CELEX: 51991PC0520
Language: en
Date: 1991-12-05
Title: Amended proposal for a COUNCIL REGULATION ( EEC ) on the application of Article 85 ( 3 ) of the Treaty to certain categories of agreements, decisions and concerted practices between shipping companies

COMMISSION OF THE EUROPEAN COMMUNITIES
                                  COM(91) 520 final
                                   Brussels,.. 5 December 1991
                      Amended proposal for a
                     COUNCIL REGULATION (EEC)
   on the application of Article 85(3) of the Treaty to certain
    categories of agreements, decisions and concerted practices
                    between shipping companies
      (presented by the Commission pursuant to Article 149(3)
                         of the EEC Treaty)
 ---pagebreak---                           Amended proposal for a
                         COUNCIL REGULATION (EEC)
      on the application of Article 85(3) of the Treaty to certain
       categories of agreements, decisions and concerted practices
                       between shipping companies
                          EXPLANATORY MEMORANDUM
1. On 25 June 1990, the Commission submitted a proposal for a Council
   Regulation enabling it to grant a block exemption to consortia
   agreements under the competition rules(l).
2. At its plenary session of 22 October 1991, the European Parliament
   approved the Commission's proposal subject to certain amendments.
3. The Commission has decided to accept some amendments proposed and it
   amends its proposal accordingly.
(1)      COM(90) 260 final OJ C 167 of 10.7.1990, p. 9
                                                                        2
 ---pagebreak---            ORIGINAL PROPOSAL                                      AMENDED PROPOSAL
                                             Title
Proposal for a Council Regulation (EEC)           Proposal for a Council Regulation (EEC)
on the application of Article 85(3) of            on the application of Article 85(3) of
the Treaty to certain categories of               the Treaty to certain categories of
agreements,    decisions    and   concerted        agreements,    decisions    and   concerted
practices between shipping companies.             practices      between    liner     shipping
                                                   companies (consortia).
                                          Recital 5
Whereas users of the shipping services            Whereas users of the shipping services
offered by consortia can obtain a share            offered by consortia can obtain a share
of the benefits resulting from the                 of the benefits resulting from the
improvements     in    productivity      and       improvements     in    productivity      and
service, by means of, inter alia,                  service, by means of, inter alia,
regularity, cost reductions derived from           regularity, cost reductions derived from
higher levels of capacity utilization,             higher levels of capacity utilization,
better service quality stemming from               better service quality stemming from
improved vessels and equipment, and                improved vessels and equipment;
efficient door-to-door transport;
                                          Recital 6
Whereas most consortia deal with multi-            (Delete)
modal transport operations which fall
partly within the scope of Council
Regulation (EEC) N° 4056/86 and partly
under   Council    Regulation     (EEC)   N°
1017/68 and, in so far as containers are
concerned,     partly     under      Council
Regulation N° 17/62.
                                          Recital 11
Whereas pursuant to Article 11(4) of               Whereas pursuant to Article 11(4) of
Council Regulation (EEC) No. 4056/86,              Council Regulation (EEC) No. 4056/86 the
Article 11(4) of Council Regulation                Commission may provide that a decision
(EEC) No. 1017/68, and Article 6 of                taken in accordance with Article 85(3)
Council    Regulation     No.     17,    the       of   the    Treaty    shall    apply    with
Commission may provide that a decision             retroactive    effect;   whereas     it   is
taken in accordance with Article 85(3)             desirable    that    the   Commission     be
of   the    Treaty    shall    apply    with       empowered    to adopt, by       regulation,
retroactive    effect;   whereas     it    is      provisions to the like effect;
desirable    that   the     Commission     be
empowered to adopt, by          regulation,
provisions to the like effect;
 ---pagebreak---                                          Article 1(1)
1. Without prejudice to the applications          1.   Without      prejudice       to     the
   of Regulation      (EEC) No. 4056/86,               application of Regulation (EEC) No.
   Regulation   (EEC) No. 1017/68 and                  4056/86, the Commission may by
   Regulation No. 17, the Commission                   regulation and in accordance with
   may, by regulation and in accordance                Article    85(3)    of   the    Treaty,
   with Article 85(3) of the Treaty,                   declare that Article 85(1) shall
   declare that Article 85(1) shall not                not    apply     to    categories    of
   apply to categories of agreements                   agreements    between    undertakings,
   between undertakings, decisions of                  decisions     of    associations     of
   associations    of    undertakings     and          undertakings        and       concerted
   concerted practices that have as an                 practices that have as an object to
   object   to   promote      or    establish          promote or establish cooperation in
   cooperation in the joint operation of               the joint operation of maritime
   maritime transport services or of                   transport services between liner
   combined maritime and land transport                shipping     companies      aimed    at
   services.                                           rationalizing their operations by
                                                       means of technical, operational
                                                       and/or commercial arrangements -
                                                       with the exception of price fixing
                                                       - (known in shipping circles as
                                                       consortia).
                                          Article 2(1)
   The Regulation pursuant to Article 1            1.  The Regulation pursuant to Article
   shall be made for a specified period.               1 shall be made for a period of
                                                       five years, from the date when it
                                                       enters into force.
                                          Article 5(1)
1. Before     publishing        the     draft      1.  Before     publishing      the    draft
   regulation and before adopting the                  regulation and before adopting the
   regulation    the     Commission     shall          regulation the Commission         shall
   consult :                                           consult the Advisory Committee on
                                                       Agreements and Dominant Position in
   a)     the   Advisory      Committee     on         Maritime Transport established by
          Agreements        and      Dominant          Article 15(3) of Regulation (EEC)
          Position in Maritime Transport               No. 4056/86.
          established by Article 15(3)
          of    Regulation       (EEC)    No.
          4056/86;
 ---pagebreak---                                                     b)    (Delete)
   b)     the Advisory Committee on
          Restrictive     Practices     and
          Monopolies in the Transport
          Industry      established      by
          Article 16(3) of Regulation
           (EEC) No.1017/68;
                                                    c)    (Delete)
   c)     the Advisory Committee on
          Restrictive     Practices     and
          Monopolies     established     by
          Article 10(3) of Regulation 17
2. Paragraphs 5 and 6 of the said              2.   Paragraphs 5 and 6 of the said
   provisions, relating to consultation             provision, relating to consultation
   with the Advisory Committees shall               with the Advisory Committee shall
   apply, it being understood that joint            apply, it being understood that
   meetings with the Commission shall                joint meetings with the Commission
   take place not earlier than one month             shall take place not earlier than
   after    dispatch    of    the   notice          one month after dispatch of the
   convening them.                                   notice convening them.
                                 Article 6(1), 2nd indent
   in the event of failure by such                   in the event of failure by such
   persons      to      observe       those          persons     to    observe     those
   recommendations, and depending on the             recommendations, and depending on
   gravity of the breach concerned,                  the    gravity   of    the   breach
   adopt    a    decision    that    either          concerned, adopt a decision that
   prohibits them from carrying out, or              either prohibits them from carrying
   requires them to perform, specific                out, or requires them to perform,
   acts or, while withdrawing the                    specific acts or, while withdrawing
   benefit of the block exemption which              the benefit of the block exemption
   they    enjoyed,    grants    them    an          which they enjoyed, grants them an
   individual exemption in accordance                individual exemption in accordance
   with Article 11(4) of Regulation                  with Article 11(4) of Regulation
    (EEC) No. 4056/86, Article 11(4) of              (EEC) No. 4056/86, or withdraws the
   Regulation (EEC) No. 1017/68 and                  benefit of the block exemption
   Article 6 of Regulation No. 17, as                which they enjoyed.
   appropriate, or withdraws the benefit
   of the block exemption which they
   enjoyed.
                                                                                       r
 ---pagebreak---                                      Article 6(2)
2. Where the Commission, either on its            Where the Commission, either on its
   own initiative or at the request of a          own initiative or at the request of
   Member State or of natural or legal            a Member State or of natural or
   persons    claiming   a    legitimate          legal persons claiming a legitimate
   interest,    finds   that    in    any         interest,    finds   that   in   any
   particular    case   an    agreement,          particular    case   an   agreement,
   decision or concerted practice to              decision or concerted practice to
   which the block exemption granted by           which the block exemption granted
   the regulation adopted pursuant to             by the regulation adopted pursuant
   Article 1 applies, nevertheless has            to Article 1 applies, nevertheless
   effects which are incompatible with            has effects which are incompatible
   Article 85(3) or are prohibited by             with    Article    85(3)   or    are
   Article 86, it may withdraw the                prohibited by Article 86, it may
   benefit of the block exemption from            withdraw the benefit of the block
   those    agreements,   decisions    or         exemption from those agreements,
   concerted practices and take all               decisions or concerted practices
   appropriate measures for the purpose           and take all appropriate measures
   of bringing these infringements to an          for the purpose of bringing these
   end, pursuant     to Article    13 of          infringements to an end, pursuant
   Regulation (EEC) No. 4056/86, Article          to Article 13 of Regulation (ESC)
   13 of Regulation (EEC) 1017/68 and             No. 4056/86.
   Article 8 of Regulation No. 17, as
   appropriate.
 ---pagebreak---                                                                       ISSN 0254-1475
                                                              COM(91) 520 final
                                                       DOCUMENTS
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