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#Preliminary Draft — Commission Regulation (EC) No …/.. of […] 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: 2004-12-23
Institutions: European Commission
Subjects: carriage of goods, consortium, control of restrictive practices, maritime conference, maritime transport

C 319/2

EN

Official Journal of the European Union

23.12.2004

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)

(2004/C 319/02)

(Text with EEA relevance)

In accordance with Article 4 of Regulation (EEC) No 479/92, the Commission invites interested parties to
send their comments concerning the attached draft Commission Regulation on the application of Article
81(3) of the EC Treaty to categories of agreements in the field of maritime transport. 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) 295 01 0 28
E-mail: april.spallin@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 REGULATION (EC) No …/..

of […]

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,

whereas:

Having regard to the Treaty establishing the European Com-
munity,

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),

Having published a draft of this Regulation (2),

(1)

(2)

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

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.

Regulation (EC) No 823/2000 will expire on 25 April
2005. On the basis of the Commission's experience in
applying the block exemption, it appears that the justifi-
cations for a block exemption for consortia are still
valid. The applicability of Regulation (EC) 823/2000 can
therefore be extended by another five years.

(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….

(3) OJ L 100, 20.4.2000, p. 24. Regulation as last amended by
Commission Regulation (EC) No 463/2004 (OJ L 77, 13.3.2004, p.
23).

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(3)

(4)

(5)

(6)

(7)

(8)

The block exemption granted by Regulation (EC) No
823/2000 covers consortia operating both within and
outside liner conferences. Therefore it is closely linked to
Council Regulation (EEC) No 4056/86 of 22 December
1986 laying down detailed rules for the application of
Articles 85 and 86 of the Treaty to maritime trans-
port (1), which grants a block exemption to liner confer-
ences. The Commission has recently launched a review
of Council Regulation (EEC) No 4056/86.

In order not to jeopardise the on-going review process
of Regulation (EEC) No 4056/86 it is neither necessary
nor appropriate to introduce substantial modifications to
the Regulation before the end of the that review.

However, in some respects the provisions of Regulation
(EC) No 823/2000 are not sufficiently attuned to current
practice applied in the industry. It is therefore appro-
priate to introduce some minor amendments in order to
make Regulation (EC) No 823/2000 more suitable for its
purpose.

In particular, Regulation (EC) No 823/2000 provides
that consortium agreements must give member compa-
nies the right to withdraw from the consortium without
financial or other penalty subject to certain conditions
concerning the period of notice to be given. Practice has
shown that it is unclear how this provision is to be inter-
preted in the event that the date of entry into force of
the consortium agreement is earlier than the date the
service actually starts,
for example, when vessels are
unavailable, or still under construction. Specific provi-
sion should therefore be made for that situation.

It is justifiable for consortia to seek security for new
investments committed to an existing service. Therefore,
the possibility for the parties to a consortium agreement
to enter into a ‘non-withdrawal’ clause should also apply
where the parties to an existing consortium agreement
have agreed to make substantial new investments and
the costs of such new investments justify a new ‘non-
withdrawal’ clause.

that

Regulation (EC) No 823/2000 provides that the exemp-
tion is subject to compliance with certain conditions,
including the existence of effective price competition
between the members of the conference within which
the consortium operates due to the fact
the
members are expressly authorised by the conference
agreement
to apply independent rate action to any
freight rate provided for in the conference tariff. It has
been brought to the Commission's attention that inde-
pendent rate action can no longer be considered as a
common general market practice.
individual
confidential contracts are now more important on
various trades. Such confidential contracts may also
bring about effective competition between liner confer-
ence members. The existence of individual confidential
contracts should therefore also be regarded as an indi-

Instead,

(1) OJ L 378, 31.12.1986, p. 24.

cator of
effective price
members of the conference.

competition between the

(9)

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. In Article 2 the following points 6 and 7 are added:

‘6.
“commencement of service” means the date on which
the first vessel sails on service or, when there has been
substantial new investment, the date on which the first
vessel sails under the conditions directly arising from that
substantial new investment;

7.
“substantial new investment” means investment which
results in the building, purchase or long-term charter of
vessels, which are
required and
substantial
the service and which
constitutes at least half of the total investment made by the
consortium members in relation to the maritime transport
service offered by the consortium.’

for the operation of

specifically designed,

2. Article 5(a) is replaced by the following:

‘(a) there

is

effective price

competition between the
members of the conference within which the consor-
tium operates, due to the fact that the members are
expressly authorised by the conference agreement,
whether by virtue of a statutory obligation or otherwise,
to apply independent rate action to any freight rate
provided for in the conference tariff and/or to enter into
individual confidential contracts; or’ .

3. Article 8(b) is replaced by the following:

‘(b) the consortium agreement must give member compa-
nies the right to withdraw from the consortium without
financial or other penalty such as, in particular, an obli-
gation to cease all transport activity in the trade or
trades in question, whether or not coupled with the
condition that such activity may be resumed only after
a certain period has elapsed. This right shall be subject
to a maximum notice period of six months which may
be given after an initial period of 18 months starting
from the date of entry into force of the consortium
agreement or the agreement to make a substantial new
investment to the joint maritime service. If the date of
entry into force of the agreement is earlier than the date
of commencement of the service, the initial period shall
not be more than 24 months starting from the date of
entry into force of the consortium agreement or the
date of entry into force of the agreement to make a
substantial new investment
to the joint maritime
service.

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Official Journal of the European Union

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However, in the case of a highly integrated consortium
which has a net revenue pool and/or high level of
investment due to the purchase or charter by its
members of vessels specifically for the purpose of
setting up the consortium, the maximum notice period
shall be six months, which may be given after an initial
period of 30 months starting from the date of entry
into force of the consortium agreement or the agree-
ment to make a substantial new investment to the joint
maritime service. If the date of entry into force of the
agreement is earlier than the date of commencement of
the service, the initial period shall not be more than 36

months starting from the date of entry into force of the
consortium agreement or the date of entry into force of
the agreement to make a substantial new investment to
the joint maritime service.’

4. In Article 14, the date ‘25 April 2005’ is replaced by ‘25

April 2010’.

Article 2

This Regulation shall enter into force on 26 April 2005.

It shall apply until 25 April 2010.

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