CELEX: 51987EC3976
Language: en
Date: 2006-11-29
Title: Proposal for a Council Regulation (EC) No …/... of […] 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)

EN

|[pic]                     |COMMISSION OF THE EUROPEAN COMMUNITIES                                                                           |

                                        Brussels, …2006
                                        COM (2006)

                                                                  Proposal for a

                                                         COUNCIL REGULATION (EC) No …/...

                                                                      of […]

    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)

                                                              EXPLANATORY MEMORANDUM

1.    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.

2.    On 1 April 1987 the Commission therefore decided[1] 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.

3.    The Conclusions of the Presidency of the Edinburgh  European  Council  (December 1992)  confirmed  this[2],  stressing  the  importance  of
       codification as it offers certainty as to the law applicable to a given matter at a given time.

       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.

4.    The purpose of this proposal is to undertake a codification of 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  sector[3].  The  new
       Regulation will supersede the various acts incorporated in it[4]; 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.

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.

                                            ê 3976/87 (adapted)

                                                                  Proposal for a

                                                         COUNCIL REGULATION (EC) No […/…]

                                                                      of […]

    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 Parliament[5],

Having regard to the opinion of the European Economic and Social Committee[6],

Whereas:

                                            ê .

   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 sector[7] has been substantially amended several  times[8].  In  the  interests  of
      clarity and rationality the said Regulation should be codified.

                                            ê 3976/87 Recitals 3 and 5 (adapted)

   2) Common provisions for the application of Article 81(3) should be adopted by way of regulation Ö or directive Õ pursuant to Article 83.  The
      Commission should be enabled to declare by way of regulation that the provisions of Article 81(1) do not apply  to  certain  categories  of
      agreements between undertakings, decisions by associations of undertakings and concerted practices.

                                            ê 411/2004 Recital 7 (adapted)

   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.

                                            ê 3976/87 Recital 6

   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.

                                            ê 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.

                                            ê 3976/87 Recital 9

   6) This Regulation does not prejudge the application of Article 86 of the Treaty,

                                            ê 3976/87

HAS ADOPTED THIS REGULATION:

                                                                    Article 1

This Regulation shall apply to air transport.

                                            ê 3976/87 (adapted)

                                                                    Article 2

1. Ö I Õn accordance with Article 81(3) of the Treaty, the Commission may by Regulation declare that Article 81(1) shall  not  apply  to  certain
categories of agreements between undertakings, decisions of associations of undertakings and concerted practices.

                                            ê 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)   joint planning and coordination of airline schedules;

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

(c)   joint operations on new less busy scheduled air services;

(d)   slot allocation at airports and airport scheduling; the Commission shall take care to ensure consistency with  Ö Council  Regulation  (EEC)
       No 95/93[9] Õ;

(e)   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 Ö Council Regulation (EEC) No 2299/89[10] Õ.

                                            ê 3976/87 (adapted)

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

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

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

                                            ê 2411/92 Art. 1 pt. 3 (adapted)

                                                                    Article 3

Any Regulation adopted pursuant to Article 2 shall Ö apply Õ 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.

                                            ê 3976/87 (adapted)

                                                                    Article 4

Regulations adopted pursuant to Article 2 shall include a provision Ö stating Õ 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.

                                            ê Act of Accession A, S and FIN, Art. 29 and Annex I, p. 56 (adapted)

                                                                    Article 5

A Regulation 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).
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.

                                            ê 3976/87 (adapted)

                                                                    Article 6

Before adopting a Regulation Ö pursuant to Article 2 Õ, 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.

                                            ê 1/2003 Art. 41 pt. 1 (adapted)

                                                                    Article 7

The Commission shall consult the Advisory Committee Ö on Restrictive Practices and Dominant Positions Õ referred to  in  Article  14  of  Council
Regulation (EC) No 1/2003[11] before publishing a draft Regulation and before adopting a Regulation Ö pursuant to Article 2 Õ.

                                            ê .

                                                                    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.

                                            ê 3976/87 (adapted)

                                                                    Article 9

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

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

Done at Brussels, […]

      For the Council
      The President
      […]

                                            é

                                                                     ANNEX I

                                                                      Part A

                                                Repealed Regulation with 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)                                             |                                                        |
|Council Regulation (EC) No 1/2003                                        |Article 41 only                                         |
|(OJ L 1, 4.1.2003, p. 1)                                                 |                                                        |
|Council Regulation (EC) No 411/2004                                      |Article 2 only                                          |
|(OJ L 68, 6.3.2004, p. 1)                                                |                                                        |

                                                                      Part B

                                                              Non-repealed amendment

1994 Act of Accession

                                                                  _____________

                                                                     ANNEX II

                                                                Correlation table

|Regulation (EEC) No 3976/87                                         |This Regulation                                                     |
|Article 1                                                           |Article 1                                                           |
|Article 2(1)                                                        |Article 2(1), first subparagraph                                    |
|Article 2(2), introductory wording                                  |Article 2(1), second subparagraph, introductory wording             |
|Article 2(2) first indent                                           |Article 2(1), second subparagraph, (a)                              |
|Article 2(2) second indent                                          |Article 2(1), second subparagraph, (b)                              |
|Article 2(2) third indent                                           |Article 2(1), second subparagraph, (c)                              |
|Article 2(2) fourth indent                                          |Article 2(1), second subparagraph, (d)                              |
|Article 2(2) fifth indent                                           |Article 2(1), second subparagraph, (e)                              |
|Article 2(3)                                                        |Article 2(2)                                                        |
|Articles 3 and 4                                                    |Articles 3 and 4                                                    |
|Article 4a                                                          |Article 5                                                           |
|Article 5                                                           |Article 6                                                           |
|Article 6                                                           |Article 7                                                           |
|__________                                                          |Article 8                                                           |
|Article 9                                                           |Article 9                                                           |
|___________                                                         |Annex I                                                             |
|___________                                                         |Annex II                                                            |

                                                                  _____________

                                                             -----------------------
[1]   COM(87) 868 PV.
[2]   See Annex 3 to Part A of the Conclusions.
[3]   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.
[4]   See Annex I to this proposal.
[5]   Ö OJ C (…) Õ.
[6]   Ö OJ C (…) Õ.
[7]   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).
[8]   See Annex I.
[9]   OJ L 14, 22.1.1993, p. 1.
[10]  OJ L 220, 29.7.1989, p. 1.
[11]  OJ L 1, 4.1.2003, p. 1.