CELEX: 51975PC0302
Language: en
Date: 1975-06-17
Title: PROPOSAL FOR A DECISION OF THE COUNCIL concerning the opening of negotiations in respect of the United Nations Convention on a Code of Conduct for Liner Conferences (submitted to the Council by the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (75) 302
Vol. 1975/0106
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                 COM(75)302 final
                                               Brussels , 17 June 1975
                   PROPOSAI FOR A DECISION OF THE COUNCIL
          concerning the opening of negotiations in respect of
          the United. Nations Convention on a Code of Conduct for
                               Liner Conferences
              ( submitted to th« Council "by the Commission)
  COMC75 ) 302 fiaal
 ---pagebreak---                       EXPLANATOHT   MEMORANDUM
         On 17 July 1974      17 March 1975 "the Commission forwarded to the
Council proposals for a Council Decision concerning common action by the
Member States in respect of the Convention on a Code of Conduct for Liner
Conferences ( doc# CQt<l(74) 1112 final and COM (75 ) 112 final ). These
proposals aimed especially at the definition of the terms and conditions
of common action as proposed "by the Commission , within specified time
limits , and abstention on the part of Member States from any unilateral
action in respect of the Convention#
         The Commission , while recalling the need for Member States to take
common action , considers that it is advisable , here and now, to make
proposals aimed at finding the concrete terms and conditions for the action
to be undertaken by the Community and the Member States with regard to the
Code of Conduct#
         It recalls the incompatibilities which exist between some of the provisions'
of the Code of Conduct and the EEC Treaty# Some provisions of the Code create
difficulties of an economic and political nature#
         The Commission considers that incompatibilities exist between the
following provisions of the Code of Conduct and specified articles of the
Treaty (d)
Provisions of the Code of Conduct                   Articles of the Treaty
( The references in bracket are to
the text of the Code of Conduct )
     Membership of a Conférence ( Chapter II              7,52.85
                                   Article 1 )
      Participation in the Trade ( Chapter II             7j52.85
                                   Article 2 )
  ( 1 ) The application ef the general rules of the Treaty to sea
        anil air transport was confirmed by the Court of Justice
        in its ruling of ^. 4.197 ^ in case 167/73 *
 ---pagebreak--- ( The present provisions create discrimination, "because of their
nationality , between shipping companies established in the EEC
and risk limiting competition)
– Relations "between shipping companies
    and shippers ( Chapter III )                        85.86
( These provisions do not entirely conform
to compétition rules )
       A difficulty of another legal nature is raised "by the absenoe
of any provision which would allow the Community to become a con­
tracting party. The difficulties of an economic and political nature
are raised especially by the following provisions of the Code of
Conduct :
–   membership of the conferences and participation in the trade : it is
    necessary to obtain modifications which will avoid the creation of
    fresh barriers to international maritime transport while taking
    account of the special needs of developing Countries
–   relations between shippers and conferences : it will be necessary to
    improve the protection of the shippers * interests , especially in so
    far as the terms and conditions of the application of loyalty agree­
    ments are concerned:
– freight rates : it would be wise to render more flexible the provisions
    concerning the notice given of overall increases
–   settlement of disputes : it will be necessary to improve these provisions ,
    in view of their excessive complexity , by simplification
– competent authority: the definition of "competent authority", for the
    purpose of applying the Code , should include the Commission of the EEC#
       Difficulties of a legal , economic and political nature will be
raised by the application of the Code of Conduct to sea transport within
the Community# It would be wise , therefore , to ensure the non–application
of the Code to this traffio#
 ---pagebreak---        It will be necessary to overcome these difficulties , "by appropriate
methods , if the Community and Member States are to adhere to the Convention*
It is advisable therefore to submit reservations or , should the occasion
arise , obtain amendments to the Convention which would take account of
these difficulties.
       Some reservations , especially those which are necessary in order to
avoid any discrimination on grounds of nationality between shipping
companies established in Member States , are not of a kind to pose any
problems of acceptability for third Countries which are , or want to become
contracting parties to the Convention. However , othier reservations ( e.g.
application of Community Law) could pose problems of acceptability# Some
amendments , necessary fi*om a legal , economical or political point of view,
could also create such difficulties.
       It is advisable therefore , in parallel with the work undertaken
within the Community , to open negotiations with
interested third Countries for the purpose of establishing the acceptability
of these reservations and amendments. Given that these reservations and
amendments depend either on the competence of the Community OT on the com­
petence of Member States , these negotiations should be conducted jointly
by the Member States and the Commission.
       From the practical point of view these negotiations can not be
limited to bilateral contacts. As unanimous agreement is necessary for any
amendment one must take account of the possibility of carrying out these
negotiations in an appropriate international forum. If , in fact , bilateral
negotiations show the advantage of so doing the Commission will propose
that the Member States should suggest , •jointly with the Commission , that
an advanced review conference should be convened tinder the auspices of the
United Nations , with the aim of avoiding the waste of time created by the
provisions of Article 52 of the Code , which provides for the possibility of
convening such a conference only at the end of a 5 year period. On the basis
of the results of these negotiations the Commission will send a proposal for
a Decision to the Council concerning possible adhesion of the Member States
to the Convention and, should the matter arise , a recommendation for a decision
relating to the conclusion of the Convention by the Community.
 ---pagebreak---                                                                           4.
       In the meantime it is necessary that Member States abstain from any
action concerning signature , with or without reservations concerning
ratification , ratification or adhesion to the Convention on the Code of
Conduct# This obligation stems from the provisions of Articles
and 116 of the EEC Treaty#
Conclusions
      For the reasons set out above the Commission considers that it is
advisable to open negotiations with interested third Countries on the
subject of the Convention of the Code of Conduct with a view to resolving
those difficulties of an economic , political or legal nature which prevent
Member States from becoming parties to the Convention , and which prevent
the Community concluding the aforesaid Convention in its present form.
Given that the reservations and amendments fall within the competence of
both the Community and the Member States# These negotiations are to be
carried out jointly by the Member States and the Commission#
       The necessary reservations and amendments have been set out above and
are repeated in the directives for negotiation annexed to the Decision#
      In the light of the obligations arising under the Treaty it is evidently
necessary that Member States should abstain from any isolated action.
 ---pagebreak---                   Proposal for a Council Decision (ESC )
   concerning "the opening of negotiations regarding the United Nations'
           Convention ona Code of conduct for Liner Conferences
THE COUNCIL OF THE EUROPEM COMMUÏTITIES
Having regard to the Treaty establishing the European Economic Community
and in particular articles 113 and 116 ,
Having regard to the Proposal of the Commission,
Whereas a Convention on a Code of conduct for Liner Conferences has "been
opened for signature following its preparation "by a conference convened under
the auspices of UNCTADj
Whereas that Convention is aimed in particular at laying down certain inter­
nationally applicable rules relating to cargo sharing, the accession of
shipping lines to conferences and the relations between transporters and
shippers j
Whereas the application of these rules would affect the terms on which transport
is effected, both within the Community and with noiwnember countries , and
whereas such rules would affect in particular the interests of the shipping
lines and shippers established in the Member States )
Whereas the Community is determined to continue to contribute towards the
prosperity of developing countries and to take into account fully their needs
and problems with respect to the activities of . liner conferences serving their
foreign trade ;
Whereas certain provisions of the Convention are incompatible with obligations
arising from the Treaty (EEC)j
Whereas from the economic and political point of view certain amendments to
the Convention appear desirable ;
Whereas to allow the Community and the Member States becoming contracting
parties it is necessary to remove the incompatibilities and to make certain
reservations and amendments j and whereas it is necessary for the Community
and the Member States to open negotiations for this purpose .
 ---pagebreak--- Has adopte! this Décision :
                             Article 1
The Commission is authorised to t and Member States shall , acting in common
together with the Commission open negotiations regarding the United Rations *
Convention on a Code of Conduct for Liner Conferences to permit the accession
of the Community and Member States .
These negotiations shall be conducted in accordance with the Directives
annexed to this Decision.
The Commission shall conduct the negotiations falling Within its competence in
consultation with the special committee referred to in article 113 .
                             Article 2
Member States shall refrain from signing, ratifying or acceding to the
Convention until the Council decides on the action to be taken having regard
to the outcome of the negotiation.
                             Article 3
This Decision is addressed to Member States .
Done at                                       For the Council
 ---pagebreak---                                                                    Annex
                       Directives for nego-fciatian
Reservations ana amendments to the Convention :
1 . For the purpose of applying the Code of conduct to liner conferences engaged
    in the external trade of the Community, any shipping company formed in
    accordance with the law of a Member State and having its registered office ,
    central administration or principal place of business within the Community
    shall be regarded as a "national shipping line" with respect to any liner
    conference engaged in the external trade of one or more Member States .
2 . Sea-borne trade between Member States of the EuropeanEooiomic Community
    should be excluded from the application of the Code of conduct .
3 . For the purpose of applying the provisions of the Code to liner conferences
    engaged in the external trade of the Community, any agreement between the
    members of a conference or between the members of a conference and a
    shipper (or organization of shippers ) and any decision or action taken by
    a conference or its members shall remain subject , where appropriate , to the
    rules of the Treaty establishing the European Economic Community and to
    Community legislation. The recommendations of conciliators concerning any
    dispute referred t> compulsory international conciliation shall be made in
    accordance with the provisions of the Code and, where appropriate , in
    accordance with Community law.
4. The provisions of the Code of conduct concerning membership of conferences
    and participation in trade (Ch. II ) should be modified as concerns liner
    conferences engaged in the external trade of the Community in order to
    avoid the creation of obstacles in trade , taking account of the particular
    needs of developing countries .
5. For the purpose of applying the provisions of Chapter IV , Article 14 para­
    graph 9 "to conferences engaged in the external trade of the Community,
    the rule providing for a minimum period of at least ten months between the
    date when one general freight rate increase becomes effective and the
    date of notice for the next general freight rate increase shall be relaxed
    by introducing the notion that this period may be shortened where shipping
    lines are affected by exceptional increases in costs .
                                                                              /
 ---pagebreak--- Simplify and improve the provisions of the Code relating to the settlement
of disputes .
Amendments to permit the Community to "become a Contracting Party and
consequential amendments .