Proposal for a Council Regulation on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia) (Codified version)
Date: 2007-11-27
Institutions: European Commission
Subjects: codification of EU law, competition law, maritime transport, restrictive trade practice, transport company

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 27.11.2007 
COM(2006) 753 final 

2007/0265 (CNS) 

Proposal for a 

COUNCIL REGULATION 

on the application of Article 81(3) of the Treaty to certain categories of agreements, 
decisions and concerted practices between liner shipping companies (consortia) 

(Codified version) 

(presented by the Commission) 

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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. 

is 

this  proposal 

to  undertake  a  codification  of  Council 
The  purpose  of 
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)3.  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  bringing  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. 

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5. 

The codification proposal was drawn up on the basis of a preliminary consolidation, 
in  all  official  languages,  of  Regulation  (EEC) No 479/92  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 contained in Annex II to the codified Regulation. 

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2007/0265 (CNS) 

(cid:208) 479/92 (adapted) 

Proposal for a 

COUNCIL REGULATION 

on the application of Article ⌦ 81 ⌫ (3) of the Treaty to certain categories of 
agreements, decisions and concerted practices between liner shipping companies 
(consortia) 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament1, 

Having regard to the opinion of the European Economic and Social Committee2, 

Whereas: 

(cid:208)  

(1) 

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 
liner  shipping  companies  (consortia)3  has  been 
concerted  practices  between 
substantially amended several times4. In the interests of clarity and rationality the said 
Regulation should be codified. 

(2) 

Article  ⌦ 81 ⌫  (1)  of  the  Treaty  may  in  accordance  with  Article  ⌦ 81 ⌫  (3) 
thereof be declared inapplicable to categories of agreements, decisions and concerted 
practices which fulfil the conditions contained in Article ⌦ 81 ⌫ (3). 

(cid:208) 479/92 Recital 1 (adapted) 

1 
2 
3 

4 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
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). 
See Annex I. 

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(3) 

(4) 

(5) 

(6) 

(cid:208) 479/92 Recital 2 (adapted) 

Pursuant  to  Article  ⌦ 83 ⌫  of  the  Treaty,  the  provisions  for  the  application  of 
Article  ⌦ 81 ⌫  (3)  of  the  Treaty  should  be  adopted  by  way  of  Regulation  ⌦ or 
Directive ⌫. According to Article ⌦ 83 ⌫ (2)(b), ⌦ these provisions ⌫ must lay 
down detailed rules for the application of Article ⌦ 81 ⌫ (3), taking into account the 
need to ensure effective supervision, on the one hand, and to simplify administration 
to  the  greatest  possible  extent  on  the  other.  According  to  Article  ⌦ 83 ⌫  (2)(d), 
⌦ these  provisions  are ⌫  required  to  define  the  respective  functions  of  the 
Commission and of the Court of Justice. 

(cid:208) 479/92 Recital 3 

Liner shipping is a capital intensive industry. Containerisation has increased pressures 
for cooperation and rationalisation. The Community shipping industry needs to attain 
the necessary economies of scale in order to compete successfully on the world liner 
shipping market. 

(cid:208) 479/92 

Users of the shipping services offered by consortia can obtain a share of the benefits 
resulting from the improvements in productivity and service, by means of, inter alia, 
regularity, cost reductions derived from higher levels of capacity utilisation, and better 
service quality stemming from improved vessels and equipment. 

(cid:208) 479/92 Recitals 8 and 9 
(adapted) 

The  Commission  should  be  enabled  to  declare  by  way  of  Regulation  that  the 
provisions of Article ⌦ 81 ⌫ (1) of the Treaty do not apply to certain categories of 
consortia agreements, decisions and concerted practices, in order to make it easier for 
undertakings  to  cooperate  in  ways  which  are  economically  desirable  and  without 
adverse effect from the point of view of competition policy. The Commission, in close 
and  constant  liaison  with  the  competent  authorities  of  the  Member  States,  should  be 
able to define precisely the scope of these exemptions and the conditions attached to 
them. 

(cid:208) 479/92 Recital 10 

(7) 

Consortia in liner shipping are a specialised and complex type of joint venture. There 
is  a  great  variety  of  different  consortia  agreements  operating 
in  different 
circumstances.  The  scope,  parties,  activities  or  terms  of  consortia  are  frequently 
altered. The Commission should therefore be given the responsibility of defining from 
time to time the consortia to which a group exemption should apply. 

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(8) 

In order to ensure that all the conditions of Article ⌦ 81 ⌫ (3) of the Treaty are met, 
conditions  should  be  attached  to  group  exemptions  to  ensure  in  particular  that  a  fair 
share  of  the  benefits  will  be  passed  on  to  shippers  and  that  competition  is  not 
eliminated, 

(cid:208) 479/92 Recital 11 (adapted) 

HAS ADOPTED THIS REGULATION: 

(cid:208) 479/92 

Article 1 

(cid:208) 479/92 (adapted) 

1.  The  Commission  may  by  regulation  and  in  accordance  with  Article ⌦ 81 ⌫  (3)  of  the 
Treaty, declare that Article ⌦ 81 ⌫ (1) of the Treaty shall not apply to certain categories of 
agreements  between  undertakings,  decisions  of  associations  of  undertakings  and  concerted 
practices that have as an object to promote or establish cooperation in the joint operation of 
maritime transport services between liner shipping companies, for the purpose of rationalising 
their operations by means of technical, operational or commercial arrangements — with the 
exception of price fixing (consortia). 

2. Such regulation adopted pursuant to paragraph 1 shall define the categories of agreements, 
decisions  and  concerted  practices  to  which  it  applies  and  shall  specify  the  conditions  and 
obligations  under  which,  pursuant  to  Article  ⌦ 81 ⌫  (3)  of  the  Treaty,  they  shall  be 
considered exempted from the application of Article ⌦ 81 ⌫ (1) of the Treaty. 

(cid:208) 479/92 

Article 2 

1.  The  regulation  adopted  pursuant  to  Article  1  shall  apply  for  a  period  of  five  years, 
calculated as from the date of its entry into force. 

2. It may be repealed or amended where circumstances have changed with respect to any of 
the facts which were basic to its adoption. 

Article 3 

The  regulation  adopted  pursuant  to  Article  1  may  include  a  provision  stating  that  it  applies 
with  retroactive  effect  to  agreements,  decisions  and  concerted  practices  which  were  in 
existence  at  the  date  of  entry  into  force  of  such  regulation,  provided  they  comply  with  the 
conditions established in that regulation. 

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(cid:208) 1994 Act of Accession Art. 29 
and Annex I, p. 56 (adapted) 

Article 4 

⌦ The ⌫ Regulation ⌦ adopted ⌫ pursuant to Article 1 may stipulate that the prohibition 
contained in Article ⌦ 81 ⌫ (1) of the Treaty shall not apply, for such a period as fixed by 
that  Regulation,  to  agreements,  decisions  and  concerted  practices  already  in  existence  at 
⌦ 1 January  1995, ⌫  to  which  Article ⌦ 81 ⌫  (1)  applies  by  virtue  of  the  accession  of 
Austria, Finland and Sweden and which do not satisfy the conditions of Article ⌦ 81 ⌫ (3). 
However, this Article shall not apply to agreements, decisions and concerted practices which 
⌦ as at 1 January 1995 ⌫ already ⌦ fell ⌫ under Article 53(1) of the EEA Agreement. 

(cid:208) 479/92 Art. 4 (adapted) 

Article 5 

Before  adopting  ⌦ the ⌫  Regulation  ⌦ pursuant  to  Article  1 ⌫,  the  Commission  shall 
publish a draft thereof to enable all the persons and organisations concerned to submit their 
comments within such reasonable time limit as the Commission shall fix, but in no case less 
than one month. 

(cid:208) 1/2003 Art. 42 pt. 1 (adapted) 

Article 6 

Before  publishing  the  draft  Regulation  and  before  adopting  the  Regulation  ⌦ pursuant  to 
Article 1 ⌫, the Commission shall consult the Advisory Committee on Restrictive Practices 
and Dominant Positions referred to in Article 14 of Council Regulation (EC) No 1/2003 . 

(cid:208)  

Article 7 

Regulation (EEC) No 479/92 is repealed. 

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) 479/92 Art. 7 (adapted) 

Article 8 

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

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(cid:208) 479/92 

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

Done at Brussels,  

For the Council 
The President 

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(cid:207) 

ANNEX I 

Repealed Regulation with list of its successive amendments 

Council Regulation (EEC) No 479/92 
(OJ L 55, 29.2.1992, p.3) 

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

1994 Act of Accession, Article 29 and Annex I, 
point IIIA.4 
(OJ C 241, 29.8.1994, p. 56) 

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Article 42 only 

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ANNEX II 

CORRELATION TABLE 

Regulation (EEC) No 479/92 

This Regulation 

Articles 1, 2 and 3 

Articles 1, 2 and 3 

Article 3a 

Article 4 

Article 5 

- 

Article 7 

- 

- 

Article 4 

Article 5 

Article 6 

Article 7 

Article 8 

Annex I  

Annex II 

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