CELEX: 51988PC0447
Language: en
Date: 1988-10-14
Title: PROPOSAL FOR A COUNCIL REGULATION ( EEC ) ON A CODE OF CONDUCT FOR COMPUTERIZED RESERVATION SYSTEMS

No C 294/12                            Official Journal of the European Communities                                  18. 11. 88
              Proposal for a Council Regulation (EEC) on a code of conduct for computerized reservation
                                                            systems
                                                     COM(88) 447 final
                                    (Submitted by the Commission on 31 October 1988)
                                                        (88/C 294/08)
THE COUNCIL OF THE EUROPEAN COMMUNITIES                            Whereas a mandatory code of conduct applicable to all
                                                                   CRSs and/or distribution facilities offered for use
                                                                   and/or used in the Community could ensure that CRSs
Having regard to the Treaty establishing the European              are used in a non-discriminatory and transparent way,
Economic Community, and in particular Article 84(2)                subject to certain safeguards, so avoiding their misuse
                                                                  while reinforcing undistorted competition between air
thereof,
                                                                   carriers and between CRSs and thereby protecting the
                                                                   interests of consumers;
Having regard to the proposal from the Commission,
                                                                  Whereas it would not be appropriate to impose obli-
                                                                   gations on a CRS vendor in respect of an air carrier of a
Having regard      to   the  opinion    of   the  European         third country which alone or jointly with others owns
Parliament,                                                        and/or controls another CRS which does not conform
                                                                   with this code or offer equivalent treatment;
Having regard to the opinion of the Economic and
                                                                   Whereas a complaints, investigation and enforcement
Social Committee,
                                                                   procedure for non-compliance with such a code is
                                                                   desirable,
Whereas the bulk of airline reservations are made
through computerized reservation systems (CRSs);                   HAS ADOPTED THIS REGULATION:
Whereas such systems can, if properly used, provide an                                        Article 1
important and useful service to air carriers, travel agents
                                                                   This Regulation shall apply to computerized reservation
and the travelling public by providing easy access to
                                                                   systems (CRSs) offered for use and/or used in the
up-do-date and accurate information on flights, fares
                                                                   territory of the European Communities for the distri-
and seat availability, making reservations and in some
                                                                   bution and sale of air transport products irrespective of:
cases issuing tickets and boarding passes;
                                                                   — the status or nationality of the system vendor,
Whereas abuses in the form of denial of access to the
systems, or discrimination in the provision, loading or
display of data or unreasonable conditions imposed on              — the source of the information used or the location of
participants or subscribers can seriously disadvantage air             the relevant central data-processing unit,
carriers, travel agents and ultimately consumers;
                                                                   — the geographical location of the air transport service
                                                                       concerned.
Whereas this Regulation is without prejudice to the
application of Articles 85 and 86 of the Treaty;
                                                                                              Article 2
Whereas Commission Regulation (EEC) No 2672/88 O                   For the purposes of this Regulation:
exempts from the provisions of Article 85 (1) agreements
for the common purchase, development and operation of
computerized reservation systems;                                  (a) 'air transport product' means a scheduled or
                                                                        non-scheduled passenger air service or air freight
                                                                        service or a combination of passenger and freight
                                                                        services, including any related ancillary services and
                                                                        additional benefits offered for sale and/or sold as an
C) OJ No L 239, 30. 8. 1988, p. 13.                                     integral part of the air service;
 ---pagebreak---  18. 11. 88                              Official Journal of the European Communities                               No C 294/13
(b) 'CRS' means a computerized reservation system                        — it is performed by aircraft for the transport of
     containing information about, inter alia, air carriers':                 passengers or passengers and cargo and/or mail
                                                                              for remuneration, in such a manner that on each
                                                                              flight seats are available for individual purchase
     — schedules,                                                             by members of the public (either directly from
                                                                              the air carrier or from its authorized agents);
     — availability,
                                                                         — it is operated so as to serve traffic between the
                                                                              same two or more points, either:
     — fares,
                                                                              (1) according to a published timetable, or
                                                                              (2) with flights so regular or frequent that they
     — rates, and                                                                  constitute a recognizably systematic series.
     — related services with or without facilities through               To the extent that non-scheduled services provide
          which reservations can be made or tickets and                  'seat only' fares, which are sold directly by the
          airwaybills may be issued, or both                             carrier or its authorized agent, they shall be included
                                                                         in the definition of scheduled air service;
     and which makes some or all of these services
     available to subscribers;                                      (j)   'service enhancement' means any product or service
                                                                         offered by a system vendor on its own behalf to
                                                                         subscribers or consumers in conjunction with a CRS
(c) 'consumer' means any person seeking information                      other than distribution facilities;
     about and/or intending to purchase an air transport
     product;
                                                                    (k) 'subscriber' means an undertaking, other than a
                                                                         participating carrier, using under contract or other
(d) 'distribution facilities' means facilities provided by a             arrangement with a system vendor a CRS for the
     system vendor to a subscriber or consumer for the                   sale of air transport products;
     provision of information about air carriers'
   . schedules, availability, fares, rates and related
     services and for making reservations and/or issuing            (1) 'system vendor' means any entity and its affiliates
     tickets, airwaybills and for any other related services;            which are responsible for the operation or marketing
                                                                         of a CRS.
(e) 'elapsed journey time' means the time difference
     between normal departure and arrival time;
                                                                                                 Article 3
                                                                    1.     A system vendor offering distribution facilities in
(f) 'parent carrier' means an air carrier which is a system         one of the following sectors, namely, scheduled
     vendor or which directly or indirectly alone or                passenger air services, non-scheduled passenger air
     jointly with others owns or controls a system vendor;          services, scheduled air freight services or non-scheduled
                                                                    air freight services, shall allow any air carrier the oppor-
                                                                    tunity to participate in the appropriate sectoral distri-
(g) 'participating carrier' means an air carrier which has          bution facilities within the available capacity of the
     an agreement with a system vendor for the distri-              system and within technical limits outside the control of
     bution of its air transport products through a CRS.            the system vendor.
     To the extent that a parent carrier uses the distri-
     bution facilities of its own CRS, it shall be
     considered a participating carrier;                            2.     Any fee charged by a system vendor to partici-
                                                                    pating carriers shall be non-discriminatory and
                                                                    reasonably related to the cost of the service provided,
(h) 'principal display' means a comprehensive neutral               and shall, in particular be the same for the same level of
     display of data concerning services between city               service.
     pairs, within a specified time period, containing inter
     alia all point-to-point air services;
                                                                    3. (a) A system vendor shall not:
(i)   'scheduled air service' means a series of flights each                 — attach unreasonable conditions to any contract
     possessing all the following characteristics:                                with a participating carrier,
 ---pagebreak--- No C 294/14                             Official Journal of the European Communities                                  18. 11. 88
         — require the acceptance of supplementary                 4.     Subject to Article 7, a parent or participating
             conditions which, by their nature or according        carrier may not refuse, except for an objective and
             to commercial usage, have no connection with          legitimate reason of a technical or commercial nature, to
             participation in its CRS and shall apply the          provide to a competing CRS the same information on
             same conditions for the same level of service.        schedules, fares, rates and availability relating to its own
                                                                   services as it provides to the CRS in which it is a partici-
                                                                   pating carrier, nor shall it refuse to accept a reservation
    (b) A system vendor shall not make it a condition of           made through a competing CRS unless the fee(s)
         participation in its CRS that a participating carrier     charged are higher than in the CRS of which it is a
         may not at the same time be a participant in              participating carrier.
         another system.
                                                                                             Article                           ")
    (c) A participating carrier shall have the right to
         terminate his contract with a system vendor               1.     A system vendor shall provide a principal display
         without penalty on giving notice which need not           and shall include therein data provided by participating
         exceed six months to expire no earlier than the           carriers on schedules, fares, rates, seat and capacity avai-
         end of the first year.                                    lability in a clear and comprehensive manner and without
                                                                   discrimination or bias, in particular as regards the order
                                                                   in which information is presented. There may be separate
                                                                   principal displays for scheduled, charter and freight air
4.     If the system vendor adds any improvement to the            services.
distribution facilities provided or the equipment used in
the provision of the facilities, it shall offer these
improvements to all participating carriers on the same
terms and conditions subject to current technical limi-            2.     A system vendor shall not intentionally or negli-
tations.                                                           gently display inaccurate or misleading information, and
                                                                   in particular:
5.     A system vendor shall, on request, provide to
interested parties details of current procedures, fees,            — the criteria to be used for ranking information shall
systems facilities, editing and display criteria used.                 not be based on any factor directly or indirectly
However, this provision does not oblige a system vendor                relating to carrier identity and shall be applied on a
to disclose proprietary information such as software                   non-discriminatory basis to all participating carriers,
programmes.
                                                                       no discrimination on the basis of different airports
                                                                       serving the same city shall be exercised in
6.     Any proposed changes to fee levels, conditions or
                                                                       constructing and selecting city-pairs.
facilities offered and the basis therefor shall be
communicated to all participating carriers on a
non-discriminatory basis.
                                                                   3. (a) Ranking of flight options in the principal display,
                                                                           for the day or days requested, shall be as set out
                                                                           in the Annex unless requested in a different way
                            Article 4                                      by a consumer for an individual transaction.
1.     An air carrier providing material for inclusion in a
CRS shall ensure that the data submitted are compre-
hensive, accurate, non-misleading and transparent.                    (b) The Annex may be amended in accordance with
                                                                           the procedure set out in paragraph 4.
2.     A system vendor shall not manipulate material
supplied by an air carrier, either directly or indirectly in       4.     The Commission shall be assisted by a committee
a manner that would lead to inaccurate, misleading or              composed of the representatives of the Member States
discriminatory information being provided.                         and chaired by the representative of the Commission.
3.     A system vendor shall load and process data                 The representative of the Commission shall submit to the
provided by participating carriers with equal care and             committee a draft of the measures to be taken. The
timeliness subject to the constraints of the loading               committee shall deliver its opinion on the draft within a
method selected by individual participating carriers and           time limit which the chairman may lay down according
to the standard formats used by the system vendor.                 to the urgency of the matter.
 ---pagebreak--- 18. 11. 88                               Official Journal of the European Communities                               No C 294/15
The opinion shall be delivered by the majority laid down                                      Article 8
in Article 148(2) of the Treaty in the case of Decisions
which the Council is required to adopt on a proposal                1.     A parent or participating carrier shall not link the
from the Commission. The votes of the representatives of            use of any specific CRS by a subscriber with the receipt
the Member States within the committee shall be                     of any commission or other incentive for the sale of or
weighted in the manner set out in that Article. The                 issuance of tickets or airwaybills for any of its air
chairman shall not vote.                                            transport products.
The Commission shall adopt measures which shall apply
immediately. However, if these measures are not in
                                                                    2.     A parent or participating carrier shall not require
accordance with the opinion of the committee, they shall
                                                                    use of any specific CRS by a subscriber for any sale or
be communicated by the Commission to the Council
                                                                    issuance of tickets or airwaybills for any air transport
forthwith. In that event the Commission may defer
                                                                    products provided either directly or indirectly by itself.
application of the measures which it has decided for a
period of not more than one month from the date of
such communication.
                                                                    3.     Paragraphs 1 and 2 shall be without prejudice to
The Council, acting by a qualified majority, may take a             any condition which an air carrier may require of a
different decision within the time limit referred to in the         travel agent or freight forwarder when authorizing them
previous paragraph.                                                 to sell and issue tickets or airwaybills for its air transport
                                                                    products.
                           Article 6
A system vendor shall provide information, statistical or                                     Article 9
otherwise, generated by its CRS, other than that offered
as an integral part of the distribution facilities, only as         1.     A system vendor shall make any of the distribution
follows:                                                            facilities of a CRS available to any subscriber on a
                                                                    non-discriminatory basis. Any fee charged shall be non-
                                                                    discriminatory and reasonably related to the cost of the
(a) information concerning individual bookings shall be             service provided, and shall, in particular, be the same for
     made available on an equal basis to the air carrier or         the same level of service.
     air carriers participating in the service covered by the
     booking;
                                                                    2.     A system vendor shall not require a subscriber to
(b) information in aggregate or anonymous form when                 sign an exclusive contract, or directly or indirectly
     made available on request to any air carrier shall be          prevent a subscriber from subscribing to or using any
     offered to all participating air carriers on a                 other system or systems.
     non-discriminatory basis;
(c) other information generated by the CRS shall be                 3.     A service enhancement offered to any one
     made available with the consent of the air carrier             subscriber shall be offered by the system vendor to all
     concerned and subject to any agreement between a               subscribers on a non-discriminatory- basis.
     system vendor and participating airlines.
                                                                    4.     A system vendor shall not attach unreasonable
                            Article 7                               conditions to any contract with a subscriber and in
                                                                    particular a subscriber may terminate his contract with a
1.     Subject to Article 11, the obligations of a system           system vendor, without penalty, on giving notice which
vendor under Articles 3 to 6 shall not apply in respect of          need not exceed three months to expire no earlier than
a parent carrier of a third country to the extent that its          the end of the first year.
CRS does not conform with this Regulation or does not
offer Community air carriers equivalent treatment to that
provided under this Regulation.
                                                                    5.     A system vendor shall ensure either through
                                                                    technical means or through the contract with the
2.     A system vendor proposing to avail itself of the             subscriber that the principal display is provided for each
provisions of paragraph 1 must notify the Commission of             individual transaction. However, for any one transaction
its intentions and the reasons therefor at least 14 days in         a subscriber may re-order data or use alternative displays
advance of such action.                                             to meet a preference expressed by a consumer.
 ---pagebreak--- No C 294/16                            Official Journal of the European Communities                                18. 11. 88
                          Article 10                              6.     All standard contracts between system vendors and
                                                                  participating     carriers     or   subscribers shall    be
 1.    Complaints regarding non-observance of this Regu-          communicated by the system vendor to the Commission.
lation shall be addressed to the Commission.
2.     Complaints may be submitted by:                                                       Article 13
                                                                  1.     In carrying out the duties assigned to it by this
(a) Member States;                                                Regulation, the Commission may undertake all necessary
                                                                  investigations into undertakings and associations of
                                                                  undertakings. To this end, officials authorized by the
(b) natural or legal persons who claim a legitimate               Commission shall be empowered:
     interest.
                                                                  (a) to examine the books and other business records;
3.    The Commission shall immediately forward to the
Member States copies of the complaints and applications           (b) to take copies of, or extracts from, the books and
and of the most important documents sent to it or which                business records;
it sends out in the course of such procedures.
                                                                  (c) to ask for oral explanations on the spot;
                         Article 11
                                                                  (d) to enter any premises, land and vehicles used by
Upon receipt of a notification pursuant to Article 7 the               undertakings or associations of undertakings.
Commission shall without delay determine whether
discrimination within the meaning of Article 7 exists. If
this is found to be the case the Commission shall decide          2.     The authorized officials of the Commission shall
that the obligations under this Regulation do not apply           exercise their powers upon production of an authori-
to the air carrier concerned and shall so inform all              zation in writing specifying the subject matter and
system vendors in the Community and Member States. If             purpose of the investigation and the penalties provided
discrimination within the meaning of Article 7 does not           for in Article 16 (1) (b) in cases where production of the
exist the Commission shall so inform the system vendor            required books or other business records is incomplete.
concerned.                                                        In good time, before the investigation, the Commission
                                                                  shall inform the Member State, in whose territory the
                                                                  same is to be made, of the investigation and the identity
                         Article 12                               of the authorized officials.
1.     In carrying out the duties assigned to it by this
Regulation, the Commission may obtain all necessary               3.     Officials of the Member State in whose territory
information from the Member States and from under-                the investigation is to be made may assist the
takings and associations of undertakings.                         Commission officials in carrying out their duties, at the
                                                                  request of the Member State or of the Commission.
2.    The Commission may fix a time limit of not less
than one month for the communication of the requested             4.    Where an undertaking opposes an investigation
information.                                                      ordered pursuant to this Article, the Member State
                                                                  concerned shall afford the necessary assistance to the
                                                                  officials authorized by the Commission to enable them to
3.    When sending a request for information to an                make their investigation. To this end, Member States
undertaking or association of undertakings, the                   shall take the necessary measures by 31 July 1989, after
Commission shall forward a copy of the request at the            consulting the Commission.
same time to the Member State in whose territory the
head office of the undertaking or association of under-
takings is situated.                                                                         Article 14
                                                                  1.     Information acquired as a result of the application
4.    In its request, the Commission shall state the legal       of Articles 12 and 13 shall be used only for the purposes
basis and purpose of the request and also the penalties          of the relevant request or investigation.
for supplying incorrect information provided for in
Article 16 (1) (a).
                                                                  2.    Without prejudice to the provisions of Articles 10
                                                                 and 20, the Commission and the competent authorities
5.    The owners of the undertakings or their represen-          of the Member States, their officials and other servants
tatives and, in the case of legal persons or of companies,       shall not disclose information of a kind covered by the
firms or associations not having legal personality, the          obligation of professional secrecy which has been
person authorized to represent them by law or by their           acquired by them as a result of the application of this
rules shall be bound to supply the information requested.        Regulation.
 ---pagebreak---  18. 11. 88                            Official Journal of the European Communities                             No C 294/17
3.     The provisions of paragraphs 1 and 2 shall not             3.    Decisions taken pursuant to paragraphs 1 and 2
prevent publication of general information or of surveys          shall not be of a penal nature.
which do not contain information relating to particular
undertakings or associations of undertakings.                                              Article 17
                                                                  The Court of Justice shall have unlimited jurisdiction
                         Article 15                               within the meaning of Article 172 of the Treaty to
1.     When an undertaking or association of under-               review decisions whereby the Commission has imposed a
takings does not supply the information requested within          fine; it may cancel, reduce or increase the fine.
the time limit fixed by the Commission, or supplies
incomplete information the Commission shall by decision                                    Article 18
require the information to be supplied. The decision shall        For the purposes of applying Article 16, the ECU shall
specify what information is required, fix an appropriate          be that adopted in drawing up the budget of the
time limit within which it is to be supplied and indicate         Communities in accordance with Articles 207 and 209 of
the penalties provided for in Article 16 (1) (a) as well as       the Treaty.
the right to have the decision reviewed by the Court of
Justice.                                                                                   Article 19
                                                                  1.    Before taking decisions as provided for in Article
2.    At the same time the Commission shall send a copy           16, the Commission shall give the undertakings or asso-
of its decision to the competent authority of the Member          ciations of undertakings concerned the opportunity of
State in whose territory the head office of the under-            being heard on the matters to which the Commission
taking or association of undertakings is situated.                takes, or has taken, objection.
                                                                  2.    If the Commission or the competent authorities of
                         Article 16
                                                                  the Member States consider it necessary, they may also
1.    The Commission may, by decision, impose fines on            hear other natural or legal persons. Applications by such
undertakings or associations of undertakings of from              persons to be heard shall be granted when they show a
1000 to 100 000 ECU where, intentionally or negli-                sufficient interest.
gently:
                                                                                           Article 20
(a) they supply incorrect information in response to a
     request made pursuant to Article 12 or do not supply         1.    The Commission shall publish the decisions which
     information within the time limit fixed:                     it adopts pursuant to Article 16.
(b) they produce the required books or other business             2.    The publication shall state the names of the parties
     records in incomplete form during investigations or          and the main content of the decision; it shall have regard
                                                                  to the legitimate interest of undertakings in the
     refuse to submit to an investigation pursuant to
                                                                  protection of their business secrets.
     Article 13 (1).
                                                                                           Article 21
2.     The Commission may, by decision, impose fines on
system vendors, parent carriers, participating carriers           1.    This Regulation shall apply from 1 January 1989 to
and/or subscribers for infringements of this Regulation           all CRSs offered for use and/or used in the Community
up to a maximum of 10 % of the annual turnover for the            for the first time after that date. It shall apply to other
relevant activity of the undertaking concerned.                   CRSs from 1 April 1989.
In fixing the amount of the fine, regard shall be had both        2.    This Regulation shall be binding in its entirety and
to the gravity and to the duration of the infringement.           directly applicable in all Member States.
 ---pagebreak--- ^oC^tB^                                          COfhci^l]oLirn^lofrricE^ro^^nComrnLinrLi^                                                         t^ tt ^
                                                                                        ^nvB^(
        t r h e principal displays shall provideareasonable number of traveloptions from among existing services
          for anycity-pairrenuestedmcludmg indirect services A participatingcarner may request themclusion
          of a n i n d i r e c t s e r v i c e u n l e s s t h e r o u t i n g i s i n e ^ c e s s o f t^O^Bo of thegreatcircledistancebet^veenthe
          t^vo airports
       2 ^system vendor shall not use the screen space in its principal displays m a m a n n e r ^ h i c h gives excessive
          exposure to one particular travel option or ^vhich displays unrealistic travel options
       3 Where a system vendor chooses to display information in relation to the schedules or fares of
          non-participating carriers such information shall be displayed m an accurate, non misleading and
          nondiscriminatory manner as between those carriers displayed
       4 If information as to the number and identity of and servicesBfaresBrates offered by air carriers on a
          point-to-point air service is not comprehensive this shall be clearly stated on the relevant display
        t ^.anl^ing of flight options in the principal display for scheduled air services, for the day or days
          re^uested^ shall be in the following order unless requested in a different ^vay by a consumer for an
          individual transaction
            ^   all non-stop flights between the city-pairs concerned in order of departure time or arrival time,
           ^ 0 other direct flights, bet^veenthecity-pairs concerned, in order ofdeparture or arrivaltimeandBor
                elapsed journey time,
          ^nO connecting flights in order of departure or arrival time andBor elapsed journey time
          ^.an^ing criteria once chosen, shall be applied consistently in any given display
       2 Scheduled flights involving stops ^ ^ ^ change of aircraft, change of airport andBor code-sharing
          shall beclearly identified c o d e s h a n n g flights shall be treated as connectingflights unless the code
          shanngarrangement guarantees embarl^ationontheconnecting flight, m^vhich mstancecode-shanng
          flights may be displayed in preference to normal connecting flights