conditions of Community ship­
ping' (1), as being one of the positive measures to 
increase competitiveness of the Community fleet. 
1.7. The Economic and Social Committee in its 
Opinion on the above measures (2) noted: 
'the importance and practical cooperation and 
rationalization of the type provided by liner consor­
tia, particularly in the circumstances of over-ton-
naging ... the importance of reaching an acceptable 
and early solution to this issue, similar to that 
achieved for liner conferences in the first stage of 
shipping policy.' 
1.8. After considerable deliberation following the 
receipt of further information on consortia, the Com­
mission produced in June 1990 a 'report on the possi­
bility of a group exemption for consortia agreements 
in liner shipping', with attached proposal for a 'Council 
Regulation on the application of Article 85(3) of the 
Treaty to certain categories of agreements, decisions 
and concerted practices between shipping com­
panies.'^). 
(!) Doc. COM(89) 266 final of 3 August 1989. 
(2) OJ No C 56, 7. 3. 1990, p. 70. 
(3) Doc. COM(90) 260 final of 18 June 1990. 2. General comments 
2.1. Definition and background of consortia 
2.1.1. The Commission recognizes the considerable 
variety and complexity of the consortia concept. A 
categorical definition has proved difficult to obtain. 
However, consortia can broadly be defined as cooperat­
ive ventures in the liner sector (of varying degrees of 
closeness), in which the lines involved engage in a 
(varying) range of activities on a joint basis, in order 
to achieve the necessary advantages of economy of scale 
and of service rationalization in a particular trade. The 
degree of integration and the breadth of joint activity 
vary according to the needs and circumstances of the 
trade in question, but the consortium mechanism pre­
serves as far as possible individual liner company 
identity. 
2.1.2. Consortia generally combine the concepts of 
vessel cost sharing and cargo pooling. Participants in 
consortia commit themselves to the venture through a 
cost sharing system whereby, in effect, all vessels 
become a joint responsibility. The responsibility for 
providing containers normally rests with the individual 
participants for whom they serve as an important means 
of retaining corporate identity. Members usually carry 
each other's containers on each other's vessels under 
mutual slot charter or other space-sharing arrange­
ments. 
2.1.3. As indicated a considerable variety of consor­
tia types exists, with groups which are akin to profit-
making companies at one end of the scale and looser 
groups, only a little more formed than space-sharing 
arrangements, at the other. Areas where consortia may 
agree to cooperate include: joint scheduling, space/ 
slot exchange, equipment pool, joint operational office, 
joint-terminal operation, joint-terminal contracts, car­
go pool, revenue pool, net-results pool, holding of 
conference voting rights, joint marketing, joint bills of 
lading, joint price fixing, joint consolidation and joint 
haulage. These functions are set out in tabular form in 
Annex 1 of the Commission's report. 
2.1.4. Parties in a consortium accept limitations 
upon their own autonomy as individual companies 
within a framework of agreed cooperation, subject to 
review after fixed periods. 
No C 69/18 Official Journal of the European Communities 18. 3. 91 
2.1.5. Consortia are fairly recent phenomena born 
out of the container revolution in the 1960s/70s which 
called for the building of much larger ships to effect 
economies of scale and increase ship productivity. The 
degree of investment needed to re-equip to meet such 
technology innovation was beyond the capability of 
most single shipowners. It became clear then that the 
vast majority of existing liner companies were no longer 
the optimum commercial unit for raising the huge capi­
tal sums involved. 
2.1.6. Many of the shipping lines which once pro­
vided conventional liner-cargo services grouped togeth­
er to form consortia, first at national level and then 
also internationally. This both facilitated the funding 
of the substantial capital investment required and also 
enabled coordination of the substantial reduction in 
the number of cargo vessels which containerization 
necessitated (1 containership replacing about 5-7 con­
ventional ships). It also permitted the maintenance of 
frequent regular services through slot chartering which 
would not otherwise have been possible for large num­
bers of individual companies. Examples here include 
trades (such as those with Central America or West 
Africa) where there are several countries at each end of 
the route, but the cargo moving in either or both 
directions warrants only one or two ships each month. 
2.L7. In the same way that the formation of liner 
conferences a century ago was an example of structural 
adjustment of commercial pressures through the best 
use of existing shipping resources on individual routes, 
so the mechanism of consortia has provided the means 
of transition from conventional shipping to container 
shipping by pooling resources and collectively building 
the correct number of ships most suited to the trade in 
question. 
2.2. Usefulness of consortia 
2.2.1. There has been widespread recognition of the 
value and usefulness of consortia as tools of rationaliza­
tion in the container age. In its report on consortia 
the Commission states its belief that the 'Community 
shipping industry needs to attain the necessary econom­
ies of scale to compete on the world liner shipping 
market' and that 'consortia can help to provide the 
necessary means for improving the productivity of liner 
shipping services and promoting technical and econ­
omic progress'. The Committee subscribes to these 
findings. 
2.2.2. Moreover, the users of shipping services 
offered by consortia reap important benefits resulting from their operation: they are assured regular sailings, 
economies of scale are made in the use of vessels and 
port installations; consortia offer high quality services 
by using more modern vessels, equipment and port 
installations; by pooling services consortia respond to 
the call of numerous shippers for more efficient door-
to-door shipments. The Committee subscribes to the 
above merits of consortia for shippers listed in the 
Commission report. 
3. Specific comments 
3.1. In light of the indisputable commercial value of 
consortia, the Committee believes that a regulatory 
regime for them under the EC competition rules is 
necessary based upon two premises: preservation of a 
free competitive environment whilst avoiding as far as 
possible, bureaucracy. The Committee acknowledges 
the economic importance of consortia in view of the 
fact that nowadays they are increasingly taking over 
the role of conferences in the liner trades and this 
trend is expected to continue. Moreover, the Committee 
recognizes that consortia are a relatively new phenom­
enon—as contrasted to liner conferences—and since 
structural changes are proceeding rapidly in world ship­
ping, the Community has to move cautiously vis-a-vis 
their legal treatment. The Committee also notes that in 
practice consortia with a pure Community constituency 
are non-existent (see annexes of the Commission 
Report). In fact most of them consist of Community 
partners together with non-EC European or even other 
country partners. Thus, the link of their legal treatment 
to EC positive measures for competitiveness of the 
Community fleet would in practice entail extending 
the benefit of positive measures to non-Community 
interests. 
3.2. The Commission's proposed Council Regu­
lation enables it to grant a group exemption pursuant 
to Article 85(3) of the Treaty. The draft Council Regu­
lation envisages a group exemption also for multi­
modal consortia which would cover the inland trans­
port activities of consortia. Conditions and obligations 
attaching to the group exemption will be decided at a 
later stage in a Commission Regulation. According to 
the Commission's report 'the details of these require­
ments can only be fixed after further consultations with 
parties concerned and with Member States'. It is the 
Commission's intention to cover under a broad and 
far-reaching group exemption 'as wide a variety as 
possible of the kinds of clauses which are found in 
consortia agreements'. 
3.3. Regulatory regime for consortia 
3.3.1. With regard to the most efficient regime for 
consortia under the EC competition rules, the Commit-
18. 3. 91 Official Journal of the European Communities No C 69/19 
tee has explored several possibilities. Namely, no regu­
lation at all, amendments of Regulation (EEC) No 
4056/86 granting block exemption, a new Regulation 
granting block exemption and an individual exemption 
on a case-by-case basis. Decision on one course of 
action presupposes decision on the following issues: 
whether consortia are tantamount to liner conferences, 
whether they restrict competition and whether they 
provide efficient services to shippers. 
3.3.2. Some interested circles feel that consortia do 
not restrict competition. Alternatively, if it is found 
that they do restrict competition, for the sake of 
simplicity and consistency with treatment for liner 
conferences, they argue for an amendment of Regu­
lation (EEC) No 4056/86 rather than an independent 
self-contained regulation. Other interested circles fee^ 
that consortia restrict competition and perform differ­
ent functions compared to conferences and, therefore, 
their regulatory regime cannot be covered by Regu­
lation (EEC) No 4056/86 but under a new Regulation 
taking into account their specific characteristics. Yet 
other interested circles feel that, in view of the variety 
of types of consortia agreements and their complex 
form, the Commission can only proceed by way of 
an individual exemption, each consortium being 
judged on its own merits on a case by case basis. 
However, the Committee agree that whatever the final 
form of legal treatment to be applied to consortia, it 
should provide for a high degree of transparency of 
their operations. 
3.3.3. On balance, the Committee finds that con­
sortia do provide efficient services to shippers and 
are not tantamount to liner conferences. In some 
instances they have stimulated competition but in 
other instances they have restricted competition. 
Although a wide variety of consortia types exist with 
different functions, it is possible to identify certain 
common characteristics justifying a common legal 
regime for them. 
3.3.4. In light of the above considerations, the Com­
mittee—steering a middle course of action—believes 
that a new independent Regulation granting block 
exemption is required. This Regulation is necessitated 
by the fact that consortia perform different functions 
as compared to liner conferences. Since consortia in 
some cases restrict competition, a block exemption 
under Article 85(3) seems desirable, taking into account 
the benefit deriving to shippers from consortia oper­
ations. 3.4. Procedural approach 
3.4.1. With regard to the best procedural approach 
concerning the regulatory regime of consortia, the Com­
mittee notes that the Commission is proposing a 
Council Regulation on block exemption enabling the 
Commission to proceed by Regulation and define the 
terms and conditions for such an exemption. The Com­
mittee has explored the alternative possibility of pro­
ceeding by way of a Council Regulation granting block 
exemption and defining at the same time its terms and 
conditions. Such an option falls upon the stumbling 
block of the so-called institutional issue and runs coun­
ter to standard practice. Namely, it has been standard 
practice for the Council to adopt a Regulation enabling 
the Commission to issue a Regulation on the appli­
cation of Article 85(3) of the Treaty to various sectors 
of economic activity (l). This was the case with civil 
aviation, exclusive distribution agreements, patent 
licensing, specialization agreements. The Economic and 
Social Committee invariably has delivered favourable 
Opinions (2) to this practice. Despite apprehensions 
expressed that proceeding in such a way would amount 
to giving a blank cheque to the Commission on mari­
time transport, on balance this procedure can be 
accepted provided that, before adoption of the enabling 
Council Regulation, the Commission will reach agree­
ment with interested parties on the specific terms and 
conditions of the group exemption. The Committee is 
convinced that there is no need to depart from standard 
practice, subject to prior commitment of the Com­
mission on the specific terms of the group exemption 
in order to avoid unpleasant surprises. 
3.4.2. Adoption of the enabling Regulation mechan­
ism has the concomitant advantage of legal certainty 
which will be created by the quick adoption of a Council 
Regulation, to remove the state of uncertainty in which 
consortia are confined today as regards their legal treat­
ment under EC competition law. On the other hand, 
discussions on the precise terms and conditions of a 
block exemption may take a long time to mature 
between the Commission, Government experts and 
interested circles. Meanwhile, a block exemption would 
have been granted under the Council Regulation 
enabling the Commission to refine its terms at a later 
(') OJ No L 374, 31. 12. 1987, p. 9; OJ No L 285, 29. 12. 1971, 
p. 46. 
(2) OJ No C 237, 12. 9. 1988, p. 6; OJ No C 237, 12. 9. 1988, 
p. 9; OJ No C 237, 12. 9. 1988, p. 11. 
No C 69/20 Official Journal of the European Communities 18. 3. 91 
stage. The enabling Regulation mechanism functions 
satisfactorily in all sectors of the economy and has 
also the advantage of flexibility by adapting the block 
exemption to changing circumstances to cover new 
types of consortia agreements. The Committee believes 
that transparency of procedures should be safeguarded 
in that respect. 
3.5. Multimodal transport 
3.5.1. Most consortia deal with multimodal trans­
port. The proposed Regulation envisages group exemp­
tion for multimodal consortia which would cover their 
inland transport activities, together with their maritime 
activities. Such a block exemption should be coupled 
with adequate conditions—to be defined at a later 
stage—safeguarding free competition. The selection 
by shippers of carriers offering only sea-leg operations 
should not be affected by the block exemption of con­
sortia and shippers should maintain in practice and not 
only in theory the choice of carrier for the sea-leg of 
transportation and discrimination of merchant haulage 
should be prohibited. 
3.6. Legal basis and comments on the Articles of the 
Regulation 
3.6.1. The proposed Regulation has as a legal basis 
Article 87. There is no mention of Article 84, paragraph 
2, although Regulation (EEC) No 4056/86 having a 
dual legal basis (87 and 84, paragraph 2) offers a valid 
precedent. The Committee believes that mention of 
Article 84, paragraph 2, together with Article 87, is 
necessitated also by the fact that block exemption to 
maritime consortia has both maritime transport and 
competition law implications. The treatment of liner 
consortia is part and parcel of the positive measures 
Done at Brussels, 30 January 1991. package for maritime transport and all such measures 
are to be adopted under Article 84, paragraph 2. Hence, 
the need for a dual legal basis. 
3.6.2. The Regulation must clearly define its scope: 
The Committee notes that—whilst the Commission's 
Communication refers to consortia in liner trades— 
neither the title nor the operative part of the proposed 
Regulation make reference to 'liner' consortia. This 
omission should be corrected in Article 1 because it 
may be misinterpreted as equally extending to consortia 
in tramp vessel services as defined in Regulation (EEC) 
No 4056/86. 
3.6.3. Article 1 of the Regulation must provide a 
precise and clearcut definition of liner consortia. 
3.6.4. Article 4 of the Regulation provides for com­
ments of interested parties to be forwarded to the 
Commission 'not less than one month'. This period is 
unrealistically short even as a minimum period. 
4. Conclusions 
4.1. The Committee believes that the Commission 
should spell out more clearly along what lines it intends 
to proceed concerning terms and conditions of the 
block exemption. Such conditions should safeguard 
free competition at three levels: within the consortium, 
within the conference, within the trade, as well as 
transparency. 
4.2. In light of the above considerations—and more 
particularly, the commitment of the Commission on 
conditions/obligations of the group exemption—the 
Committee argues for a legal treatment of consortia 
subject to checks and balances without granting a blank 
cheque either to the Commission or to consortia. 
The Chairman 
of the Economic and Social Committee 
Francois STAEDELIN 
18. 3. 91 Official Journal of the European Communities No C 69/21 
APPENDIX 
The following amendments, tabled on the basis of the Section Opinion in accordance with the Rules of 
Procedure, were defeated during the discussion: 
Point 3.4 
After the first two sentences of 3.4.1 delete the remainder of that paragraph as well as the whole of 3.4.2 
and substitute: 
'While it has been standard practice for the Council to adopt an enabling regulation and for the 
Commission to issue subsequently a more detailed implementing regulation in various sectors of economic 
activity (e.g. civil aviation, exclusive distribution agreements, patent licensing, specialisation agreements), 
and while the Economic and Social Committee has delivered favourable Opinions on this practice, it 
notes that a different precedent has been set for maritime transport in Regulation (EEC) No 4056/86, 
which is the overall instrument applying Articles 85 and 86 of the Rome Treaty to shipping. The 
Committee considers that, in the interest of consistency and of legal certainty, the same procedure should 
be adopted in regard to the regulation granting a block exemption to liner consortia as that in Regulation 
(EEC) No 4056/86. The Committee believes that transparency of procedures will be safeguarded by such 
a procedure.7 
Reason 
These paragraphs are inconsistent with existing EC shipping legislation. Whatever the practice in other 
sectors, the fact is that the umbrella regulation applying the Treaty's competition rules to maritime transport 
is Regulation (EEC) No 4056/86. This amendment proposes that the same arrangement should apply here as 
for that earlier regulation. The overall approach in Regulation (EEC) No 4056/86 has been endorsed by the 
Economic and Social Committee and we should remain consistent. 
The essence of the proposed amendment is that a block exemption with defined terms and conditions would 
provide legal certainty at the outset, so that Community liner shipping companies operating within consortia, 
shippers seeking to avail themselves of consortia services and all other interested parties would know precisely 
where they stood and that the Community institutions would have defined what conditions and obligations 
the liner consortia would be required to meet. 
The existing text of 3.4.1 also contradicts 3.4.2. Paragraph 3.4.1 would require the Commission to 'reach 
agreement with interested parties on the specific terms and conditions of the group exemption' and for the 
Commission to give 'prior commitment' on these. But 3.4.2 suggests that the Commission may 'refine' the 
specific terms at a later stage and even adapt them — unilaterally and without further consultation — to 
changing circumstances in the future. This does not safeguard transparency and — contrary to the assurances 
suggested in the present text — does run the risk of 'giving a blank cheque to the Commission'. 
Voting 
For: 30, against: 58, abstentions: 20. 
Point 3.5.1 
Delete third sentence and substitute the following: 
'The terms and conditions for such a block exemption should be defined, thus safeguarding free 
competition.' 
Reason 
Consequential change. 'To be defined at a later stage', will no longer be applicable if the amendment to 3.4 
is adopted. 
Voting 
For: 38, against: 52, abstentions: 15. 
No C 69/22 Official Journal of the European Communities 18. 3. 91 
Point 4.1 
In line 1, make the following insertion: '... the Commission's proposal for a Council Regulation should 
spell...'. 
Reason 
Same as for 3.4.1 and 3.4.2. 
Voting 
For: 32, against: 52, abstentions: 17. 
Point 4.2 
In lines 1-2, delete 'the commitment of the Commission on' and substitute 'in regard to'. 
Reason 
Consequential change. 
Voting 
For: 33, against: 54, abstentions: 15. 
Opinion on the proposal for a Council Regulation (EEC) concerning the creation of a 
supplementary protection certificate for medicinal products^) 
(91/C 69/06) 
On 3 May 1990, the Council decided to consult the Economic and Social Committee, 
under Article 100A of the Treaty establishing the European Economic Community, on the 
abovementioned proposal. 
The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing 
the Committee's work on the subject, adopted its Opinion on 9 January 1991. The Rapporteur 
was Mr Hilkens. 
At its 283rd plenary session (meeting of 30 January 1991), the Economic and Social Committee 
adopted the following Opinion with 81 votes in favour and 5 abstentions. 
Whilst essentially endorsing the Commission proposal 
and the greater protection for the European pharmaceu­
ticals industry for which it provides, the Committee 
would make the following observations and sugges­
tions. 
1. Introduction 
1.1. This proposal, which is based on article 100A 
of the EEC Treaty, falls within the framework of a 
Community health policy or, more specifically, of an 
Internal Market for medicinal products. 
I1) OJ No C 144, 8. 5. 1990, p. 10. 1.2. In assessing the draft, all the consequences of 
the proposed legislation must be taken into account. 
The pharmaceuticals sector and market exhibit certain 
peculiarities which affect both producers and con­
sumers. 
1.3. On the supply side, the need for extensive 
research makes patent protection necessary. Effective 
patent protection is, however, subject to gradual 'ero­
sion' owing to the numerous tests called for by the 
application dossier. On the demand side, medicinal 
products are of crucial importance for public health 
and therefore rate highly on the scale of consumer