Lloyd's Maritime and Commercial Law Quarterly
AIR AND MARITIME TRANSPORT AND THE EEC COMPETITION RULES
Ministère Publique v. Asjes, Nouvelles Frontières et al.
Article 85(1) of the EEC treaty prohibits, as incompatible with the Common Market, agreements or concerted practices between undertakings that may affect trade between member states and that have the object or effect of restricting competition within the Common Market. There are provisions for exemption under para. (3) and agreements that infringe the Article as a whole are void to the extent of the infringement.
The main implementing regulation for the competition rules is No. 17 of 1962 but, by virtue of Regulation 141/62, it no longer applies to transport. Another implementing regulation was adopted by the Council of Ministers for rail and inland waterway1, but those proposed by the Commission for adoption by the Council on air2 and maritime3 transport, early this decade, have not yet been adopted, although the latter is likely to be shortly. Consequently, the only way that the competition rules of the treaty can be enforced in relation to air and maritime transport is by member states under Art. 884 and by the Commission under
1 Regulation 1017/68
2 Proposal for a Council regulation laying down the procedure for the rules on competition applying to undertakings in the [the rest of the title is missing from the O.J., but presumably refers to the air transport sector] 1982 O.J., C317/3, with a further draft regulation empowering the Commission to grant a group exemption: O.J. 1984, C182/3. Both draft regulations apply only to transport between member states and not to flights to or from third countries.
3 Proposal for a Council regulation laying down detailed rules for the application of Arts. 85 and 86 of the treaty to maritime transport, O.J. 1981, C282/4.
4 Article 88 provides that until the entry into force of an implementing regulation,
“the authorities in Member States shall rule on the admissibility of agreements … in accordance with the law of their country and with the provisions of Article 85, in particular paragraph 3, and of Article 86”.
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