Commission Regulation (EC) No 463/2004 of 12 March 2004 amending Regulation (EC) No 823/2000 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia) (Text with EEA relevance)

Commission Regulation (EC) No 463/2004
of 12 March 2004
amending Regulation (EC) No 823/2000 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia)
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES
,
Having regard to the Treaty establishing the European Community,
Having regard to 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)(1), and in particular Article 2(2) thereof,
Having published a draft of this Regulation(2),
After consulting the Advisory Committee on Restrictive Practices and Dominant Positions in Maritime Transport,
Whereas:
(1) Regulation (EEC) No 479/92 empowers the Commission to apply Article 81(3) of the Treaty by regulation to certain categories of agreements, decisions and concerted practices between shipping companies (consortia) relating to the joint operation of liner transport services.
(2) Commission Regulation (EC) No 823/2000(3) grants a general exemption to liner shipping consortia from the prohibition contained in Article 81(1) of the Treaty, subject to certain conditions and obligations.
(3) One of the conditions concerns the market share held by the consortium on each market upon which it operates. Any consortium with a market share below 30 % (if the consortium operates within a conference) or 35 % (if the consortium operates outside a conference) is automatically exempt if it fulfils the other conditions of the Regulation. A consortium with a market share above that ceiling but below 50 % may still benefit from the block exemption if the agreement is notified to the Commission and the Commission does not oppose the exemption within six months.
(4) Regulation (EC) No 1/2003 introduces a directly applicable exception system in which the competition authorities and the courts of the Member States have the power to apply Article 81(3) of the Treaty, in addition to Article 81(1) and Article 82. Undertakings no longer have the obligation or option to notify agreements to the Commission with a view to obtaining an exemption decision. Under the new system, agreements that fulfil the conditions of Article 81(3) are legally valid and enforceable without the adoption of an administrative decision. Undertakings will be able to invoke the exception from the prohibition on agreements which restrict competition laid out in Article 81(3) as a defence in all proceedings.
(5) The provisions of Regulation (EC) No 823/2000 should be aligned with those of Regulation (EEC) No 479/92 and Council Regulation (EC) 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). In particular the opposition procedure should be abolished and references to notification of consortia deleted. Transitional provisions should be introduced in respect of notifications already made under the opposition procedure. It is also necessary to introduce references to the new powers of the national competition authorities.
(6) Regulation (EC) No 823/2000 should therefore be amended accordingly,