COMMISSION OF THE EUROPEAN COMMUNITIES 
C0MC90) 167 final 
Brussels, 11 June 1990 
Proposal for a 
COUNCIL REGULATION (EEC) 
amending Regulation (EEC) No 3975/87 
Laying down the procedure for the application 
of the rules on competition to undertakings 
in the air transport sector 
(presented by the Commission) 
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EXPLANATORY MEMORAMMfl* 
To the draft regulation providing for temporary relief against 
anticompetitive practices in the air transport sector. 
The Commission's current proposals on further liberalisation of air 
("i ) 
transport include rules designed to permit air carriers to develop 
and implement their own commercial policies. While this process on the 
whole will contribute to a more dynamic industry in the interest of the 
air transport user, there may be cases in which air carrier:; use the 
opportunity created by the relaxation of controls to adopt strategies 
designed to eliminate competitors by other means than eon-petition on 
the merits. 
During discussions within the Council it became clear that such 
anticompetitive practices are of serious concern to the industry and to 
Member States. As a result the Council called on the Commission to 
strengthen its proposals by defining rules to prevent anti-rompitî+-iv^ 
(2) ".'ehaviour and abusive practices 
The Commission at present has considerable fact-finding and enforcement 
powers in the air transport sector , but its present procedures may 
not always be sufficient to enable it to act with the necessary speed 
against practices which threaten to eliminate a competitor. Experience 
!)..-• COM <!.'.?) J73 finol of 0 September 1987. 
'Conclusions of the Transport Council of A and 5 December 1999, Council 
Working Document AER/89/29. 
35Council Regulation 3975/87, OJ N° L 374 of 31 December 1987. 
- .3 -
-f the air transport sector shows, however. that in the absence of 
seditious action such anticompetitive practices may ,MI;,(, 
irreversible 'amage to the competitive structure of the industry. 
*'.. Consequently it is proposed to provide for some acceleration of 
procedures enabling the Commission to give temporary relief against 
anticompetitive practices in the air transport sector. The provisions 
-re similar to the rules laid down in the Court's judgement in Case 
792/79, Camera Care 1980 ECR 119. 
!i. The anticompetitive practices concerned are actions by one or several 
air carriers which have the object or effect of threatening the 
viability of an air service or of threatening the existence of an air 
carrier. The following actions could be considered as examples of 
anticompetitive practices : 
• providing :-o much capacity or such high frequencies on a route fhat 
"tli*3i- fiii-i up-!, find U difficult to make sales of servi ••«» . ••!• the 
route; 
- charging fares appreciably below the air carrier's own fully 
allocated relevant costs; 
- granting benefits to travel agents which make it difficult for 
competing air carriers to make sales, e.g. override commissions; 
granting benefits to air transport users which artificially maintain 
their loyalty to a specific airline, e.g. frequent flier programmes. 
Whether such actions are judged to be anticompetitive in a particular 
case would depend on the particular circumstances of that case. 
Because of the severe time constraints the draft regulation modifies 
i-eguiation 3970/07 to enable the Commission to take interim measures to 
prevent or terminate anticompetitive practices more rapidly by omitting 
consultation of the Advisory Committee. However, the Commission will 
endeavour to maintain a close and constant liaison with the competent 
j'j'horities jf the Member States concerned. In any event, "he Advisory 
'ornmitte* will be consulted before a decision is renewed, and l^forc* c 
' :nal decision is taken. 
•,t.;ip. [!"<•••.•••.! n'f. wiil not b«- f-^l:<-*T'i wit||.,nt fir'-.t •.•!..•!.! m--. ':«• 
• d^rt,:,!•;ii^'• concerned to comment in writing. and will !••• 'inni-'- ':•-
-'na length 01 time appropriate to the case (at most 6 months. 
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Proposal for a 
COUNCIL REGULATION (EEC) 
amending Regulation (EEC) No 3975/87 
laying down the procedure for the application 
of the rules on competition to undertakings 
, in the air transport sector 
THE COUNCIL OF THE EUROPEAN COHMUNITIES, 
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 opinion of the European Parliament (2), 
Having regard to the opinion of the Economic and Social Committee (3), 
Whereas Council Regulation (4) 
provides for further liberalisation of air transport within the Community; 
Whereas, while the relaxation of controls will enable carriers to compete 
on their merits and thus contribute to a more dynamic industry in the 
interest of the air transport user, the Commission should be able to take 
prompt action in cases where air carriers engage in practices which are 
contrary to the competition rules and which may threaten the viability of 
services operated by a competitor or even the existence of a competitor, 
and thus cause irreversible damage to the competitive structure; 
Whereas it is appropriate to provide for a specific procedure according to 
which the Commission may apply the competition rules expeditiously in 
cases where there is an urgent need to prevent or act against such 
anticompetitive practices; 
Whereas this procedure should provide the undertakings concerned with the 
opportunity to comment in writing on the matters to which objection is 
taken; 
Whereas it is therefore necessary to amend Council Regulation (EEC) 
No' 3975/87 (5); 
HAS ADOPTED THIS REGULATION: 
(1) 
(2) 
(3) 
(4) 
C5> OJHol 3?V 31.12.1987, p. 1 
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ARTICLE 1 
Regulation (EEC) No 3975/87 is hereby amended as follows : 
1) The following Article 4a is inserted : 
"ARTICLE 4a 
Temporary relief against anticompetitive practices 
1. Without prejudice to Article 4(1), where the Commission has reasons 
to believe that certain practices are contrary to Articles 85 or 86 
of the Treaty and have the object or effect of threatening the 
viability of an air service or of threatening the existence of an 
air carrier, it may by decision take interim measures to ensure that 
these practices are not implemented or cease to be implemented and 
to give such instructions as are necessary to prevent the occurrence 
of these practices until a decision under Article 4(1) is taken. 
2. A decision taken pursuant to paragraph 1 shall apply for a period 
not exceeding six months. Article 8(3) to (6) shall not apply. 
The Commission may renew the initial decision, with or without 
modification. In such case. Article 8(3) to (6) shall apply." 
2) The following is added to Article 13(1): 
"(e) to comply with any measure imposed by decision under Article 4 a." 
3) In Article 16(1) "4a," is inserted after "4,". 
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ARTICLE 2 
This Regulation shall enter into force on the day following 
that of its publication in the Official Journal of the European Communities, 
Tli i r; Regulation ".hall be binding in ils ont i rot y and dir.M.ily 
applicable in all Member States. 
Done at Brussels, For the Council 

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