Commission Regulation (EC) No 611/2005 of 20 April 2005 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: 2005-04-20
Institutions: European Commission
Subjects: competition law, consortium, investment policy, maritime transport, transport company

L 101/10

EN

Official Journal of the European Union

21.4.2005

COMMISSION REGULATION (EC) No 611/2005

of 20 April 2005

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
Community,

establishing the European

for its purpose, pending the outcome of the review of
Council Regulation (EEC) No 4056/86 of 22 December
1986 laying down detailed rules for the application of
to maritime
Articles 85 and 86 of
transport (4),
substantial
amendments may prove necessary.

the Treaty
which more

following

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
companies
shipping
(consortia) (1), and in particular Article 1 thereof,

practices

between

liner

Having published a draft of this Regulation (2),

consulting the Advisory Committee on Restrictive

After
Practices and Dominant Positions,

Whereas:

(1)

(2)

(3)

Commission Regulation (EC) No 823/2000 (3) grants a
general exemption to liner shipping consortia from the
the Treaty,
prohibition contained in Article 81(1) of
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 that Regulation, it appears that the justifications
for a block exemption for consortia are still valid. The
application of Regulation (EC) No 823/2000 should
therefore be extended for a further five years.

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

(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 319, 23.12.2004, p. 2.
(3) OJ L 100, 20.4.2000, p. 24. Regulation as last amended by Regu-

lation (EC) No 463/2004 (OJ L 77, 13.3.2004, p. 23).

(4)

(5)

(6)

In particular, Regulation (EC) No 823/2000 provides that
consortium agreements must give member companies
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
interpreted in the event
the date of entry into
that
force of the consortium agreement is earlier than the
for example, when
date the service actually starts,
still under construction.
vessels are unavailable, or
Specific provision should therefore be made for that
situation.

an

existing

committed

It is justifiable for consortia to seek security for new
investments
service.
to
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
substantial new
agreed to make
investments and the costs of such new investments
justify a new ‘non-withdrawal’ clause.

that

subject

the
Regulation (EC) No 823/2000 provides
to compliance with certain
exemption is
including the existence of effective price
conditions,
competition between the members of
the conference
within which the consortium operates due to the fact
that
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
independent 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
liner
conference members. The existence of individual confi-
dential contracts should therefore also be regarded as an
indicator of effective price competition between the
members of the conference.

competition

between

effective

Instead,

about

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

lation (EC) No 1/2003.

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Official Journal of the European Union

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(7)

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 the service” means the date on which
the first vessel sails on the 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 specifically designed,
required and
substantial for the operation of 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.’;

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

‘(a) there is effective price competition between the members
of the conference within which the consortium 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
in the
conference tariff and/or to enter into individual confi-
dential contracts; or’;

rate provided for

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

‘(b) the consortium agreement must give member companies
to withdraw from the consortium without

the right

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
to a
period has elapsed. This right shall be subject
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
in the joint maritime service. If the date of entry into
force of
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
to make a
of entry into force of
substantial new investment in the joint maritime service.

the agreement

the agreement

is earlier

specifically for

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
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 agreement to
make a substantial new investment in 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
in the joint maritime service.’;

4. In the second paragraph of 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.

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

Done at Brussels, 20 April 2005.

For the Commission

Neelie KROES
Member of the Commission