Commission Regulation (EC) No 823/2000 of 19 April 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)

• Coming into Force: 26 April 2000
• End of Effective Date: 25 April 2010
• Celex Number: 32000R0823
• ELI: http://data.europa.eu/eli/reg/2000/823/oj
• Published date: 20 April 2000
• Date: 19 April 2000
• Official Gazette Publication: Official Journal of the European Communities, L 100, 20 April 2000

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Commission Regulation (EC) No 823/2000 of 19 April 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)

Official Journal L 100 , 20/04/2000 P. 0024 - 0030

Commission Regulation (EC) No 823/2000

of 19 April 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), as amended by the Act of Accession of Austria, Finland and Sweden, and in particular Article 1 thereof,

Having published a draft of this Regulation(2),

Having consulted 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 to certain categories of agreements, decisions and concerted practices between shipping companies (consortia) relating to the joint operation of liner transport services, which, through the cooperation they bring about between the shipping companies that are parties thereto, are liable to restrict competition within the common market and to affect trade between Member States and may therefore be caught by the prohibition contained in Article 81(1) of the Treaty.

(2) The Commission has made use of this power by adopting Commission Regulation (EC) No 870/95(3). In the light of experience thus acquired so far, it is possible to define a category of consortia which are capable of falling within the scope Article 81(1) but which can normally be regarded as satisfying the conditions laid down in Article 81(3).

(3) The Commission has taken due account of the special features of maritime transport. Those features will also constitute a material factor in any Commission assessment of consortia not covered by this block exemption.

(4) Consortia, as defined in this Regulation, generally help to improve the productivity and quality of available liner shipping services by reason of the rationalisation they bring to the activities of member companies and through the economies of scale they allow in the operation of vessels and utilisation of port facilities. They also help to promote technical and economic progress by facilitating and encouraging greater utilisation of containers and more efficient use of vessel capacity.

(5) Users of the shipping services provided by consortia generally obtain a fair share of the benefits resulting from the improvements in productivity and service quality which they bring about. Those benefits may also take the form of an improvement in the frequency of railings and port calls, or an improvement in scheduling as well as better quality and personalised services through the use of more modern vessels and other equipment, including port facilities. Users can benefit effectively from consortia only if there is sufficient competition in the trades in which the consortia operate.

(6) Those agreements should therefore enjoy a block exemption, provided that they do not give the companies concerned the possibility of eliminating competition in a substantial part of the trades in question. In order to take account of the constant fluctuations in the maritime transport market and the frequent changes made by the parties to the terms of consortium agreements or to the activities covered by the agreements, one of the objects of this Regulation is to clarify the conditions to be met by consortia in order to benefit from the block exemption it grants.

(7) For the purpose of establishing and running a joint service, an essential feature inherent in consortia is the ability to make capacity adjustments. The non-utilisation of a certain percentage of vessel capacity within a consortium is not an essential feature of consortia.

(8) The block exemption granted by this Regulation should cover both consortia operating within a liner conference and consortia operating outside such conferences, except that it does not cover the joint fixing of freight rates.

(9) Rate-fixing activities come under 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), as amended by the Act of Accession of Austria, Finland and Sweden. Consortium members that wish to fix rates jointly and do not satisfy the criteria of Regulation (EFC) No 4056/86 must apply for individual exemption.

(10) The first of the conditions attaching to the block exemption should be that a fair share of the benefits resulting from the improved efficiency, as well as the other benefits offered by consortia, are passed on to transport users.

(11) This requirement of Article 81(3) should be regarded as being met when a consortium is in one or more of the three situations described below:

- there is effective price competition between the members of the conference within which the consortium operates as a result of independent rate action,

- there exists within the conference within which the consortium operates a sufficient degree of effective competition in terms of services provided between consortium members and other conference members that are not members of the consortium, as a result of the fact that the conference agreement expressly allows consortia to offer their own service arrangements, e.g. the provision by the consortium. alone of a "just-in-time delivery" service or an advanced "electronic data interchange" (EDI) service allowing users to be kept informed at all times of the whereabouts of their goods, or a significant increase in the frequency of sailings and calls in the service offered by a consortium compared with that offered by the conference,

- consortium members are subject to effective, actual or potential competition from non-consortium lines, whether or not a conference operates in the trade or trades in question.

(12) In order to satisfy this same requirement of Article 81(3), provision should be made for a further condition aimed at promoting individual competition as to quality of service between consortium members as well as between consortium members and other shipping companies operating in the trade or trades.

(13) It should be a condition that consortia and their members do not, in respect of a given route, apply rates and conditions of...