Proposal for a Regulation of the European Parliament and of the Council applying rules of competition to transport by rail, road and inland waterway (Codified version)
Date: 2006-11-27
Institutions: European Commission
Subjects: codification of EU law, competition law, inland waterway transport, rail transport, road transport, transport policy

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 27.11.2006 
COM(2006)722 final 

2006/0241(COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

applying rules of competition to transport by rail, road and inland waterway 

(Codified version) 

(presented by the Commission) 

EN 

   EN 

 
 
 
  
 
 
EXPLANATORY MEMORANDUM 

In  the  context  of  a  people’s  Europe,  the  Commission  attaches  great  importance  to 
simplifying  and  clarifying  Community  law  so  as  to  make  it  clearer  and  more 
accessible to the ordinary citizen, thus giving him new opportunities and the chance 
to make use of the specific rights it gives him. 

This aim cannot be achieved so long as numerous provisions that have been amended 
several times, often quite substantially, remain scattered, so that they must be sought 
partly  in  the  original  instrument  and  partly  in  later  amending  ones.  Considerable 
research work, comparing many different instruments, is thus needed to identify the 
current rules. 

For  this  reason  a  codification  of  rules  that  have  frequently  been  amended  is  also 
essential if Community law is to be clear and transparent. 

On  1  April  1987  the  Commission  therefore  decided1  to  instruct  its  staff  that  all 
legislative acts should be codified after no more than ten amendments, stressing that 
this  is  a  minimum  requirement  and  that  departments  should  endeavour  to  codify  at 
even  shorter  intervals  the  texts  for  which  they  are  responsible,  to  ensure  that  the 
Community rules are clear and readily understandable. 

The  Conclusions  of 
the  Edinburgh  European  Council 
(December 1992) confirmed this2 stressing the importance of codification as it offers 
certainty as to the law applicable to a given matter at a given time. 

the  Presidency  of 

Codification  must  be  undertaken  in  full  compliance  with  the  normal  Community 
legislative procedure. 

Given  that  no  changes  of  substance  may  be  made  to  the  instruments  affected  by 
codification, the European Parliament, the Council and the Commission have agreed, 
by  an  interinstitutional  agreement  dated  20  December  1994,  that  an  accelerated 
procedure may be used for the fast-track adoption of codification instruments. 

The  purpose  of  this  proposal  is  to  undertake  a  codification  of  Regulation  (EEC) 
No 1017/68 of the Council of 19 July 1968 applying rules of competition to transport 
by rail, road and inland waterway3. The new Regulation will supersede the various 
acts  incorporated  in  it4;  this  proposal  fully  preserves  the  content  of  the  acts  being 
codified  and  hence  does  no  more  than  bring  them  together  with  only  such  formal 
amendments as are required by the codification exercise itself. 

COM(87) 868 PV. 
See Annex 3 to Part A of the Conclusions. 
Carried out pursuant to the Communication from the Commission to the European Parliament and the 
Council – Codification of the Acquis communautaire, COM(2001) 645 final. 
See Annex I to this proposal. 

1. 

2. 

3. 

4. 

1 
2 
3 

4 

EN 

2 

   EN 

 
                                                 
5. 

The codification proposal was drawn up on the basis of a preliminary consolidation, 
in  all  official  languages,  of  Regulation  (EEC)  No  1017/68  and  the  instruments 
amending  it,  carried  out  by  the  Office  for  Official  Publications  of  the  European 
Communities, by means of a data-processing system. Where the Articles have been 
given new numbers, the correlation between the old and the new numbers is shown 
in a table set out in Annex II to the codified Regulation. 

EN 

3 

   EN 

 
(cid:208) 1017/68 (adapted) 

2006/0241(COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

applying rules of competition to transport by rail, road and inland waterway 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Articles ⌦ 71 ⌫ and ⌦ 83 ⌫ thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Economic and Social Committee1, 

Having regard to the opinion of the Committee of the Regions2, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty3, 

Whereas: 

(1) 

Regulation  (EEC)  No  1017/68  of  the  Council  of  19  July  1968  applying  rules  of 
competition  to  transport  by  rail,  road  and  inland  waterway4  has  been  substantially 
amended several times5. In the interests of clarity and rationality the said Regulation 
should be codified. 

(cid:208)  

(2) 

Rules  of  competition  for  transport  by  rail,  road  and  inland  waterway  are  part  of  the 
common transport policy and of general economic policy. 

(cid:208) 1017/68 recital (3) 

1 
2 
3 
4 
5 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 175, 23.7.1968, p. 1. Regulation as last amended by the 2003 Act of Accession. 
See Annex I. 

EN 

4 

   EN 

 
 
 
 
                                                 
(3) 

Rules of competition for those sectors should take account of the distinctive features 
of transport. 

(cid:208) 1017/68 recital (4) 

(4) 

Since  the  rules  of  competition  for  transport  derogate  from  the  general  rules  of 
competition, it must be made possible for undertakings to ascertain what rules apply in 
any particular case. 

(cid:208) 1017/68 recital (5) 

(5) 

(6) 

(7) 

(8) 

(cid:208) 1017/68 recital (6) 

The  system  of  rules  on  competition  for  transport  should  apply  equally  to  the  joint 
financing or acquisition of transport equipment for the joint operation of services by 
certain  groupings  of  undertakings,  and  also  to  certain  operations  in  connection  with 
transport  by  rail,  road  or  inland  waterway  of  providers  of  services  ancillary  to 
transport. 

(cid:208) 1017/68 recital (7) 

In  order  to  ensure  that  trade  between  Member  States  is  not  affected  or  competition 
within the internal market distorted, it is necessary to prohibit in principle for the three 
modes of transport specified above all agreements between undertakings, decisions of 
associations  of  undertakings  and  concerted  practices  between  undertakings  and  all 
instances of abuse of a dominant position within the internal market which could have 
such effects. 

(cid:208) 1017/68 recital (8) 

Certain types of agreement, decision and concerted practice in the transport sector the 
object  and  effect  of  which  is  merely  to  apply  technical  improvements  or  to  achieve 
technical  co-operation  may  be  exempted  from  the  prohibition  on  restrictive 
agreements since they contribute to improving productivity. In the light of experience 
following  application  of  this  Regulation,  the  Council  may,  on  a  proposal  from  the 
Commission, amend the list of such types of agreement. 

(cid:208) 1017/68 recital (9) 

In order that an improvement may be fostered in the sometimes too dispersed structure 
of  the  industry  in  the  road  and  inland  waterway  sectors,  exemption  from  the 
prohibition  on  restrictive  agreements  should  also  be  granted  in  the  case  of  those 
agreements, decisions and concerted practices providing for the creation and operation 
of  groupings  of  undertakings  in  these  two  transport  sectors  whose  object  is  the 

EN 

5 

   EN 

 
 
 
 
 
 
 
carrying  on  of  transport  operations,  including  the  joint  financing  or  acquisition  of 
transport equipment for the joint operation of services. Such overall exemption can be 
granted  only  on  condition  that  the  total  carrying  capacity  of  a  grouping  does  not 
exceed a fixed maximum, and that the individual capacity of undertakings belonging 
to  the  grouping  does  not  exceed  certain  limits  so  fixed  as  to  ensure  that  no  one 
undertaking can hold a dominant position within the grouping. The Commission must, 
however,  have  power to intervene if, in  specific  cases, such  agreements should have 
effects incompatible with the conditions under which a restrictive agreement may be 
recognised as lawful, and should constitute an abuse of the exemption. Nevertheless, 
the fact that a grouping has a total carrying capacity greater than the fixed maximum, 
or  cannot  claim  the  overall  exemption  because  of  the  individual  capacity  of  the 
undertakings  belonging  to  the  grouping,  does  not  in  itself  prevent  such  a  grouping 
from constituting a lawful agreement, decision or concerted practice if it satisfies the 
relevant conditions laid down in this Regulation. 

(cid:208) 1017/68 recital (14) 

(9) 

It  is  for  the  undertakings  themselves,  in  the  first  instance,  to  judge  whether  the 
predominant  effects  of  their  agreements,  decisions  or  concerted  practices  are  the 
restriction of competition or the economic benefits acceptable as justification for such 
restriction and to decide accordingly, on their own responsibility, as to the illegality or 
legality of such agreements, decisions or concerted practices. 

(cid:208) 1017/68 recital (15) 

(10)  Therefore, undertakings should be allowed to conclude or operate agreements without 
declaring them. This exposes such agreements to the risk of being declared void with 
retroactive  effect  should  they  be  examined  following  a  complaint  or  on  the 
Commissions's own initiative, but does not prevent their being retroactively declared 
lawful in the event of such subsequent examination, 

HAVE ADOPTED THIS REGULATION: 

(cid:208) 1017/68 

Article 1 

Scope 

The  provisions  of  this  Regulation  shall,  in  the  field  of  transport  by  rail,  road  and  inland 
waterway, apply both to all agreements, decisions and concerted practices which have as their 
object  or  effect  the  fixing  of  transport  rates  and  conditions,  the  limitation  or  control  of  the 
supply  of  transport,  the  sharing  of  transport  markets,  the  application  of  technical 
improvements  or  technical  co-operation,  or  the  joint  financing  or  acquisition  of  transport 
equipment or supplies where such operations are directly related to the provision of transport 
services  and  are  necessary  for  the  joint  operation  of  services  by  a  grouping  within  the 

EN 

6 

   EN 

 
 
 
 
meaning of Article 3 of road or inland waterway transport undertakings, and to the abuse of a 
dominant position on the transport market. These provisions shall apply also to operations of 
providers of services ancillary to transport which have any of those objects or effects. 

(cid:208) 1017/68 Art. 3 
(cid:206)1 1/2003 Art. 36(2) 

Article 2 

Exception for technical agreements 

1.  (cid:206)1 The  prohibition  in  Article  81(1)  of  the  Treaty   shall  not  apply  to  agreements, 
decisions  or  concerted  practices  the  object  and  effect  of  which  is  to  apply  technical 
improvements or to achieve technical co-operation by means of: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

the standardisation of equipment, transport supplies, vehicles or fixed installations; 

the  exchange  or  pooling,  for  the  purpose  of  operating  transport  services,  of  staff, 
equipment, vehicles or fixed installations; 

the organisation and execution of successive, complementary, substitute or combined 
transport operations, and the fixing and application of inclusive rates and conditions 
for such operations, including special competitive rates; 

the  use,  for  journeys  by  a  single  mode  of  transport,  of  the  routes  which  are  most 
rational from the operational point of view; 

the co-ordination of transport timetables for connecting routes; 

the grouping of single consignments; 

the establishment of uniform rules as to the structure of tariffs and their conditions of 
application, provided such rules do not lay down transport rates and conditions. 

2. The Commission shall, where appropriate, submit proposals to the Council with a view to 
extending or reducing the list in paragraph 1. 

(cid:208) 1017/68 Art. 4 
(cid:206)1 1/2003 Art. 36(3)(a) 

Article 3 

Exemption for groups of small and medium-sized undertakings 

1.  (cid:206)1 Agreements,  decisions  and  concerted  practices  as  referred  to  in  Article  81(1)  of  the 
Treaty  shall be exempt from the prohibition in that Article where their purpose is: 

EN 

7 

   EN 

 
 
 
(a) 

(b) 

the  constitution  and  operation  of  groupings  of  road  or  inland  waterway  transport 
undertakings with a view to carrying on transport activities; 

the  joint  financing  or  acquisition  of  transport  equipment  or  supplies,  where  these 
operations are directly related to the provision of transport services and are necessary 
for the joint operations of the aforesaid groupings; 

always provided that the total carrying capacity of any grouping does not exceed: 

(i) 

(ii) 

10 000 metric tons in the case of road transport; 

500 000 metric tons in the case of transport by inland waterway. 

The individual capacity of each undertaking belonging to a grouping shall not exceed 1 000 
metric  tons  in  the  case  of  road  transport  or  50 000  metric  tons  in  the  case  of  transport  by 
inland waterway. 

2.  If  the  implementation  of  any  agreement,  decision  or  concerted  practice  covered  by 
paragraph  1  has,  in  a  given  case,  effects  which  are  incompatible  with  the  requirements  of 
Article 81(3) of the Treaty, undertakings or associations of undertakings may be required to 
make such effects cease. 

(cid:208) 1/2003 Art. 36(3)(b) 

EN 

8 

   EN 

 
 
(cid:208)  

Article 4 

Repeal 

Regulation  (EEC)  No  1017/68  is  repealed,  with  the  exception  of  Article  13(3),  which 
continues to apply to decisions adopted pursuant to Article 5 of Regulation (EEC) No 1017/68 
prior to 1 May 2004 until the date of expiration of those decisions. 

References to the repealed Regulation shall be construed as references to this Regulation and 
shall be read in accordance with the correlation table in Annex II. 

(cid:208) 1017/68 Art. 30 

Article 5 

Entry into force, existing agreements 

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

(cid:208) 2003 Act of Accession, p. 344 

2. The prohibition in Article 81(1) of the Treaty shall not apply to agreements, decisions and 
concerted practices which were in existence at the date of accession of Austria, Finland and 
Sweden or at the date of accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, 
Hungary, Malta, Poland, Slovenia and Slovakia and which, by reason of accession, fall within 
the  scope  of  Article  81(1)  if,  within  six  months  from  the  date  of  accession,  they  are  so 
amended that they comply with the conditions laid down in Article 3 of this Regulation. This 
paragraph does not apply to agreements, decisions and concerted practices which at the date 
of accession already fall under Article 53(1) of the EEA Agreement. 

EN 

9 

   EN 

 
 
 
 
(cid:208) 1017/68 

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

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

EN 

10 

   EN 

 
 
 
 
(cid:207) 

ANNEX I 

Part A 

Repealed Regulation with its successive amendment 

Regulation (EEC) No 1017/68 of the Council 
(OJ L 175, 23.7.1968, p. 1) 

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

Article 36 only 

Part B 

Non-repealed successive amendments 

1972 Act of Accession 

1979 Act of Accession 

1994 Act of Accession 

2003 Act of Accession 

_____________ 

EN 

11 

   EN 

 
 
 
ANNEX II 

CORRELATION TABLE 

Regulation (EEC) No 1017/68 

This Regulation 

Article 1 

Article 3 

Article 1 

Article 2 

Article 
introductory phrase, first indent 

4(1), 

first 

subparagraph, 

Article 
introductory phrase, second indent 

4(1), 

subparagraph, 

first 

first 

Article 
3(1), 
introductory phrase, (a) 

first 

subparagraph, 

first 

first 

Article 
3(1), 
introductory phrase, (b) 

first 

subparagraph, 

first 

Article  4(1), 
introductory phrase, first indent 

first  subparagraph,  second 

Article  3(1), 
introductory phrase, (i) 

first  subparagraph,  second 

Article  4(1), 
introductory phrase, second indent 

first  subparagraph,  second 

Article  3(1), 
introductory phrase, (ii) 

first  subparagraph,  second 

Article 4(1), second subparagraph 

Article 3(1), second subparagraph 

Article 4(2) 

- 

Article 30(1) 

Article 3(2) 

Article 4 

Article 5(1) 

Article 30(3), second subparagraph 

Article 5(2) 

Article 31 

- 

- 

- 

Annex I 

Annex II 

_____________ 

EN 

12 

   EN