21. 4. 95 Official Journal of the European Communities No L 89/7 COMMISSION REGULATION (EC) No 870/95 of 20 April 1995 on the application of Article 85 (3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia) pursuant to Council Regulation (EEC) No 479/92 (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 compa- nies (consortia) ('), 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 (%), Having consulted the Advisory Committee on Restrictive Practices and Dominant Positions in Maritime Transport, (1) Whereas certain categories of agreements, decisions and concerted practices between shipping compa- nies relating to the joint operation of liner trans- port services (consortia), through the cooperation they bring about between the shipping companies that are parties thereto, are liable to restrict compe- tition within the common market and to affect trade between Member States and may therefore be caught by the prohibition contained in Article 85 (1) of the Treaty; (2) Whereas the analysis carried out by the Commis- sion of consortium agreements indicates that a large number of agreements may nevertheless normally be regarded as fulfilling the requirements of Article 85 (3); whereas this category of consortia should be defined; (3)  Whereas the Commission has taken due account of the special features of maritime transport ; whereas those features will also constitute a material factor in any Commission assessment of consortia not covered by this block exemption ; ) OJ No L 55, 29. 2. 1992, p. 3. 2 O] No C 63, 1. 3. 1994, p. 8. ( P ) ©) % Whereas consortia, as defined in this Regulation, generally help to improve the productivity and quality of available liner shipping services by reason of the rationalization they bring to the acti- vities of member companies and through the economies of scale they allow in the operation of vessels and utilization of port facilities ; whereas they also help to promote technical and economic progress by facilitating and encouraging greater utilization of containers and more efficient use of vessel capacity ; Whereas users of the shipping services provided by . consortia generally obtain a fair share of the bene- fits resulting from the improvements in producti- vity and service quality which they bring about; whereas these benefits may also take the form of an improvement in the frequency of sailings and port calls, or an improvement in scheduling as well as better quality and personalized services through the use of more modern vessels and other equipment including port facilities ; whereas users can benefit effectively from consortia only if there is sufficient competition in the trades in which the consortia operate ; Whereas these agreements should therefore benefit from a block exemption, provided they do not give the companies concerned the possibility of elimi- nating competition in a substantial part of the trade in question ; whereas 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, an object of this Regulation is to clarify the conditions to be met by consortia in order to benefit from the block exemption it grants; Whereas, for the purpose of establishing and running a joint service, an essential feature inherent in consortia is the ability to make capacity adjust- ments ; whereas the non-utilization of a certain percentage of vessel capacity within a consortium is not an essential feature of consortia ;