Council Regulation (EC) No 246/2009 of 26 February 2009 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: 2009-02-26
Institutions: Council of the European Union
Subjects: carriage of goods, international transport, maritime transport, provision of services, restriction on competition, restrictive trade practice

25.3.2009

EN

Official Journal of the European Union

L 79/1

(Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory)

I

REGULATIONS

COUNCIL REGULATION (EC) No 246/2009

of 26 February 2009

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)

THE COUNCIL OF THE EUROPEAN UNION,

(3)

Having regard to the Treaty
Community, and in particular Article 83 thereof,

establishing the European

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

(4)

Whereas:

(1)

(2)

Council Regulation (EEC) No 479/92 of 25 February
1992 on the application of Article 85(3) of the Treaty
to certain categories of
and
concerted practices between liner shipping companies
(consortia) (2) has been substantially amended several
times (3). In the interests of clarity and rationality the
said Regulation should be codified.

agreements, decisions

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

(1) Opinion of the European Parliament of 23 April 2008 (not yet

published in the Official Journal).

(2) OJ L 55, 29.2.1992, p. 3.
(3) See Annex I.

(5)

(6)

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
to
the
possible
Article 83(2)(d), these provisions are required to define
the respective functions of the Commission and of the
Court of Justice.

According

extent

other.

on

increased pressures

Liner shipping is a capital intensive industry. Container­
for cooperation and
isation has
rationalisation.
industry
should attain the necessary economies of scale in order
to compete successfully on the world liner shipping
market.

The Community

shipping

liner

between

agreements

Joint-service
shipping
companies with the aim of rationalising their operations
by means of technical, operational and/or commercial
arrangements (described in shipping circles as consortia)
can help to provide the necessary means for improving
the productivity of liner shipping services and promoting
technical and economic progress.

Maritime transport is important for the development of
the Community’s trade and the consortia agreements
may play a role in this respect, taking account of the
special
shipping. The
international
legalisation of these agreements is a measure which can
make a positive contribution to improving the competi­
tiveness of shipping in the Community;

features of

liner

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Official Journal of the European Union

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(7)

(8)

(9)

Users of the shipping services offered by consortia can
obtain a share of
resulting from the
the benefits
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.

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.

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 circum­
stances. The
terms of
altered. The Commission
are
consortia
should therefore be given the responsibility of defining
from time to time the consortia to which a group
exemption should apply.

scope, parties,
frequently

activities or

(10)

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,

HAS ADOPTED THIS REGULATION:

Article 1

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
their operations by means of
purpose of
rationalising
technical, operational or
arrangements with
commercial
the exception of price fixing (consortia).

2.
Such Regulation adopted pursuant to paragraph 1 of this
article shall define the categories of agreements, decisions and
specify
concerted practices

to which it applies and shall

to
the conditions and obligations under which, pursuant
Article 81(3) of the Treaty, they shall be considered exempted
from the application of Article 81(1) of the Treaty.

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.

The Regulation adopted pursuant to Article 1 may be
2.
repealed or amended where circumstances have changed with
respect to any of the facts which were basic to its adoption.

Article 3

it applies with retroactive effect

The Regulation adopted pursuant to Article 1 may include a
to
provision stating that
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.

Article 4

and concerted practices

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
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.

Article 5

Before adopting the Regulation referred to in Article 1, the
the
Commission shall publish a draft
persons
their
comments within such reasonable time limit as the Commission
shall fix, but in no case less than one month.

to enable all
submit
to

organisations

concerned

thereof

and

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 of 16 December 2002 on the implementation of
the rules on competition laid down in Articles 81 and 82 of the
Treaty (1).

(1) OJ L 1, 4.1.2003, p. 1.

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Regulation (EEC) No 479/92, as amended by the acts listed in Annex I, is repealed.

Article 7

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.

This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal
of the European Union.

Article 8

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

Done at Brussels, 26 February 2009.

For the Council
The President

I. LANGER

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ANNEX I

Repealed Regulation with list of its successive amendments

(referred to in Article 7)

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)

Article 42 only

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