Council Regulation (EEC) No 479/92 of 25 February 1992 on the application of Article 85 (3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia)

COUNCIL REGULATION (EEC) No 479/92  of 25 February 1992  on the application of Article 85 (3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia)
THE COUNCIL OF  THE EUROPEAN COMMUNITIES
,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 87 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas Article 85 (1) of the Treaty may in accordance with Article 85 (3) thereof be declared inapplicable to categories of agreements, decisions and concerted practices which fulfil the conditions contained in Article 85 (3);
Whereas, pursuant to Article 87 of the Treaty, the provisions for the application of Article 85 (3) of the Treaty should be adopted by way of Regulation; whereas, according to Article 87 (2) (b), such a Regulation must lay down detailed rules for the  application of Article 85 (3), taking into account the need to ensure effective supervision, on the one hand, and to simplify administration to the greatest possible extent on the other; whereas, according to Article 87 (2) (d), such a Regulation is  required to define the respective functions of the Commission and of the Court of Justice;
Whereas liner shipping is a capital intensive industry; whereas containerization has increased pressures for cooperation and rationalization; whereas the Community shipping industry needs to attain the necessary economies of scale in order to compete  successfully on the world liner shipping market;
Whereas joint-service agreements between liner shipping companies with the aim of rationalizing their operations by means of technical, operational and/or commercial arrangements (described in shipping circles as consortia) can help to provide the  necessary means for improving the productivity of liner shipping services and promoting technical and economic progress;
Having regard to the importance of maritime transport for the development of the Community's trade and the role which consortia agreements can fulfil in this respect, taking account of the special features of international liner shipping;
Whereas the legalization of these agreements is a measure which can make a positive contribution to improving the competitiveness of shipping in the Community;
Whereas users of the shipping services offered by consortia can obtain a share of the benefits resulting from the improvements in productivity and service, by means of, inter alia, regularity, cost reductions derived from higher levels of capacity  utilization, and better service quality stemming from improved vessels and equipment;
Whereas the Commission should be enabled to declare by way of Regulation that the provisions of Article 85 (1) of the Treaty do not apply to certain categories of consortia agreements, decisions and concerted practices, in order to make it easier for  undertakings to cooperate in ways which are economically desirable and without adverse effect from the point of view of competition policy;
Whereas the Commission, in close and constant liaison with the competent authorities of the Member States, should be able to define precisely the scope of these exemptions and the conditions attached to them;
Whereas consortia in liner shipping are a specialized and complex type of joint venture; whereas there is a great variety of different consortia agreements operating in different circumstances; whereas the scope, parties, activities or terms of  consortia are frequently altered; whereas the Commission should therefore be given the responsibility of defining from time to time the consortia to which a group exemption should apply;
Whereas, in order to ensure that all the conditions of Article 85 (3) of the Treaty are met, conditions should be attached to group exemptions to ensure in particular that a fair share of the benefits will be passed on to shippers and that competition  is not eliminated;
Whereas pursuant to Article 11 (4) of Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (4) the Commission may provide that a decision taken  in accordance with Article 85 (3) of the Treaty shall apply with retroactive effect; whereas it is desirable that the Commission be empowered to adopt, by Regulation, provisions to that effect;
Whereas notification of agreements, decisions and concerted practices falling within the scope of this Regulation must not be made compulsory, it being primarily the responsibility of undertakings to see to it that they conform to the rules on  competition, and in particular to the conditions laid down by the subsequent Commission Regulation implementing this Regulation;
Whereas there can be no exemption if the conditions set out in Article 85 (3) of the Treaty are not satisfied; whereas the Commission should therefore have power to take the appropriate measures where an agreement proves to have effects incompatible  with Article 85 (3) of the Treaty; whereas the Commission should be able first to address recommendations to the parties and then to take decisions,