Exemption for certain agreements between liner shipping companies
Article 101(1) TFEU prohibits all agreements between businesses and concerted practices which may affect trade between EU countries and which seek to prevent, restrict or distort competition within the EU’s single market.
However, Article 101(3) TFEU allows for certain cases where Article 101(1) may be declared inapplicable where agreements may have certain social or consumer benefits, result in greater efficiency and do not distort competition.
The regulation concerns consortia providing international liner shipping services between EU ports and exempts their specific agreements, decisions and practices from the EU’s competition rules.
The following consortium activities are permitted:
the joint operation of liner shipping services;
capacity adjustments in response to supply and demand fluctuations;
the joint operation of port terminals and services such as stevedoring (a stevedore is a waterfront manual labourer who is involved in loading and unloading ships, trucks, trains or airplanes);
other activities ancillary to those listed above, that are necessary for their implementation, such as not allowing members of a consortium to assign or charter space to other vessel-operating carriers in the same market except with the prior consent of the other members of the consortium.
The exemption above does not apply to a consortium that, directly or indirectly, alone or together with other factors under the control of the parties, seeks to:
fix prices when selling liner shipping services to non-members of the consortium;
limit capacity or sales except when allowed as above;
allocate markets or customers.
Conditions for exemption
To qualify for the exemption, the combined market share of the consortium members in the relevant market in which the consortium operates must not exceed 30%, calculated by reference to the total volume of goods carried by the members within or outside the consortium. To qualify for the exemption, members of the consortium must have the right to withdraw from the consortium, subject to a maximum period of notice of 6 months, without any penalty, financial or otherwise. In the case of a highly integrated consortium, the maximum period of notice can be extended to 12 months.
It has applied since 26 April 2010. Its validity, originally until 25 April 2015, was extended by Regulation (EC) No 697/2014 until 25 April 2020.
This regulation replaces Regulation (EC) No 823/2000 which expired on 25 April 2010. Although the justifications for a block exemption for liner consortia are still valid, Regulation 906/2009 ensures a greater convergence with other existing block exemption regulations for horizontal cooperation whilst taking into account current market practices in the liner industry.
Exemption of certain air transport agreements from EU competition rules
This regulation empowers the Commission to grant block exemptions in the air transport sector with regard to traffic within the European Union (EU) as well as with regard to traffic between the EU and non-EU countries. It lays down the specific conditions and in what circumstances the Commission may exercise this power alongside the EU countries’ national competition authorities.
Council Regulation (EC) No 487/2009 of 25 May 2009 on the application of Article 81(3) of the Treaty to
Certain categories of agreements and concerted practices in the air transport sector.
In accordance with Article 101(3) of the Treaty on the Functioning of the European Union (TFEU) (ex-Article 81(3) of the Treaty Establishing the European Community (TEC)), the Commission may adopt a regulation declaring that certain agreements, decisions and concerted practices are exempt from the prohibition in Article 101(1) TFEU (ex-Article 81(1) TEC).
The Commission may, in particular, adopt such a block exemption regulation in relation to agreements, decisions or concerted practices which concern any of the following:
joint planning and coordination of airline schedules;
consultations on tariffs for the carriage of passengers and baggage and of freight on scheduled air services;
joint operations on new less busy scheduled air services;
slot allocation at airports and airport scheduling;
common purchase, development and operation of computer reservation systems relating to timetabling, reservations and ticketing by air transport undertakings.
Where circumstances have changed concerning any of the factors which prompted its adoption, it may be repealed or amended. In this case there shall be a transitional period for amendment of the agreements and concerted practices to which the earlier regulation applied before repeal or amendment.
Any such block exemption regulation is adopted for a specified period and will apply retroactively to agreements, decisions and concerted practices which were in existence on the date that the regulation entered into force.
Before adopting such a block exemption regulation, the Commission must publish a draft of the proposed regulation and invite all persons and organisations concerned to submit their comments within a reasonable deadline. The Commission must consult the Advisory Committee on Restrictive Practices and Dominant Positions in accordance with Regulation (EC) No 1/2003, once before publishing a draft regulation, and again after the public consultation before adopting the regulation.
This regulation repeals Regulation (EEC) No 3976/87.
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