Proposal for a Council Regulation on the application of Article 81(3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector (Codified version)
Date: 2008-06-17
Institutions: European Commission
Subjects: EU law, air law, air transport, codification of EU law, simplification of legislation

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 17.6.2008 
COM(2008) 367 final 

2008/0124 (CNS) 

Proposal for a 

COUNCIL REGULATION 

on the application of Article 81(3) of the Treaty to certain categories of agreements and 
concerted practices in the air transport sector 

(Codified version) 

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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 3976/87  of  14  December  1987  on 
the  application  of 
Article 85(3)  of  the  Treaty  to  certain  categories  of  agreements  and  concerted 
practices in the air transport sector3. 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. 

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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 3976/87  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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(cid:208) 3976/87 (adapted) 

2008/0124 (CNS) 

Proposal for a 

COUNCIL REGULATION 

on the application of Article 81(3) of the Treaty to certain categories of agreements and 
concerted practices in the air transport sector 

(Text with EEA relevance) 

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: 

(1) 

Council  Regulation  (EEC)  No  3976/87  of  14  December  1987  on  the  application  of 
Article 85(3) of the Treaty to certain categories of agreements and concerted practices 
in  the  air  transport  sector3  has  been  substantially  amended  several  times4.  In  the 
interests of clarity and rationality the said Regulation should be codified. 

(cid:208)  

(2) 

Common  provisions  for  the  application  of  Article  81(3)  of  the  Treaty  should  be 
adopted by way of regulation ⌦ or directive ⌫ pursuant to Article 83 of the Treaty. 
The Commission should be enabled to declare by way of regulation that the provisions 

(cid:208) 3976/87 Recitals 3 and 5 
(adapted) 

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3 

4 

⌦ OJ C […], […], p. […] ⌫. 
⌦ OJ C […], […], p. […] ⌫. 
OJ  L  374,  31.12.1987,  p.  9.  Regulation  as  last  amended  by  Regulation  (EC)  No  411/2004  (OJ  L  68, 
6.3.2004, p. 1). 
See Annex I. 

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of Article 81(1) of the Treaty do not apply to certain categories of agreements between 
undertakings, decisions by associations of undertakings and concerted practices. 

(3) 

The Commission should be empowered to grant block exemptions in the air transport 
sector  in  respect  of  traffic  within  the  Community  as  well  as  in  respect  of  traffic 
between the Community and third countries 

(cid:208) 411/2004 Recital 7 (adapted) 

(4) 

It should be laid down under what specific conditions and in what circumstances the 
Commission  may  exercise  such  powers  in  close  and  constant  liaison  with  the 
competent authorities of the Member States. 

(cid:208) 3976/87 Recital 6 

(cid:208) 3976/87 Recital 7 

(5) 

It is desirable, in particular, that block exemptions be granted for certain categories of 
agreements,  decisions  and  concerted  practices.  These  exemptions  should  be  granted 
for  a  limited  period  during  which  air  carriers  can  adapt  to  a  more  competitive 
environment.  The  Commission,  in  close  liaison  with  the  Member  States,  should  be 
able to define precisely the scope of these exemptions and the conditions attached to 
them. 

(6) 

This  Regulation  ⌦ is  without  prejudice  to ⌫  the  application  of  Article  86  of  the 
Treaty, 

(cid:208) 3976/87 Recital 9 (adapted) 

(cid:208) 3976/87 

HAS ADOPTED THIS REGULATION: 

This Regulation shall apply to air transport. 

Article 1 

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(cid:208) 3976/87 (adapted) 

Article 2 

1. In accordance with Article 81(3) of the Treaty, the Commission may by Regulation 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. 

(cid:208) 2411/92 Art. 1 pt. 2 (adapted) 

The  Commission  may,  in  particular,  adopt  such  Regulations  in  respect  of  agreements, 
decisions or concerted practices which have as their object any of the following: 

(a) 

(b) 

(c) 

(d) 

(e) 

joint planning and coordination of airline schedules;  

consultations on tariffs for the carriage of passengers and baggage and of freight on 
scheduled air services;  

joint operations on new less busy scheduled air services;  

slot allocation at airports and airport scheduling; the Commission shall take care to 
ensure consistency with ⌦ Council Regulation (EEC) No 95/935 ⌫; 

common  purchase,  development  and  operation  of  computer  reservation  systems 
relating  to  timetabling,  reservations  and  ticketing  by  air  transport  undertakings;  the 
Commission shall take care to ensure consistency with ⌦ Council Regulation (EEC) 
No 2299/896 ⌫. 

(cid:208) 3976/87 (adapted) 

2.  Without  prejudice  to  ⌦ the  second  subparagraph  of ⌫  paragraph  1,  ⌦ the ⌫ 
Commission Regulations ⌦ referred to therein ⌫ shall define the categories of agreements, 
decisions or concerted practices to which they apply and shall specify in particular: 

(a) 

(b) 

the  restrictions  or  clauses  which  may,  or  may  not,  appear  in  the  agreements, 
decisions and concerted practices; 

the  clauses  which  must  be  contained  in  the  agreements,  decisions  and  concerted 
practices, or any other conditions which must be satisfied. 

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OJ L 14, 22.1.1993, p. 1. 
OJ L 220, 29.7.1989, p. 1. 

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(cid:208) 2411/92 Art. 1 pt. 3 (adapted) 

Article 3 

Any Regulation adopted pursuant to Article 2 shall ⌦ apply ⌫ for a specified period. 

It may be repealed or amended where circumstances have changed with respect to any of the 
factors which prompted its adoption; in such a case, a period shall be fixed for amendment of 
the agreements and concerted practices to which the earlier Regulation applied before repeal 
or amendment. 

(cid:208) 3976/87 (adapted) 

Article 4 

Regulations  adopted  pursuant  to  Article  2  shall  include  a  provision ⌦ stating ⌫  that  they 
apply with retroactive effect to agreements, decisions and concerted practices which were in 
existence at the date of the entry into force of such Regulations. 

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

Article 5 

A  Regulation  ⌦ adopted ⌫  pursuant  to  Article  2  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 the date 
of accession 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) of the Treaty. 

However, this Article shall not apply to agreements, decisions and concerted practices which 
at the date of accession already fall under Article 53(1) of the EEA Agreement. 

(cid:208) 3976/87 (adapted) 

Article 6 

Before  adopting  a  Regulation ⌦ pursuant  to  Article  2 ⌫,  the  Commission  shall  publish  a 
draft  thereof  and  invite  all  persons  and  organisations  concerned  to  submit  their  comments 
within such reasonable time limit, being not less than one month, as the Commission shall fix. 

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(cid:208) 1/2003 Art. 41 pt. 1 (adapted) 

Article 7 

The  Commission  shall  consult  the  Advisory  Committee  ⌦ on  Restrictive  Practices  and 
Dominant  Positions ⌫  referred  to  in  Article  14  of  Council  Regulation  (EC)  No  1/20037 
before publishing a draft Regulation and before adopting a Regulation ⌦ pursuant to Article 
2 ⌫. 

(cid:208)  

Article 8 

Regulation (EEC) No 3976/87 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) 3976/87 (adapted)  

Article 9 

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

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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OJ L 1, 4.1.2003, p. 1. 

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(cid:207) 

ANNEX I 

Repealed Regulation with list of its successive amendments 

Council Regulation (EEC) No 3976/87 
(OJ L 374, 31.12.1987, p. 9) 

Council Regulation (EEC) No 2344/90 
(OJ L 217, 11.8.1990, p. 15) 

Council Regulation (EEC) No 2411/92 
(OJ L 240, 24.8.1992, p. 19) 

Point III.A.3 of Annex I to the 1994 Act of 
Accession 
(JO C 241, 29.8.1994, p. 56 ) 

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

Council Regulation (EC) No 411/2004 
(OJ L 68, 6.3.2004, p. 1) 

Article 41 only 

Article 2 only 

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ANNEX II 

CORRELATION TABLE 

Regulation (EEC) No 3976/87 

This Regulation 

Article 1 

Article 2(1) 

Article 2(2), introductory wording 

Article 1 

Article 2(1), first subparagraph 

Article 
introductory wording 

2(1), 

second 

subparagraph, 

Article 2(2) first indent 

Article 2(1), second subparagraph, point (a) 

Article 2(2) second indent 

Article 2(1), second subparagraph, point (b) 

Article 2(2) third indent 

Article 2(1), second subparagraph, point (c) 

Article 2(2) fourth indent 

Article 2(1), second subparagraph, point (d) 

Article 2(2) fifth indent 

Article 2(1), second subparagraph, point (e) 

Article 2(3) 

Articles 3 and 4 

Article 2(2) 

Articles 3 and 4 

Article 4a first sentence 

Article 5 first paragraph 

Article 4a second sentence 

Article 5 second paragraph 

Article 5 

Article 6 

__________ 

Article 9 

___________ 

___________ 

Article 6 

Article 7 

Article 8 

Article 9 

Annex I 

Annex II 

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