CELEX: 51981PC0423
Language: en
Date: 1981-10-13
Title: PROPOSAL FOR A COUNCIL REGULATION ( EEC ) LAYING DOWN DETAILED RULES FOR THE APPLICATION OF ARTICLES 85 AND 86 OF THE TREATY TO MARITIME TRANSPORT

No C 282/4                           Official Journal of the European Communities                             5. 11.81
                                                         II
                                                  (Preparatory Acts)
                                             COMMISSION
             Proposal for a Council Regulation laying down detailed rules for the application of
                               Articles 85 and 86 of the Treaty to maritime transport
                          (Submitted by the Commission to the Council on 16 October 1981)
THE COUNCIL OF THE EUROPEAN                                    penalties as are necessary for it to bring to an end
COMMUNITIES,                                                   infringements established by it;
Having regard to the Treaty establishing the                   Whereas this situation necessitates the adoption of a
European Economic Community, and in particular                 Regulation applying the rules of competition to
Article 87 thereof,                                            maritime transport similar to the Regulations covering
                                                               other inland transport and other sectors of the
Having regard to the proposal from the Commission,             economy; whereas, in the last recital to Council
                                                               Regulation (EEC) No 954/79 concerning the rati-
Having regard to the opinion of the European                   fication by Member States of the United Nations
Parliament,                                                    Convention on a Code of Conduct for Liner
                                                               Conferences (4), the Community laid down an
Having regard to the opinion of the Economic and               important element of its policy concerning maritime
                                                               transport; whereas this element will include the
Social Committee,
                                                               application of the Code of Conduct to a considerable
                                                               number of Conferences serving the Community, while
Whereas the rules on competition form part of the              many other Conferences serving the Community
Treaty's general provisions which also apply to                probably will not come under the Code; whereas the
maritime transport; whereas detailed rules for                 Council has foreseen the future participation of the
applying those provisions are set out in the Chapter           Community in the Convention on the Code; whereas
of the Treaty dealing with the rules on competition or         the Regulation applying the competition rules to
are to be determined by the procedures laid down               maritime transport foreseen in the last recital of
therein;                                                       Regulation (EEC) No 954/79, should take account of
                                                               the adoption of the Code; whereas, as far as
Whereas according to Council Regulation No 141 ('),            Conferences adhering to the Code of Conduct are
Council Regulation No 17 (2) does not apply to                 concerned, the Regulation should, while avoiding
transport; whereas Council Regulation (EEC) No                 contradictions with the Code, if necessary complete
 1017/68 (J) applies to inland transport only; whereas,        or make it more precise.
 consequently, the Commission has no means at
present of investigating directly cases of suspected
 infringement of Articles 85 and 86 in maritime                Whereas taking account of the present experience
 transport; whereas, moreover, the Commission lacks            which the Commission has concerning maritime
 such powers of its own to take decisions or impose            transport, it appears preferable to exclude bulk trans-
                                                                portation from the field of application of this Regu-
                                                                lation;
O OJ No 124, 28. 11. 1962, p. 2751/62.
O OJ No 58, 10. 7. 1962, p. 1655/62.
6 O J N o L 175,23.7. 1968, p. 1.                               (4) O J N o L 121, 17. 7. 1979, p. 1.
 ---pagebreak---    5. 11.81                       Official Journal of the European Communities                             No C 282/5
  Whereas this Regulation must be inspired by the              Whereas, however, in order to prevent conferences
  double necessity, on the one hand to provide for             from engaging in practices which are incompatible
  implementing rules that enable the Commission to             with Article 85 (3) of the Treaty, certain conditions
  assure that competition is not unduly distorted within       and obligations should be attached to the exemption;
  the common market, and on the other based to avoid
  an excessive regulation of the sector;
                                                              Whereas the aim of the conditions must be to prevent
                                                              conferences     from     imposing     restrictions  on
 Whereas this Regulation must define the scope of the         competition which are not indispensable to the
 provisions of Articles 85 and 86 of the Treaty, taking       attainment of the objectives on the basis of which
  into account the distinctive characteristics of maritime    exemption is granted; whereas, to this end,
 transport; whereas restrictive practices or abuses           conferences must not, in respect of a given route,
 concerning     maritime transport        between    third    apply rates and conditions of carriage which are
 countries or within a Member State are unlikely as a         differentiated solely by reference to the country of
 general rule appreciably to affect trade between             origin or destination of the goods carried and thus
 Member States; whereas, trade between Member                 causes within the Community deflections of trade that
 States on the other hand, is very likely to be affected      are harmful to certain ports, shippers, carriers or
 where such restrictive practices or abuses concern           providers of services ancillary to transport; whereas,
 international transport, including intra-Community           furthermore, loyalty agreements should be permitted
 transport, from or to Community ports; whereas such          only in accordance with rules which do not restrict
 restrictive practices or abuses may influence                excessively the freedom of users and consequently
 competition, firstly, between ports in different             competition in the shipping industry, without
 Member States by altering their respective catchment         prejudice, however, to the right of a conference to
 areas, and secondly, between activities in those             impose penalties on users who seek by improper
 catchment areas, and disturb trade patterns within the       means to evade the obligation of loyalty required in
 common market; whereas, consequently, the Regu-             exchange for the rebates, reduced freight rates or
 lation should apply solely to the latter restrictive        commission granted to them by the conference;
 practices and abuses;                                       whereas users must be free to determine the under-
                                                             takings to which they have recourse in respect of
                                                             inland transport or quayside services not covered by
                                                             the freight charge or by other charges agreed with the
Whereas certain types of technical agreements,               shipping line;
 decisions and concerted practices may be excluded
 from the prohibition on restrictive practices on the
 ground that they do not, as a general rule, restrict
 competition;                                                Whereas certain obligations should also be attached
                                                             to the exemption; whereas in this respect users must
                                                             at all times be in a position to acquaint themselves
                                                             with the rates and conditions of carriage applied by
Whereas provision should be made for block
                                                             members of the conference, since in the case of inland
exemption of liner conferences; whereas, as the last
                                                             transport organized by shippers, the latter continue to
recital to Council Regulation (EEC) No 954/79
                                                             be subject to Council Regulation (EEC) No 1017/68
states, liner conferences have a stabilizing effect,
                                                             applying rules of competition to transport by rail,
assuring shippers of reliable services; whereas they
                                                             road and inland waterway; whereas provision should
contribute generally to providing adequate efficient
                                                             be made that awards given at arbitration and
scheduled maritime transport services and give fair
                                                             recommendations made by conciliators and accepted
consideration to the interests of users; whereas such
                                                             by the parties be notified forthwith to the
results cannot be obtained without the cooperation
                                                             Commission in order to enable it to verify that
that shipping companies promote within conferences
                                                             conferences are not thereby exempted from the
in relation to rates and, where appropriate, avail-
                                                             conditions provided for in the Regulation and thus do
ability of capacity or allocation of cargo for shipment,
                                                             not infringe the Community public policy of Articles
and even income; whereas in most cases conferences
                                                             85 and 86;
continue to be subject to effective competition from
both non-conference scheduled services and tramp
services and, in certain circumstances, from other
modes of transport; whereas, moreover, the mobility          Whereas consultations between users or associations
of fleets, which is a characteristic feature of the          of users and conferences are liable to secure more
structure of availability in the shipping field, subjects    efficient operation of maritime transport services
conferences to constant competition which they are           which takes better account of users' requirements;
unable as a rule to eliminate as far as a substantial        whereas, consequently, certain restrictive practices
proportion of the shipping services in question is           which could ensue from such consultations should be
concerned;                                                   exempted;
 ---pagebreak--- No C 282/6                           Official Journal of the European Communities                            5. 11.81
Whereas there can be no exemption if the conditions          Whereas in certain circumstances undertakings may,
set out in Article 85 (3) are not satisfied; whereas the     however, wish to apply to the Commission for confir-
Commission must therefore have power to take the             mation that their agreements, decisions and concerted
appropriate measures where an agreement or                   practices are in conformity with the provisions in
concerted practice owing to special circumstances            force; whereas a simplified procedure should be laid
proves to have certain effects incompatible with             down for such cases;
Article 85 (3); whereas, in view of the specific role
fulfilled by the conferences in the sector of the liner
services, the reaction of the Commission must be
progressive     and    proportionate;     whereas    the     HAS ADOPTED THIS REGULATION:
Commission must consequently have power first to
address recommendations, then to take decisions;
                                                                                    SECTION 1
Whereas the automatic nullity provided for in Article                       SUBSTANTIVE PROVISIONS
85 (2) applies only to the elements of the agreement
caught by the prohibition of Article 85 (1) and applies                              Article 1
to the agreement in its entirety only if those elements
do not appear to be severable from the whole of the
agreement; whereas the Commission must therefore,                   Subject matter and scope of the Regulation
if it finds an infringement to the block exemption,
either specify what demerits of the agreement are            1.    This Regulation lays down detailed rules for the
caught by the prohibition and consequently auto-             application of Articles 85 and 86 of the Treaty to
matically void, or indicate the reasons why those            maritime transport.
elements are not severable from the rest of the
agreement and why the agreement is therefore void in
its entirety;                                                2.    It shall apply only to international maritime
                                                             transport operations other than bulk transports from
                                                             or to one or more Community ports.
Whereas, in view of the characteristics of inter-
national maritime transport, account should be taken
of the fact that the application of this Regulation to
                                                                                     Article 2
certain restrictive practices or abuses may result in
conflicts with the laws and rules of certain third
countries and prove harmful to important Community                 Statutory exception for technical agreements
trading and shipping interests; whereas provision
should be made therefore that in such cases the
Commission will endeavour to seek with the third              1.   The prohibition laid down in Article 85 (1) of
                                                             the Treaty shall not apply to agreements, decisions or
countries concerned solutions capable of safeguarding
                                                             concerted practices whose sole object and effect is to
those interests;
                                                             achieve technical improvements or cooperation by
                                                             means of:
Whereas the Regulation must make provision for the
procedures, decision-making powers and penalties             (a) the introduction or uniform application of
that are necessary to ensure compliance with the                  standards or types in respect of vessels and other
prohibitions laid down in Article 85 (1) and Article              means of transport, equipment, supplies or fixed
 86, as well as the conditions governing the                      installations;
implementation of Article 85 (3);
                                                              (b) the exchange or pooling, for the purpose of
Whereas account should be taken in this respect of                operating transport services, of vessels and other
the procedural provisions of Regulation (EEC)                     modes of transport, staff, equipment or fixed
 No 1017/68 applicable to inland transport operations             installations;
which takes account of certain distinctive features of
 transport operations viewed as a whole;                      (c) the organization and execution of successive or
                                                                  supplementary maritime transport operations and
                                                                  the establishment and application of inclusive
Whereas, in particular, in view of the special
                                                                  rates and conditions for such operations;
characteristics of maritime transport, it is primarily
the responsibility of undertakings to see to it that
their agreements, decisions and concerted practices           (d) the coordination of       transport timetables  for
conform to the rules on competition, and                          connecting routes;
consequently their notification to the Commission
need not be made compulsory;                                  (e) the bulking of individual consignments;
 ---pagebreak--- 5. 11.81                             Official Journal of the European Communities                             No C 282/7
(f) the establishment or application of uniform rules                carriers or providers of services ancillary to
     concerning the structure and the conditions                     transport by applying for the carriage of the same
     governing the application of transport on                       goods and over the same transport link, rates and
     condition that such rules do not directly or                    conditions of carriage which differ according to
     indirectly fix rates and conditions of carriage;                the country of origin or destination of the goods
                                                                     carried.
2.     The Commission shall, if necessary, submit to
the Council proposals for the amendment of the list              2. Where a conference shall offer shippers or
contained in paragraph 1 of this Article.                           forwarding agents the opportunity of entering into
                                                                    loyalty agreements entitling them to rebate or
                                                                    reduced rates of freight, or where a conference
                           Article 3                                offers forwarding agents the opportunity of
                                                                    concluding loyalty agreements entitling them to
                                                                    commission:
Exemption       for     agreements       between     carriers
concerning     the operation of scheduled           maritime        (a) Each conference shall offer shippers or
                     transport services                                  forwarding agents a system of immediate
                                                                         rebates or the choice between such a system
                                                                         and a system of deferred rebates.
1.     A liner conference means a group of vessel-
operating carriers which provides liner services for the                 Under the system of immediate rebates each of
carriage of cargo or passengers on a particular route                    the parties shall be entitled to terminate the
or routes within specified geographical limits and                       loyalty agreement at any time without penalty
which jointly fixes freight rates and any other                          and subject to a period of notice of note more
conditions for those services.                                           than six months.
                                                                         Under the system of deferred rebates neither
2.     Agreements, decisions and concerted practices
                                                                         the loyalty period on the basis of which the
of all or part of the members of a conference or of
                                                                         rebate is calculated or the subsequent loyalty
several conferences are hereby exempted from the
                                                                         period required before payment of the rebate
prohibition in Article 85 (1) of the Treaty, subject to
                                                                         may exceed six months.
the conditions imposed by Article 4 of this Regu-
lation, when they have one or more of the following                 (b) A conference may not refuse to enter into a
objects:                                                                 new loyalty agreement on the ground that a
                                                                         shipper has previously terminated such an
(a) the fixing of the abovementioned rates and                           agreement.
     conditions of carriage and, as the case may be;
                                                                    (c) The conference shall, after having consulted
(b) the coordination of shipping timetables, sailing                     those concerned, their representative or their
     dates or dates of calls;                                            associations, draw up a list of circumstances in
(c) the determination of the frequency of sailings or                    which shippers or forwarding agents are
     calls;                                                              released from their obligation of loyalty. These
                                                                         shall include:
(d) the coordination or allocation of sailings or calls
     among members of the conference;                                    — circumstances in which consignments are
                                                                              dispatched from or to a port not served by
(e) the regulation of the carrying capacity offered by                        the conference, and
     each member;
                                                                         — those in which waiting time at a port
(f) the allocation      of   cargo    or    revenue   among                  exceeds a period to be determined for each
     members.                                                                port and for each commodity or class of
                                                                             commodities following consultation of the
                                                                              shippers and forwarding agents directly
                           Article 4                                          concerned with the proper servicing of the
                                                                             port.
            Conditions attaching to exemption                             The conference shall however be informed, in
                                                                          advance, by the shipper or forwarding agent,
The exemption provided for in Article 3 shall be                          within a specified period, of his intention to
granted subject to the following conditions:                              dispatch the consignment from a port not
                                                                          served by the conference or to make use of a
1. A conference shall not, within the common                              non-conference vessel at a port served by the
   market, cause detriment to certain ports, shippers,                    conference as soon as he has been able to
 ---pagebreak--- No C 282/8                             Official Journal of the European Communities                               5. 11.81
        establish from the published schedule of                                         Article 6
        sailings that the maximum waiting period will
        be exceeded.                                           Exemption for agreements between shippers and
   (d) Loyalty arrangements shall apply:                       conferences concerning the use of scheduled maritime
                                                                                    transport services
        — only to consignments of goods covered by
             the conference tariff for shipment solely         The prohibition laid down in Article 85 (1) of the
             from the ports served by the conference,          Treaty shall not apply to agreements, decisions and
             and                                               concerted practices between shippers or forwarding
                                                               agents, or between the latter or their associations, on
        — in respect of which the shipper or
                                                               the one hand, and conferences, on the other,
             forwarding agent is entitled or able to
                                                               concerning the quality, rates and conditions of
             determine the carrier under the contract
                                                               scheduled maritime transport services.
             for the purchase, sale or transfer of the
             goods;
   (e) The conference shall not prohibit the shipper
                                                                                        Article 7
        or forwarding agent from using modes of
        transport other than maritime transport, nor
        may it deprive the shipper or forwarding agent                    Monitoring of exempted agreements
        of the right to choose the port of consignment
        and the carrier from among the ports served            Where the persons concerned are in breach of an
        by it and the vessels that it operates.                obligation which, pursuant to Article 5, attaches to
                                                               the exemption provided for in Article 3 of this Reg-
   The conference shall nevertheless be entitled to            ulation, or where, owing to special circumstances,
   impose penalties on a shipper or forwarding agent           agreements, decisions or concerted practices which
   in respect of any improper use made of the                  qualify for the exemption provided for in Articles 3 or
   provisions of subparagraphs (c), (d) and (e) above          6 of this Regulation, have nevertheless effects which
   with a view to evading his obligation of loyalty.           are incompatible with the conditions laid down in
                                                               Article 85 (3) of the Treaty, the Commission may, in
3. Shippers, forwarding agents and consignees shall            order to put an end to those effects or breaches and
   be entitled to approach the undertakings of their           under the conditions laid down in Section II of this
   choice in respect of inland transport operations            Regulation,
   and quayside services not covered by the freight
   charge or charges on which the shipping line and            — address        recommendations      to    the    persons
   the shippers or forwarding agents have agreed.                  concerned,
                                                               — in the event of failure to observe such
                                                                   recommendations and depending upon the gravity
                                                                   of the incompatible effects or breaches concerned,
                         Article 5                                  adopt a decision that either will prohibit them
                                                                   from carrying out or require them to perform
            Obligations attaching to exemption                     specific acts, or, while withdrawing the block
                                                                   exemption which they enjoyed, will grant them an
                                                                    individual exemption according to Article 10 (4) of
The exemption provided for in Article 3 shall be                   this regulation, or will withdraw the block
granted subject to the following obligations:                       exemption which they enjoyed.
1. Users shall at all times be enabled to acquaint
    themselves with the rates and conditions of
   carriage applied by members of the conference;                                        Article 8
   particulars to be specified shall include the
    conditions governing loading and unloading, the
                                                                              Conflicts of international law
    exact extent of the services covered by the freight
    charge or by any other charge levied by the
    shipping line, and customary practice in such              Where the application of this Regulation to certain
    matters.                                                    restrictive practices or clauses is liable to enter into
                                                                conflict with the provisions laid down by law, regu-
2. Awards given at arbitration and recommendations              lation or administrative action of certain third
    made by conciliators that are accepted by the               countries which would compromise important
   parties shall be notified forthwith to the                   Community trading and shipping interest, the
    Commission when they resolve disputes relating              Commission shall, at the earliest opportunity,
   to the practices of conferences referred to in               undertake with the competent authorities of the third
   Article 4.                                                   countries     concerned,     consultations     aimed     at
 ---pagebreak---  5. 11.81                           Official Journal of the European Communities                            No C 282/9
reconciling as far as possible the abovementioned               lation, in respect of any agreement, decision or
interest with the respect of Community Law.                     practice, it shall issue a Decision rejecting the
                                                                complaint as unfounded.
The Commission shall, within three years of the entry
into force of this Regulation, report to the Council
                                                               4.     If the Commission, whether acting on a
on experience gained in this regard and make
                                                               complaint received or on its own initiative, concludes
proposals for such amendments to the Regulation as
                                                               that an agreement, decision or concerted practice
may be necessary in the light of that experience.
                                                               satisfies the provisions both of Article 85 (1) and of
                                                               Article 85 (3) of the Treaty, it shall issue a Decision
                                                               applying Article 85 (3). Such Decision shall indicate
                                                               the date from which it is to take effect. This date may
                       SECTION II                              be prior to that of the decision.
                 RULES OF PROCEDURE
                                                                                        Article 11
                         Article 9                                     Application of Article 85 (3) — objections
Procedures on complaint or on the Commission's own              1.    Undertakings and associations of undertakings
                         initiative                            which seek application of Article 85 (3) in respect of
                                                               agreements, decisions and concerted practices falling
                                                               within the provisions of Article 85 (1) to which they
Acting on receipt of a complaint or on its own                 are parties may submit applications to the
initiative, the Commission shall initiate procedures to        Commission.
terminate any infringement of the provisions of
Articles 85 (1) or 86 of the Treaty or to enforce              2.     If the Commission judges an application
Article 7 of this Regulation.                                  admissible and is in possession of all the available
                                                               evidence, and no action under Article 9 has been
Complaints may be submitted by:                                taken against the agreement, decision or concerted
                                                               practice in question, then it shall publish as soon as
(a) Member States;                                             possible in the Official Journal of the European
(b) natural or legal persons who claim a legitimate             Communities a summary of the application and invite
     interest.                                                 all interested third parties to submit their comments
                                                               to the Commission within 30 days. Such publication
                                                               shall have regard to the legitimate interest of under-
                                                               takings in the protection of their business secrets.
                        Article 10
                                                               3.     Unless the Commission notifies applicants,
Result    of   procedures on complaint or          on  the     within 90 days from the date of such publication in
                Commission's own initiative                    the Official Journal of the European Communities, that
                                                               there are serious doubts as to the applicability of
1.     Where the Commission finds that there has been          Article 85 (3), the agreement, decision or concerted
an infringement of Articles 85 (1) or 86 of the Treaty,        practice shall be deemed exempt, in so far as it
it may by decision require the undertakings or                 conforms with the description given in the
associations of undertakings concerned to bring such           application, from the prohibition for the time already
infringement to an end.                                        elapsed and for a maximum of three years from the
                                                               date of publication in the Official Journal of the
Without prejudice to the other provisions of this
                                                                European Communities.
Regulation, the Commission may, before taking a
decision under the preceding subparagraph, address              If the Commission finds, after expiry of the 90 day
to the undertakings or associations of undertakings            time limit, but before expiry of the three-year
concerned recommendations for termination of the               period, that the conditions for applying Article 85 (3)
infringement.                                                   are not satisfied, it shall issue a Decision declaring
                                                                that the prohibition in Article 85 (1) is applicable.
2.     Paragraph 1 shall apply also to cases falling            Such Decision may be retroactive where the parties
within Article 7.                                               concerned have given inaccurate information or
                                                               where they abuse the exemption from the provisions
3.     If the Commission, acting on a complaint                 of Article 85 (1).
received, concludes that on the evidence before it
there are no grounds for intervention under Articles            4.    If, within the 90-day time limit, the Commission
85 (1) or 86 of the Treaty or Article 7 of this Regu-          notifies applicants as referred to in the first subpara-
 ---pagebreak---  No C 282/10                          Official Journal of the European Communities                             5. 11. 81
graph of paragraph 3, it shall examine whether the            provisions of Article 85 (1) or Article 86, until such
provisions of Article 85 (1) and of Article 85 (3) are        time as the Commission has initiated a procedure
satisfied.                                                    with a view to formulating a Decision in the case in
                                                              question or has sent notification as provided for in
If it finds that the provisions of Article 85 (1) and of      the first subparagraph of Article 11 (3).
Article 85 (3) are satisfied it shall issue a Decision
applying Article 85 (3). The Decision shall indicate
the date from which it is to take effect. This date may
be prior to that of the application.
                                                                                       Article 14
                                                                  Liaisons with the authorities of the Member States
                                                               1.    The Commission shall carry out the procedures
                        Article 12
                                                              provided for in this Regulation in close and constant
                                                              liaison with the competent authorities of the Member
     Duration and revocation of Decisions applying            States; these authorities shall have the right to express
                      Article 85 (3)                          their views on such procedures.
 1.    Any Decision applying Article 85 (3) taken             2.     The Commission shall immediately forward to
under Article 10 (4) or under the second subpa-               the competent authorities of the Member States
ragraph of Article 11 (4) shall indicate the period for       copies of the complaints and applications, and of the
which it is to be valid; normally such period shall not       most important documents sent to it or which it sends
be less than six years. Conditions and obligations may        out in the course of such procedures.
be attached to the Decision.
                                                              3.     The Advisory Committee on               Restrictive
2.     The Decision may be renewed if the conditions          Practices and Monopolies in the Transport Industry
for applying Article 85 (3) continue to be satisfied.         shall be consulted prior to the taking of any decision
                                                              following upon a procedure under Article 9 or of any
3.     The Commission may revoke or amend its                 decision under the second subparagraph of Article 11
Decision or prohibit specified acts by the parties:           (3), or under the second subparagraph of paragraph 4
                                                              of the same Article. The Advisory Committee shall
(a) where there has been a change in any of the facts         also be consulted prior to adoption of the
     which were basic to the making of the Decision;          implementing provisions provided for in Article 27.
(b) where the parties commit a breach of              any
     obligation attached to the Decision;                     4.     Consultation shall take place and the Committee
                                                              will deliver its opinion in accordance with the rules
(c) where the Decision is based on incorrect infor-
                                                              laid down in Article 16 (5) and (6) of the Regulation
     mation or was induced by deceit;
                                                              referred to in paragraph 3 of this Article.
(d) where the parties abuse the exemption from the
     provisions of Article 85 (1) granted to them by
     the Decision.
In cases falling within (b), (c) or (d), the Decision                                  Article 13
may be revoked with retroactive effect.                       Consideration by the Council of questions of principle
                                                              concerning the common transport policy raised in
                                                                            connection with specific cases
                                                              1.     The Commission shall not give a decision in
                        Article 13                            respect of which consultation as laid down in Article
                                                              14 is compulsory until after the expiry of 20 days
                         Powers                               from the date on which the Advisory Committee has
                                                              delivered its opinion.
Subject to review of its Decision by the Court of
Justice, the Commission shall have sole power:                2.     Before the expiry of the period specified in
                                                              paragraph 1, any Member State may request that the
— to impose obligations pursuant to Article 7,                Council be convened to examine with the
                                                              Commission any question of principle concerning the
— to issue Decisions pursuant to Article 85 (3).
                                                              common transport policy which such Member State
The authorities of the Member States shall retain the         considers to be involved in the particular case for
power to decide whether any case falls within the             decision.
 ---pagebreak--- 5. 11.81                         Official Journal of the European Communities                           No C 282/11
The Council shall meet within 30 days from the               shall by Decision require the information to be
request by the Member State concerned for the sole           supplied. The Decision shall specify what information
surpose of considering such questions of principle.          is required, fix an appropriate time limit within which
                                                             it is to be supplied and indicate the penalties provided
The Commission shall not give its decision until after       for in Article 20 (1) (b) and Article 21 (1) (c) and the
the Council meeting.                                         right to have the Decision reviewed by the Court of
                                                             Justice.
3.     Further, the Council may at any time, at the
request of a Member State or of the Commission,              6.     The Commission shall at the same time forward
consider      general    questions     raised   by   the     a copy of its Decision to the competent authority of
implementation of the competition policy in the sea          the Member State in whose territory the seat of the
transport sector.                                            undertaking or association of undertakings is situated.
4.     In all cases where the Council is asked to meet
to consider under paragraph 2 questions of principle
or under paragraph 3 general questions, the
Commission shall, for the purposes of this Reg-                                       Article 18
ulation, take into account the policy guidelines which
emerge from that meeting.                                     Investigations by the authorities of the Member States
                                                              1. At the request of the Commission, the
                                                             competent authorities of the Member States shall
                                                             undertake the investigations which the Commission
                        Article 16
                                                             considers to be necessary under Article 19 (1), or
                        (deleted)                            which it has ordered by Decision pursuant to Article
                                                              19 (3). The officials of the competent authorities of
                                                             the Member States responsible for conducting these
                                                             investigations shall exercise their powers upon
                        Article 17
                                                             production of an authorization in writing issued by
                 Requests for information                    the competent authority of the Member State in
                                                             whose territory the investigation is to be made. Such
1.     In carrying out the duties assigned to it by this      authorization shall specify the subject matter and
Regulation, the Commission may obtain all necessary          purpose of the investigation.
information from the governments and competent
authorities of the Member States and from under-             2.     If so requested by the Commission or by the
takings and associations of undertakings.                     competent authority of the Member State in whose
                                                             territory the investigation is to be made, the officials
2.    When sending a request for information to an            of the Commission may assist the officials of such
undertaking or association of undertakings, the               authority in carrying out their duties.
Commission shall at the same time forward a copy of
the request to the competent authority of the Member
State in whose territory the seat of the undertakings
is situated.                                                                          Article 19
3.     In its request, the Commission shall state the                  Investigating powers of the Commission
legal basis and the purpose of the request, and also
the penalties provided for in Article 20 (1) (b) for
supplying incorrect information:                              1.     In carrying out the duties assigned to it by this
                                                              Regulation, the Commission may undertake all
4.     The owners of the undertakings or their rep-           necessary investigations into undertakings and
resentatives and, in the case of legal persons,               associations of undertakings. To this end the officials
companies or firms, or of associations having no legal        authorized by the Commission are empowered:
personality, the person authorized to represent them          (a) to examine the books and other business records;
by law or by their constitution, shall be bound to
supply the information requested.                             (b) to take copies of or extracts from the books and
                                                                   business records;
5.     Where an undertaking or association of under-          (c) to ask for oral explanations on the spot;
takings does not supply the information requested
within the time limit fixed by the Commission, or             (d) to enter any premises, land and vehicles of under-
supplies incomplete information, the Commission                    takings.
 ---pagebreak---   No C 282/12                         Official Journal of the European Communities                              5.11.81
 2.    The officials of the Commission authorized for         (b) they supply incorrect information in response to a
 the purpose of these investigations shall exercise their          request made pursuant to Article 17 (3) or (5), or
 powers upon production of an authorization in                     do not supply information within the time limit
 writing specifying the subject matter and purpose of              fixed by a Decision taken under Article 17 (5); or
 the investigation and the penalties provided for in
 Article 20 (1) (c) in cases where production of the          (c) they produce the required books or other business
 required books or other business records is                       records in incomplete form during investigations
 incomplete.                                                       under Article 18 or Article 19, or refuse to submit
                                                                   to an investigation ordered by Decision issued in
 In good time before the investigation, the                        implementation of Article 19 (3).
 Commission shall inform the competent authority of
 the Member State in whose territory the same is to be        2.     The Cpmmission may by Decision impose on
 made of the investigation and of the identity of the         undertakings or associations of undertakings fines of
 authorized officials.                                        from 1 000 to 1 000 000 units of account, or a sum in
                                                              excess thereof but not exceeding 10 % of the
 3.    Undertakings and associations of undertakings          turnover in the preceding business year of each of the
 shall submit to investigations ordered by Decision of        undertakings participating in the infringement, where
 the Commission. The Decision shall specify the               either intentionally or negligently:
 subject matter and purpose of the investigation,             (a) they infringe Article 85 (1) or Article 86 of the
 appoint the date on which it is to begin and indicate             Treaty, or do not comply with an obligation
the penalties provided for in Article 20 (1) (c) and               imposed under Article 7 of this Regulation;
Article 21 (1) (d) and the right to have the Decision
 reviewed by the Court of Justice.                            (b) they commit a breach of any obligation imposed
                                                                   pursuant to Article 5 or to Article 12 (1).
4.     The Commission shall take decisions referred to        In fixing the amount of the fine, regard shall be had
in paragraph 3 after consultation with the competent          both to the gravity and to the duration of the
authority of the Member State in whose territory the          infringement.
investigation is to be made.
                                                              3.     Article 14 (3) and (4) and Article 15 shall apply.
 5.    Officials of the competent authority of the
 Member State in whose territory the investigation is         4.     Decisions taken pursuant to paragraphs 1 and
 to be made, may at the request of such authority or          2 shall not be of criminal law nature.
 of the Commission, assist the officials of the
 Commission in carrying out their duties.
6.     Where an undertaking opposes an investigation
ordered pursuant to this Article, the Member State
concerned shall afford the necessary assistance to the                                 Article 21
officials authorized by the Commission to enable
them to make their investigation. Member States shall
apply mutatis mutandis the measures taken.                                    Periodic penalty payments
                                                              1.     The Commission may by Decision impose on
                                                              undertakings or associations of undertakings periodic
                                                              penalty payments of from 50 to 1 000 units of
                         Article 20                           account per day, calculated from the date appointed
                                                              by the Decision, in order to compel them:
                           Fines                              (a) to put an end to an infringement of Article 85(1)
                                                                   or Article 86 of the Treaty the termination of
                                                                   which it has ordered pursuant to Article 10 or to
                                                                   comply with an obligation imposed pursuant to
1.     The Commission may by Decision impose on                    Article 7;
undertakings or associations of undertakings fines of
from 100 to 5 000 units of account where,                     (b) to refrain from        any    act prohibited    under
intentionally or negligently:                                      Article 12 (3);
(a) they supply incorrect or misleading information,          (c) to supply complete and correct information which
     or in an application in a communication pursuant              it has requested by Decision taken pursuant to
     to Article 5 (2) or pursuant to Article 11; or                Article 17 (5);
 ---pagebreak--- 5. 11.81                         Official Journal of the European Communities                             No C 282/13
(d) to submit to an investigation which it has ordered        3.    Where the Commission intends to give negative
    by Decision taken pursuant to Article 19 (3).             clearance pursuant to Article 85 (3) of the Treaty, it
                                                              shall publish a summary of the relevant agreement,
                                                              decision or concerted practice and invite all interested
2.    Where the undertakings or associations of               third parties to submit their observations within a
undertakings have satisfied the obligation which it           time limit which it shall fix being not less than one
was the purpose of the periodic penalty payment to            month. Publication shall have regard to the legitimate
enforce, the Commission may fix the total amount of           interest of undertakings in the protection of their
the periodic penalty payment at a lower figure than          business secrets.
that which would arise under the original Decision.
3.    Article 14 (3) and (4) and Article 15 shall apply.
                                                                                     Article 25
                        Article 22
                                                                                Professional secrecy
             Review by the Court of Justice
                                                              1.    Information acquired as a result of the
The Court of Justice shall have unlimited jurisdiction       application of Articles 16 to 19 shall be used only for
within the meaning of Article 172 of the Treaty to           the purpose of the relevant request or investigation.
review Decisions whereby the Commission has fixed a
fine or periodic penalty payment; it may cancel,
reduce or increase the fine or periodic penalty
payment imposed.                                             2.     Without prejudice to the provisions of Articles
                                                             24 and 26, the Commission and the competent auth-
                                                             orities of the Member States, their officials and other
                                                             servants shall not disclose information acquired by
                        Article 23                           them as a result of the application of this Regulation
                                                             and of the kind covered by the obligation of pro-
                                                             fessional secrecy.
                     Unit of account
                                                             3.     The provisions of paragraphs 1 and 2 shall not
For the purpose af applying Articles 20 to 22 the unit       prevent publication of general information or surveys
of account shall be that adopted in drawing up the           which do not contain information relating to
budget of the Community in accordance with Articles          particular undertakings or associations of under-
207 and 209 of the Treaty.                                   takings.
                       Article 24
      Hearing of the parties and of third persons                                    Article 26
1.    Before taking decisions as provided for in                             Publication of Decisions
Articles 10, 11 (3), second subparagraph, and 11 (4),
12 (3), 20 and 21, the Commission shall give the
undertakings     or associations of         undertakings     1.     The Commission shall publish the Decisions
concerned the opportunity of being heard on the              which it takes pursuant to Articles 10, 11 (3), second
matters to which the Commission has taken objection.         subparagraph, 11 (4) and 12 (3).
2.    If the Commission or the competent authorities
of the Member States consider it necessary, they may         2.     The publication shall state the names of the
also hear other natural or legal persons. Applications       parties and the main content of the Decision; it shall
to be heard on the part of such persons where they           have regard to the legitimate interest of undertakings
show a sufficient interest shall be granted.                 in the protection of their business secrets.
 ---pagebreak--- No C 282/14                        Official Journal of the European Communities                         5. 11.81
                      Article 27                                                   Article 28
               Implementing provisions                                          Entry into force
The Commission shall have power to adopt                   This Regulation shall enter into force on
implementing provisions concerning the scope of the
obligation of communication pursuant to Article 5 (2)
the form, content and other details of complaints
pursuant to Article 9, applications pursuant to
Article 11 and the hearings provided for in Article 24     This Regulation shall be binding in its entirety and
(1) and (2).                                               directly applicable in all Member States.