No C 59/2 Official Journal of the European Communities 9. 3. 90 
Notice pursuant to Article 12 (2) of Council Regulation (EEC) No 4056/86 and Article 12 (2) 
of Council Regulation (EEC) No 1017/68 concerning Case No IV/33.168 Agreement 1237 
(90/C 59/02) 
1. On 7 July 1989 the Commission was requested by 
the parties referred to below under Article 12 (1) of 
Regulation (EEC) No 4056/86 to exempt under Article 
85 (3) of the EEC Treaty the Agreement referred to 
below. Pursuant to Article 4 (8) of Commission Regu­
lation (EEC) No 4260/88 of 16 December 1988 the 
Commission informed the applicants that it would 
examine the Agreement also under the provisions of 
Council Regulation (EEC) No 1017/68 laying down 
detailed rules for the application of Articles 85 and 86 of 
the Treaty to rail, road and inland waterway transport. 
The applicants submitted their comments on this issue 
subsequently. Nedlloyd Lijnen BV, 
Boompjes 40, 
NL-3011 XB Rotterdam. 
All of them belong to the North Europe-USA Rate 
Agreement (NEUSARA) and to the USA-North Europe 
Rate Agreement (USANERA), except A. P. 
M0ller-Maersk Line that participates only in USANERA, 
and operates as an independent line in the trades covered 
by NEUSARA, with whose members it has signed this 
Agreement. 
The Parties 
2. The Parties are shipping concerns engaged in the 
liner trades between Northern Europe and the USA, 
namely 
Atlantic Container Line BV, 
Atlantic House, 
Herbert Walker Avenue, 
Western Docks, 
UK-Southampton S09 1HA; 
Hapag Lloyd AG, 
Ballindamm 25, 
D-2000 Hamburg 1; 
Sea-Land Service, Inc., 
PO Box 800, 
Iselin, 
USA-New Jersey 08830; 
P&O Containers (TFL) Limited, 
Beagle House, 
Braham Street, 
UK-London El 8EP; 
Incotrans BV, 
PO Box 7320, 
NL-3000 HH Rotterdam; The Agreement 
3. The Agreement became effective on 29 May 1989 
and covers shipping routes from all ports in Europe 
(including ports in the United Kingdom and the 
Republic of Ireland) situated in latitudes from Bayonne, 
France to the North Cape, Norway (except non-Baltic 
ports in the Soviet Union, Mediterranean ports and ports 
in Spain and Portugal), and interior and coastal points in 
Europe via said non-excepted European ports other than 
points in Spain and Portugal; to ports in the 48 
contiguous States of the United States and the District of 
Columbia and points in the United States via said ports. 
Pursuant to the Agreement, the Parties may, but shall 
not be bound to, meet or otherwise communicate, 
exchange information, and consider, discuss and reach 
consensus or agreement, with regard to matters of 
mutual interest and, in particular, their respective rates, 
conditions of carriage and services in the trade. The 
Agreement more specifically encompasses all matters 
concerning rates, surcharges, charges for European 
inland transport, agreements with European inland 
carriers concerning the European inland segment of 
through transportation and loyalty and service contracts. 
It does not authorize the Parties to publish either joint 
tariffs or joint service contract essential terms. 
Membership is open to any vessel-operating ocean 
common carrier. 
A. P. Meller-Masrsk Line, 
50 Esplanaden, 
DK-1098 Copenhagen K; 
Compagnie General Maritime (CGM), 
Cedex 18, 
F-92085 Paris La Defense; According to the Parties the purpose of the Agreement is 
to establish a cooperative arrangement that will have 
stabilizing effects on the trade. Referring to Masrsk Line, 
it is submitted that, being, relatively speaking, a new 
entrant to the westbound trade and wishing to gain some 
greater experience of that trade before considering 
9. 3. 90 Official Journal of the European Communities No C 59/3 
becoming a member of the established conference, it 
decided to cooperate with other carriers by means of this 
Agreement. 
According to the Parties a restriction of price compe­
tition will arise from the exchange of pricing infor­
mation. 
The market 
4. According to the Parties to the Agreement, the 
market share of the Parties in North Europe-USA trade 
during calendar year 1988 was 47,1 %, figure obtained 
by dividing the total amount of cargo carried by all liner 
operators in the trade, by the total amount of cargo 
carried by the parties to the agreement in that period. 
The Agreement party share in the various sub-trades is 
58,6 % via Atlantic, 34,3 % via Gulf and 20,8 % via 
West Coast. 
Maersk Line contributes to these market shares by 4,4 % 
in North Europe-USA trade, by 5,08 % in the North 
Europe-US Atlantic sub-trade, and by 9,52 % in the 
North Europe-US Pacific sub-trade. Maersk does not 
operate services to the Gulf ports but serves that area by 
means of inland transport services from the Atlantic or 
Pacific Ports. 
As far as liner operators other than Agreement Parties 
currently offering service in the Agreement trade are 
concerned, it is submitted that there are 21 in existence. 
Liner operators serving alternative liner routings where 
those operators compete for cargoes carried by the 
Agreement Parties in the trade covered by the 
Agreement, excluding the Parties thereto, are said to 
number 11 via Canadian ports and 19 via South 
European Ports. 
The market share of the Agreement Parties including 
cargo via Canadian and South European Ports is said to 
be 31,7%. 
It is further submitted that substitute forms of transport, 
other than liner service, that are available to shippers of 
commodities historically transported by liner service in 
the North Europe-USA trade include bulk and tramp 
carriers, air freight carriers and non-vessel operating 
common carrier (NVOCC) services. 
Exemption 
5. As stated above, the Parties acknowledge that the 
Agreements they have concluded restrict price compe­
tition. They consider, however, that the Agreements 
qualify for exemption under Article 85 (3) as: 
(i) they contribute to improving distribution and 
economic progress in so far as they promote stability 
through cooperation on rates; (ii) they allow consumers a fair share of the resulting 
benefit, stability giving rise to reliable services to 
shippers; 
(iii) they impose only restrictions which are indis­
pensable to the attainment of the abovementioned 
objectives; according to the Parties: 
— there is only one restriction of competition 
arising from the operation of the Agreement, 
namely the inherent restriction on price compe­
tition between the Parties resulting from the 
exchange of information on rates (and occa­
sional agreement on rates). With regard to price 
competition, the applicants affirm: 
first, that a large part of the cargo shipped by 
the Parties to the Agreement is likely to be 
subject to the negotiation of individual service 
contracts. Secondly, that there is considerable 
price transparency in the trade resulting from the 
tariff filing requirements under US law. Thirdly, 
that entry to the North Europe/US trade is 
entirely open, 
— it is the reduction, but not elimination, of price 
competition that contributes to the stabilizing 
effect that is accepted as a benefit justifying 
exemption of the cooperation between shipping 
companies operating liner services, 
— the one inherent restriction of competition 
arising from the Agreement is thus indispensable 
to the attainment of that accepted benefit, 
— the pricing flexibility of the parties is safe­
guarded by the right of independent rate action 
they are entitled to exercise; 
(iv) they do not eliminate competition in respect of a 
substantial part of the services in question because: 
— the mobility of fleets subjects maritime cartels to 
constant competition which they are unable as a 
rule to eliminate as far as a substantial 
proportion of the shipping services in question is 
concerned, 
— entry to the routes in question is open. There are 
no barriers to entry. Accordingly, the shipping 
lines that operate within the Agreement are 
subject to constant competition that they are 
unable to eliminate, 
— finally, the applicants affirm that the existence of 
other actual competitors is further evidence of 
the compatibility of the effect of the Agreement 
with the final condition for exemption under 
Article 85 (3). 
6. This notice is issued pursuant to the procedure 
established by Article 12 of Regulation (EEC) No 
No C 59/4 Official Journal of the European Communities 9. 3. 90 
4056/86 and Article 12 of Regulation (EEC) No 
1017/68, the Commission having determined prima-facie 
that the arrangement in question meets the tests of 
Article 85 (1) of the Treaty. The Commission has not, at 
this stage, formed any view on the applicability of Article 
85 (3) of the Treaty to the arrangement. 
In accordance with Article 12 (2) of Regulation (EEC) 
No 4056/86 and Article 12 (2) of Regulation (EEC) No 
1017/68, the Commission invites interested parties to send their comments within 30 days from the date of 
publication of this notice, quoting reference IV/33.168 
to: 
Commission of the European Communities, 
Directorate-General for Competition, 
Directorate 'Restrictive practices, abuse of dominant 
positions and other distortions of competition III', 
200 rue de la Loi, 
B-1049 Brussels.