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) (Text with EEA relevance)
Date: 2003-09-30
Institutions: European Commission
Subjects: application of EU law, competition, consortium, inter-company agreement, maritime transport, restrictive trade practice, transport company

C 233/8

EN

Official Journal of the European Union

30.9.2003

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
the Treaty to certain categories of agreements, decisions and concerted
Article 81(3) of

practices between liner shipping companies (consortia)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(consortia) relating to the joint operation of liner transport
services.

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 regu-
lation to certain categories of agreements, decisions and
companies
between
concerted

practices

shipping

(2) Regulation (EC) No 823/2000 (3)

general
exemption to liner shipping consortia from the prohibition
contained in Article 81(1) of the Treaty, subject to certain
conditions and obligations.

grants

a

(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
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
the
for
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.

is notified to the Commission and,

(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.

30.9.2003

EN

Official Journal of the European Union

C 233/9

(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
the conditions of Article
system, agreements that
fulfil
81(3) are
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.

legally valid and enforceable without

(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
to notification of consortia
abolished and references
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:

to demonstrate

the Commission or

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

to the Commission or

request

submit

the

at

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 Regu-
lation (EC) No 1/2003 (*), 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 never-
theless has certain effects which are incompatible with
Article 81(3) in particular where:

(a)

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

competition from outside

(b) a consortium fails repeatedly to comply with the obli-

gations 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 incom-
patible with Article 81(3) of the Treaty in the territory of a
Member State, or in a part thereof, which has all the charac-
teristics of a distinct geographic market, the competition
authority of that Member State may withdraw the benefit
of this Regulation in respect of that territory.
___________
(*) OJ L 1, 4.1.2003, p. 1’.

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

‘2.
A notification made pursuant to Article 7 of Regu-
lation (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