2912.86 Official]ournal of the European Communities NoCoB]o5u27
Opinion on the proposed amendments to Council Regulation (EEC) No 2821B71 of
20 December 1971 on application of Article 8^(^) of thePreaty to categories of agreements,
decisions and concerted practices
(86^C 33^09)
On 19 ^eptember!986 the Council decided to consult the Economic and social Committee,
under Article 198of the l rea ty establishing the European Economic Community,onthe
abovementioned document.
Lhe^ectionforlransportandCommunications, which wasresponsible for preparing the
Committee'swork on the subject, adopted its opinion on 19 Novemberl986, in the light of
the report by Air VelascoAiancebo.
At its 2^1st plenary session (meeting of 27 November 1986) the Economic and social
Committee adopted the following opinion byamajority,with four abstentions.
1. General comments
1.1. subject to the comments set out below, the
Committee approves the Commission's proposal to
grant group exemption from thelreaty'scompetition
rules to certain categories of commercial agreements
between airlines. The need for such exemption was
pointedout by the Committee someyears ago in its
opinion of 27 January 1 9 8 ^ ) o n previous Commission
proposals concerning the application of the rules of
competition to air transport.
1.2. Lhe present Commissionproposal—as well as
the other proposals submitted inthe same document,
providing for waivers fromthecompetitionrulesfor
certain technical agreements and slot allocation agree
ment at airports—should be seen in the wider content
of the application of the rules of competition to air
transport. In thisrespectthe Committeeregrets that
it has not been formally consulted on the proposals
concerning technical agreements and slot allocation
agreements (the latter belonging together with the com
mercial agreements), on the various proposals put for
wardrecently by theCommissiononCommunity air
transport policy,and in particular on the^civil aviation'
communicationof 20]une 1986. without wishing to
underestimate the impact of the commercial agree
ments, the Committee nevertheless considers that they
areof only relativeimportancein theconte^t of the
current discussions on aviation policy in general.
1B^ . similarly, the Committee regrets that the
Council has still not adopted the Regulation proposed
by the Commission in 1981 for applying^freaty Articles
9^and86. (The initialproposal was amended by the
Commission in 1982 and 198^). I t i smore thanever
essential that the Council speed up its work in this area
in view of the Court of justice's ruling of 3^0 April
1986(^)inthe^NouvellesErontieres'case,whichcon
firms that Articles 8eo and 86 are applicable to civil
aviation.
lm. The Committee, in its abovementioned opinion
and in its opinion of 26 ^eptember!98eo(^) on the civil
aviation memorandum No 2, acknowledged that in
general therules of competition should apply to air
transports but it drew attention to the need to take
account of the specific problems of transport and of
international air transport in particular.
IBo. The Committee would alsopointout that the
application of the rules of competition is interdependent
with other aspects of aviation policy,e.g. provisions on
tariffs, capacity and access to the market. Like the
Commission, it considers that the proposed exemption
from therulesof competitioncanonly begrantedif
sufficient flexibility is ensured as regards capacity and
tariffs.The Committee also recognises that several fac
tors should be taken into account in the application of
the competition rules so as to ensure thatabalance is
maintainedbetweenthe principal interests concerned,
i.e. not only the interests of users and airlines but also
of governments and workers in the aviation industry,
without jeopardising safety standards. Account should
likewise be taken of the economic and social effects of
a policy of competition in the air transport sector and
of the specific features andproblems of the sector in
each region. As aviationpolicy in general is currently
being discussed by the Council, all these considerations
assume special importance.
^ o i ^ D e ^ ^ n ^ m ^ ^ D ^
No C 333/28 Official Journal of the European Communities 29. 12. 86
2. Specific comments
2.1. While approving the present Commission pro-
posal the Committee would, however, express some
doubts as to the classification of the agreements (techni-
cal agreements on the one hand, commercial on the
other). It notes that certain types of technical agree-
ments are not in fact of a purely technical nature since
they also have economic and commercial implications,
e.g. the clearing house (category k of the technical
agreements).
2.2. While the Committee welcomes the possibility
of exempting some commercial agreements between
airlines from the competition rules, it nevertheless con-
siders that certain of the commercial agreements
included in the present proposal, being directly linked
with the provision of air transport services, should
come under Council Regulation No 141/62 and the
draft Regulation concerning the application of Article
85 (3) to air transport (with the agreements covering
capacity sharing, revenue pooling, consultations on tar-
Done at Brussels, 27 November 1986.
iffs and conditions, and slot allocation at airports). In
particular this is the case with the agreements between
airlines on the common purchase, operation of or access
to computer systems relating to time tabling, reser-
vations and ticketing. At all events the Committee is
convinced of the importance of these agreements for
the European airlines and their ability to withstand
competition from the major non-European companies.
It welcomes the possibility of concluding agreements
of this type, provided that they are effectively non-
discriminatory between European airlines; in particular
it believes that access to these computer systems should
not be refused without very good reason to new com-
panies which, while not having participated in the initial
agreements, subsequently ask to accede.
2.3. In this connection, the Committee is of the view
that the conditions under which some agreements
between airlines may be exempted from the prohibition
on concluding agreements are not sufficiently well-
defined, which will make it difficult to apply the pro-
posed provisions.
The Chairman
of the Economic and Social Committee
Alfons MARGOT
Full & Egal Universal Law Academy