EN Official Journal of the European Union C 42/15

Notice pursuant to Article 5 of Council Regulation (EEC) No 3976/87 of 14 December 1987 on the application of Article 81(3) of the EC Treaty to certain categories of agreements, decisions and concerted practices in the air transport sector

(2006/C 42/05)

(Text with EEA relevance)

In accordance with Article 5 of Council Regulation (EEC) No 3976/87, 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 air transport, within one month of the date of publication of this notice, to:

European Commission Directorate-General for Competition Unit D2, Office J70 2/55 Rue de la Loi/Wetstraat 200 B-1049 Brussels fax: (32-2) 295 01 28 e-mail: comp-revision-1617-93@cec.eu.int

Draft

Commission Regulation on the application of Article 81(3) of the Treaty to certain categories of agreements and concerted practices concerning consultations on passenger tariffs on scheduled air services and slot allocation at airports

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EEC) No 3976/87 of 14 December 1987 on the application of Article 85 (3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector (1), and in particular Article 2 thereof,

Having published a draft of this Regulation,

After consulting the Advisory Committee on Restrictive Practices and Dominant Positions,

Whereas:

(1) Since 1 May 2004, the air transport sector has been subject to the generally applicable provisions of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (2).

(2) Regulation (EC) No 1/2003 provides that agreements which fall under Article 81(1) which satisfy the conditions of Article 81(3) of the Treaty are not prohibited, no prior decision to that effect being required. In principle, undertakings and associations must now assess for themselves whether their agreements, concerted practices and decisions are compatible with Article 81 of the Treaty.

(3) Regulation (EEC) No 3976/87 empowers the Commission to apply Article 81(3) of the Treaty by Regulation to certain categories of agreements, decisions or concerted practices relating directly or indirectly to the provision of air transport services on routes between Community airports and on routes between the Community and third countries.

(4) Agreements, decisions or concerted practices concerning consultations on passenger tariffs on scheduled air services and slot allocation and airport scheduling are liable to restrict competition and affect trade between Member States.

(5) However, since such agreements, decisions or concerted practices may benefit air transport users and/or air carriers, 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 (3) declared that Article 81(1) of the Treaty did not apply, inter alia, to certain agreements, decisions or concerted practices concerning consultations on tariffs and slot allocation at airports for air services between Community airports. Regulation (EEC) No 1617/93 expired on 30 June 2005.

(6) In June 2004 the Commission initiated a consultation on the revision of Regulation (EEC) No 1617/93 to determine whether the block exemption should be discontinued, maintained in its current form or extended in scope. The Commission received responses from Member States, airlines, travel agents and consumer groups.

(7) In view of the results of the consultation and the directly applicable exception system introduced by Regulation (EC) No 1/2003, there are not sufficient grounds to continue to declare by Regulation Article 81(1) inapplicable to consultations on slot-allocation and airport scheduling agreements or to consultations on tariffs for the carriage of passengers, with their baggage, on scheduled air services between Community airports. However, the airline industry should be allowed sufficient time to adapt to the new situation and to assess for themselves whether their agreements and practices are compatible with Article 81 of the Treaty and, if necessary, to amend them. Since Regulation (EEC) No 1617/93 has already expired, it is necessary to adopt a new block exemption regulation for a transitional period.

(8) Arrangements on slot allocation at airports and airport scheduling can improve the efficient utilization of airport capacity and airspace, facilitate air-traffic control and help to spread the supply of air transport services from the airport. Entry to congested airports must remain possible if competition is not to be eliminated. In order to provide a satisfactory degree of security and transparency, arrangements in this respect can only be accepted if all air carriers concerned can participate in the negotiations, and if the allocation is made on a non-discriminatory and transparent basis.

(9) A block exemption should be granted until 31 December 2006 in respect of consultations on slot-allocation and airport scheduling in so far as they concern air services the point of origin and/or point of destination of which are located in the Community. After that date, in the light of the above mentioned considerations, the airline industry should assess for itself whether agreements and concerted practices between undertakings and decisions of associations of undertakings caught by Article 81(1) of the Treaty satisfy the conditions of Article 81(3). The assessment should inter alia consider whether all carriers concerned can participate in the consultations on slot-allocation and airport scheduling, and whether these consultations are conducted in a non-discriminatory and transparent manner.

(10) Consultations on passenger tariffs may contribute to the 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.

(11) The results of the consultation initiated by the Commission in June 2004 for the review of Regulation (EEC) No 1617/93 indicate that the intra-Community air transport market has evolved in such a way that the degree of assurance that consultations on tariffs will continue to meet all the criteria of Article 81(3) of the Treaty is declining.

(12) A block exemption should therefore be granted until 31 December 2006 in respect of consultations on tariffs for the carriage of passengers, with their baggage, on scheduled air services between Community airports. After that date, the airline industry should assess for itself whether agreements and concerted practices between undertakings and decisions of associations of undertakings caught by Article 81(1) of the Treaty satisfy the conditions of Article 81(3) of the Treaty.

(13) Since 1 May 2004, the Commission has been empowered to apply article 81(3) of the Treaty by Regulation in respect of air services not only on routes between Community airports but also on routes between the Community and third countries.

(14) In contrast to intra-Community air traffic, air services between Member States and third countries are in general governed by bilateral air services agreements. The nature and level of detail of regulatory requirements set out in these agreements vary widely. Without prejudice to Community law, including Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries (4), it is common for air services agreements to restrict and/or regulate market access and/or pricing, which may impede competition between air carriers on routes between the Community and third countries. Moreover, it is common for air services agreements to restrict the ability of carriers to enter into the kind of bilateral cooperation agreements which provide consumers with alternatives to the IATA interlining system.

(15) On routes between the Community and third countries, the proportion of passenger journeys involving a connection is appreciably higher than on intra-Community international flights. Therefore, the benefits of interlining for consumers through tariff consultations should be greater on routes between the Community and third countries.

(16) It can be assumed with sufficient certainty that consultations on tariffs for the carriage of passengers, with their baggage, on scheduled air services between points in the Community and points in third countries satisfy the conditions of Article 81(3). A block exemption should therefore be granted in respect of such consultations until 30 June 2008.

(17) Data should be collected to enhance the Commission's knowledge on the relative use of the passenger tariffs set in the consultations and their relative importance for actual interlining on scheduled services between the Community and third countries. The data should also enable the Commission to better assess the effects of regulatory restrictions flowing from bilateral air services agreements. Air carriers participating in consultations should therefore be required to collect data for all fare classes in which interlinable fares are agreed, for each IATA season from 1 July 2006.

(18) In accordance with Article 4 of Regulation (EEC) No 3976/87, this Regulation should apply with retroactive effect to agreements, decisions and concerted practices in existence on the date of entry into force of this Regulation, provided that they meet the conditions for exemption set out in this Regulation.

(19) Community law in the field of civil aviation that is relevant for the internal market was extended to the area comprising the Community and Norway, Iceland and Liechtenstein through the European Economic Area Agreement (5). Therefore, flights between the Community and Norway, Iceland and Liechtenstein should be treated in the same manner as intra-Community flights for the purposes of the application of this Regulation.

(20) The Agreement between the European Community and the Swiss Confederation on Air Transport (6) harmonises the rules that apply to international civil aviation within the area comprising the Community and Switzerland. As long as this agreement remains in force, flights between the Community and Switzerland should be treated in the same manner as intra-Community flights for the purposes of the application of this Regulation.

(21) This Regulation is without prejudice to the application of Article 82 of the Treaty,

HAS ADOPTED THIS REGULATION:

Article 1

Exemptions

Pursuant to Article 81(3) of the Treaty and subject to the provisions of this Regulation, it is hereby declared that Article 81(1) of the Treaty shall 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 one or more of the following:

a. slot-allocation and airport scheduling in so far as they concern air services the point of origin and/or point of destination of which is located in the Community;

b. the holding of consultations on tariffs for the carriage of passengers, with their baggage, on scheduled air services between points in the Community or between, on the one hand, points in the Community and, on the other, points in Switzerland, Norway, Iceland or Liechtenstein;

c. the holding of consultations on tariffs for the carriage of passengers, with their baggage, on scheduled air services between points in the Community and points in third countries other than those referred to in point (b).

Article 2

Slot allocation and airport scheduling

1. Article 1(a) shall apply only if the following conditions are fulfilled:

(a) the consultations on slot allocation and airport scheduling must be open to all air carriers having expressed an interest in the slots which are the subject of the consultations;

(b) rules of priority must be established and applied without discrimination, that is to say that they must not relate either directly or indirectly to carrier identity, nationality or category of service; they must take into account constraints or air traffic distribution rules laid down by competent national or international authorities and must give due consideration to the needs of the travelling publics and of the airport concerned;

(c) the rules of priority may take account of rights acquired by air carriers through the use of particular slots in the previous corresponding season; however, at Community airports, new entrants as defined in Article 2(b) of Council Regulation (EEC) No 95/93 (7) must be allocated a 50 % share of newly created or unused slots and slots which have been given up by a carrier during or by the end of the season or which otherwise become available to enable new entrants to be able to compete effectively with established carriers on routes to/from the airport in question; at third country airports, new entrants must be allocated a sufficient share of such available slots for entry at congested airports to remain possible;

(d) the rules of priority, once established, must be made available on request to any interested party;

(e) air carriers participating in the consultations must have access, at the time of the consultations at the latest, to information relating to: (i) historical slots by airline, chronologically, for all air carriers at the airport; (ii) requested slots (initial submissions) by air carriers and chronologically for all air carriers; (iii) allocated slots, and outstanding slot requests listed individually in chronological order, by air carriers, for air carriers; (iv) remaining slots available; (v) full details on the criteria being used in the allocation.

(f) If a request for slots is not accepted, the air carrier concerned shall be entitled to a statement of the reasons therefor.

2. The Commission and the Member States concerned shall be entitled to send observers to consultations on slot allocation and airport scheduling held in the context of a multilateral meeting in advance of each season. For this purpose, air carriers shall 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 consultations.

Such notice shall be given:

(a) to the Member States concerned according to procedures to be established by the competent authorities of those Member States;

(b) to the Commission according to procedures to be published in the Official Journal of the European Union.

Article 3

Consultations on passenger tariffs

1. Articles 1(b) and (c) shall apply only if the following conditions are fulfilled:

(a) the participants must only discuss air fares to be paid by air transport users directly to a participating air carrier or to its authorized agents, for carriage as passengers on a scheduled service, and the conditions relating to those fares and rates; the consultations must not extend to the capacity for which such tariffs are to be available;

(b) the consultations must give rise to interlining, that is to say, air transport users must be able, in respect of the types of fares or rates and of the 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 on the same or on connecting routes operated by other air carriers, whereby the applicable fares, rates and conditions are set by the airline or airlines 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 the subject of the consultations onto a service on the same route operated by another air carrier at the fares, rates and conditions applied by that other carrier;

(c) the air carrier must be able to refuse to allow combinations and changes of reservation for objective and non-discriminatory reasons of a technical or commercial nature, in particular where the air carrier effecting carriage is concerned with the credit worthiness of the air carrier who would be collecting payment for this carriage, in which case the latter air carrier must be notified thereof in writing;

(d) the passenger tariffs which are the subject of the consultations must be applied by participating air carriers without discrimination on grounds of passenger nationality or place of residence;

(e) participation in the consultations must be voluntary and open to any air carrier who operates or intends to operate direct or indirect services on the route concerned;

(f) the consultations must not be binding on participants, that is to say, following the consultations the participants must retain the right to act independently in respect of passenger tariffs;

(g) the consultations must not entail agreement on agents' remuneration or other elements of the tariffs discussed;

(h) where filing of tariffs is required, each participant individually must file each tariff which was not the subject of the consultations, with the competent authorities concerned; in so doing it must be able to act itself or through its filing agent or through its general sales agent;

2. As from 1 July 2006, air carriers participating in consultations on passenger tariffs for scheduled air services between points in the Community and points in third countries shall collect data with regard to:

(i) the number of tickets issued at tariffs set in these consultations in the total number of tickets issued for traffic between the European Community and third countries;

(ii) the extent to which tickets at tariffs set in these consultations are actually used for interlining;

(iii) the extent to which tickets which are not at tariffs set in these consultations are actually used for interlining.

That data shall be collected for all fare classes in which interlinable fares are agreed. The data collected shall be provided to the Commission by or on behalf of the air carriers involved at six-monthly intervals.

3. The Commission and the Member States concerned shall be entitled to send observers to consultations on passenger tariffs. For this purpose, air carriers shall 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 consultations.

Such notice shall be given:

(a) to the Member States concerned according to procedures to be established by the competent authorities of those Member States;

(b) to the Commission according to procedures to be published in the Official Journal of the European Union.

A full report on the 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 than six weeks after the consultations were held.

Article 4

Entry into force

This Regulation shall enter into force on the […] day following that of its publication in the Official Journal of the European Union.

Exemptions granted pursuant to Article 1(a) and (b) shall apply until 31 December 2006.

Exemptions granted pursuant to Article 1(c) shall apply until 30 June 2008.

This Regulation shall apply with retroactive effect to agreements, decisions 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. Done at Brussels, […] For the Commission Member of the Commission

(1) OJ L 374, 31.12.1987, p. 9. Regulation as last amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1).

(2) OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1).

(3) OJ L 155, 26.6.1993, p. 18. Regulation as last amended by the 2003 Act of Accession.

(4) OJ L 157, 30.4.2004, p. 7.

(5) Agreement between the European Communities, their Member States and the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Principality of Liechtenstein, the Kingdom of Norway and the Kingdom of Sweden on the European Economic Area, OJ L 1, 3.1.1994, p. 1, as last amended by Decision of the EEA Joint Committee No 87/2005 of 10 June 2005 amending Annex XXII (Company law) to the EEA Agreement, OJ L 268, 13.10.2005, p. 23.

(6) Agreement between the European Community and the Swiss Confederation on Air Transport, OJ L 114, 30.4.2002, p. 73.

(7) OJ L 14, 22.1.1993, p. 1, as last amended by Regulation (EC) No 1554/2003 of the European Parliament and the Council (OJ L 221, 4.9.2003, p. 1).