CELEX: 51985PC0090(06)
Language: en
Date: 1985-03-15
Title: AMENDMENTS TO THE PROPOSAL FOR A COUNCIL REGULATION (EEC) LAYING DOWN DETAILED RULES FOR THE APPLICATION OF ARTICLES 85 AND 86 OF THE TREATY TO MARITIME TRANSPORT

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23.8.85                                   Official Journal of the European Communities                                 No C 212/9
                             Article 2                                    which are       established    in   the  Member     State
                                                                          concerned.
1. The criterion of ships flying the flag of a Member
State may only be added to the three criteria referred to            2. The Commission shall certify whether reciprocal
in Article 1 if the Member State concerned:                          treatment exists for the purposes of this Article.
— allows shipping lines of other Member States which
     take advantage of the right of establishment or,                                             Article 3
     subject to reciprocal treatment, shipping lines of
     other OECD countries which are established in the                Member States shall, after consulting the Commission,
     Member State concerned, to enter ships in the                    adopt the laws, regulations and administrative provisions
     national register, or                                            necessary to comply with this Directive not later than
                                                                      1 July 1986. They shall inform the Commission and the
— otherwise secures equal treatment, including                        other Member States of the measures taken.
     recognition as a national shipping line, for shipping
     lines of other Member States, which take advantage                                           Article 4
     of the right of establishment or, subject to reciprocal
     treatment, shipping lines of other OECD countries                This Directive is addressed to the Member States.
                Amendments to the proposal for a Council Regulation laying down detailed rules for the
                               application of Articles 85 and 86 of the Treaty to maritime transport
                                                           (85/C 212/06)
The following Articles are substituted for Articles 1 to 8            (c) Transport user means an undertaking or association
 in the text originally submitted on 16 October 1981.                      of undertakings (shippers, consignees, forwarders,
                                                                           etc.) which has entered into, or which demonstrates
                                                                           an intention to enter into, a contractual or other
                                                                           arrangement with a conference or shipping line for
                            SECTION I                                      the shipment of goods.
                             Article 1
          Subject matter and scope of the Regulation                                              Article 2
  1. This Regulation lays down detailed rules for the                                      Technical agreements
 application of Articles 85 and 86 of the Treaty to
 maritime transport services.                                          1. The prohibition laid down in Article 85 (1) of the
                                                                      Treaty shall not apply to agreements, decisions and
                                                                      concerted practices whose object and effect is to achieve
 2. It shall apply only to international maritime                     technical improvements or cooperation by means of:
 transport services from or to one or more Community
 ports, other than tramp vessel services.                              (a) the introduction or uniform application of standards
                                                                           or types in respect of vessels and other means of
                                                                           transport, equipment, supplies or fixed installations;
  3.     For the purposes of this Regulation:
                                                                       (b) the exchange or pooling for the purpose of operating
  (a) Tramp vessel services means the transport of goods in                transport services, of vessels, space on vessels or slots
      bulk or in break-bulk in a vessel chartered to one or                 and other means of transport, staff, equipment or
       more shippers on the basis of a charter-party or a                   fixed installations;
       booking note, for non-regularly scheduled and/or
       non advertised sailings;
                                                                       (c) the organization and execution of successive or sup-
                                                                            plementary maritime transport operations and the
  (b) Liner conference means a group of two or more                         establishment and application of inclusive rates and
      vessel-operating carriers which provides international                conditions for such operations;
       liner services for the carriage of cargo on a particular
       route or routes within specified geographical limits            (d) the coordination        of    transport  timetables   for
       and which, within the framework of an agreement or                   connecting routes;
       arrangement of whatever nature, jointly fix uniform
       or common freight rates and any other conditions
       for those services;                                             (e) the consolidation of individual consignments;
 ---pagebreak---  N o C 212/10                            Official Journal of the European Comniunities                                   23. 8. 85
 (f) the establishment or application of uniform rules              2. Fidelity arrangements
       concerning the structure and the conditions
       governing the application of transport tariffs.                 Where a conference offers transport users the oppor-
                                                                       tunity of entering into loyalty agreements entitling
 2.      The Commission shall, if necessary, submit to the             them to rebate or reduced rates of freight or as the
Council proposals for the amendment of the list                        case may be to commission:
contained in paragraph 1.
                                                                       (a) Each conference shall offer transport users a
                                                                           system of immediate rebates or the choice
                            Article 3                                      between such a system and a system of deferred
                                                                           rebates.
Exemption for agreements between carriers concerning
    the operation of scheduled maritime transport services                 — Under the system of immediate rebates each
                                                                                of the parties shall be entitled to terminate the
Agreements, decisions and concerted practices of all or
                                                                                loyalty agreement at any time without penalty
part of the members of a conference or of several
                                                                                and subject to a period of notice of not more
conferences are hereby exempted from the prohibition in
                                                                                than six months.
Article 85 (1) of the Treaty, subject to the condition
imposed by Article 4, when they have one or more of the                    — Under the system of deferred rebates neither
following objects:                                                              the loyalty period on the basis of which the
(a) the fixing of rates and conditions of carriage, and, as                     rebate is calculated nor the subsequent loyalty
       the case may be;                                                         period required before payement of the rebate
                                                                                may exceed six months.
(b) the coordination of shipping timetables, sailing dates
       or dates of calls;                                              (b) In no event shall the spread between immediate
                                                                           rebates and deferred rebates be more than 3 % of
(c) the determination of the frequency of sailings or                      the freight rate.
       calls;
                                                                       (c) A conference may not refuse to enter into a new
(d) the coordination or allocation of sailings or calls                    loyalty agreement on the ground that a transport
       among members of the conference;                                    user has previously terminated such an agreement,
(e) the regulation of the carrying capacity offered by                     unless the transport user concerned has not paid
       each member;                                                        penalties due to breach of previous agreement.
(f) the allocation of cargo or revenue among members.                  (d) The loyalty agreement shall apply only to
                                                                           shipments of goods covered by the conference
                           Article 4                                       tariff in respect of which the transport user is
                                                                           entitled or able to determine the carrier under the
               Condition attaching to exemption                            contract for the purchase, sale or transfer of the
                                                                           goods.
The exemption provided for in Article 3 shall be granted
subject to the condition that a conference shall not                   (e) A conference shall not prohibit the transport users
within the common market cause detriment to certain                        from using modes of transport other than sea
ports, transport users or carriers by applying for the                     transport nor may it deprive them of the right to
carriage of the same goods and in the area covered by                      choose the port of loading or of discharge and
the conference rates and conditions of carriage which                      the carrier from among the ports served by it and
differ according to the country of origin or destination                   the operators, who are members of the
or port of loading or discharge, if such an application                    conference.
cannot be justified economically.
                                                                       (f) The conference shall, after having consulted the
                                                                           transport users concerned, set out:
                           Article 5
                                                                            (i) a list of cargo and any portion of cargo
              Obligations attaching to exemption                                 agreed with transport users which is
The following obligations shall be attached to the                               specifically excluded from the scope of the
exemption provided for in Article 3:                                             loyalty arrangement;
                                                                           (ii) a list of circumstances in which transport
1. Consultations
                                                                                users are released from their obligation of
     There shall be consultations for the purpose of                            loyalty; these shall include:
     seeking solutions on issues of general principle                           — circumstances in which consignments are
     between transport users on the one hand and                                    dispatched from or to a port in the area
     conferences on the other concerning the rates,                                 covered by the conference but not
     conditions and quality of scheduled maritime                                   advertised and where the request for a
     transport services.                                                            waiver can be justified, and
     These consultations shall take place whenever                              — those in which waiting time at a port
     requested by any of the abovementioned parties.                                exceeds a period to be determined for
 ---pagebreak--- 23.8.85                                   Official Journal of the European Communities                                   N o C 212/11
                 each port and for each commodity or class                                          Article 7
                 of commodities following consultation of
                                                                                      Monitoring of exempted agreements
                 the transport users directly concerned with
                 the proper servicing of the port.                   1. Breach of an obligation
        The conference shall, however, be informed, in                   Where the persons concerned are in breach of an
        advance, by the transport user, within a specified               obligation which, pursuant to Article 5, attaches to
        period, of his intention to dispatch the                         the exemption provided for in Article 3, the
        consignment from a port not advertised by the                    Commission may, in order to put an end to such
        conference or to make use of a non-conference                    breach and under the conditions laid down in Section
        vessel at a port served by the conference as soon                II:
         as he has been able to establish from the published             — address           recommendations        to  the    persons
        schedule of sailings that the maximum waiting                          concerned;
        period will be exceeded.
                                                                         — in the event of failure by such persons to observe
    (g) The conference shall nevertheless be entitled to                       those recommendations and depending upon the
         impose penalties on a transport user in respect of                    gravity of the breach concerned, adopt a decision
         any improper use made of the provisions of (d) to                     that either prohibits them from carrying out or
         (f) above with a view to evading his obligation of                    requires them to perform specific acts or, while
         loyalty. The penalties shall not exceed two-thirds                    withdrawing the benefit of the block exemption
         of the freight charge on the particular shipment,                     which they enjoyed, grants them an individual
         computed at the rate provided under the                               exemption according to Article 10 (4) or
         agreement.                                                            withdraws the benefit of the block exemption
                                                                               which they enjoyed.
3. Services not covered by the freight charges
                                                                      2. Effects incompatible with Article 85 (3)
    Transport users shall be entitled to approach the
    undertakings of their choice in respect of inland                     (a) Where owing to special circumstances as
    transport operations and quayside services not                              described below, agreements, decisions and
    covered by the freight charge or charges on which the                       concerted practices which qualify for the
    shipping line and the transport user have agreed.                           exemption provided for in Articles 3 and 6 have
                                                                                nevertheless effects which are incompatible with
4. Availability of tariffs                                                      the conditions laid down in Article 85 (3) of the
                                                                                Treaty, the Commission, on receipt of a
    Tariffs, related conditions, regulations and any                            complaint or on its own initiative, under the
    amendments thereto shall at all times be made                               conditions laid down in Section II and depending
    available on request to transport users at reasonable                       upon the gravity of the situation, takes the
    cost, or they shall be available for examination at                         measures described in (c) below.
    offices of shipping lines and their agents. They shall
    set out all the conditions concerning loading and                     (b) Special circumstances are created by:
    discharge, the exact extent of the services covered by                         (i) Acts of third countries which
    the freight charge in proportion to the sea transport
                                                                                       — prevent the operation of outsiders in a
    and the land transport or by any other charge levied
    by the shipping line and customary practice in such                                    trade,
    matters.                                                                           — impose unfair        tariffs  on   conference
                                                                                           members,
 5. Notification of awards and recommendations                                         — impose arrangements which otherwise
                                                                                           impede technical or economic progress
    Awards given at arbitration and recommendations
                                                                                           (cargo sharing, limitations on types of
     made by conciliators that are accepted by the parties
                                                                                           ships);
     shall be notified forthwith to the Commission when
     they resolve disputes relating to the practices of                           (ii) Acts of conferences or a change of market
     conferences referred to in Article 4 and in points 2                              conditions in a given trade which result in
     and 3 above.                                                                      the absence of actual and              potential
                                                                                       competition;
                             Article 6                                           (iii) Acts of conferences which may prevent
                                                                                       technical or economic progress or consumer
 Exemption for agreements between transport users and
                                                                                       participation in the benefits.
 conferences concerning the use of scheduled maritime
                        transport services                                 (c)     (i) If, as a result of special circumstances as set
                                                                                       out in (b), there are effects other than those
 Agreements, decisions and concerted practices between
                                                                                       foreseen in (ii) the Commission may take any
 transport users on the one hand and conferences on the
                                                                                       of the measures described in paragraph 1;
 other concerning rates, conditions and quality of liner
 services are hereby exempted from the prohibition laid                           (ii) If, however, the special circumstances result
 down in Article 85 (1) of the Treaty.                                                 in the elimination of competition contrary to
 ---pagebreak---   N o C 212/12                           Official Journal of the European Communities                                  23. 8. 85
             Article 85 (3) (b) of the Treaty the                    would compromise important Community trading and
             Commission shall withdraw the benefit of the            shipping interests, the Commission shall, at the earliest
             block exemption and shall, at the same time,            opportunity, undertake with the competent authorities of
             rule on whether and, if so, under what                  the third countries concerned, consultations aimed at
              additional conditions and obligations an               reconciling as far as possible the abovementioned
             individual exemption should be granted to               interest with the respect of Community law.
             the relevant Conference agreement;
                                                                     2.    Where the number or the nature of such consul-
             If competition is or may be eliminated as a             tations give rise to the need for the Commission to
             result of action by a third country, the                negotiate an arrangement with the competent authorities
             Commission shall enter into consultations               of the third country concerned as respects the exercise of
             with the competent authorities of the third             their powers the Commission shall take the appropriate
             country concerned, followed if necessary by             measures.
             negotiations under directives to be given by
             the Council, in order to remedy the situation.          3.    Where it appears that an amendment to the powers
                                                                     of the competent authorities of the third country or to
                                                                     this Regulation is desirable, the Commission shall ask the
                           Article 8
                                                                     Council for authority to negotiate in accordance with
                                                                     directives which it shall establish. Amendments to this
                Conflicts of international law
                                                                     Regulation shall be confined to the conditions and
  1.   Where the application of this Regulation to certain           obligations under which an exemption is given to liner
 restrictive practices or clauses is liable to enter into            conferences and shall ensure that a proper balance is
 conflict with the provisions laid down by law, regulation           maintained between the shipping and shipowning
 or administrative action of certain third countries which           interests of the Community.
                          Draft Council Regulation on unfair pricing practices in maritime transport
                                                         (85/C 212/07)
 THE COUNCIL OF THE EUROPEAN COMMUNITIES:                           Whereas such practices consist of continuous charging of
                                                                    freight rates for the transport of certain selected
 Having regard to the Treaty establishing the European              commodities which are lower than the lowest freight
 Economic Community, and in particular Article 84 (2)               charged for the same commodities by an established and
 thereof,                                                           representative non-conference shipowner;
 Having regard to the draft Regulation submitted by the             Whereas such pricing practices are made possible by
 Commission,                                                        non-commercial advantages enjoyed by the lines
                                                                    concerned, either because they are government owned or
                                                                    controlled, or because they have preferential access to
Having regard to the opinion of the European Par-                   cargo through national legislation or because they
liament,                                                            operate ships flying the flag of countries which have not
                                                                    ratified and do not implement certain international safety
Having regard to the opinion of the Economic and                    conventions;
Social Committee,
                                                                   Whereas the Community should be able to                 take
Whereas there is reason to believe, inter alia, on the basis        redressive action against such pricing practices;
of the information system referred to in Council
Decision 78/774/EEC ('), that the competitive parti-
cipation of the fleets of Member States in international           Whereas there are no internationally-agreed rules as to
liner shipping is adversely affected by certain unfair             what constitutes an unfair price in the maritime transport
practices of shipping lines of third countries;                    field;
                                                                   Whereas appropriate factors relevant for the determi-
O O J No 258, 21.9. 1978, p. 35.                                   nation of injury should be set out;