Council Regulation (EC) No 169/2009 of 26 February 2009 applying rules of competition to transport by rail, road and inland waterway (Codified version) (Text with EEA relevance)
Date: 2009-02-26
Institutions: Council of the European Union
Subjects: ESC opinion, codification of EU law, competition law, inland waterway transport, rail transport, road transport, transport policy

5.3.2009

EN

Official Journal of the European Union

L 61/1

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

I

REGULATIONS

COUNCIL REGULATION (EC) No 169/2009

of 26 February 2009

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

(Codified version)

(Text with EEA relevance)

THE COUNCIL OF THE EUROPEAN UNION,

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),

Having regard to the opinion of the European Economic and
Social Committee (2),

Whereas:

(1)

the Council of
Regulation (EEC) No 1017/68 of
19 July 1968 applying
competition to
rules of
transport by rail, road and inland waterway (3) has been
substantially amended several times (4). In the interests of
clarity and rationality the said Regulation should be
codified.

(2)

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

(1) OJ C 219 E, 28.8.2008, p. 67.
(2) OJ C 161, 13.7.2007, p. 100.
(3) OJ L 175, 23.7.1968, p. 1.
(4) See Annex I.

(3)

(4)

(5)

(6)

(7)

Rules of competition for
account of the distinctive features of transport.

those sectors

should take

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

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.

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 under­
takings and concerted practices between undertakings
instances of abuse of a dominant position
and all
within the internal market which could have such effects.

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 cooperation may be exempted from the
prohibition
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.

agreements

restrictive

since

on

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(8)

(9)

(10)

for

the

the

the

transport

exceed a

equipment

including the joint

a grouping does not

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
creation and
operation of groupings of undertakings in these two
is the carrying on of
transport sectors whose object
financing or
transport operations,
joint
acquisition of
operation of services. Such overall exemption can be
total carrying
granted only on condition that
capacity of
fixed
maximum, and that the individual capacity of under­
takings belonging to the grouping does not exceed
certain limits so fixed as to ensure that no one under­
taking can hold a dominant position within the
grouping. The Commission should, 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
the
lawful, and should constitute an abuse of
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.

the predominant effects of

It is for the undertakings themselves, in the first instance,
to judge whether
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.

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 Commission’s own initiative, but
does not prevent
their being retroactively declared
lawful in the event of such subsequent examination,

HAS ADOPTED THIS REGULATION:

Article 1

Scope

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 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.

Article 2

Exception for technical agreements

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

(a)

the
standardisation of
vehicles or fixed installations;

equipment,

transport

supplies,

(b) the exchange or pooling,

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

(c)

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

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

(e)

the coordination of
routes;

transport

timetables for connecting

(f)

the grouping of single consignments;

(g) 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.

The Commission shall, where

submit
to the Council with a view to extending or

2.
proposals
reducing the list in paragraph 1.

appropriate,

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
cooperation, or the joint financing or acquisition of transport

Article 3

Exemption for groups of small and medium-sized
undertakings

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:

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(a)

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

Article 4

Repeal

(b) 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:

Regulation (EEC) No 1017/68, as amended by the Regulation
is repealed, with the exception of
listed in Annex I, Part A,
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.

Article 5

(i) 10 000 metric tons in the case of road transport;

Entry into force, existing agreements

(ii) 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.

If

the implementation of any agreement, decision or
2.
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.

1.
This Regulation shall enter into force on the 20th day
following its publication in the Official Journal of the European
Union.

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) of the Treaty 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.

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

PART A

Repealed Regulation with its successive amendment

(referred to in Article 4)

Regulation (EEC) No 1017/68 of the Council

except Article 13(3)

(OJ L 175, 23.7.1968, p. 1)

Council Regulation (EC) No 1/2003

Article 36 only

(OJ L 1, 4.1.2003, p. 1)

PART B

Non-repealed successive amendments

1972 Act of Accession

1979 Act of Accession

1994 Act of Accession

2003 Act of Accession

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ANNEX II

CORRELATION TABLE

Regulation (EEC) No 1017/68

This Regulation

Article 1

Article 3

Article 1

Article 2

Article 4(1), first subparagraph, first introductory phrase,
first indent

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

Article 4(1), first subparagraph, first introductory phrase,
second indent

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

Article 4(1), first subparagraph, second introductory phrase,
first indent

Article 3(1), first subparagraph, second introductory phrase,
(i)

Article 4(1), first subparagraph, second introductory phrase,
second indent

Article 3(1), first subparagraph, second introductory phrase,
(ii)

Article 4(1), second subparagraph

Article 3(1), second subparagraph

Article 4(2)

—

Article 30(1)

Article 30(3), second subparagraph

Article 31

—

—

Article 3(2)

Article 4

Article 5(1)

Article 5(2)

—

Annex I

Annex II