Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and (EC) No 1/2003, in connection with air transport between the Community and third countries (Text with EEA relevance)
Date: 2004-02-26
Institutions: Council of the European Union
Subjects: air transport, competition, inter-company agreement, transport company

6.3.2004

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Official Journal of the European Union

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(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 411/2004

of 26 February 2004

repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and (EC) No
1/2003, in connection with air transport between the Community and third countries

(Text with EEA relevance)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 83 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

Neither Council Regulation (EEC) No 3975/87 of 14
December 1987 laying down the procedure for the
application of the rules on competition to undertakings
in the air transport sector (3), nor Regulation (EC) No 1/
2003 itself applies to air transport between the Com-
munity and third countries.

Consequently, the Commission does not enjoy powers of
investigation and enforcement with regard to infringe-
ments of Articles 81 and 82 of the Treaty in respect of
air transport between the Community and third coun-
tries equivalent to those enjoyed as regards air transport
within the Community. In particular, the Commission
lacks the requisite fact-finding tools and the powers to
impose remedies which are necessary to bring infringe-
ments to an end or to impose penalties in respect of
proven infringements. Furthermore, the specific rights,
powers and obligations assigned to national courts and
the competition authorities of the Member States by
Regulation (EC) No 1/2003 do not apply to air transport
between the Community and third countries; the same
holds true for the mechanism for cooperation between
the Commission and the competition authorities of the
Member States provided for in Regulation (EC) No 1/
2003.

(3)

Anti-competitive practices in air transport between the
Community and third countries may affect
trade
between Member
the mechanisms
States.
enshrined in Regulation (EC) No 1/2003, the function of
which is to implement the rules on competition under
Articles 81 and 82 of the Treaty, are equally appropriate

Since

(1) Proposal of 24 February 2003.
(2) Opinion of 23 September 2003 (not yet published in the Official

Journal).

for applying the competition rules to air
transport
between the Community and third countries, the scope
of that regulation should be extended to cover such
transport.

(4) When Articles 81 and 82 of the Treaty are applied in
proceedings on the basis of Regulation (EC) No 1/2003
and in accordance with the case-law of the Court of
Justice, air services agreements concluded between the
Member States and/or the European Community on the
one hand and third countries on the other hand should
be duly considered,
in particular for the purpose of
assessing the degree of competition in the relevant air
transport markets. This Regulation does, however, not
affect the rights and obligations of the Member States
under the Treaty with respect to the conclusion and
application of such agreements.

(5)

(6)

Article 2 of Regulation (EEC) No 3975/87 is of a purely
declaratory nature and should therefore be deleted. With
the exception of Article 6(3), which should continue to
apply to decisions adopted pursuant to Article 81(3) of
the Treaty prior to the date of application of Regulation
(EC) No 1/2003 until the date of expiry of those deci-
sions, Regulation (EEC) No 3975/87 will, following the
deletion of most of its provisions by Regulation (EC) No
1/2003, cease to serve any further purpose;
it should
therefore be repealed.

By the same token, an equivalent amendment should
also be made to Council Regulation (EEC) No 3976/87
of 14 December 1987 on the application of Article
81(3) of the Treaty to certain categories of agreements
and concerted practices in the air transport sector (4).
That regulation, which empowers the Commission to
declare by way of regulation that
the provisions of
Article 81(1) do not apply to certain categories of agree-
ments between undertakings, decisions by associations
of undertakings and concerted practices,
is at present
explicitly limited to air transport between Community
airports.

(3) OJ L 374, 31.12.1987, p. 1. Regulation as last amended by Regu-

(4) OJ L 374, 31.12.1987, p. 9. Regulation as last amended by Regu-

lation (EC) No 1/2003 (OJ L 1, 4.1.2003, p. 1).

lation (EC) No 1/2003.

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Official Journal of the European Union

6.3.2004

(7)

(8)

The Commission should be empowered to grant block
exemptions in the air transport sector in respect of
traffic between the Community and third countries as
well as in respect of
traffic within the Community.
Accordingly, the scope of Regulation (EEC) No 3976/87
should be broadened by abolishing its limitation to air
transport between Community airports.

Consequently, Regulation (EEC) No 3975/87 should be
repealed, and Regulations (EEC) No 3976/87 and (EC)
No 1/2003 should be amended accordingly,

Article 2

In Article 1 of Regulation (EEC) No 3976/87, ‘between Com-
munity airports’ shall be deleted.

Article 3

In Article 32 of Regulation (EC) No 1/2003, point (c) shall be
deleted.

HAS ADOPTED THIS REGULATION:

Article 1

Article 4

Regulation (EEC) No 3975/87 shall be repealed, with the excep-
tion of Article 6(3), which shall continue to apply to decisions
adopted pursuant to Article 81(3) of the Treaty prior to the
date of application of Regulation (EC) No 1/2003 until the date
of expiry of those decisions.

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

It shall apply from 1 May 2004.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 26 February 2004.

For the Council

The President

N. DEMPSEY