Commission Regulation (EC) No 463/2004 of 12 March 2004 amending Regulation (EC) No 823/2000 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia) (Text with EEA relevance)
Date: 2004-03-12
Institutions: European Commission
Subjects: competition law, consortium, maritime transport, transport company

13.3.2004

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Official Journal of the European Union

L 77/23

COMMISSION REGULATION (EC) No 463/2004

of 12 March 2004

amending Regulation (EC) No 823/2000 on the application of Article 81(3) of the Treaty to certain
categories of agreements, decisions and concerted practices between liner shipping companies
(consortia)

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

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), and
in particular Article 2(2) thereof,

(5)

Having published a draft of this Regulation (2),

After consulting the Advisory Committee on Restrictive Prac-
tices and Dominant Positions in Maritime Transport,

Whereas:

the conditions of Article 81(3) are legally valid and
enforceable without the adoption of an administrative
decision. Undertakings will be able to invoke the excep-
tion from the prohibition on agreements which restrict
competition laid out in Article 81(3) as a defence in all
proceedings.

The provisions of Regulation (EC) No 823/2000 should
be aligned with those of Regulation (EEC) No 479/92
and Council Regulation (EC) No 4056/86 of 22
December 1986 laying down detailed rules for the appli-
cation of Articles 85 and 86 of the Treaty to maritime
transport (4).
the opposition procedure
should be abolished and references to notification of
consortia 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.

In particular

(1)

(2)

(3)

(4)

Regulation (EEC) No 479/92 empowers the Commission
to apply Article 81(3) of the Treaty by regulation to
certain categories of agreements, decisions and concerted
(consortia)
practices
relating to the joint operation of liner transport services.

companies

shipping

between

Commission Regulation (EC) No 823/2000 (3) grants a
general exemption to liner shipping consortia from the
prohibition contained in Article 81(1) of the Treaty,
subject to certain conditions and obligations.

One of the conditions concerns the market share held
by the consortium on each market upon which it oper-
ates. 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 auto-
matically 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
is notified to the
the agreement
Commission and the Commission does not oppose the
exemption within six months.

Regulation (EC) No 1/2003 introduces a directly applic-
able exception system in which the competition authori-
ties and the courts of the Member States have the power
to apply Article 81(3) of
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 system, agreements that fulfil

the Treaty,

(1) OJ L 55, 29.2.1992, p. 3. Regulation as last amended by Regulation

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

(2) OJ C 233, 30.9.2003, p. 8.
(3) OJ L 100, 20.4.2000, p. 24. Regulation as amended by the 2003

Act of Accession.

(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:

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

(4) OJ L 378, 31.12.1986, p. 4. Regulation as last amended by Regu-

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

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Official Journal of the European Union

13.3.2004

3. In Article 11, paragraph 1 is replaced by the following:

(c) such effects result from an arbitration award.

‘1.
Information acquired as a result of the application of
Article 9(5) shall be used only for the purposes of this Regu-
lation.’

4. Article 12 is replaced by the following:

‘Article 12

Withdrawal in individual cases

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 by an association of undertak-
ings or concerted practice to which Article 3 or Article
this Regulation apply nevertheless has certain
13(1) of
effects which are incompatible with Article 81(3) in particu-
lar where:
(a) in a given trade, competition from outside the confer-
ence within which the consortium operates or from
outside a particular consortium is not effective;

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

2. Where, in any particular case, an agreement, decision
by an association of undertakings or concerted practice
referred to in paragraph 1 has effects which are incompa-
tible 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 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

tions provided for in Article 9 of this Regulation;

This Regulation shall enter into force on 1 May 2004.

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

Done at Brussels, 12 March 2004.

For the Commission

Mario MONTI

Member of the Commission