Judgment of the Court of First Instance (Third Chamber) of 28 February 2002. - Compagnie générale maritime and Others v Commission of the European Communities. - Competition - Liner conferences - Intermodal transport - Regulation (EEC) No 4056/86 - Scope - Block exemption - Regulation No 1017/68 - Individual exemption - Fine. - Case T-86/95.



European Court reports 2002 Page II-01011



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1. Competition - Agreements, decisions and concerted practices - Relevant market - Delimitation - Criteria - Intermodal transport - Sub-market in services for the inland transport of sea containers and the market in maritime transport services in general

(EC Treaty, Art. 85 (now Art. 81 EC))

2. Competition - Agreements, decisions and concerted practices - Prejudicial to competition - Appreciable extent - Criteria - Market share

(EC Treaty, Art. 85 (now Art. 81 EC))

3. Competition - Agreements, decisions and concerted practices - Effect on trade between Member States - Criteria

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

4. Competition - Transport - Agreements, decisions and concerted practices - Effect on trade between Member States - Agreement between shipping lines relating to the conditions for the sale of inland transport services to shippers established in different Member States - Intermodal transport

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

5. Competition - Maritime transport - Regulation No 4056/86 - Scope - International maritime transport

(Council Regulation No 4056/86, Art. 1, second para.)

6. Competition - Maritime transport - Regulation No 4056/86 - Block exemption - Strict interpretation - Whether an agreement between shipping lines setting inland transport rates as part of intermodal transport is inapplicable

(EC Treaty, Art. 85(1) and (3) (now Art. 81(1) and (3) EC); Council Regulation No 4056/86, Art. 3)

7. Competition - Transport - Agreements, decisions and concerted practices - Determination of the applicable regulation - Criteria - Agreement between shipping lines setting inland transport rates as part of intermodal transport - Application of Regulation No 1017/68

(Council Regulations Nos 1017/68 and 4056/86)

8. Actions for annulment - Commission decision refusing to grant individual exemption - Complex economic appraisal - Judicial review - Limits - Agreement implemented over a long period

(EC Treaty, Art. 85(3) (now Art. 81(3) EC), and Art. 173 (now, after amendment, Art. 230 EC))

9. Competition - Community rules - Application pursuant to the national practices of the Member States or of certain non-member States - Whether lawful

(EC Treaty, Art. 85 (now Art. 81 EC))

10. Competition - Transport - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Economic benefits arising from the agreement - Assessment criteria - Agreement between shipping lines setting inland transport rates as part of intermodal transport

(EC Treaty, Art. 85(3) (now Art. 81(3) EC); Council Regulation No 1017/68, Art. 5)

11. Competition - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Cumulative nature

(EC Treaty, Art. 85(3) (now Art. 81(3) EC))

12. Competition - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Reservation of a fair share of the benefit to the users

(EC Treaty, Art. 85(3) (now Art. 81(3) EC); Council Regulation No 1017/68, Art. 5)

13. Competition - Agreements, decisions and concerted practices - Prohibition - Exemption - Obligation of the undertaking to establish the merits of its application

(EC Treaty, Art. 85(3) (now Art. 81(3) EC))

14. Competition - Maritime transport - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Restrictions on competition which are indispensable - No such restrictions - Agreement between shipping lines setting inland transport rates as part of intermodal transport - Justification derived from the objective of price stability for maritime transport - Whether unlawful

(EC Treaty, Art. 85(3) (now Art. 81(3) EC); Council Regulation No 4056/86, Art. 3(e))

15. Competition - Administrative procedure - Statement of objections - Necessary content - Observance of the rights of the defence

(Commission Regulation No 1630/69, Art. 4)

16. Competition - Administrative procedure - Observance of the rights of the defence - Right of the parties involved to express an opinion regarding the way in which their own arguments have been taken into account - No such right

17. Competition - Administrative procedure - Hearings - Absence of the counsel of one of the undertakings involved - Breach of rights of defence - No breach

18. Competition - Administrative procedure - Hearings - Hearing of certain persons - Persons not party to the proceedings - Commission's discretion

(Commission Regulation No 1630/69, Arts 7(2) and 9(3))

19. Competition - Community rules - Infringements - Intentional commission - Meaning

20. Competition - Fines - Principle of equal treatment - Effect where another trader has not been penalised - Unlimited jurisdiction of the Court of First Instance

Summary

1. The reason for defining the relevant market is to determine whether an agreement is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market.

In order to be considered a sufficiently distinct market, it must be possible to distinguish the service or the goods in question by virtue of particular characteristics that so differentiate them from other services or other goods that it is only to a small degree interchangeable with those alternatives and affected by competition from them. The degree of interchangeability between goods must be assessed in terms of their objective characteristics, as well as the structure of supply and demand on the market, and competitive conditions.

In that regard, the inland transport services for the on-carriage and off-carriage of containers as part of intermodal transport constitute a related but distinct market from maritime transport services supplied in that context by the member shipping companies of a liner conference.

Once there is a specific supply and demand for the inland transport of maritime containers and those services are provided, inter alia, by undertakings which are independent of the shipping companies, there is necessarily a separate market.

A sub-market which has specific characteristics from the point of view of demand and supply, and which offers products which occupy an essential and non-interchangeable place in the general market of which it forms part, must be considered to be a distinct product market.

( see paras 116, 122, 128-129 )

2. The fact that undertakings hold almost 40% of the relevant market is sufficient proof that the agreement which is the subject of a decision finding an infringement of the competition rules is such as to restrict competition to an appreciable extent on that market. A market share of that size cannot reasonably be considered to be insignificant.

( see para. 138 )

3. For an agreement between undertakings to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective circumstances of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market between the Member States. In particular, it is not necessary that the conduct in question should in fact have substantially affected trade between Member States. It is sufficient to establish that the conduct is capable of having such an effect.

( see para. 145 )

4. An agreement between shipping companies, several of which are established in various Member States, concerning the conditions of sale of inland transport services to shippers also established in various Member States, is clearly capable of affecting trade between Member States within the meaning of Article 85(1) of the Treaty (now Article 81(1) EC).

Fixing prices for the sale of inland transport services may affect, inter alia, the shipper's decision whether to entrust the inland haulage of their containers to members of a liner conference or to an inland carrier, thereby distorting competition on the market for inland transport services between member shipping companies of the conference and inland carriers present in various Member States.

In the same way, fixing the price of inland transport can also influence competition between the ports of the various Member States. The very purpose of fixing those prices on the basis of a notional transport operation, as part of a system of port equalisation between an inland point and the nearest of the ports served by any of the members of the liner conference, is to neutralise the economic advantage that may arise from the fact that the distance to a given port is shorter.

Finally, although more indirectly, the agreement in question is, at the very least, capable of having an effect on trade between Member States in that as the price of inland transport services fixed by the members of the liner conference represent part of the final sale price of the goods transported.

( see paras 146-148 )

5. The scope of Regulation No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport is limited to maritime transport services properly so called, that is, to transport by sea from or to one or more Community ports and does not cover the inland on- or off-carriage of cargo supplied in combination with other services as part of an intermodal transport operation.

( see para. 241 )

6. Having regard to the general principle laid down by Article 85(1) of the Treaty (now Article 81(1) EC) that agreements restricting competition are prohibited, provisions derogating therefrom in a regulation concerning exemption must, by their nature, be strictly interpreted. This must also apply to the provisions of Regulation No 4056/86 exempting certain agreements from the prohibition laid down in Article 85(1) of the Treaty, since Article 3 of the regulation constitutes a block exemption within the meaning of Article 85(3) of the Treaty.

Having regard to the wholly exceptional nature of the block exemption provided for by Article 3 of Regulation No 4056/86, in that it provides for exemption for an unlimited period for horizontal agreements fixing prices for maritime transport services, there is still less reason to extend the benefit of that block exemption to agreements fixing the price of inland transport concluded between the members of a liner conference.

It is thus clear both from the travaux préparatoires of Regulation No 4056/86 and the Council declaration of 17 December 1991 that the block exemption provided for by Article 3 of that regulation cannot apply to an agreement fixing the price of inland transport services, consisting of the on- or off-carriage of cargo, provided with other services as part of an intermodal transport operation concluded between the members of a liner conference.

( see paras 252, 254, 257 )

7. For the purposes of determining which regulation applies to a particular agreement, that agreement must be considered in light of the provisions setting out the scope of the various regulations concerned and should not be based solely on the sector in which the undertaking providing the service or product governed by the agreement operates.

An agreement fixing the price of inland transport services manifestly does not fall within the scope of Regulation No 4056/86 relating to maritime transport, even if entered into and performed by shipping companies as part of intermodal transport services.

Such an agreement must be assessed in the light of the provisions of Regulation No 1017/68 applying rules of competition to transport by rail, road and inland waterway.

( see paras 260, 276 )

8. In an action for annulment pursuant to Article 173 of the Treaty (now, after amendment, Article 230 EC), the review undertaken by the Court of the complex economic appraisals made by the Commission when it exercises the power of discretion conferred on it by Article 85(3) of the Treaty (now Article 81(3) EC), with regard to each of the four conditions laid down in that provision, must be limited to verifying whether the rules of procedure and on the giving of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers.

The fact that an agreement was openly implemented by its members over a long period cannot alter the Court's power of judicial review; nor is it specifically relevant to the determination of whether the agreement meets the conditions required for the grant of individual exemption. At the very most it might, in an appropriate case, be taken into consideration in considering whether the sanction imposed was justified and proportionate.

( see paras 339-340 )

9. National practices, even if common to all the Member States, cannot be allowed to prevail in the application of the competition rules set out in the Treaty. A fortiori, the practices of certain non-member States cannot dictate the application of Community law.

( see para. 341 )

10. For the purposes of examining the merits of the Commission's findings as to the various requirements of Article 85(3) of the Treaty (now Article 81(3) EC) and Article 5 of Regulation No 1017/68, regard should naturally be had to the advantages arising from the agreement in question, not only for the relevant market, namely that for inland transport services provided as part of intermodal transport, but also, in appropriate cases, for every other market on which the agreement in question might have beneficial effects, and even, in a more general sense, for any service the quality or efficiency of which might be improved by the existence of that agreement. Both Article 5 of Regulation No 1017/68 and Article 85(3) of the Treaty envisage exemption in favour of, amongst others, agreements which contribute to promoting technical or economic progress, without requiring a specific link with the relevant market.

( see para. 343 )

11. The four conditions for the grant of an exemption under Article 85(3) of the Treaty (now Article 81(3) EC) are concurrent, so that the non-fulfilment of any one of those conditions means that the exemption will be refused.

( see paras 349, 367 )

12. The Commission was entitled to infer from the large number of complaints from users that the relevant agreement does not take fair account of their interests and therefore does not reserve a fair share of the benefit to users as required by Article 85(3) of the Treaty (now Article 81(3) EC) and by Article 5 of Regulation No 1017/68.

( see paras 371, 374 )

13. It is for the undertakings claiming an exemption under Article 85(3) of the Treaty (now Article 81(3) EC) to provide documentary evidence to establish the justification for an exemption. In particular, it is for those undertakings to show that the restrictions of competition arising from the agreement in question meet the objectives referred to by that provision and that those objectives could not be attained without the introduction of those restrictions.

( see paras 381, 384 )

14. An agreement between the members of a liner conference fixing the rates of inland transport services as part of intermodal transport, entails restrictions of competition that are not only extremely serious, but are, above all, not indispensable for attaining the objective of stability of maritime transport rates, alleged by the lines party to the agreement.

Regulation No 4056/86 provides for measures, covered by the block exemption, which may be adopted to ensure the stability of maritime transport services. Consequently, it is for the companies concerned to make use, as a matter of priority, of the options provided for by the Community rules, in particular that in Article 3(e) of Regulation No 4056/86. The arguments seeking to show that those measures are more restrictive than the contested agreement cannot succeed. If a measure is exempted by a Council regulation, it is irrelevant to ask whether it is more or less restrictive for the purposes of Article 85(3) of the Treaty (now Article 81(3) EC). The Commission was therefore entitled to consider that the restrictions of competition in question are not indispensable given the existence of the measures laid down by Article 3 of Regulation No 4056/86.

( see paras 396-397 )

15. The statement of objections must be couched in terms that, even if succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission. It is only on that basis that the statement of objections can fulfil its function under the Community regulations of giving undertakings all the information necessary to enable them properly to defend themselves, before the Commission adopts a final decision. That obligation is satisfied if the decision does not allege that the persons concerned have committed infringements other than those referred to in the notice of complaints and only takes into consideration facts on which the persons concerned have had the opportunity of making known their views. The final decision of the Commission is not, however, necessarily required to be a replica of the statement of objections.

( see para. 442 )

16. The fact that an argument put forward by the undertakings during the administrative procedure for infringement of the competition rules was taken into account without their having been given the opportunity to give their views thereon before the adoption of the final decision is not sufficient to constitute a breach of their rights of defence, where consideration of the argument does not alter the nature of the complaints against it. The undertakings concerned had the opportunity to express their view on the Commission's position in the statement of objections and they could therefore expect that their own explanations would lead the Commission to alter its opinion.

( see para. 447 )

17. Whilst the Commission may not prevent an undertaking from being represented by a lawyer or other independent counsel of its choice, it cannot be criticised, in the context of infringement proceedings involving 14 separate undertakings, for not having taken account when arranging the hearing of the practical needs of each undertaking. It is primarily the responsibility of those undertakings to take the measures appropriate to ensure the best defence of their interests. Accordingly, the mere fact that the counsel of one of the undertakings concerned could not attend one or other of the hearings arranged by the Commission cannot be considered to breach the rights of the defence of the undertaking concerned, still less of all the undertakings.

( see para. 466 )

18. It is clear from Articles 7(2) and 9(3) of Regulation No 1630/69 that the Commission enjoys a reasonable margin of discretion to decide how expedient it may be to hear persons whose evidence may be relevant to the inquiry, so that in this case the Commission is entitled to hear from third parties who had not previously lodged a complaint or written observations during the administrative procedure.

( see para. 468 )

19. It is not necessary for an undertaking to have been aware that it was infringing the rules of competition laid down in the Treaty for an infringement to be regarded as having been committed intentionally; it is sufficient that it could not have been unaware that the contested conduct had as its object the restriction of competition.

( see para. 479 )

20. The fact that the Commission has not imposed a fine on the perpetrator of a breach of the competition rules cannot in itself prevent a fine from being imposed on the perpetrator of a similar infringement. The principle of equality of treatment cannot be invoked where there is illegality.

However, in the exercise of its unlimited jurisdiction, the Court of First Instance may consider that there is justification for not imposing a fine on shipping lines party to an agreement fixing inland transport rates as part of intermodal transport since, in another decision, which was adopted very shortly before the contested decision, the Commission did not impose a fine on the lines party to another agreement which also fixed the price of the inland part of intermodal transport, and also contained other serious infringements of the competition rules.

( see paras 487-488 )

Parties

In Case T-86/95,

Compagnie Générale Maritime, established in Suresnes (France),

Hapag-Lloyd Aktiengesellschaft, established in Hamburg (Germany),

Kawasaki Kisen Kaisha Limited, established in Tokyo (Japan), Lloyd Triestino di Navigazione SpA, established in Trieste (Italy),

AP Møller-Mærsk Line, established in Copenhagen (Denmark),

Malaysian International Shipping Corporation Berhad, established in Kuala Lumpur (Malaysia),

Mitsui OSK Lines Ltd, established in Tokyo,

Nedlloyd Lijnen BV, established in Rotterdam (the Netherlands),

Neptune Orient Lines Ltd, established in Singapore (Singapore),

Nippon Yusen Kabushiki Kaisha, established in Tokyo,

Orient Overseas Container Line, established in Hong Kong (China),

P & O Containers Ltd, established in London (United Kingdom),

Wilh. Wilhemsen Ltd A/S, established in Oslo (Norway),

represented by P. Ruttley, Solicitor, J. Pheasant and A. Mariott, lawyers, with an address for service in Luxembourg,

applicants,

supported by

The European Community Shipowners' Associations, having their registered office in Brussels (Belgium), represented by D. Waelbroeck, lawyer, with an address for service in Luxembourg,

and

The Japanese Shipowners' Association, having its registered office in Tokyo, represented by F. Randolph, Barrister, and F. Murphy, Solicitor, with an address for service in Luxembourg,

interveners,

v

Commission of the European Communities, represented by B. Langeheine and R. Lyal, acting as Agents, with an address for service in Luxembourg ,

defendant,

supported by

The European Council of Transport Users ASBL, having its registered office in Brussels, including The European Shippers' Council, represented by M. Clough, Barrister, with an address for service in Luxembourg,

intervener,

APPLICATION for annulment of Commission Decision 94/985/EC of 21 December 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/33.218 - Far Eastern Freight Conference) (OJ 1994 L 378, p. 17),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(Third Chamber),

composed of: K. Lenaerts, President, J. Azizi and M. Jaeger, Judges,

Registrar: Y. Mottard, Legal Secretary,

having regard to the written procedure and further to the hearing on 7 June 2000,

gives the following

Judgment (1)

Grounds

Legal background

1 Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4) provides for block exemption for liner conferences. The eighth recital of the preamble to that regulation is worded as follows:

... provision should be made for block exemption of liner conferences: ... liner conferences have a stabilising effect, assuring shippers of reliable services: ... they contribute generally to providing adequate efficient scheduled maritime transport services and give fair consideration to the interests of users; ... such results cannot be obtained without the cooperation that shipping companies promote within conferences in relation to rates and, where appropriate, availability of capacity or allocation of cargo for shipment, and income: ... in most cases conferences continue to be subject to effective competition from both non-conference scheduled services and, in certain circumstances, from tramp services and from other modes of transport; ... the mobility of fleets, which is a characteristic feature of the structure of availability in the shipping field, subjects conferences 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'.

2 Pursuant to Article 1(2) of Regulation No 4056/86, that regulation only applies to international maritime transport services from or to one or more Community ports, other than tramp vessel services, that is the transport of goods in bulk in vessels chartered on request. Article 1(3)(b) of Regulation No 4056/86 defines a `liner conference' in the following terms:

`... a group of two or more vessel-operating carriers which provides international liner services for the carriage of cargo on a particular route or routes within specified geographical limits and which has an agreement or arrangement, whatever its nature, within the framework of which they operate under uniform or common freight rates and any other agreed conditions with respect to the provision of liner services'.

3 Article 3 of Regulation No 4056/86 exempts from the prohibition laid down in Article 85(1) of the EC Treaty (now Article 81(1) EC) agreements which have as their objective the fixing of rates and conditions for the provision of scheduled maritime transport services. The exemption extends to agreements having one or more of the following objectives:

`(a) the coordination of shipping timetables, sailing dates or dates of call;

(b) the determination of the frequency of sailings or calls;

(c) the coordination or allocation of sailings or calls among members of the conference;

(d) the regulation of the carrying capacity offered by each member;

(e) the allocation of cargo or revenue among members.'

4 Under Article 23(1) of Regulation No 4056/86, the Commission is required, before taking a decision, to give the undertakings or associations of undertakings concerned an opportunity of being heard on the matters to which objection has been taken against them. Commission Regulation No 4260/88 of 16 December 1988 on the communications, complaints and applications and the hearings provided for in Council Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1988 L 376, p. 1), in force at the time of the facts, lays down the procedural requirements to be complied with at the hearing.

5 Article 1 of Council Regulation No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302) provides:

`The provisions of this Regulation shall, in the field of transport by rail, road and inland waterway, apply both to all agreements, decisions and concerted practices which have as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport, the sharing of transport markets, the application of technical improvements or technical co-operation, or the joint financing or acquisition of transport equipment or supplies where such operations are directly related to the provision of transport services and are necessary for the joint operation of services by a grouping within the meaning of Article 4 of road or inland waterway transport undertakings, and to the abuse of a dominant position on the transport market. These provisions shall apply also to operations of providers of services ancillary to transport which have any of the objects or effects listed above.'

6 Article 2(a) of Regulation No 1017/68 provides:

`Subject to the provisions of Articles 3 to 6, the following shall be prohibited as incompatible with the common market, no prior decision to that effect being required: all agreements between undertakings, decisions by associations of undertakings and concerted practices liable to affect trade between Member States which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which:

(a) directly or indirectly fix transport rates and conditions or any other trading conditions;

...' .

7 Article 5 of Regulation No 1017/68 provides as follows:

`The prohibition in Article 2 may be declared inapplicable with retroactive effect to:

- any agreement or category of agreement between undertakings,

- any decision or category of decision of an association of undertakings, or

- any concerted practice or category of concerted practice which contributes towards:

- improving the quality of transport services; or

- promoting greater continuity and stability in the satisfaction of transport needs on markets where supply and demand are subject to considerable temporal fluctuation; or

- increasing the productivity of undertakings; or

- furthering technical or economic progress;

and at the same time takes fair account of the interests of transport users and neither:

(a) imposes on the transport undertakings concerned any restriction not essential to the attainment of the above objectives; nor

(b) makes it possible for such undertakings to eliminate competition in respect of a substantial part of the transport market concerned.'

8 Under Article 11(4) of Regulation No 1017/68: `If the Commission, whether acting on a complaint received or on its own initiative, concludes that an agreement, decision or concerted practice satisfies the provisions both of Article 2 and of Article 5, it shall issue a decision applying Article 5. Such decision shall indicate the date from which it is to take effect. This date may be prior to that of the decision.'

9 Pursuant to Article 22(2) of Regulation No 1017/68, the Commission may impose fines on undertakings or associations of undertakings where either intentionally or negligently they infringe, inter alia, Article 2 of that regulation.

10 Article 26(1) of Regulation No 1017/68 provides that before taking a decision the Commission must give the undertakings or associations of undertakings concerned the opportunity of being heard on the matters to which objection has been taken. Commission Regulation No 1630/69 of 8 August 1969 on the hearings provided for in Article 26(1) and (2) of Council Regulation (EEC) No 1017/68 of 19 July 1968 (OJ, English Special Edition 1969 (II), p. 381) sets out the procedural requirements to be complied with at that hearing.

Facts

11 The Far Eastern Freight Conference (`the FEFC') is an association of liner shipping conferences comprising a number of shipping lines which provide scheduled services shipping containers between northern Europe and South-East and East Asia, and `door-to-door' or intermodal transport services.

12 The member companies of the FEFC agreed on a common tariff in addition to the general conditions of entry. In order to take account of intermodal transport, in about 1971, when the use of containers first started, the member companies extended the powers of the FEFC to fix prices in the sectors of maritime transport and cargo handling in the port of loading or unloading to that of inland transport.

13 The FEFC's tariff applicable at the material time appears in a document entitled NT90 which came into force on 1 January 1990. It sets out the general conditions of carriage, including payment terms, and is divided into five parts, two of which deal with the inland portions of intermodal transport operations (that is, inland transport in the countries of origin and destination).

14 On 28 April 1989 the Commission received a complaint from the Bundesverband der Deutschen Industrie (BDI), the Deutscher Industrie- und Handelstag (DIHT) and the Bundesverband des Deutschen Gross- und Aussenhandels (BGA), the sponsoring organisations of the Deutsche Seeverladerkomitee (DSVK, or German Shippers' Council), concerning certain price-fixing activities of the members of the FEFC in relation to intermodal transport.

15 The complainants identified the following five activities as making up an intermodal transport service:

(a) inland transport to the port;

(b) cargo handling in the port (transfer from the mode of inland transport to the vessel);

(c) sea transport (maritime transport from the port of origin to the port of destination);

(d) cargo handling in the port of destination (transfer from the vessel to the mode of inland transport);

(e) inland transport from the port of destination to the place of final destination.

16 They claimed that the block exemption provided for in Article 3 of Regulation No 4056/86 covered only the third of those five elements, (sea transport itself), but that the members of the FEFC had agreed between themselves prices not only for sea transport but also for inland transport services and cargo handling operations.

17 They pointed out that, since Article 1(2) of Regulation No 4056/86 applies to `international maritime transport services from or to one or more Community ports, other than tramp vessel services', the scope of the block exemption contained in Article 3 thereof could not be wider than the scope of the regulation itself. In their opinion, the applicable regulation in the present case is Regulation No 1017/68, Article 2 of which prohibits restrictive practices - including price-fixing - and does not provide exemption for the type of price-fixing for inland transport in which the members of the FEFC engaged.

18 They requested the Commission to take appropriate action in order to put an end to the price-fixing activities of the FEFC in respect of inland transport services.

19 On 18 December 1992 the Commission decided to initiate proceedings in the present case.

20 By letter of 21 December 1992 the Commission addressed a statement of objections to the applicants.

21 The Commission then gave the undertakings concerned the opportunity to make known their views on the objections it had raised and to make any other comments in accordance with Article 26(1) of Regulation No 1017/68 and the provisions of Regulation No 1630/69.

22 On 21 December 1994 the Commission adopted Decision 94/985/EC relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/33.218 - Far Eastern Freight Conference) (OJ 1994 L 378, p. 17, `the contested decision').

23 The operative part of the contested decision is as follows:

`Article 1

The members of the Far Eastern Freight Conference ... have infringed the provisions of Article 85 of the EC Treaty and Article 2 of Regulation (EEC) No 1017/68 by agreeing prices for inland transport services supplied within the territory of the European Community to shippers in combination with other services as part of a multimodal transport operation for the carriage of containerised cargo between northern Europe and the Far East.

Article 2

The conditions of Article 5 of Regulation (EEC) No 1017/68 are not fulfilled.

Article 3

The members of the Far Eastern Freight Conference ... are hereby required to put an end to the infringement referred to in Article 1.

Article 4

The undertakings to whom this decision is addressed are hereby required to refrain in future from any agreement or concerted practice having the same or a similar object or effect [as] the agreement referred to in Article 1.

Article 5

Fines as set out below are hereby imposed on the undertakings to whom this decision is addressed in respect of the infringement of the provisions of Article 85 of the EC Treaty and Article 2 of Regulation (EEC) No 1017/68 referred to in Article 1.

Compagnie Générale Maritime ECU 10 000 Hapag-Lloyd Aktiengesellschaft ECU 10 000 Croatia Line ECU 10 000 Kawasaki Kisen Kaisha Limited ECU 10 000 Lloyd Triestino di Navigazione SpA ECU 10 000 AP Møller-Mærsk Line ECU 10 000 Malaysian International Shipping Corporation Berhad ECU 10 000 Mitsui OSK Lines Ltd ECU 10 000 Nedlloyd Lijnen BV ECU 10 000 Neptune Orient Lines Ltd ECU 10 000 Nippon Yusen Kabushiki Kaisha ECU 10 000 Orient Overseas Container Line ECU 10 000 P & O Containers Ltd ECU 10 000

Article 6

The fines imposed in Article 5 shall be paid, in ecus, within three months of the date of notification of this decision, into bank account No 310-0933000-43 of the Commission of the European Communities, Banque Bruxelles Lambert, Agence Européenne, Rond-point Schumann 5, B-1040 Brussels.

After expiry of that period, interest shall be automatically payable on the fine at the rate charged by the European Monetary Institute for transactions in ecus on the first working day of the month in which this decision is adopted, plus 3.5 percentage points, namely 9.25%.

Article 7

This decision is addressed to the undertakings listed in the Annex.

This decision shall be enforceable pursuant to Article 192 of the EC Treaty.'

Procedure

24 On 16 March 1995, 13 of the 14 shipping companies to which the contested decision was addressed lodged an application for annulment of that decision under Article 173 of the EC Treaty (now, after amendment, Article 230 EC).

25 By separate document dated 10 April 1995 they also applied for the suspension of the operation of the contested decision, pursuant to Articles 185 and 186 of the EC Treaty (now Articles 242 EC and 243 EC). In light of the order of the President of the Court of Justice of 19 July 1995 in Case C-149/95 P(R), the parties agreed that the Commission would not pursue the enforcement of the prohibition on the collective fixing of service rates for inland transport agreed by the applicants, pending judgment of the Court of First Instance in either Case T-395/94 or in the present case. In those circumstances the President of the Court of First Instance, on the application of the parties, decided on 31 October 1995 to suspend the application for interim measures until the delivery of judgment in either Case T-395/94 Atlantic Container Line and Others v Commission or in the present case, whichever is the earlier.

26 By order of 12 December 1995 the President of the Fifth Chamber (Extended Composition) of the Court of First Instance granted The European Community Shipowners' Associations ASBL (`the ECSA') and The Japanese Shipowners' Association (`the JSA') leave to intervene in support of the form of order sought by the applicants. He also granted The European Council of Transport Users ASBL (`the ECTU'), which includes The European Shippers' Council, leave to intervene in support of the form of order sought by the Commission.

27 On 30 October 1995 the High Court of Justice of England and Wales referred several questions to the Court of Justice for a preliminary ruling pursuant to Article 177 of the EC Treaty (now Article 234 EC), concerning, in particular, the application of Article 85 of the Treaty, and the interpretation of Regulations Nos 4056/86 and 1017/68 to agreements between shipping companies to fix freight rates for intermodal transport operations comprising inland and maritime segments (Case C-339/95 Compagnia di Navigazione Marittima and Others, OJ 1995 C 351, p. 4).

28 By order of 26 June 1996 (not published in the ECR) the Court of First Instance ordered, pursuant to the third paragraph of Article 47 of the EC Statute of the Court of Justice and Articles 77(a) and 78 of the Rules of Procedure of the Court of First Instance, that proceedings in the present case be stayed pending delivery of the judgment in Case C-339/95. Following the removal from the Register of Case C-339/95 by order of the President of the Court of Justice of 11 March 1998 (not published in the ECR), proceedings in the present case were resumed.

29 After reading the report of the Judge-Rapporteur, the Court of First Instance decided to open the oral procedure and invited the applicants to reply to certain written questions by way of measures of organisation of procedure.

30 The Court of First Instance heard the parties' oral arguments and replies to the Court's questions at the hearing on 7 June 2000.

Forms of order sought by the parties

31 The applicants, supported by the JSA and the ECSA, interveners, claim that the Court should:

- annul the contested decision;

- order the Commission to pay the costs.

32 The Commission, supported by the ECTU, contends that the Court should:

- dismiss the action;

- order the applicants to pay the costs.

Law

33 The applicants advance five pleas in support of their application. The first plea is breach of Article 85(1) of the Treaty. The second plea is breach of Article 3 of Regulation No 4056/86, which provides for block exemption. The third plea is breach of Article 85(3) of the Treaty and Article 5 of Regulation No 1017/68 concerning the grant of individual exemption. The fourth plea alleges that there were procedural irregularities in the administrative procedure. The fifth plea seeks the cancellation or reduction of the fines.

1. Preliminary observations

34 The applicants refer expressly to Cases T-395/94 and T-395/94 R and adopt the arguments they advanced in those cases for the purposes of the present case. As the Commission rightly remarked, such a global reference to the arguments advanced in another case cannot be taken into consideration. Under the first paragraph of Article 19 of the EC Statute of the Court of Justice, applicable to the Court of First Instance by virtue of the first paragraph of Article 46 of the same Statute, and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, an applicant must set out, at least in summary form, the pleas in law on which the application is based. The purpose of those provisions is to enable the defendant to prepare its defence and the Court to exercise its power of judicial review (see, in particular, Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraph 28, and Case T-85/92 de Hoe v Commission [1993] ECR II-523, paragraphs 20 to 22).

35 In the present case, the reference in the application (paragraph 1.37), `[i]n so far as applicable and necessary ... the arguments and evidence submitted ... in Cases T-395/94 and T-395/94 R to the extent that these relate to the issue of conference multimodal tariffing', is such a general reference to the arguments in Case T-395/94 that the Court of First Instance is not in a position to exercise its power of judicial review. That conclusion applies also in respect of the reference at paragraph 11.25 of the application to the arguments put forward in Case T-395/94 R, which are set out in summary form at paragraph 11.26 of the application. Accordingly the Court of First Instance will confine the exercise of its judicial review to the pleas and arguments expressly set out in the application.

2. The first plea: breach of Article 85(1) of the Treaty

Arguments of the parties

(a) Relevant market

[36 to 69]

(b) Appreciable restriction of competition

[70 to 82]

(c) Effect on trade between Member States

[83 to 109]

Findings of the Court

36 As regards the first plea, breach of Article 85(1) of the Treaty, it should be noted at the outset that the applicants do not deny that the agreement forming the subject of the contested decision, by which they collectively fixed the price for the FEFC's inland transport services supplied in the context of intermodal transport, is capable of restricting competition. It will be recalled in this respect that Article 85(1)(a) of the Treaty expressly identifies an agreement to fix selling prices as a restriction of competition (see, in particular, Case 8/72 Cementhandelaren v Commission [1972] ECR 977, paragraphs 18 and 19, and Case T-6/89 Enichem Anic v Commission [1991] ECR II-1623, paragraph 198).

37 They deny, however, that the agreement is capable of restricting competition and affecting trade between Member States to an appreciable extent in the relevant market, properly defined, and, accordingly, that it is prohibited by Article 85(1) of the Treaty. The applicants' primary complaint in that respect is that the Commission has not defined the relevant market in the contested decision. In the alternative they submit that the definition of the relevant market implicitly adopted by the Commission in the contested decision is wrong in that it assumes that the inland haulage of containers as part of intermodal transport arranged by the FEFC constitutes a market separate from that for maritime transport. Lastly, they repeat that if the transport services in question form part of an inland transport services market, that market should include all inland transport services.

(a) The definition of the relevant market

38 As regards the primary complaint, it should be noted that, contrary to the applicants' allegations, the Commission clearly identified, at recitals 10 and 42 of the contested decision, the inland transport services in question as being the market affected by the contested agreement. The Commission stated that the services to which the contested decision refers are inland transport services supplied, within the European Community, to shippers by the member shipping companies of the FEFC as part of the intermodal transport of cargo in containers between northern Europe and the Far East. Moreover, at recitals 12 to 37 of the contested decision, the Commission described those services in greater detail, identifying the economic operators involved on the supply and demand sides (recitals 16 to 27), together with the relevant conditions of competition, in particular as regards price (recitals 26, 28 and 30).

39 It follows that the Commission has set out the proper context in which the agreement in question was concluded and is intended to take effect, as well as the structure and operation of the services in question.

40 Furthermore, it is irrelevant that the Commission has not included in the contested decision a specific section dealing with the definition of the relevant market and headed as such.

41 Accordingly, the applicants' complaint that the relevant market was not defined in the contested decision must be rejected.

42 In any event, it should be borne in mind that, for the purposes of Article 85 of the Treaty, the reason for defining the relevant market when necessary is to determine whether an agreement is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market (Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, paragraph 230, and Joined Cases T-374/94, T-375/94, T-384/94 and T-388/94 European Night Services and Others v Commission [1998] ECR II-3141, paragraphs 93 to 95 and 103). Consequently, for the purposes of Article 85 the applicants' objections to the market definition adopted by the Commission cannot be seen in isolation from those concerning the impact on trade between Member States and the impairing of competition (Case T-29/92 SPO and Others v Commission [1995] ECR II-289, paragraph 75, and Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraph 1093).

43 Next, as regards the alternative complaint that the definition of the relevant market on which the contested decision is based is wrong, it should be noted that the agreement restricting competition identified in the contested decision concerns the fixing, by the members of the FEFC, of a common rate for `inland transport services supplied within the territory of the European Community to shippers in combination with other services as part of a multimodal transport operation for the carriage of containerised cargo between northern Europe and the Far East' (Article 1 of the contested decision).

44 The concept of `intermodal transport' (also referred to in the industry as `multimodal transport', `direct transport' or `combined transport') refers to the combined transport of containers by land and sea. As regards transport by land, it is not in dispute that the carriage of maritime containers from the shipper's premises to the port of loading (on-carriage) and from the port of unloading to the recipient's premises (off-carriage) can be provided either by the shipper himself or by the carrier, as noted in recital 16 of the contested decision. The shipper has a free choice in this respect as to which of the two methods to use (recital 17 of the contested decision). In either case, the inland transport service may be subcontracted out (recitals 19 to 24 of the contested decision).

45 Where the inland carriage is provided by the shipper, the shipper must obtain any necessary containers from the shipping company of his choice in order to pack them with the cargo in question on his own premises and then transport the containers to the delivery address for the goods designated by the shipping company. Similarly, it is for the shipper or the recipient of the cargo to organise the inland haulage of the containers from the port of unloading to his own premises for unpacking, and then to arrange for their return when empty to the shipping company. If he does not carry out the inland transport himself, the shipper may, as the contested decision states (recitals 21 to 24), call upon the services of an independent contractor such as, for example, a forwarding agent, a road haulier, a railway company or an inland waterway company.

46 Where the inland haulage is done by the carrier, it is the shipping company that provides the shipper with the containers and transports them to the port of loading or to the premises of the recipient from the port of unloading. In that case, the inland transport of the container is usually carried out physically not by the shipping company itself but by a road haulier, railway company or inland waterway company independent of the shipping company, to which the latter has subcontracted the operation (recitals 19 and 20 of the contested decision). Only a limited number of shipping companies have set up subsidiaries to provide inland transport services. It is not in dispute that the purpose of the agreement in question is for the FEFC members to fix the price for shippers of those inland transport services organised by the shipping companies as part of intermodal transport.

47 By their alternative complaint, that the relevant market was wrongly defined, the applicants allege that those inland transport services fall within the scope of the wider market of maritime transport performed as part of intermodal transport. The relevant market must therefore be defined as that of scheduled maritime transport as part of port-to-port or intermodal transport services between northern Europe and the Far East with calls in ports located in those territories. The applicants stress in particular in that respect that the inland transport of containers offered by them to shippers forms an integral part of, and is indistinguishable from, the scheduled maritime transport services provided by the FEFC to shippers for the carriage of their cargo in containers between northern Europe and the Far East.

48 It is apparent from the case-law that, in order to be considered a sufficiently distinct market, it must be possible to distinguish the service or the goods in question by virtue of particular characteristics that so differentiate them from other services or other goods that it is only to a small degree interchangeable with those alternatives and affected by competition from them (see, to that effect, Case 66/86 Ahmed Saeed Flugreisen and Silver Line Reisebüro [1989] ECR 803, paragraphs 39 and 40, Case 27/76 United Brands v Commission [1978] ECR 207, paragraphs 11 and 12, and Case T-30/89 Hilti v Commission [1991] ECR II-1439, paragraph 64). The degree of interchangeability between products must be assessed in terms of their objective characteristics, as well as the structure of supply and demand on the market, and competitive conditions (see Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 37, and Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, paragraph 63).

49 It should be borne in mind that the parties agree that, notwithstanding the fact that the shipping companies supply inland transport services as well as maritime transport services, the shippers have the option to buy the two types of services separately from different economic operators. Indeed, Article 5(3) of Regulation No 4056/86 ensures that shippers are entitled to approach their chosen undertaking to supply inland transport services. In the supply of those services to shippers, the shipping companies are therefore competing with the inland carriers. It cannot be disputed that the latter are engaged only in the market for inland transport services.

50 Furthermore, it should be noted that, before the shipping companies begin to offer the inland transport services of on-carriage and off-carriage of containers, the shippers must arrange for the carriage of the cargo to and from the ports. The market for that inland carriage of goods was present before the arrival of the shipping companies in that market. Even after the introduction of the use of containers and the shipping companies' arrival on the market for inland transport services, it was important, as the economic report prepared by Professors Gilman and Graham (paragraph 4.42 of their report, cited at recital 17 of the contested decision) and submitted by the applicants in support of their argument observed, `that shippers should retain the option to carry on as before and continue to arrange their own merchant haulage [if they so wished]'. Even if it is undeniable that the use of containers facilitated the combination of different modes of transport, the on-carriage and off-carriage of goods remains an inland transport service. That fact demonstrates the existence of a market for inland transport services that is closely associated with, but distinct from, the market for maritime transport services as part of an intermodal transport service (see, to that effect, for example, Case 311/84 CBEM [1985] ECR 3261, paragraph 26).

51 Furthermore, it is not in dispute, as the contested decision points out (recitals 19 to 24), that the inland transport services necessary for the on- and off-carriage of containers as part of intermodal transport are, as a general rule, provided by inland transport undertakings independent of both the shipping companies and the shippers, and that the inland haulage is carried out by the shipper or the shipping company. In both cases, the inland transport services required for the on-carriage and off-carriage of the containers are generally subcontracted to independent inland transport undertakings specialised in transport by road, rail or inland waterway.

52 It thus appears that the on-carriage and off-carriage of containers as part of intermodal transport constitutes a specific supply and demand. There are inland transport undertakings independent of the shippers and shipping companies that supply the latter with specialised services for the inland transport of maritime containers with a view to their carriage by sea, or subsequent to their carriage by sea, as part of intermodal transport.

53 The particular characteristic referred to above is also confirmed by the fact that supply and demand for inland transport services for the purpose of intermodal transport reflect particular competitive conditions, which differ from those prevailing on other markets, particularly that for maritime transport. Thus, whilst the price for maritime transport depends effectively on the value of the cargo transported, it is not in dispute that the price for inland transport is fixed for each container without any direct relation to the value of the cargo transported. Moreover, the parties agree that inland haulage is invoiced in the local currency, whilst maritime transport is invoiced in US dollars.

54 In that context, and contrary to what the applicants maintain, the Commission was entitled to find in the contested decision that the inland transport services for the on-carriage and off-carriage of containers as part of intermodal transport constitute a market distinct from maritime transport services supplied in that context by the member shipping companies of the FEFC. As may be seen from the case-law, a sub-market which has specific characteristics from the point of view of demand and supply, and which offers products which occupy an essential and non-interchangeable place in the general market of which it forms part, must be considered to be a distinct product market (see Case T-69/89 RTE v Commission [1991] ECR II-485, paragraphs 61 and 62, Case T-70/89 BBC v Commission [1991] ECR II-535, paragraph 50, and Case T-76/89 ITP v Commission [1991] ECR II-575, paragraphs 47 and 48).

55 The applicants' allegation that the inland transport services carried out by the shipping companies as part of intermodal transport are provided by the latter to the shippers as an integral part of their maritime transport services is irrelevant in this respect. Once there is a specific supply and demand for the inland transport of maritime containers and those services are provided, inter alia, by undertakings which are independent of the shipping companies, there is necessarily a separate market (see, by analogy, Case 22/78 Hugin v Commission [1979] ECR 1869, paragraphs 7 and 8; Hilti, cited above, paragraph 67, confirmed on appeal in Case C-53/92 P [1994] ECR I-667, paragraphs 13 and 14; Tetra Pak, cited above, paragraph 82, confirmed on appeal in Case C-333/94 P [1996] ECR I-5951, paragraph 36). Thus in the field of the inland transport of maritime containers this Court has already held that rail services concerning, inter alia, access to the rail network, and the provision of rolling stock and engines constitute, by virtue of their specificity, a market separate from the market for rail transport in general, and from the market for transport by road and river (Case T-229/94 Deutsche Bahn v Commission [1997] ECR II-1689, paragraphs 55 and 56).

56 Consequently, contrary to the applicants' submission, the Commission correctly decided in the contested decision that the relevant market in the present case was that for specialised services of inland transport of maritime containers for the purpose of their carriage by sea, as part of intermodal transport between northern Europe and the Far East, excluding the maritime transport of containers supplied by the shipping companies in that context.

57 Finally, if the Court were to find that inland transport services form a separate market the applicants also claim that it would be appropriate to include in the relevant market, at the very least, all similar inland transport. In this respect they allege, in particular, that the relevant market should include, in addition to the inland transport of containers for the purpose of their carriage by the FEFC by sea between northern Europe and the Far East, the inland transport of containers by independent shipping companies serving the same route, the inland transport of containers by the FEFC and independent companies on other routes, the inland transport of any other container between points within Europe, and the inland transport of other cargo carried out in a similar fashion but not by container.

58 That argument must be rejected as being manifestly unfounded.

59 It is apparent from recitals 10 and 42 of the contested decision, and from Article 1 of the operative part, that the common tariff in question in the present proceedings relates to inland transport services supplied to shippers in combination with other services as part of an intermodal transport operation of cargo in containers between northern Europe and the Far East carried out by member shipping companies of the FEFC. Clearly, therefore, the relevant market does not comprise all inland transport services of whatever type, but only the inland transport of containers as part of an intermodal transport service.

60 Moreover, and for the same reason, the geographical market in question is not that of all inland transport of containers as part of intermodal transport services on all sea routes, but solely the inland transport of containers on the route between northern Europe and the Far East. The common tariff in question in the present case applies exclusively in the context of intermodal transport services only on the sea route between northern Europe and the Far East, which is not in fact substitutable for other routes (see, by analogy, Ahmed Saeed Flugreisen and Silver Line Reisebüro, cited above, paragraphs 40 and 41). It is sufficient to hold that it is apparent from recital 33 of the contested decision that the Commission did assess the effect on competition by reference to the wider context of the second of the two suggested hypotheses, and it is thus unnecessary in the present case to rule on the question whether the relevant market must be confined to the inland transport of containers intended for loading on the vessels of the member companies of the FEFC alone, as appears to be the case from recital 11 of the contested decision, or, more generally, on any vessels serving the maritime route in question. The Commission was therefore entitled not to include, in the definition of the relevant market, inland transport services provided as part of intermodal transport services on maritime routes other than that between northern Europe and the Far East.

61 In the light of the foregoing, it is evident that the definition of the relevant market as that for the inland transport of containers supplied to shippers in combination with other services within the European Community as part of the intermodal transport of cargo in containers between northern Europe and the Far East cannot be challenged.

62 In those circumstances, the applicants' complaints based primarily on the alleged failure to define the relevant market and, in the alternative, on the allegedly incorrect definition of that market must be rejected.

(b) Appreciable restriction of competition

63 As regards, first, the applicants' complaint that the contested decision fails to apply the criteria for determining whether the restriction of competition in question is appreciable and does not define the relevant market in relation to which the appreciable effect is to be determined, it is sufficient to note that there is evidence to the required legal standard in recital 33 of the contested decision, which is not challenged by the applicants, that in 1993 (that is, at the time of the facts in issue) the member shipping companies of the FEFC held 38.5% of the market for the inland transport of maritime containers as part of an intermodal transport operation between northern Europe and the Far East. As has been found in considering the complaint relating to the definition of the relevant market, the Commission was entitled to decide that that market was the relevant market for the purposes of applying Article 85 of the Treaty to the contested agreement.

64 It follows that the applicants' complaint must be rejected for that reason alone. The fact that they held almost 40% of the relevant market is sufficient proof that the agreement which is the subject of the contested decision is such as to restrict competition to an appreciable extent on that market. A market share of that size cannot reasonably be considered to be insignificant within the meaning of the case-law (see, inter alia, Case 5/69 Völk [1969] ECR 295, paragraph 7, and Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 86). Accordingly, since the contested decision expressly refers to the FEFC member shipping companies' share of the relevant market, it must be held that in so doing the Commission properly applied the criteria for determining whether the restriction of competition in question was appreciable.

65 As to the remainder, it should also be stressed that the Commission explained in the contested decision that in 1991 the inland transport services supplied by the FEFC member shipping companies represented approximately 1 015 208 TEU (20-foot equivalent unit) containers, or about 9 276 653 tonnes. Approximately 89% of those transports were carried wholly or in part within the Community (recital 33 of the contested decision). Furthermore, the contested decision points out that, on the routes between northern Europe and the Far East, inland transport operations represented 18.6% of the total cost of intermodal transport services, which, in 1992, amounted to some ECU 477 200 000 (recitals 34 and 35). It was in light of those factors that the Commission concluded, at recital 45 of the contested decision, that `the restriction of competition between the members of the FEFC with regard to prices for the inland portion of a multimodal transport operation is likely to be appreciable because of the very large number of containers and the consequent costs involved (see [recitals] 33 to 37)'.

66 In those circumstances, it is clear that the applicants cannot claim that the Commission failed to determine whether the effect on competition of the agreement in question was appreciable.

67 As regards, secondly, the applicants' complaint that the contested decision does not correctly determine whether the agreement in question has an appreciable effect on competition because the question as to whether the effect of the agreement is appreciable falls to be assessed by reference to maritime transport supplied as part of intermodal transport, this must also be rejected in so far as it is based on an incorrect definition of the relevant market. Furthermore, it should be noted that if the definition of the relevant market advanced by the applicants was appropriate the agreement in question would restrict competition to an even greater extent. The parties are agreed that in 1992 the members of the FEFC held a 58% share of the market as it was defined (recital 33 of the contested decision). It cannot be disputed that a price-fixing agreement in respect of services representing a significant part of the total cost of intermodal transport services, entered into by undertakings representing almost 60% of the relevant market, restricts competition to an appreciable extent within the meaning of Article 85(1) of the Treaty.

68 As regards, thirdly, the applicants' argument that the position of the parties to the agreement in question should be assessed on the market for comparable inland transport, this must also be rejected as being based on an erroneous definition of the relevant market, which does not involve all inland transport, but only inland transport services provided as part of intermodal transport on routes between northern Europe and the Far East.

69 It should also be noted that the effect on competition is appreciable not only if the market is limited to inland transport services supplied by member shipping companies of the FEFC alone, but also if it must include those supplied by independent shipping companies. It is apparent from recital 33 of the contested decision, which has not been challenged by the applicants, that in the first situation the member companies of the FEFC held 70% of the market, whilst in the second they held 38.5%.

70 Finally, the applicants' complaint that their rights of defence have been breached because the Commission assessed the effect of the contested agreement on competition for the first time in the contested decision will be considered separately under the fourth plea, relating to procedural defects, in which the applicants developed this complaint more fully.

(c) The effect on trade between Member States

71 As regards the effect on trade between Member States, the Court would recall, first, that, according to settled case-law, for an agreement between undertakings to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective circumstances of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market between the Member States (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 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, `Woodpulp II', paragraph 143). In particular, it is not necessary that the conduct in question should in fact have substantially affected trade between Member States. It is sufficient to establish that the conduct is capable of having such an effect (see, in the context of the application of Article 85 of the Treaty, SPO, cited above, paragraph 235).

72 Next, it is plain that the agreement in question is an agreement between shipping companies, several of which are established in various Member States, and concerns the conditions of sale of inland transport services to shippers also established in various Member States. Such an agreement is clearly capable of affecting trade between Member States within the meaning of Article 85(1) of the Treaty. Since the condition regarding the effect on trade between Member States is intended to determine the scope of Community law in relation to that of the laws of the Member States (Joined Cases 56/64 and 58/64 Consten & Grundig v Commission [1966] ECR 299; SPO, cited above, paragraph 227), it is indisputable that the agreement in question, laying down as it does conditions for the sale of inland transport services to a large number of shippers in the Community, falls within the scope of Community competition law. It must be stressed, in particular, in this context that fixing prices for the sale of inland transport services may affect, inter alia, the shipper's decision whether to entrust the inland haulage of their containers to members of the FEFC or to an inland carrier, thereby distorting competition on the market for inland transport services between member shipping companies of the FEFC and inland carriers present in various Member States.

73 In the same way, the Commission also correctly held at recitals 50 and 51 of the contested decision that fixing the price of inland transport can also influence competition between the ports of the various Member States. The very purpose of fixing those prices on the basis of a notional transport operation, as part of a system of `port equalisation' between an inland point and the nearest of the ports served by any of the members of the FEFC, is to neutralise the economic advantage that may arise from the fact that the distance to a given port is shorter. It should be noted in that regard that the applicants have not denied that the application of the common tariff for inland transport has led to deflection of freight, claiming only that it is minor. Even if in the absence of an agreement by the FEFC fixing prices for inland transport services the shipping companies would still be responsible for the additional expense resulting from carriage to a more distant port - which is, incidentally, not established - that would not overcome the fact that the purpose or, at least, the effect of the practice of `port equalisation' is to channel cargo to ports to which it would otherwise not have gone, and that this change in cargo flow is a consequence of the agreement fixing prices for inland transport. It should be added that the deflection of trade arising from collective pricing is, furthermore, different from that which would have existed had each company fixed an individual port equalisation on the basis of its own criteria.

74 Finally, although more indirectly, the agreement in question is, at the very least, capable of having an effect on trade between Member States in that as the price of inland transport services fixed by the FEFC represents part of the final sale price of the goods transported (see, to that effect, Case 136/86 BNIC [1987] ECR 4789, paragraph 18). The Commission was therefore entitled to state, at recital 54 of the contested decision, that the contested agreement, which has an effect on the cost of exporting to other countries, may encourage manufacturers in the Community to seek other markets, the cost of transport to which is lower, in particular, the domestic market of the manufacturer himself or of other Member States.

75 It follows that the applicants' complaints concerning the absence of an appreciable effect on intra-Community trade must be rejected.

(d) Conclusion on the applicants' first plea

76 In light of the foregoing the applicants' first plea, breach of Article 85(1) of the Treaty, must be declared unfounded.

3. The second plea: breach of Article 3 of Regulation No 4056/86

Arguments of the parties

[151 to 155]

(a) The contested decision fails to take account of the fact that Regulations Nos 1017/68 and 4056/86 were intended to establish rules applicable to particular sectors of the economy

[156 to 159]

(b) The contested decision does not take account of the correct definition of the relevant markets on which the agreements produce their effects

[160 and 161]

(c) The contested decision is incompatible with what is stated in Regulation No 4056/86 regarding the scope of that regulation

[162 to 209]

(d) The contested decision is incompatible with the general principles of Community law for establishing the scope of Community legislation

[210 to 215]

(e) The contested decision is incompatible with the interpretation given to identical passages in regulations governing other transport sectors

[216 to 221]

(f) The contested decision gives rise to legal uncertainty and procedural inconsistency

[222 to 224]

(g) The contested decision is not consistent with the Council's reasoning in Regulation No 4056/86 concerning the grant of block exemption to liner conferences

[225]

(h) The contested decision fails to have regard to the distinctive characteristics of the transport sector [226]

(i) The judgment in Case C-96/94 Centro Servizi Spediporto [1995] ECR I-2883, cited by the Commission, is irrelevant to the present case

[227 to 229]

Findings of the Court

77 The applicants claim in essence that the contested agreement qualifies for block exemption under Article 3 of Regulation No 4056/86 and that the Commission was wrong to have considered it in the light of Regulation No 1017/68.

78 Since the block exemption provided for by Article 3 of Regulation No 4056/86 can only apply to agreements falling within Regulation No 4056/86, it is first necessary to ascertain whether the price-fixing agreement concluded by the FEFC members for inland transport services provided in combination with other services as part of an intermodal transport operation falls within the scope of that regulation.

79 It should be borne in mind that Article 1 of Regulation No 4056/86, headed `Subject-matter and scope of the Regulation', provides in paragraph 1 that `[t]his Regulation lays down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport services'. Therefore only agreements and abuses of a dominant position concerning `maritime transport services' fall within Regulation No 4056/86.

80 In that respect it should be noted first that in the context of the first plea it has been established that the inland transport services in question constitute a service separate from maritime transport services.

81 Next, it is clear that the `maritime transport services' ordinarily refers, precisely, to transport by sea. Contrary to the applicants' argument, there is nothing to warrant interpreting `maritime transport services' as including inland transport, consisting of the on- or off-carriage of containers, provided in combination with other services as part of an intermodal transport operation.

82 Since the meaning of `maritime transport services' is clear, it follows that if the Council had wanted to include within that term other services provided in conjunction with maritime transport, such as the inland on- or off-carriage of cargo, it would have said so expressly, as indeed the American legislature has done.

83 Instead of providing for such an extension of the scope of Regulation No 4056/86 to inland transport, Article 1(2) thereof states, on the contrary, that `[i]t shall apply only to international maritime transport services from or to one or more Community ports, other than tramp vessel services'.

84 It is apparent therefore from the express wording of that article that the on- or off-carriage of cargo does not fall within the scope of Regulation No 4056/86, since that regulation refers only to port-to-port maritime transport services.

85 The applicants' interpretation in this context, to the effect that the sole purpose of that article is to indicate that Regulation No 4056/86 applies to `international' categories of maritime transport services which, therefore, are carried out between Member States or between the Community and a third country, is plainly unfounded since it ignores the words `from or to one or more ports'. Furthermore, the sixth recital in the preamble to Regulation No 4056/86, on which that interpretation is based, refers, again expressly, albeit in the specific context of the effect on trade between Member States, to maritime transport services `from or to Community ports'. That recital therefore confirms that Regulation No 4056/86 does not apply to inland transport services consisting of the on- or off-carriage of cargo.

86 Indeed, it should be borne in mind that in Centro Servizi Spediporto the Court held, when asked whether Regulation No 4055/86 applies to the inland sections of an intermodal transport operation, that maritime transport services ceased on arrival at the port or offshore installation and do not therefore extend to the road transport of cargo unloaded from the vessel.

87 The applicants are wrong to claim that the Court's conclusion in that judgment is not applicable to the present case. Since Regulation No 4055/86 forms part of the same group of measures, and was adopted on the same day as Regulation No 4056/86, it is inconceivable that the Council intended that the two regulations should have different scopes. If the Council had intended that Regulation No 4056/86 should have a wider scope than that of Regulation No 4055/86 it would at least have said so expressly, and would not have defined the scope of the two regulations by using the same expression, `maritime transport services'. The fact that the two regulations have a different purpose is irrelevant for the purposes of interpreting the term `maritime transport services'. Moreover, contrary to what the applicants maintain, Regulation No 4055/86 is not a measure to prevent third countries from refusing access to international maritime transport, but is intended, as is apparent from its very title, to ensure the freedom to provide maritime transport services between Member States and between Member States and third countries. Accordingly the argument that the Council intended its legislation to cover all liner conference activities applies as much to Regulation No 4055/86 as to Regulation No 4056/86. Finally, the applicants' argument that the Court's interpretation of Regulation No 4055/86 results from the particular fact that Article 1(4)(a) thereof defines `maritime transport services' as being the carriage `by sea between any port of a Member State and any port or offshore installation of another Member State' is likewise irrelevant, since Article 1(2) of Regulation No 4056/86 also defines `maritime transport services' in practically identical terms as being those `from or to one or more Community ports'.

88 It is thus apparent that the scope of Regulation No 4056/86 is limited to maritime transport services properly so called, that is, to transport by sea from port to port, and does not cover the inland on- or off-carriage of cargo supplied in combination with other services as part of an intermodal transport operation.

89 Secondly, it is clear from the eleventh recital of Regulation No 4056/86 that the Council did not intend to extend the block exemption under Article 3 thereof to agreements relating to inland transport services, consisting of the on- or off-carriage of cargo provided in combination with other services as part of an intermodal transport operation. The eleventh recital provides that `users must at all times be in a position to acquaint themselves with the rates and conditions of carriage applied by members of the conference, since in the case of inland transport organised by shippers, the latter continue to be subject to Regulation (EEC) No 1017/68'.

90 Contrary to what the applicants maintain, the fact that the English version of Regulation No 4056/86 uses the term `shippers' (chargeurs) rather than `shipping lines' (transporteurs maritimes) is irrelevant as that has clearly arisen only from a translating error. Not only do all of the other language versions refer, like the French, to `maritime carriers', but the phrase as it appears in the English version scarcely makes sense and there is no reason why it should appear in a regulation concerning maritime transport.

91 Similarly, the applicants' alternative allegation, that if the eleventh recital did indeed refer to `maritime carriers' and not `shippers' it would simply mean that agreements concluded between the shipping companies and the inland carriers are subject to Regulation No 1017/68, must clearly be rejected. First, the eleventh recital as interpreted by the applicants would have no meaning as the fact that the shipping companies agree on the purchase price for inland services has no connection with the need for users, at all times, `to be in a position to acquaint themselves with rates and conditions of carriage applied by members of the conference'. Secondly, since the exemption laid down by Article 3 of Regulation No 4056/86 for the `fixing of rates and conditions of carriage' can only refer to the fixing of the sale price for maritime transport services, and not the negotiation of the purchase price for another type of transport, it was pointless to provide that maritime carriers cannot agree the purchase price of inland transport.

92 Thirdly, it should be borne in mind that the definition of `liner conference' in Article 1(3)(b) of Regulation No 4056/86 refers to vessel-operating carriers which `operate under uniform or common freight rates and any other agreed conditions with respect to the provision of liner services'. Similarly, the exemption provided for by Article 3 of Regulation No 4056/85 concerns, according to the heading thereof, `agreements between carriers concerning the operation of scheduled maritime transport services'.

93 The services in question, for the inland transport of containers supplied as part of an intermodal transport operation, do not constitute `scheduled services' within the meaning of those provisions. By contrast with maritime transport services, such services are provided on a fixed route and according to a regular timetable. It follows that an agreement fixing the prices of inland transport services cannot qualify for block exemption under Article 3 of Regulation No 4056/86.

94 Fourthly, it should be borne in mind that Article 3 of Regulation No 4056/86, which lists the legitimate objectives of liner conference agreements qualifying for block exemption, does not refer to agreements governing inland transport activities, consisting of the on- or off-carriage of cargo, carried out in combination with other services as part of an intermodal transport operation, but on the contrary refers only to specifically maritime activities such as, for example, the coordination of shipping timetables, sailing dates or dates of calls, the determination of the frequency of sailings or calls, and the coordination or allocation of sailings or calls among members of the conference. Similarly, the heading of Article 3 refers solely to maritime transport services.

95 It should be noted, fifthly, that during the legislative procedure resulting in the adoption of Regulation No 4056/86, both the Parliament and the Economic and Social Committee proposed an amendment providing that the exemption would also apply to inland transport services, consisting in the on- or off-carriage of cargo, provided in combination with other services as part of an intermodal transport operation. That proposal was not taken up by the Council. The applicants' argument to the effect that the Council did not consider it worthwhile to adopt those proposals on the ground that the inland portion of the intermodal transport operation was already included in the maritime transport services cannot be accepted. First, it requires that a much wider meaning be attached to `maritime transport services' than is generally the case. The fact that both the Parliament and the Economic and Social Committee, when called upon to give their opinion on the proposal for a regulation, found it necessary to add that the exemption also covered agreements relating to inland transport services, consisting of the on- or off-carriage of cargo, provided with other services as part of an intermodal transport operation, shows beyond a doubt that the inland sections cannot be considered to be covered by the expression `maritime transport services'. Secondly, given the proposals from the Parliament and the Economic and Social Committee, legal certainty dictates that if the Council had intended to extend the scope of the block exemption to cover agreements relating to the inland part of intermodal transport, it would have said so expressly.

96 Sixthly, that block exemption under Article 3 of Regulation No 4056/86 cannot apply to the contested agreement is also apparent from a Council declaration of 17 December 1991, cited by the applicants themselves, in which the Council states that it will examine whether agreements on the terms and conditions of inland transport as part of intermodal transport should be made the subject of a block exemption. That declaration, made five years after the adoption of Regulation No 4056/86, also confirms that, even if the Council was aware of the problem of intermodal transport and even inclined, in appropriate cases, to grant block exemption for agreements relating to the on- or off-carriage of cargo provided with other services as part of an intermodal transport operation, it clearly considered that those agreements were not covered by the block exemption provided for by Article 3 of Regulation No 4056/86.

97 Seventhly, the Commission expressly stated, on page 5 of its Explanatory Memorandum accompanying the 1981 proposal for a regulation, that it had taken account inter alia of the fact that the regulation in question should only apply to a single mode of transport.

98 Eighthly, the general rules of interpretation also indicate that the exemption provided for by Article 3 of Regulation No 4056/86 cannot apply to agreements fixing the price of inland transport services provided as part of intermodal transport services.

99 It is settled case-law that having regard to the general principle laid down by Article 85(1) of the Treaty that agreements restricting competition are prohibited, provisions derogating therefrom in a regulation concerning exemption must, by their nature, be strictly interpreted (Case T-9/92 Peugeot v Commission [1993] ECR II-493, paragraph 37; Opinion of Advocate General Van Gerven in Case C-234/89 Delimitis [1991] ECR I-935). This must also apply to the provisions of Regulation No 4056/86 exempting certain agreements from the prohibition laid down in Article 85(1) of the Treaty, since Article 3 of the regulation constitutes a block exemption within the meaning of Article 85(3) of the Treaty (Joined Cases T-24/93, T-25/93, T-26/93 and T-28/93 Compagnie maritime belge transports and Others v Commission [1996] ECR II-1201, paragraph 48).

100 In those circumstances, it does not assist the parties to argue that the very purpose of a liner conference has been recognised to be beneficial, which, incidentally, the Commission does not deny. Whilst this is capable of justifying the exemptions granted by Regulation No 4056/86, it cannot signify that every restriction of competition brought about by the liner conferences falls outside the general prohibition laid down by Article 85(1) of the Treaty (Compagnie maritime belge, paragraph 50).

101 Moreover, having regard to the wholly exceptional nature of the block exemption provided for by Article 3 of Regulation No 4056/86, in that it provides for exemption for an unlimited period for horizontal agreements fixing prices for maritime transport services, there is still less reason to extend the benefit of that block exemption to agreements fixing the price of inland transport concluded between the members of a liner conference.

102 The applicants' complaint that the Commission's interpretation is at odds with the rationale of the block exemption because most conferences lay down an intermodal tariff must therefore be rejected. That interpretation does not, incidentally, undermine the power granted to liner conferences by Article 3 of Regulation No 4056/86 to fix prices for maritime transport services.

103 The complaint that the contested decision overlooked the distinctive characteristics of the transport sector in general must also be rejected. The applicants themselves stress that the various regulations in the matter of transport were adopted by the Council on the basis of the specific characteristics of each mode of transport: sea, land or air. Since the agreement in question relates to inland transport services, consisting of on- or off-carriage provided with other services as part of an intermodal transport operation and not to maritime transport services, there is no reason to grant it the benefit of the exceptional concessions accorded to maritime transport agreements.

104 It is thus clear both from the wording of the provisions setting out the scope of Regulation No 4056/86 or the agreements covered by the exemption laid down by Article 3 of Regulation No 4056/86, and from the travaux préparatoires of Regulation No 4056/86 and the Council declaration of December 1991, as well as from the general rules of interpretation, that the block exemption provided for by Article 3 thereof in favour of certain agreements between members of liner conferences cannot apply to an agreement fixing the price of inland transport services, consisting of the on- or off-carriage of cargo, provided with other services as part of an intermodal transport operation concluded between the members of a liner conference.

105 Moreover, it is plain that none of the other arguments advanced by the applicants undermines that conclusion.

106 First, the applicants' argument that the agreement in question falls within Regulation No 4056/86 because the FEFC members are undertakings in the maritime transport sector is unfounded.

107 For the purposes of determining which regulation applies to a particular agreement, that agreement must be considered in light of the provisions setting out the scope of the various regulations concerned. That decision should not be based solely on the sector in which the undertaking providing the service or product governed by the agreement operates. In the present case, it is clear from Article 1(2) of Regulation No 4056/86 that the regulation does not cover all agreements concluded by shipping companies but only those relating to `international maritime transport from or to one or more Community ports'. Accordingly, an agreement fixing the price of inland transport services manifestly does not fall within the scope of Regulation No 4056/86, even if entered into and performed by shipping companies as part of intermodal transport services. It should be pointed out in this context that in Case C-264/95 P Commission v UIC [1997] ECR I-1287, paragraph 42, the Court held that the application of Regulation No 1017/68 depends on the nature of the agreements in question and not on the prior identification of the market on which those agreements produce their effects. Accordingly, the applicants' argument that in the field of transport the various competition regulations apply to specific sectors of the economy must be rejected, since the applicable regulations must be determined by reference to the contested agreement, and not by reference to the undertaking providing the product or service. A single agreement cannot be subject to different competition regulations depending on which undertaking concluded the agreement.

108 In any event, even if, as the applicants claim, the applicable regulation depended upon the definition of the market, the contested agreement would not fall within Regulation No 4056/86. As appears from the discussion of the first plea, the inland transport services in question must be considered to be separate from those of maritime transport, and not as a single integrated product of intermodal transport for the reason that, inter alia, inland and maritime transport services can be bought and sold separately from and by different economic operators. The applicants' comparison with shoe-laces in this context is clearly irrelevant since, although it is true that laces may be sold separately from shoes, the shoes cannot be sold or used without their laces and the two products constitute a single product. By contrast, the inland transport services offered by FEFC members are merely a service complementing their maritime transport services in respect of which transport users are entitled, under Regulation No 4056/86, to approach the undertakings of their choice, since the shippers may themselves also undertake the on- or off-carriage of cargo. Accordingly, even when sold in combination with a maritime transport service as part of an intermodal transport operation, the inland transport services of the on- or off-carriage of cargo nevertheless remain a service separate from the maritime transport service. Contrary to the applicants' claim, the relevant market in the present case is not, therefore, that of maritime transport services, but that of inland transport services provided by members of the FEFC as part of intermodal transport.

109 It should also be added that, even if intermodal transport were regarded as a single composite product constituting its own market, the applicants' alternative argument to the effect that the ancillary activities necessarily provided as an integral part of an intermodal transport service must be treated as part of that single service does not in any case imply that the agreement in question is covered by the block exemption provided for by Article 3 of Regulation No 4056/86. Since the provisions regarding block exemption are to be interpreted restrictively, the fact that intermodal transport constitutes a single composite service would, on the contrary, give rise to doubts as to whether the block exemption could still apply in respect of the fixing of prices for intermodal transport services, including the maritime part.

110 The applicants' argument would, moreover, give rise to discrimination.

111 Unlike shipping companies, road hauliers or railway companies could enter into agreements on the price of the inland transport services that they provide to shippers. It is possible, moreover, that allowing liner conferences to fix prices for inland transport collectively might enable them to extend the power that they hold in the maritime transport market to the inland transport market, to the detriment of inland carriers. Thus, whilst leaving the intermodal transport tariff unchanged, they could, for example, increase the price for the maritime part of the transport and decrease, to the same extent, that for the inland part, so that the shippers would in practice have no option but to buy inland transport from the shipping companies.

112 Allowing shipping companies to fix collectively the price of maritime transport services and inland transport services consisting of the on- or off-carriage of cargo, provided with other services as part of an intermodal transport operation, would also result in discrimination against some forwarding agents who are genuine non-vessel-operating intermodal transport operators and provide the same services as the shipping lines. Those forwarding agents offer intermodal transport services but, unlike shipping companies, they do not operate any vessels themselves but instead charter space from the shipowners. As stated in recital 23 of the contested decision, which is not challenged by the applicants, the competition between those forwarding agents and the maritime carriers providing the scheduled services had increased strongly to the point of becoming one of the distinguishing characteristics of the sector in question.

113 Secondly, the various arguments based on the wording of Regulation No 4056/86 must be rejected. Either they are based on the erroneous premiss, already rejected (at paragraphs 120 to 129 above), that inland transport services consisting of the on- or off-carriage of cargo provided with other services as part of an intermodal transport operation constitute maritime transport services, or they are irrelevant, or they distort the meaning of the text.

114 The arguments based on Article 5 of Regulation No 4056/86 are irrelevant because that article merely sets out the obligations attached to the exemption provided for in Article 3, and cannot, by definition, widen the scope of that exemption. Furthermore, contrary to what the applicants maintain, paragraphs (3) and (4) of Article 5 of Regulation No 4056/86, even if they refer to inland transport, do not support the conclusion that that regulation governs such transport. In the first place, Article 5(3) refers only to the need to prevent members of a conference from exploiting their power on the market for maritime transport services by requiring shippers to purchase from them other services, such as inland transport services. It should be observed that in any event that provision, the purpose of which is thus to prevent shipping companies from tying inland transport to their maritime transport service, confirms that maritime and inland transport services are two separate services forming separate markets.

115 In the second place, Article 5(4) does not state that the regulation applies to inland transport but, in relation to situations in which there is a single price for a transport service which includes an inland part, provides that the shipping companies' tariffs must state the services covered by the freight charge in proportion to the maritime part and the inland part of the transport. The tariffs mentioned in that article do not refer to the conference tariff, but to the terms offered by the various shipping companies. The article provides that those tariffs may be consulted at the offices of the shipping companies and their agents, and not in the conference's offices. It is clear that the shipping companies may offer intermodal transport services and, in that context, the shippers must be in a position to know what proportion of the prices represents inland transport and maritime transport respectively.

116 Contrary to the applicants' submission, Article 4 of Regulation No 4056/86, which provide