28.9.2006   

EN

Official Journal of the European Union

L 269/1

(1)

Application of the rules on competition in the maritime transport sector has been subject to the provisions of Regulation (EEC) No 4056/86 (3) since 1987. Regulation (EEC) No 4056/86 originally had two functions. Firstly, it contained procedural provisions for the enforcement of Community competition rules in the maritime transport sector. Secondly, it laid down certain specific substantive competition provisions for the maritime sector and notably a block exemption for liner shipping conferences, allowing them to fix prices and regulate capacity under certain conditions, the exclusion of purely technical agreements from the application of Article 81(1) of the Treaty and a procedure for dealing with conflicts of international law. It did not apply to maritime transport services between ports in one or to the same Member State (cabotage) and international tramp vessel services.

(2)

Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (4) amended Regulation (EEC) No 4056/86 to bring maritime transport under the common competition enforcement rules applicable to all sectors with effect from 1 May 2004, with the exception of cabotage and international tramp vessel services. However, the specific substantive competition provisions relating to the maritime sector continue to fall within the scope of Regulation (EEC) No 4056/86.

(3)

The liner shipping conference block exemption provided for in Regulation (EEC) No 4056/86 exempts from the prohibition of Article 81(1) of the Treaty agreements, decisions and concerted practices of all or part of the members of one or more liner conferences which fulfil certain conditions. The justification for the block exemption in essence assumes that conferences bring stability, ensuring exporters reliable services which cannot be achieved by less restrictive means. However, a thorough review of the industry carried out by the Commission has demonstrated that liner shipping is not unique as its cost structure does not differ substantially from that of other industries. There is therefore no evidence that the industry needs to be protected from competition.

(4)

The first condition for exemption under Article 81(3) requires that the restrictive agreement contributes to improving the production or distribution of goods or to promoting technical or economic progress. As regards the efficiencies generated by conferences, liner conferences are no longer able to enforce the conference tariff although they still manage to set charges and surcharges which are a part of the price of transport. There is also no evidence that the conference system leads to more stable freight rates or more reliable shipping services than would be the case in a fully competitive market. Conference members increasingly offer their services via individual service agreements entered into with individual exporters. In addition, conferences do not manage the carrying capacity that is available as this is an individual decision taken by each carrier. Under current market conditions price stability and the reliability of services are brought about by individual service agreements. The alleged causal link between the restrictions (price fixing and supply regulation) and the claimed efficiencies (reliable services) therefore appears too tenuous to meet the first condition of Article 81(3).

(5)

The second condition for exemption under Article 81(3) is that consumers must be compensated for the negative effects resulting from the restriction of competition. In the case of hard core restrictions, such as horizontal price fixing which occur when the conference tariff is set and charges and surcharges are jointly fixed, the negative effects are very serious. However no clearly positive effects have been identified. Transport users consider that conferences operate for the benefit of the least efficient members and call for their abolishment. Conferences no longer fulfil the second condition of Article 81(3).

(6)

The third condition for exemption under Article 81(3) is that the conduct must not impose on the undertakings concerned restrictions which are not indispensable to the attainment of its objectives. Consortia are cooperative agreements between liner shipping lines that do not involve price fixing and are therefore less restrictive than conferences. Transport users consider them to provide adequate, reliable and efficient scheduled maritime services. In addition the use of individual service agreements has increased significantly in recent years. By definition, such individual service agreements do not restrict competition and provide benefits to exporters as they make it possible to tailor special services. Furthermore, because the price is established in advance and does not fluctuate for a predetermined period (usually up to one year), service contracts can contribute to price stability. It has therefore not been established that the restrictions of competition permitted under Regulation (EEC) No 4056/86 (price fixing and capacity regulation) are indispensable for the provision of reliable shipping services to transport users as these can be achieved by less restrictive means. The third condition under Article 81(3) is therefore not satisfied.

(7)

Finally, the fourth condition under Article 81(3) requires that the conference should remain subject to effective competitive constraints. In current market circumstances conferences are present in nearly all major trade lanes and they compete with carriers grouped in consortia and with independent lines. Whilst there may be price competition on the ocean freight rate due to the weakening of the conference system there is hardly any price competition with respect to the surcharges and ancillary charges. These are set by the conference and the same level of charges is often applied by non-conference carriers. In addition, carriers participate in conferences and consortia on the same trade, exchanging commercially sensitive information and cumulating the benefits of the conference (price fixing and capacity regulation) and of the consortia (operational cooperation for the provision of a joint service) block exemptions. Given the increasing number of links between carriers in the same trade, determining the extent to which conferences are subject to effective internal and external competition is a very complex exercise and one that can only be done on a case by case basis.

(8)

Liner shipping conferences therefore no longer fulfil the four cumulative conditions for exemption under Article 81(3) of the Treaty and the block exemption in respect of such conferences should therefore be abolished.

(9)

The exclusion from the prohibition of Article 81(1) of the Treaty of purely technical agreements and the procedure for dealing with conflicts of law which may arise are also redundant. Those provisions should therefore also be deleted.

(10)

In the light of the above, Regulation (EEC) No 4056/86 should be repealed in its entirety.

(11)

Liner conferences are tolerated in several jurisdictions. In this, as in other sectors, competition law is not applied in the same way worldwide. In light of the global nature of the liner shipping industry, the Commission should take the appropriate steps to advance the removal of the price fixing exemption for liner conferences that exist elsewhere whilst maintaining the exemption for operational cooperation between shipping lines grouped in consortia and alliances, in line with the recommendations of the OECD Secretariat in 2002.

(12)

Cabotage and international tramp vessel services have been excluded from the rules implementing Articles 81 and 82 of the Treaty originally laid down in Regulation (EEC) No 4056/86 and subsequently in Regulation (EC) No 1/2003. They are currently the only remaining sectors to be excluded from the Community competition implementing rules. The lack of effective enforcement powers for these sectors is an anomaly from a regulatory point of view.

(13)

The exclusion of tramp vessel services from Regulation (EC) No 1/2003 was based on the fact that rates for these services are freely negotiated on a case by case basis in accordance with supply and demand conditions. However, such market conditions are present in other sectors and the substantive provisions of Articles 81 and 82 already apply to these services. No convincing reason has been brought forward to maintain the current exclusion of these services from the rules implementing Articles 81 and 82 of the Treaty. Similarly, although cabotage services often have no effect on intra Community trade, this does not mean that they should be excluded from the scope of Regulation (EC) No 1/2003 from the outset.

(14)

As the mechanisms enshrined in Regulation (EC) No 1/2003 are appropriate for applying the competition rules to all sectors, the scope of that Regulation should be amended so as to include cabotage and tramp vessel services.

(15)

Regulation (EC) No 1/2003 should therefore be amended accordingly.

(16)

Since Member States may need to adjust their international commitments in the light of the abolition of the conference system, the provisions of Regulation (EEC) No 4056/86 relating to the liner conference block exemption should continue to apply to conferences satisfying the requirements of Regulation (EEC) No 4056/86 on the date of entry into force of this Regulation for a transitional period,

28.9.2006   

EN

Official Journal of the European Union

L 269/4

(1)

Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.

(2)

In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,

28.9.2006   

EN

Official Journal of the European Union

L 269/6

(1)

Pursuant to the Community’s international obligations in the context of the Uruguay Round of multilateral trade negotiations (2), it is necessary to create the conditions to import a certain quantity of maize into Spain.

(2)

Commission Regulation (EC) No 1839/95 of 26 July 1995 laying down detailed rules for the application of tariff quotas for imports of maize and sorghum into Spain and imports of maize into Portugal (3) lays down the special additional detailed rules necessary for implementing the invitation to tender.

(3)

In view of the current market demand in Spain, an invitation to tender for the reduction in the duty on maize is appropriate.

(4)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,

28.9.2006   

EN

Official Journal of the European Union

L 269/7

28.9.2006   

EN

Official Journal of the European Union

L 269/10

(1)

According to Article 2 of the Act of Accession, the provisions of the acts adopted by the institutions before accession shall be binding on Bulgaria and Romania and shall apply in those States under the conditions laid down in the Treaties and the aforesaid Act.

(2)

Article 37 of the Act of Accession enables the Commission to take appropriate measures in case Bulgaria or Romania has failed to implement commitments undertaken in the context of the accession negotiations, causing a serious breach of the functioning of the internal market or an imminent risk of such a breach.

(3)

Article 17 of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (1) requires Member States to set up an integrated administration and control system, hereinafter referred to as the ‘IACS’.

(4)

As of their accession, Bulgaria and Romania are required to have an IACS in place in order to control a large part of the Community’s agricultural support in these States. The Commission has concluded on the basis of information provided by Bulgaria and Romania until the date of adoption of this Regulation and on the basis of its own inspections that there is a real risk as to the existence and operability of the IACS in these States.

(5)

Serious deficiencies in the IACS of Bulgaria or Romania would lead to a situation where the payments of agricultural support which should be controlled under this system would not or not properly be controlled. There would exist, therefore, a serious risk that producers who are not, either in total or in part, entitled to the agricultural support would receive this support, thereby being put in a more favourable position than foreseen in Community legislation. For each of these States expenditure for direct payments and rural development controlled under the IACS will amount to around 80 % of total agricultural expenditure and involve substantial amounts of several hundreds of millions of euro, which demonstrates the importance of a properly functioning IACS for the introduction of the common agricultural policy in the two countries and the good functioning of the Community’s internal market. As the more favourable position in combination with the sums involved is likely to have an effect on trade of agricultural products in the internal market, it would cause an imminent risk of a serious breach of the functioning of this market.

(6)

This risk cannot be properly addressed solely by the application of Articles 17 and 27 of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (2), given the nature of the systems and procedures foreseen in these provisions. It is therefore necessary to have recourse to Article 37 of the Act of Accession allowing the Commission to take the appropriate measures aimed at eliminating the risk.

(7)

After the accession, both Bulgaria and Romania should, on the basis of a report from an independent body, make a declaration to the Commission stating whether their IACS exists and is operational. In case of deficiencies, these States should remedy the deficiencies immediately.

(8)

If the Commission, on the basis of the declaration made by Bulgaria and Romania or the report from the independent body or its own audit findings, reaches the conclusion that deficiencies persist which are so serious as to affect the proper functioning of the overall system for the management and control of agricultural expenditure covered by the IACS and that, therefore, there remains an imminent risk of a serious breach of the functioning of the internal market, it should provisionally reduce for a fixed period of one year the monthly and intermediate payments to be made to Bulgaria and Romania under Articles 14 and 26 of Regulation (EC) No 1290/2005. The provisional reduction should correspond to the percentage that the Commission applies in accordance with its own guidelines in the context of the conformity clearance if a Member State’s control system is gravely deficient and there is evidence of widespread irregularities. Such a provisional reduction is necessary to make the State concerned remedy the deficiencies of its IACS so as to prevent or detect irregular payments and fraudulent practices and recover any unduly spent amounts, thereby eliminating the risk of a serious breach of the functioning of the Community’s internal market.

(9)

The Commission should review after 12 months whether or not to continue with the provisional reduction of the monthly and intermediate payments.

(10)

The provisional reduction should be applied only in respect of support measures that are managed and controlled through IACS.

(11)

The provisional reduction should be followed up in the context of the conformity clearance procedure referred to in Article 31 of Regulation (EC) No 1290/2005 and should be without prejudice to the decisions to be taken in that context,

(a)

the elements of the integrated administration and control system, hereinafter IACS, referred to in Article 18 of Regulation (EC) No 1782/2003 have been set up within their respective territories in accordance with the relevant Community legislation, to the extent that they relate to the management and control of the aid regimes applicable in Bulgaria and Romania;

(b)

the IACS and the other elements necessary to ensure the correct payment of the support referred to in Article 3 of this Regulation are operational within their respective territories.

(a)

Bulgaria or Romania does not comply with its obligations under Article 1(1) and (2);

(b)

the elements referred to in Article 1(1)(a) have not been set up;

(c)

although the elements referred to in Article 1(1)(a) have been set up, the IACS or the other elements necessary to ensure the correct payment of the support referred to in Article 3 are so seriously deficient as to affect the proper functioning of the overall system.

(a)

the transitional simplified income support for farmers in the new Member States provided for in Article 143b of Regulation (EC) No 1782/2003 or the aid regimes referred to in Titles III and IV of that Regulation;

(b)

the complementary national direct payments provided for in Article 143c of Regulation (EC) No 1782/2003, financed under subsection E of section I of Annex VIII to the Act of Accession;

(c)

the payments provided for in points (i) to (v) of Article 36(a) and in points (i) to (v) of Article 36(b) of Council Regulation (EC) No 1698/2005 (3) with the exception of those relating to the measures referred to in Article 39(5) of that Regulation and the measures pursuant to Article 36(b)(i) and (iii) as far as establishment costs are concerned.

28.9.2006   

EN

Official Journal of the European Union

L 269/13

(1)

The terms of office of the present members of the European Economic and Social Committee expire on 20 September 2006 (1). The members of that Committee should therefore be appointed for a further period of four years as from 21 September 2006.

(2)

The Belgian, Greek, Irish, Cypriot, Dutch, Polish, Portuguese, Finnish, Swedish and British Governments have submitted lists containing a number of candidates equal to the number of seats allocated to them by the Treaties.

(3)

The Italian Government has submitted a list containing two candidates to complete the list of 22 candidates already submitted and arrive at a number of candidates equal to the number of seats allocated to it by the Treaties.

(4)

On 11 July 2006 the Council adopted the lists submitted by the Czech, German, Estonian, Spanish, French, Latvian, Lithuanian, Luxembourg, Hungarian, Maltese, Austrian, Slovenian and Slovak Governments and the list containing 22 candidates submitted by the Italian Government (2),