EN    EN EN 
 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 1.7.2008 
SEC(2008) 2151 final 
  
Guidelines on the application of  Article 81 of the EC Treaty  
to maritime transport services 
 
 
EN 2   EN Guidelines on the application of  Article 81 of the EC Treaty  
to maritime transport services 
(Text with EEA relevance) 
1. I NTRODUCTION  
1. These Guidelines set out the principles  that the Commission of the European 
Communities will follow when defining markets and assessing cooperation agreements in those maritime transport services directly affected by the changes brought about by Council Regulation (EC) No 1419/2006 of 25 September 2006, i.e. liner shipping services, cabotage and international tramp services.(
1)  
2. These Guidelines are intende d to help undertakings and as sociations of undertakings 
operating those services, mainly  if operated to and/or from a port or ports in the 
European Union, to assess whether their agreements (2) are compatible with Article 
81 of the Treaty establishing the European Community (hereinafter "the Treaty"). 
The Guidelines do not apply to other sectors.  
3. Regulation (EC) No 1419/2006 extended the scope of 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 (
3) and Commission Regulation (EC) No 
773/2004 of 7 April 2004 relating to the c onduct of proceedings by the Commission 
pursuant to Articles 81 and 82 of the Treaty (4) to include cabotage and tramp vessel 
services. Consequently, as of 18 Oct ober 2006, all maritime transport services 
sectors are subject to the generally  applicable procedural framework. 
4. Regulation (EC) No 1419/2006 also re pealed Council Re gulation (EEC) No 
4056/1986 of 22 December 1986 on the applica tion of Articles 85 and 86 (now 81 
and 82) of the Treaty to maritime transport (5) containing the liner conference block 
exemption which allowed shipping lines meetin g in liner conferences to fix rates and 
other conditions of carriage, as the conference system no l onger fulfils the criteria of 
Article 81(3) of the Treaty. Th e repeal of the block exemp tion takes effect as of 18 
October 2008. Thereafter, liner carriers opera ting services to and/or from one or 
more ports in the European Union must ceas e all liner conference activity contrary to 
Article 81 of the Treaty. This is the case regardless of whether other jurisdictions allow, explicitly or tacitly, rate fixing by liner conferences or discussion agreements. 
Moreover, conference members should ensu re that any agreement taken under the 
conference system complies with Article 81 as of 18 October 2008. 
                                                
 
1 Council Regulation (EC) No 1419/2006 of 25 September 2006 repealing Regulation (EEC) No 4056/86 
laying down detailed rules for the application of Articles 85 and 86 (now 81 and 82) of the Treaty to 
maritime transport, and amending Regulation (EC) No 1/2003 as regards the extension of its scope to 
include cabotage and international tramp services, OJ L 269, 28.9.2006, p. 1.  
2 The term "agreement" is used for agreements, deci sions by associations of undertakings and concerted 
practices. 
3 OJ L 1, 4.1.2003, p. 1.  
4 OJ L 123, 27.4.2004, p. 18. 
5 OJ L 378, 31.12.1986, p. 4. 
 
EN 3   EN 5. These Guidelines complement the guidance already issued by the Commission in 
other notices. As maritime transport se rvices are characterised by extensive 
cooperation agreements between compe ting carriers, the Guidelines on the 
applicability of Article 81  of the Treaty to horizon tal cooperation agreements (6) (the  
Guidelines on Horizontal Cooperation ) and the Guidelines on the application of 
Article 81(3) of the Treaty (7) are particularly relevant.  
6. Horizontal cooperation agreements in liner  shipping regarding th e provision of joint 
services are covered by Commission Regula tion (EC) No 823/2000 of 19 April 2000 
on the application of Article 81(3) of the Treaty to certain categories of agreements, 
decisions and concerted practices between  liner shipping comp anies (consortia) (8). It 
sets out the conditions, pursuant to Article  81(3) of the Treat y, under which the 
prohibition in Article 81(1) of  the Treaty does not apply to agreements between two 
or more vessel operating carriers (consortia). It will be reviewed following the changes introduced by Regulation (EC) No 1419/2006 (
9).  
7. These Guidelines are without prejudice to  the interpretation of  Article 81 of the 
Treaty which may be given by the Court of Ju stice or the Court of First Instance of 
the European Communities. The principles in the Guidelines are to be applied in the 
light of the circumstance s specific to each case. 
8. The Commission will apply these Guid elines for a period of five years. 
2. M ARITIME TRANSPORT SERVICES  
2.1. Scope 
9. Liner shipping services, cabotage and tramp services are the maritime transport 
sectors directly affected by the change s brought about by Regulation (EC) No 
1419/2006. 
10. Liner shipping involves the transport of cargo, chiefly by container, on a regular 
basis to ports of a particular geographic route, generally known as a trade. Other 
general characteristics of lin er shipping are that timeta bles and sailing dates are 
advertised in advance and services ar e available to any transport user.  
11. Article 1.3(a) of Regulation (EEC) No 4056/ 86 defined tramp vessel services as the 
transport of goods in bulk or in break bulk in  a vessel chartered w holly or partly to 
one or more shippers on the basis of a voyage or time charter or any other form of contract for non-regularly scheduled or non- advertised sailings  where the freight 
rates are freely negotiated case by case in accordance with the conditions of supply and demand. It is mostly the unscheduled  transport of one single commodity which 
fills a vessel (
10). 
                                                 
6 OJ C 3, 6.1.2001, p. 2. 
7 OJ C 101, 27.4.2004, p. 97. 
8 OJ L 100, 20.4.2000, p. 24, as amended by Commission Regulation (EC) 463/2004 of 12 March 2004, 
OJ L 77, 13.3.2004, p. 23 and by Commission Regulation (EC) 611/2005 of 20 April 2005, OJ L 101, 
21.4.2005, p. 10. 
9 Recital 3 of Commission Regulation (EC) 611/2005, cited above in footnote 8. 
10 The Commission has identified a series of characteris tics specific to specialised transport which render 
it distinct from liner services and tramp vessel servi ces. They involve the provision of regular services 
for a particular cargo type. The service is usually provided on the basis of contracts of affreightment 
using specialised vessels technically adapted a nd/or built to transport specific cargo. Commission 
 
EN 4   EN 12. Cabotage involves the provision of maritim e transport services including tramp and 
liner shipping, linking two or more por ts in the same Member State (11). Although 
these Guidelines do not specifically address cabotage services they nevertheless apply to these services insofar as they ar e provided either as liner or tramp shipping 
services. 
2.2. Effect on trade between Member States 
13. Article 81 of the Treaty app lies to all agreements which may appreciably affect trade 
between Member States. In order for there to be an effect on trade it must be possible 
to foresee with a sufficient degree of proba bility on the basis of  a set of objective 
factors of law or fact that the agreement or  conduct may have an influence, direct or 
indirect, actual or potentia l, on the pattern of trade between Member States (
12). The 
Commission has issued guidance on how it w ill apply the concept of affectation of 
trade in its Guidelines on the effect of tr ade concept contained in Articles 81 and 82 
of the Treaty (13). 
14. Transport services offered by liner sh ipping and tramp operators are often 
international in nature linking Community por ts with third countri es and/or involving 
exports and imports between two or more  Member States (i .e. intra Community 
trade) (14). In most cases they are likely to affect trade between Member States inter 
alia on account of the impact they have on th e markets for the provision of transport 
and intermediary services (15). 
15. Effect on trade between Member States is of particular relevance to maritime 
cabotage services since it determines the sc ope of application of Article 81 of the 
Treaty and its interaction with nati onal competition law under Article 3 of 
Regulation (EC) No 1/2003 on the implemen tation of the rules on competition laid 
                                                                                                                                                         
Decision No 94/980/EC  of 19 October 1994 in Case IV/34.446 – Transatlantic Agreement , OJ L 376, 
31.12.1994, p. 1 (hereinafter the TAA decision ), paragraphs 47-49.  
11 Article 1 of Council Regulati on (EEC) No 3577/92 of 7 Decembe r 1992 applying the principle of 
freedom to provide services to maritime transport w ithin Member States (maritime cabotage), OJ L 364, 
12.12.1992, p. 7. 
12 Case 42/84 Remia BV and others  v Commission  [1985] ECR 2545, paragraph 22. Case 319/82 Ciments 
et Bétons de l ’Est v Kerpen & Kerpen  [1983] ECR 4173, paragraph 9.  
13 OJ C 101, 27.4.2004, p. 81. 
14 The fact that the service is to/f rom a non-EU port does not in itsel f preclude that trade between Member 
States is affected. A careful analysis of the ef fects on customers and other operators within the 
Community that rely on the services needs to be carried out to determine whether they fall under 
Community jurisdiction. See Guidelines on the effect  on trade concept contai ned in Articles 81 and 82 
of the Treaty, cited above in footnote 13. 
15 Commission Decision No. 93/82/EEC of 23 D ecember 1992 (Cases IV/3 2.448 and IV/32.450, 
CEWAL ), OJ L 34, 10.2.1993, p. 1, paragraph 90, confirmed by the Court of First Instance in Joined 
Cases T-24/93 to T-26/93 and T-28/93, Compagnie Maritime Belge and others v Commission [1996] 
ECR II-1201, paragraph 205. TAA decision, cited above  in footnote 10 , paragraphs 288-296, confirmed 
by the judgment of the Court of First Instance of 28 February 2002, in Case T-395/94, Atlantic 
Container Line and others  v Commission  (hereinafter the TAA judgment ), paragraphs 72-74; 
Commission Decision No 1999/243/EC of 16 September 1998 (Case IV/35.134 – Trans-Atlantic 
Conference Agreement ) (hereinafter the TACA decision ), OJ L 95, 9.4.1999, p. 1, paragraphs 386-396; 
Commission Decision No 2003/68/EC of 14 November 2002 (Case COMP/37.396 – Revised TACA ) 
(hereinafter the Revised TACA decision ), OJ L 26, 31.1.2003, p. 53, paragraph 73.  
 
EN 5   EN down in Articles 81 and 82 of  the Treaty. The extent to which such services may 
affect trade between Member States must  be evaluated on a case by case basis (16).  
2.3. The relevant market  
16. In order to assess the e ffects on competition of an ag reement for the purposes of 
Article 81 of the Treaty, it is necessary to  define the relevant product and geographic 
market(s). The main purpose of market definition is to identify in a systematic way the competitive constraints faced by an undertaking. Guidance on this issue can be 
found in the Commission Notice on the defi nition of the relevant market for the 
purposes of Community competition law (
17). This guidance is also relevant to 
market definition as regards maritime transport services.  
17. The relevant product market comprises all those products and/or services which are 
regarded as interchangeable or substitutable by the consumer, by reason of the products' characteristics, thei r prices and their intended us e. The relevant geographic 
market comprises the area in which the undertakings concerned are involved in the supply and demand of products or services , in which the cond itions of competition 
are sufficiently homogeneous and which can be distinguished from neighbouring 
areas because the conditions of competition are appreciably differe nt in those areas 
(
18). A carrier (or ca rriers) cannot have a significant impact on the prevailing 
conditions of the market if customers ar e in a position to switch easily to other 
service providers (19). 
2.3.1. Liner shipping 
18. Containerised liner shipping services have  been identified as the relevant product 
market for liner shipping in several Co mmission decisions and Court judgments (20). 
Those decisions and judgments related to maritime transport in deep sea trades. Other modes of transport have not been in cluded in the same service market even 
though in some cases these services may be , to a marginal extent, interchangeable. 
This was because only an insufficient pr oportion of the goods carried by container 
can easily be switched to other modes of tran sport, such as air transport services (
21).  
19. It may be appropriate under certain circ umstances to define a narrower product 
market limited to a particular type of pr oduct transported by sea. For example, the 
transport of perishable goods could be lim ited to reefer containers or include 
transport in conventional r eefer vessels. While it is possible in exceptional 
circumstances for some substitution to take  place between break bulk and container 
transport (22), there appears to be no lasting change over from container towards 
                                                 
16 For guidance on the application of the effect on trade, see the Commission Guidelines  cited above in 
footnote 13. 
17 OJ C 372, 9.12.1997, p. 5. 
18 Notice on market definition, cited above in footnote 17, paragraph 8. 
19 Notice on market definition, cited above in footnote 17, paragraph 13. 
20 Commission Decision No 1999/485/EC of 30 April 1999 (Case IV/34.250 – Europe Asia Trades 
Agreement ), OJ L 193, 26.7.1999, p. 23; TAA decision, cited above in footnote 10, and the TACA 
decision, cited above in footnote 15, paragraphs 60 -84. The market definition in the TACA decision 
was confirmed by the Court of First Instance in its judgment in Joined cases T-191/98, T-212/98 to T-
214/98, Atlantic Container Line AB and others  v Commission , [2003] ECR II-3275 ( hereinafter the 
TACA judgment ), paragraphs 781-883. 
21 Paragraph 62 of the TACA decision, cited above in footnote 15 and paragraphs 783-789 of the TACA 
judgment, cited above in footnote 20. 
22 TACA decision, cited above in footnote 15, paragraph 71.  
 
EN 6   EN bulk. For the vast majority of categories of goods and users of containerised goods, 
break bulk does not offer a reasonable alte rnative to containerised liner shipping (23). 
Once cargo becomes regularly containerised it is unlikely ever to be transported 
again as non-containerised cargo (24). To date containerised liner shipping is 
therefore mainly subject to one way substitutability (25). 
20. The relevant geographic market consists of  the area where the services are marketed, 
generally a range of ports at each end of the serv ice, determined by ports' 
overlapping catchment areas. As far as the Eu ropean end of the service is concerned, 
to date the geographical market in liner case s has been identified as a range of ports 
in Northern Europe or in the Mediterran ean. As liner shipping services from the 
Mediterranean are only marginally substitutable for those from Northern European ports, these have been identif ied as separate markets (
26). 
2.3.2. Tramp services 
21. The Commission has not yet applied Article 81 of the Treaty to tramp shipping. 
Undertakings may consider the following elements in their assessment inasmuch as they are relevant to the tramp shipping services they provide.  
Elements to take into account when determining the relevant product market 
from the demand side (demand substitution)  
22. The “ main terms ” of an individual transport requ est are a starting point for defining 
relevant service markets in tramp shipping since they generally identify the essential elements (
27) of the transport requirement at i ssue. Depending on the transport users' 
specific needs, they will be made up of  negotiable and non-negotiable elements. 
Once identified, a negotiable element of the main terms, for example the vessel type or size, may indicate, for instance, that th e relevant market with respect to this 
specific element is wider than laid down  in the initial transport requirement. 
23. The nature of the service in tramp shipping may differ and there is a variety of 
transport contracts. It may be necessary, therefore, to ascertain whether the demand 
side considers the services  provided under time charter contracts, voyage charter 
contracts and contracts of affreightment to be substitu table. Should this be the case 
they may belong to the same relevant market. 
                                                
 
23 TAA judgement, cited above in footnote 15, paragraph 273 and TACA judgment, cited above in 
footnote 20, paragraph 809. 
24 TAA judgment, cited above in footnote 15, paragraph 281. Commission Decision in Case No 
COMP/M.3829 – MAERSK/PONL , 29.07.2005, paragraph 13. 
25 TACA decision, cited above in footnote 15, paragraphs 62-75; TACA judgment, cited above in footnote 
20, paragraph 795 and Commission Decision in MAERSK/PONL , cited above in footnote 24, 
paragraphs 13 and 112-117. 
26 TACA decision, cited above in footnote 15, paragraphs 76-83 and Revised TACA decision, cited above 
in footnote 15, paragraph 39. 
27 For voyage charter for instance the essential elements  of a transport requirem ent are the cargo to be 
carried, the cargo volume, the loading and discharging ports, the laydays or the ultimate date by which 
the cargo has to arrive and technical details regarding the vessel required. 
 
EN 7   EN 24. Vessel types are usually subdivided into a number of standard industrial sizes (28). 
Due to considerable economies of scale,  a service with a significant mismatch 
between cargo volume and vessel size may not be able to offer a competitive freight rate. Therefore, the substitutability of different vessel sizes needs to be assessed case by case so as to ascertain whether each vessel size constitutes a separate relevant market.  
Elements to take into account when determining the relevant product market 
from the supply-side (supply substitution)  
25. The physical and technical conditions of th e cargo to be carried and the vessel type 
provide the first indications  as to the relevant market from the supply side (29). If 
vessels can be adjusted to transport a particular cargo at negligible cost and in a short time-frame (
30), different tramp shipping service providers are able to compete for 
the transport of this cargo. In such circ umstances, the relevant market from the 
supply side will comprise more than one type of vessel.  
26. However, there are a number of vessel t ypes that are technically adapted and/or 
specially built to provide specialised transport services . Although specialised vessels 
may also carry other types of cargo, they may be at a competitive disadvantage. The 
ability of specialised service providers to  compete for the transport of other cargo 
may, therefore, be limited.  
27. In tramp shipping, port calls are made in re sponse to individual demand. Mobility of 
vessels may however be limited by term inal and draught restrictions or 
environmental standards for particular ve ssel types in certain  ports or regions. 
Additional considerations to take into  account when determining the relevant 
product market  
28. The existence of chains of substitution be tween vessel sizes in tramp shipping should 
also be considered. In certain tramp shippi ng markets, vessel sizes at the extreme of 
the market are not directly substitutable. Chain substitution effects may nevertheless constrain pricing at the extremes and lead  to their inclusion in a broader market 
definition. 
29. In certain tramp shipping markets, consid eration must be given to whether vessels 
can be considered as captive capacity and should not be taken into account when 
assessing the relevant market on a case by case basis. 
                                                
 
28 It appears to be the industry's perception that ve ssel sizes constitute separate markets. The trade press 
and the Baltic Exchange publish price indexes for each standard vessel size. Consultants' reports divide 
the market on the basis of vessel sizes. 
29  For example, liquid bulk cargo cannot be carried on dry bulk vessels or reefer cargo cannot be 
transported on car carriers. Many oil tankers are ab le to carry dirty and clean petroleum products. 
However, a tanker cannot immediately carry clean pr oducts after having transported dirty products. 
30 Switching a dry bulk vessel from the transport of coal to grain might require only a one-day cleaning 
process that might be done during a ballast voyage. In other tramp shipping markets this cleaning period 
may be longer. 
 
EN 8   EN 30. Additional factors such as th e reliability of the service pr ovider, security, safety and 
regulatory requirements may influence suppl y and demand-side substitutability, for 
example the double hull requirement for tankers in Community waters (31).  
Geographic dimension  
31. Transport requirements usually contain geogr aphic elements such as the loading and 
discharging ports or regions. These ports  provide the first orientation for the 
definition of the relevant geographic market  from the demand-side, without prejudice 
to the final definition of th e relevant geographic market. 
32. Certain geographic markets may be define d on a directional basis or may occur only 
temporarily for instance when climatic conditions or harvest periods periodically affect the demand for transport of particular cargos. In this context, repositioning of vessels, ballast voyages and trade imbala nces should be considered for the 
delineation of relevant geographic markets. 
2.4. Market shares 
33. Market shares provide usef ul first indications of the market structure and of the 
competitive importance of the parties a nd their competitors. The Commission 
interprets market shares in  the light of the market c onditions on a case-by-case basis.
 
In liner shipping, volume and/or capacity da ta have been identified as the basis for 
calculating market shares in several Co mmission decisions a nd Court judgments (32). 
34. In tramp shipping markets, service provi ders compete for the award of transport 
contracts, that is to say, they sell v oyages or transport cap acity. Depending on the 
specific services in question, various data  may allow operators to calculate their 
annual market shares (33), for instance: 
(a) the number of voyages;  
(b) the parties' volume or value share in th e overall transport of a specific cargo 
(between port pairs or port ranges); 
(c) the parties' share in the mark et for time charter contracts; 
(d) the parties' capacity shares  in the relevant fleet (b y vessel type and size). 
3. H ORIZONTAL AGREEMENTS IN THE MARITIME TRANSPORT SECTOR  
35. Cooperation agreements are a common f eature of maritime transport markets. 
Considering that these agreements may be entered into by actual or potential competitors and may adversely affect the parameters of competition, undertakings 
must take special care to ensure that th ey comply with the competition rules. In 
service markets, such as maritime transport, the following elements are particularly relevant for the assessment of the effect  an agreement may have in the relevant 
                                                
 
31  Regulation (EC) No 417/2002 of the European Parliament and of the Council of 18 February 2002 on 
the accelerated phasing-in of  double hull or equivalent design re quirements for single hull oil tankers 
and repealing Council Regulation (EC) No 2978/94, L 64, 7.3.2002. 
32 TACA decision, cited above in footnote 15, paragraph 85; Revised TACA decision, cited above in 
footnote 15, paragraphs 85 and 86 and the TACA judgment, cited above in footnote 20, paragraphs 924, 925 and 927. 
33 Depending on the specificities of the relevant tramp shipping market shorter periods may be envisaged, 
e.g. in markets where contracts of affreightment are te ndered for periods of less than one year. 
 
EN 9   EN market: prices, costs, quality, frequency and differentiation of the service provided, 
innovation, marketing and commerc ialisation of the service. 
36. Three issues are of particular relevance to the services covere d by these guidelines: 
technical agreements, exchanges of information and pools. 
3.1. Technical agreements 
37. Certain types of technical agreements may not fall under the prohibition set out in 
Article 81 of the Treaty on the ground that th ey do not restrict competition. This is 
the case, for instance, of horizontal agreements the sole object and effect of which is to implement technical improvements or to achieve technical cooperation. 
Agreements relating to the implementation of environmental standards can also be considered to fall into this category. Ag reements between competitors relating to 
price, capacity, or other parameters of compe tition will, in principle, not fall into this 
category (
34). 
3.2. Information exchanges between competitors in liner shipping  
38. An information exchange system entail s an arrangement on the basis of which 
undertakings exchange information amongst themselves or supply it to a common agency responsible for centralizing, compiling and processing it before returning it to 
the participants in the form and at the frequency agreed.  
39. It is common practice in many industries fo r aggregate statistics and general market 
information to be gathered, exchanged and published. This published market information is a good means to increase market transparency and customer knowledge, and thus may produce effici encies. However, the exchange of 
commercially sensitive and individuali sed market data can, under certain 
circumstances, breach Article 81 of the Treaty. These guidelines are intended to 
assist providers of liner sh ipping services in assessing when such exchanges breach 
the competition rules.  
40. In the liner shipping sector, exchanges of  information between shipping lines taking 
part in liner consortia which otherwise would fall under Article 81(1) of the Treaty 
are permitted to the extent that they are ancillary to the joint operation of liner 
transport services and the other forms of co-operation covered by the block 
exemption in Regulation (EC) No 823/2000 (
35). The present Guidelines do not deal 
with these information exchanges.  
3.2.1. In general  
41. In assessing information exchange systems under Community competition law, the 
following distinctions must be made.  
42. The exchange of information may be a facilitating mechanism for the 
implementation of an anti-competitive prac tice, such as monitoring compliance with 
a cartel; where an exchange of information is ancillary to such an anti-competitive 
                                                 
34 Commission Decision No 2000/627/EC of 16 May 2000 (Case IV/34.018 – Far East Trade Tariff 
Charges and Surcharges Agreement (FETTCSA) ), OJ L 268, 20.10.2000, p. 1, paragraph 153. Judgment 
of the Court of First Instance in Case T-229/94, Deutsche Bahn AG  v Commission , [1997] ECR II-1689, 
paragraph 37. 
35 Regulation (EC) No 823/2000, cited above in footnote 8, applies to international liner transport services 
from or to one or more Community ports exclusively for the carriage of cargo chiefly by container – see 
Articles 1, 2 and Artic le 3(2)(g) thereof. 
 
EN 10   EN practice its assessment must be carried out in combination with an assessment of that 
practice. An exchange of information may ev en have in itself the object of restricting 
competition (36). These Guidelines do not address such exchanges of information.  
43. However, an exchange of information, in its own right, might constitute an 
infringement of Article 81 of the Treaty by re ason of its effect. This situation arises 
when the information exchange reduces or removes the degree of uncertainty as to 
the operation of the market in question w ith the result that competition between 
undertakings is restricted (37). Every economic operator must determine 
autonomously the policy which it intends to  pursue on the market. The Court further 
considered that undertakings are, therefore, precluded from direct or indirect contacts 
with other operators which influence the c onduct of a competitor or reveal their own 
(intended) conduct if the object or effect of those contacts is to restrict competition, 
i.e. to give rise to conditions of comp etition which do not correspond to the normal 
conditions of the market in question, taking in to account the nature  of the products or 
the services provided, the size and number of the undertakings and the volume of the 
market (38). By contrast, in the wood pulp mark et, the Court has found that unilateral 
quarterly price announcements made independently by producers to users constitute 
in themselves market behaviour which does not lessen each undert aking's uncertainty 
as to the future attitude of its competitors and hence, in the absence of any preliminary concerted practi ce between producers, do not constitute in themselves an 
infringement of Article  81(1) of the Treaty (
39). 
44. The case law of the Community Courts  provides some general guidance in 
examining the likely effects of an info rmation exchange. The Court has found that 
where there is a truly competitive market, transparency is likely to lead to intensification of compet ition between suppliers (
40). However, on a highly 
concentrated oligopolistic market, on whic h competition is already greatly reduced, 
exchanges of precise information on indivi dual sales at short intervals between the 
main competitors, to the exclusion of other suppliers and of consumers, are likely to 
impair substantially the competition that  exists between suppliers. In such 
circumstances, the sharing, on a regula r and frequent basis, of information 
concerning the operation of the market has th e effect of periodically revealing to all 
competitors the market positions and strategies of the various individual competitors (
41). The Court has also found that an information exchange system may constitute a 
                                                 
36  Judgment of the Court of Justice in Case C-49/92 P, Commission  v Anic Partecipazioni , [1999] ECR 
I-4125, paragraphs 121 to 126. 
37 Judgment of the Court of Justice in Case C-7/95 P, John Deere  v Commission , [1998] ECR I-3111, 
paragraph 90 and Judgment of the Court of Justice in Case C-194/99 P, Thyssen Stahl v Commission , 
[2003] ECR I-10821, paragraph 81. 
38 Judgment of the Court of Justice of 23 November 2006 in Case C-238/05, Asnef-Equifax  v Asociación 
de Usuarios de Servicios Bancarios (Ausbanc) , [2006] ECR I-11125, paragraph 52 and Judgment of the 
Court of Justice in Case C-49/92 P, Commission  v Anic Partecipazioni , cited above in footnote 36, 
paragraphs 116 and 117. 
39  Judgment of the Court of Justice in Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 
and C-125/85 to C-129/85, A. Ahlström Osakeyhtiö and others  v Commission , [1993] ECR I-1307, 
paragraphs 59 to 65. 
40 Judgment in John Deere  v Commission , Case C-7/95 P, cited above in footnote 37, paragraph 88.  
41 Judgment of the Court of First Instance in Case T-35/92 John Deere Ltd v Commission , [1994] ECR II-
957, paragraph 51, upheld on appeal by the Judgment in John Deere Ltd v Commission , Case C-7/95 P, 
cited above in footnote 37, paragraph 89 ; and more recently, the judgment in Asnef-Equifax  v Ausbanc , 
cited above in footnote 38.  
 
EN 11   EN breach of the competition rules even when th e market is not highly concentrated but 
there is a reduction of the undertakings' decision-making autonomy resulting from pressure during subsequent discussions with competitors (
42). 
45. It follows that the actual or potential effects of an in formation exchange must be 
considered on a case-by-case basis as th e results of the assessment depend on a 
combination of factors, each specific to an individual case. The structure of the 
market  where the exchange takes place and th e characteristics of the information 
exchange , are two key elements that the Co mmission examines when assessing an 
information exchange. The assessment must consider the actual or potential effects 
of the information exchange compared to the competitive situation that would result in the absence of the information exchange agreement (
43). To be caught by Article 
81(1) of the Treaty, the exch ange must have an apprec iable adverse impact on the 
parameters of competition (44). 
46. The guidance below mainly relates to the analysis of a restri ction of competition 
under Article 81(1) of the Treaty. Guidance on the application of Ar ticle 81(3) of the 
Treaty is to be found in paragraph 58 below and in the general notice on the subject 
(45). 
3.2.2. Market structure 
47. The level of concentration  and the structure of supply and demand on a given market 
are key issues in considering whether an exchange falls within the scope of Article 81(1) of the Treaty (
46).  
48. The level of concentration is particular ly relevant since, on highly concentrated 
oligopolistic markets, restrictive effects ar e more likely to occu r and are more likely 
to be sustainable than in less concentr ated markets. Greater transparency in a 
concentrated market may strengthen the interdependence of firms and reduce the intensity of competition. 
49. The structure of supply and demand
 is also important, notably the number of 
competing operators and the symmetry and st ability of their market shares and the 
existence of any structural links between competitors (47).The Commission may also 
analyse other factors such as the hom ogeneity of services and the overall 
transparency in the market. 
3.2.3. Characteristics of th e information exchanged 
50. The exchange of commercially sensitiv e data relating to the parameters of 
competition, such as price, capacity or cost s, between competitors, is more likely to 
be caught by Article 81(1) of the Treaty than other exchanges of information. The 
                                                 
42 Judgment of the Court of First Instance in Case T-141/94 Thyssen Stahl AG v Commission  [1999] ECR 
II-347, paragraphs 402 and 403.  
43 Judgment in John Deere Ltd v Commission, Case C-7/95 P, cited above in footnote 37, paragraphs 75-
77.  
44 Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 16. 
45 Guidelines on the application of Article 81(3), cited above in footnote 7. 
46 Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 25. 
47 In liner shipping there are operational and/or structural links between competitors, for example 
membership of consortia agreements that allow shipping lines to share information for the purposes of providing a joint service. The existence of any such link, will have to be taken into account on a case by 
case basis when assessing the impact an additional exchange of information has in the market in 
question.  
 
EN 12   EN commercial sensitivity of information shoul d be assessed taki ng into account the 
criteria set out below. 
51. The exchange of informati on already in the public domain  does not in principle 
constitute an infringement of Article 81(1) of the Treaty (48). However, it is 
important to establish the level of tran sparency of the market and whether the 
exchange enhances information by maki ng it more accessible and/or combines 
publicly available information with other information. The resulting information may 
become commercially sensitive and its exchange potentially restrictive of 
competition.  
52. Information may be individual or aggregated . Individual data rela tes to a designated 
or identifiable undertaking. A ggregate data combines th e data from a sufficient 
number of independent undertakings so that  the recognitio n of individual data is 
impossible. The exchange of individual information between competitors is more likely to be caught by Article 81(1) of the Treaty (
49) than the exchange of 
aggregated information which, in principle, does not fall within Article 81(1) of the 
Treaty. The Commission will pay particular at tention to the level of aggregation. It 
should be such that the information ca nnot be disaggregated so as to allow 
undertakings directly or indi rectly to identify the comp etitive strategi es of their 
competitors. 
53. However, in liner shipping caution should be used when assessing exchanges of 
capacity forecasts even in aggregate form , especially when they take place in 
concentrated markets. In liner markets, capacity data is the key parameter to coordinate competitive conduct and it has a di rect effect on prices. Exchanges of 
aggregated capacity forecasts indicating in  which trades capacity will be deployed 
may be anticompetitive to the extent that th ey may lead to the adoption of a common 
policy by several or all carriers and result  in the provision of services at above 
competitive prices. Additionally, there is a risk  of disaggregation of the data as it can 
be combined with individual announcements  by liner carriers. This would enable 
undertakings to identify the market pos itions and strategies of competitors. 
54. The age of the data and the period to which it relates
 are also important factors. Data 
can be historic, recent or future. Exchange of historic information is generally not 
regarded as falling within Article 81(1) of  the Treaty because it cannot have any real 
impact on the undertakings’ future behavi our. In past cases, the Commission has 
considered information which was more  than one year old as historic (50) whereas 
information less than one year old has been viewed as recent (51). The historic or 
recent nature of the information should be as sessed with some flexibility taking into 
account the extent to which data becomes obsolete in the relevant market. The time when the data becomes historic is likely to be shorter if the data is aggregated rather than individual. Exchanges of recent data on volume and capacity are similarly unlikely to be restrictive of competition if the data is aggregated to an appropriate level such that individual shippers' or carrier s' transactions cannot be identified either 
                                                
 
48 TACA judgment, cited above in footnote 20 , paragraph 1154. 
49 Commission Decision No 78/ 252/EEC of 23 December 1977 in Case IV/29.176 – Vegetable 
Parchment , OJ L 70, 13.3.1978, p. 54. 
50 Commission Decision No 92/157/EEC of 17 February 1992 in Case IV/31.370 – UK Agricultural 
Tractor Registration Exchange , OJ L 68, 13.3.1992, p. 19, paragraph 50. 
51 Commission Decision No 98/4/ECSC of 26 November 1997 in Case IV/36.069 – 
Wirtschaftsvereinigung Stahl , OJ L 1, 3.1.1998, p. 10, paragraph 17.  
 
EN 13   EN directly or indirectly. Future data relates to an undertaking's vi ew of how the market 
will develop or to the strategy it intends to follow in that market. The exchange of 
future data is particularly likely to be problematic, especially when it relates to prices or output. It may reveal the commercial st rategy an undertaking intends to adopt in 
the market. In so doing, it may appreciably reduce rivalry between the parties to the 
exchange and is thus potentia lly restrictive of competition.  
55. The frequency of the exchange
 should also be considered. The more frequently the 
data is exchanged, the more swiftly competito rs can react. This facilitates retaliation 
and ultimately lowers the incentives to init iate competitive actions on the market. So-
called hidden competition could be restricted.  
56. How data is released should also be looke d into to assess the effect(s) it may have on 
the market(s). The more the information is sh ared with customers, the less likely it is 
to be problematic. Conversely, if market tr ansparency is improved for the benefit of 
suppliers only, it may deprive customers of the possibility of getting the advantage of 
increased “hidden competition”. 
57. In liner shipping, pr ice indexes are used to show average price movements for the 
transport of a sea container. A price inde x based on appropriatel y aggregated price 
data is unlikely to infringe Article 81(1) of the Treaty, provided that the level of 
aggregation is such that the information cannot be disaggregated so as to allow 
undertakings directly or indi rectly to identify the comp etitive strategi es of their 
competitors. If a price index reduces or removes the degree of uncertainty as to the operation of the market with the result th at competition between undertakings is 
restricted, it would violate Ar ticle 81(1) of the Treaty. In assessing the likely effect 
of such a price index on a given relevant ma rket, account should be given to the level 
of aggregation of the data and its historic al or recent nature and the frequency at 
which the index is published.  In general it is important to assess all individual 
elements of any information exchange scheme  together, in order to take account of 
potential interactions, for example between exchange of capacity and volume data on 
the one hand and of a pr ice index on the other.  
58. An exchange of information between carriers that restricts competition may 
nonetheless create efficiencies, such as better planning of investments and more 
efficient use of capacity. Such efficiencies  will have to be substantiated and passed 
on to customers and weighed against the an ti-competitive effects of the information 
exchange in the framework of Article 81(3)  of the Treaty. In this context, it is 
important to note that one of  the conditions of Article 81( 3) is that consumers should 
receive a fair share of the benefits generate d by the restrictive agreement. If all four 
cumulative conditions set out in Article 81(3)  are fulfilled, the prohibition of Article 
81(1) does not apply (
52). 
3.2.4. Trade associations  
59. In liner shipping, as in a ny other sector, discussions a nd exchanges of information 
can take place in a trade association provi ded the association is not used as (a) a 
forum for cartel meetings (53), (b) a structure that issues anti-competitive decisions or 
                                                 
52 Guidelines on the application of Article 81(3) of the Treaty, cited above in footnote 7. 
53  Commission Decision No 2004/421/EC of 16 December 2003 in Case COMP/38.240 – Industrial tubes , 
OJ L 125, 28.4.2004, p. 50. 
 
EN 14   EN recommendations to its members (54) or (c) a means of exchanging information that 
reduces or removes the degree of uncertainty  as to the operation of the market with 
the result that competition between undertakings is restricted while not fulfilling the Article 81(3) conditions (
55). This should be distinguish ed from the discussions that 
are legitimately conducted within trade a ssociations, for example on technical and 
environmental standards. 
3.3. Pool agreements in tramp shipping 
60. The most recurrent form of horizontal cooper ation in the tramp shi pping sector is the 
shipping pool. There is no universal mode l for a pool. Some features do, however, 
appear to be common to most pools in th e different market segments as set out 
below.  
61. A standard shipping pool brings toge ther a number of similar vessels (56) under 
different ownership and operated under a single administration. A pool manager is 
normally responsible for the commercial ma nagement (for example, joint marketing 
(57), negotiation of freight rates and cent ralization of incomes and voyage costs (58)) 
and the commercial operation (planning vess el movements and instructing vessels, 
nominating agents in ports, keeping cu stomers updated, issuing freight invoices, 
ordering bunkers, collecting the vessels' earnings and di stributing them under a pre-
arranged weighting system etc.). The pool  manager often acts under the supervision 
of a general executive committee represen ting the vessel owners. The technical 
operation of vessels is usually the responsib ility of each owner (s afety, crew, repairs, 
maintenance etc.). Although they market th eir services jointly, the pool members 
often perform the services individually.  
62. It follows from this descript ion that the key feature of sta ndard shipping pools is joint 
selling, coupled with features of joint production. The guidance on both joint selling, 
as a variant of a joint commercialisation agreement, and joint production in the 
Commission Guidelines on the applicability of  Article 81 of the Treaty to horizontal 
cooperation agreements (59) is therefore relevant. Gi ven the variation in pools' 
characteristics, each pool must be analysed  on a case-by-case basis to determine, by 
reference to its centre of gravity (60), whether it is caught by Article 81(1) and, in the 
affirmative, if it fulfils the four cu mulative conditions of Article 81(3).  
                                                 
54  Commission Decision No. 82/8 96/EEC of 15 December 1982 in Case IV/29.883 – AROW/BNIC , OJ L 
379, 31.12.1982, p. 1; Commission Decision No. 96/438/EC of 5 June 1996 in Case IV/34.983 – Fenex , 
OJ L 181, 20.07.1996, p. 28. 
55  Commission Decision No. 92/157/EEC ( UK Agricultural Tractor Registration Exchange ), cited above 
in footnote 50. 
56 This results in the pool being able to attract larg e contracts of affeightment, combine various contracts 
of affeightment and reduce the number of ballast legs by careful fleet planning. 
57 For example, the pool's vessels are marketed as one commercial unit offering transport solutions 
regardless of which ship performs the actual voyage.  
58 For example, the pool's income is collected by th e central administration and revenue is distributed to 
the participants based on a complex weighting system.  
59 Respectively in section 5 and section 3 of the Guidelines, cited above in footnote 6. 
60  Guidelines on Horizontal Cooperation Agreements, cited above in footnote 6, paragraph 12. 
 
EN 15   EN 63. Pools that fall within  the scope of Council Re gulation (EC) No 139/2004 (61) because 
they are created as a joint venture perfor ming on a lasting basis all the functions of 
an autonomous economic entity (so called fu ll-function joint ventures, see Art. 3(4) 
of Council Regulation (EC) No  139/2004) are not directly affected by the changes 
brought about by Regulation (EC) No 1419/ 2006 and are not dealt with in these 
Guidelines. Guidance on full-functionali ty can be found, inter alia, in the 
Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 
139/2004 on the control of concentr ations between undertakings (62). Insofar as such 
pools have as their object or effect the c oordination of the competitive behaviour of 
their parents, the coordination shall be ap praised in accordance with the criteria of 
Article 81(1) and (3) EC of the Treaty with a view to establishing whether or not the 
operation is compatible with the common market (63). 
3.3.1. Pools that do not fall under Article 81(1) of the Treaty  
64. Pool agreements do not fall under the prohibiti on of Article 81(1) of  the Treaty if the 
participants to the pool are not actual or  potential competitors. This would be the 
case, for instance, when two or more sh ip-owners set up a shipping pool for the 
purpose of tendering for and performing cont racts of affreightment for which as 
individual operators they could not bid succe ssfully or which they could not carry out 
on their own. This conclusion is not i nvalidated in cases where such pools 
occasionally carry other cargo representing a small part of the overall volume.  
65. Pools whose activity does not influence the relevant parameters of competition 
because they are of minor importance and/or  do not appreciably affect trade between 
Member States (64), are not caught by Article  81(1) of the Treaty.  
3.3.2. Pools that generally fall under Article 81(1) of the Treaty  
66. Pool agreements between competitors limited to joint selling have as a rule the object 
and effect of coordinating the pric ing policy of these competitors (65).  
3.3.3. Pools that may fall under Article 81(1) of the Treaty  
67. If the pool does not have as its object a rest riction of competition, an analysis of its 
effects in the market concerned is necessa ry. An agreement is caught by Article 81 
(1) of the Treaty when it is likely to have an appreciable adverse impact on the parameters of competition on the market such as prices, costs, service differentiation, 
service quality, and innovati on. Agreements can have th is effect by appreciably 
reducing rivalry between the parties to the agreement or between them and third 
parties (
66). 
                                                 
61 Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the EC 
Merger Regulation), OJ L 24, 29.1.2004, p. 1. 
62 OJ C 95, 16.4.2008, p. 1. 
63 Article 2(4) of Council Regulation (EC) No 139/2004. 
64 Commission Notice on agreements of minor importance which do not appreciably  restrict competition 
under Article 81(1) of the Treaty, OJ C 368, 22.12.200 1, p. 13 and Guidelines on the effect on trade 
concept, cited above in footnote 13 . 
65 Guidelines on Horizontal Cooperation Agreements, cited above in footnote 6, section 5. The activities 
of an independent ship-broker when "fixing a vessel" do not fall under this category. 
66 Guidelines on the application of Article 81(3), cited above in footnote 7. 
 
EN 16   EN 68. Some tramp shipping pools do not involve joint selling but nevertheless entail some 
degree of coordination on th e parameters of competition (e.g. joint scheduling or 
joint purchasing). Such cases are only subject to Article 81(1) of the Treaty if the 
parties to the agreement have some degree of market power (67). 
69. The pool's ability to cause appreciabl e negative market effects depends on the 
economic context, taking into account the parties' combined market power and the 
nature of the agreement togeth er with other structural fact ors in the relevant market. 
It must also be considered whether the pool agreement affects the behaviour of the 
parties in neighbouring markets closely relate d to the market directly affected by the 
cooperation (68). This may be the case for example where the pool's market is that for 
the transport of forest produc ts in specialised box shaped vessels (market A) and the 
pool's members also operate ships in  the dry bulk market (market B).  
70. Concerning the structural factors in the re levant market, if the pool has a low market 
share, it is unlikely to produce restrictive effects. Market con centration, the position 
and number of competitors, the stability  of market shares over time, multi-
membership in pools, market entry barri ers and the likelihood of entry, market 
transparency, countervailing buying power of transport users and the nature of the 
services (for example, homogenous versus differentiated services) should be taken 
into account as additional factors in assessing the imp act of a given pool on the 
relevant market. 
71. With regard to the nature of the agreement, consideration should be given to clauses 
affecting the pool or its members' competitive behaviour in the market such as clauses prohibiting members from being activ e in the same market outside the pool  
(non-compete clauses), lock-in periods and notice periods (exit clauses) and 
exchanges of commercially sensitive info rmation. Any links between pools, whether 
in terms of management or members as we ll as cost and revenue  sharing should also 
be considered. 
3.3.4. Applicability of Article 81(3) of the Treaty 
72. Where pools are caught by Article 81(1) of the Treaty, the undertakings involved 
need to ensure that they fulfil the four cumulative c onditions of Article 81(3) (
69). 
Article 81(3) does not exclude a priori certai n types of agreements  from its scope. As 
a matter of principle all restrictive agreements that fulfil the four conditions of Article 81(3) are covered by the exception ru le. This analysis incorporates a sliding 
scale. The greater the restriction of competition found under Article 81(1), the 
greater the efficiencies and the pass-on to consumers must be. 
73. It is up to the undertakings involved to demons trate that the pool improves the 
transport services or promotes technical  or economic progress in the form of 
efficiency gains. The effici encies generated cannot be cost savings that are an 
inherent part of the reduction of competition but must result from the integration of economic activities.  
74. Efficiency gains of pools may for instance  result from obtaining better utilisation 
rates and economies of scale. Tramp shi pping pools typically jointly plan vessel 
movements in order to spread their fl eets geographically. Spreading vessels may 
                                                
 
67  Guidelines on Horizontal Cooperation Agreements, cited above in footnote 6, paragraph 149. 
68 Guidelines on Horizontal Cooperation Agreements, cited above in footnote 6, paragraph 142. 
69  Guidelines on the application of Article 81(3), cited above in footnote 7. 
 
EN 17   EN reduce the number of ballast voyages which may increase the overall capacity 
utilisation of the pool and eventua lly lead to economies of scale. 
75. Consumers must receive a fair share of the efficiencies generated. Under Article 
81(3) of the Treaty, it is the beneficial eff ects on all consumers in the relevant market 
that must be taken into consideration, not the effect on each individual consumer (70). 
The pass-on of benefits must at least compensate consumers for any actual or 
potential negative impact caused to them  by the restriction of competition under 
Article 81(1) (71). To assess the likelihood of a pass-on the stru cture of tramp 
shipping markets and the elasticity of dema nd should also be considered in this 
context. 
76. A pool must not impose restrictions that ar e not indispensable to the attainment of 
the efficiencies. In this respect it is n ecessary to examine whether the parties could 
have achieved the efficiencies on their own. In making this assessment it is relevant 
to consider, inter alia , what is the minimum efficient scale to provide various types 
of services in tramp shipping. In addition, each restrictive clause contained in a pool 
agreement must be reasonably necessary to attain the claimed efficiencies. 
Restrictive clauses may be ju stified for a longer period or the whole life of the pool 
or for a transitional period only. 
77. Lastly, the pool must not afford the part ies the possibility of eliminating competition 
in respect of a substantial part  of the services in question.  
                                                 
70  Judgment in Asnef-Equifax  v Ausbanc , cited above in footnote 38, paragraph 70. 
71  Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 24.