Judgment of the Court of First Instance (Third Chamber) of 28 February 2002. - Atlantic Container Line AB and Others v Commission of the European Communities. - Competition - Liner conferences - Regulation (EEC) No 4056/86 - Scope - Block exemption - Regulation (EEC) No 1017/68 - Individual exemption. - Case T-395/94.



European Court reports 2002 Page II-00875



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1. Competition - Maritime transport - Agreements, decisions and concerted practices - Agreement between shipping lines on the scheduled transport between Northern Europe and the United States and the inland carriage of containers - Relevant market - Restrictions of competition within the common market - Certain member lines established outside the Community - No effect

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

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

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

3. Competition - Maritime transport - Agreements, decisions and concerted practices - Effect on trade between Member States - Agreement between shipping lines relating to the conditions for the sale of maritime and inland transport services - Effect on trade in port and auxiliary services linked to the carriage of goods

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

4. Competition - Maritime transport - Regulation No 4056/86 - Block exemption - Scope

(Council Regulation No 4056/86, Art. 3)

5. Competition - Maritime transport - Regulation No 4056/86 - Block exemption - Strict interpretation - Exemption for liner conference agreements - Scope

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

6. Community law - Definitions - Interpretation - Definition taken from an international convention - Interpretation with regard to that convention

7. Competition - Maritime transport - Liner conferences - Definition - Block exemption of liner conference agreements - Conditions - Setting uniform freight rates for all conference members - Tariff rates varying between members - Whether unlawful

(Council Regulation No 4056/86, Art. 3)

8. Competition - Maritime transport - Regulation No 4056/86 - Block exemption of liner conference agreements - Justification - Stabilising effect of uniform freight rates for all conference members - Independent action on the part of one conference member - Whether lawful

(Council Regulation No 4056/86, Art. 3)

9. Actions for annulment - Commission decision refusing to grant individual exemption - Complex economic appraisal - Judicial review - Limits

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

10. Competition - Maritime transport - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Discretion of the Commission

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

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

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

12. Competition - Maritime transport - Agreements, decisions and concerted practices - Prohibition - Exemption - Relevant market - Delimitation - Criteria - Agreement between shipping lines relating to the scheduled transport of containers between Northern Europe and the United States

13. Competition - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Possibility of eliminating competition in respect of a substantial part of the relevant services - Must be assessed as a whole

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

14. Competition - Maritime transport - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Possibility of eliminating competition in respect of a substantial part of the relevant services - Assessment criteria - Agreement between shipping lines fixing maritime transport rates

(EC Treaty, Art. 85(3) (now Art. 81(3) EC); Council Regulation No 4056/86, Art. 12)

15. Procedure - Intervention - Plea in law not raised by the applicant - Whether inadmissible

(EC Statute of the Court of Justice, Art. 37, fourth para.; Rules of Procedure of the Court of First Instance, Art. 116(3))

16. Competition - Administrative procedure - Decision finding that there has been an infringement - Order compelling the undertakings concerned to inform their customers that they may renegotiate or rescind the contracts - Decision departing from the Commission's usual practice - Failure to state that fact in the statement of objections - Infringement of the obligation to state reasons

(EC Treaty, Art. 85(1) (now Art. 81(1) EC); Council Regulations No 1017/68, Art. 11, and No 4056/86, Art. 11)

Summary

1. In the case of an agreement between shipping lines on the scheduled transport of containers across the Atlantic between Northern Europe and the United States and on the inland carriage of the containers, the relevant markets directly affected are those in transport services and not that in the export of goods to the United States. The restrictions of competition occur within the common market because it is there that the members of the agreement, including several shipping companies established in the Community, are in competition to sell their services to clients, namely shippers, established in the Community. The fact that certain members of the agreement are not established in the Community does not cast doubt on that conclusion.

( see para. 72 )

2. 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 factors 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 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 paras 79, 90 )

3. An agreement between shipping companies, including a number established in the Community, which related to the conditions for the sale of maritime and inland transport services to shippers established in various Member States of the Community is capable of affecting trade between Member States for the purposes of Article 85(1) of the Treaty (now Article 81(1) EC).

Furthermore, such an agreement is capable of modifying the pattern of trade in goods transiting through the ports served by the shipping companies which are members of an agreement. As a result, that agreement must be regarded as having affected trade between Member States, over and above the trade consisting of only maritime transport services, since port and auxiliary services linked to the carriage of goods were also affected.

Finally, although more indirectly, the relevant agreement has, or at the very least is capable of having, an effect on the trade in goods between Member States, in so far as the transport prices fixed by the agreement represent a proportion of the end selling price of the goods transported.

( see paras 80-82 )

4. An agreement can qualify for the exemption provided for in Article 3 of Regulation No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport only if it is a liner conference agreement.

The existence of a liner conference within the meaning of Regulation No 4056/86 depends on the charging of uniform or common freight rates by its members.

( see paras 140, 143 )

5. Having regard to the general principle of the prohibition of agreements restricting competition in Article 85(1) of the Treaty (now Article 81(1) EC), provisions derogating therefrom in an exempting regulation must, by their nature, be strictly interpreted. This conclusion applies, a fortiori, to the provisions of Regulation No 4056/86 relating to maritime transport by virtue of its unlimited duration and the exceptional nature of the restrictions on competition authorised (horizontal agreement having as its object the fixing of prices). It follows that the block exemption provided for by Article 3 of Regulation No 4056/86 cannot be interpreted broadly and progressively so as to cover all the agreements which shipping companies deem it useful, or even necessary, to adopt in order to adapt to market conditions. The exemption can relate only to the types of agreement which the Council, when Regulation No 4056/86 was adopted, regarded, in the light of experience, as satisfying the conditions of Article 85(3) of the Treaty. Apart from the power enjoyed by the Council, if the need arose, to amend Regulation No 4056/86, the undertakings concerned also always have the option to apply for an individual exemption to offset any disadvantages of the limitations inherent in the block exemption.

( see para. 146 )

6. The definition of liner conference in Article 1(3)(b) of Regulation No 4056/86 was taken word for word from the United Nations Convention on a Code of Conduct for Liner Conferences. That code thus constitutes an important point of reference for the interpretation of the concept of liner conference referred to in Regulation No 4056/86.

( see para. 147 )

7. By its very nature and in the light of its objectives, a liner conference, as defined by the Council for the purposes of qualification for block exemption under Regulation No 4056/86, can be characterised as a collective entity which presents itself as such on the market vis-à-vis both users and competitors.

The conference puts itself forward as an entity on the market since it fixes uniform freight rates for all its members, in the sense that the same price will be charged for the carriage of the same cargo from point A to point B, regardless of which shipowning member of the conference is responsible for carriage.

By contrast, an agreement between carriers providing for a scheme of tariffs which vary according to the members cannot be regarded as a liner conference under Regulation No 4056/86.

( see paras 157, 167 )

8. Liner conferences qualify for a block exemption because of their stabilising effect. That stability is best ensured if all the members of the conference adopt uniform freight rates rather than if there are several rates according to the members concerned. A uniform level of freight rates within the conference also allows users, account of whose interests is also a requirement for the exemption, to be assured of being able to obtain the transport service at the same price, whichever conference member it approaches. That interest of the shippers in having access to a reference rate in respect of a particular commodity is appreciably reduced if the members of the conference do not charge one rate, but two or more, in respect of the same product.

That interpretation of the concept of liner conference is not inconsistent with the possibility for a conference member to take independent action. That action is fundamentally different from the system of differentiated prices. The taking of independent action, which enables a conference member, subject to notice, to offer, for a specific product, a lower freight rate than that in the conference tariff, does not create another level of prices which may be generally charged, since that action concerns only a single ad hoc transaction. The stabilising effect of the existence of uniform or common freight rates for all conference members therefore continues in the event of independent action, whereas it is undermined where the conference tariff, which lists all the freight rates applicable, is replaced by a system of rates which vary according to the members.

Furthermore, the possibility of fixing different levels of prices makes it possible to attract into the group shipping lines which, without that flexibility, would remain independent and this situation is likely to lead to the elimination of external competition; by contrast, the obligation to fix uniform freight rates for all conference members is not such as to encourage all operators to join the conference, which guarantees the existence of external competition.

( see paras 158-159, 162 )

9. In the context of 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 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, is necessarily limited to verifying whether the rules on 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 a misuse of powers.

( see para. 257 )

10. Although stability in the maritime transport sector, to the extent that it contributes to assuring shippers of reliable services, may be an advantage for the purposes of the first condition of Article 85(3) of the Treaty (now Article 81(3) EC), the Commission cannot be obliged to grant individual exemption to every agreement between shipping lines which, in the opinion of the parties, may contribute to such stability. Within the limits imposed by Regulation No 4056/86, the Commission retains its discretion in applying Article 85(3) of the Treaty.

( see para. 262 )

11. The four conditions for granting an exemption under Article 85(3) of the Treaty (now Article 81(3) EC) are cumulative and therefore non-fulfilment of only one of those conditions will render it necessary to refuse the exemption.

( see para. 264 )

12. In assessing an agreement with a view to granting an exemption under Article 85(3) of the Treaty (now Article 81(3) EC), the market to be taken into consideration comprises the totality of the products which, with respect to their characteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products.

In the case of an agreement between shipping lines for the scheduled transport of containers across the Atlantic between Northern Europe and the United States the relevant market is that for containerised liner shipping. The fact that other modes of transport, whether maritime or air, may engage in marginal competition on the market in containerised liner shipping services in respect of a limited number of products, does not mean that, for that reason, they can be regarded as forming part of the same market.

( see paras 272-273 )

13. The possibility of eliminating competition in respect of a substantial part of the services in question within the meaning of Article 85(3) of the Treaty (now Article 81(3) EC), must be assessed as a whole, taking into account in particular the specific characteristics of the relevant market, the restrictions of competition brought about by the agreement, the market shares of the parties to that agreement and the extent and intensity of external competition, both actual and potential. In the context of this comprehensive approach, those different elements are closely interlinked or may balance each other out. Thus, the greater the restrictions of internal competition between the parties, the more necessary it is for external competition to be keen and substantial if the agreement is to qualify for exemption. Similarly, the larger the market shares of the parties to the agreement, the stronger the potential competition must be.

( see para. 300 )

14. In order to determine whether an agreement affords its signatory parties the possibility, in respect of a substantial part of the products in question, of eliminating competition within the meaning of Article 85(3)(b) of the Treaty (now Article 81(3)(b) EC), the Commission cannot, in principle, rely merely on the fact that the agreement in question eliminates competition between those parties and that they account for a substantial part of the relevant market. First, the prohibition on eliminating competition is a narrower concept than that of the existence or acquisition of a dominant position, so that an agreement could be regarded as not eliminating competition within the meaning of Article 85(3)(b) of the Treaty, and therefore qualify for exemption, even if it established a dominant position for the benefit of its members. Second, potential competition must be taken into consideration before concluding that an agreement eliminates competition for the purposes of Article 85(3) of the Treaty.

Taking into account and analysing external competition, both actual and potential, is all the more necessary where it is a question of examining whether an agreement between shipping companies fixing maritime transport rates qualifies for individual exemption under Article 12 of Regulation No 4056/86.

( see paras 330-331 )

15. Interveners must, under Article 116(3) of the Rules of Procedure of the Court of First Instance, accept the case as they find it at the time of their intervention and their submissions in an application to intervene are, under the fourth paragraph of Article 37 of the Statute of the Court of Justice, limited to supporting the submissions of one of the main parties, an intervener is not entitled to raise a plea in law that was not raised by the applicant.

( see para. 382 )

16. In a decision finding that the provisions of an agreement between shipping lines fixing the rates and conditions of maritime transport infringe the Treaty's competition rules, an order compelling the undertakings concerned to inform customers with whom they have concluded service contracts and other contractual relations in the context of that agreement that such customers are entitled, if they so wish, to renegotiate the terms of those contracts or to terminate them forthwith, which was not obviously necessary and does not correspond to an established line of Commission decisions, requires that institution expressly to set out its reasoning.

Even if that order may be regarded as necessary for re-establishing compliance with the law and as coming within the limits of the Commission's power to order the undertakings concerned, in accordance with Article 11 of Regulations No 1017/68 and No 4056/86, to bring such infringement to an end, the statement of objections should in any event have set out, even briefly, but in sufficiently clear terms, the measures which the Commission intended to take in order to bring an end to the infringements and should have given the applicants all the information necessary in order to enable them properly to defend themselves before the Commission adopted a final decision on that point. That conclusion is all the more necessary where the individual service contracts account for a substantial part of the turnover of the undertakings concerned and the obligation to renegotiate with customers could thus have significant consequences for those undertakings, and could even amount to a penalty more serious than a fine.

( see paras 411, 415, 418 )

Parties

In Case T-395/94,

Atlantic Container Line AB, established in Gothenburg (Sweden),

Cho Yang Shipping Co. Ltd, established in Seoul (South Korea),

DSR-Senator Lines GmbH, established in Bremen (Germany),

Hapag Lloyd AG, established in Hamburg (Germany),

Mediterranean Shipping Company SA, established in Geneva (Switzerland),

A.P. Møller-Mærsk Line, established in Copenhagen (Denmark),

Nedlloyd Lijnen BV, established in Rotterdam (Netherlands),

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

Nippon Yusen Kaisha (NYK Line), established in Tokyo (Japan),

Orient Overseas Container Line (UK) Ltd, established in Levington (United Kingdom),

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

Polish Ocean Lines (POL), established in Gdynia (Poland),

Sea-Land Service Inc., established in Jersey City, New Jersey (United States of America),

Tecomar SA de CV, established in Mexico City (Mexico),

Transportación Marítima Mexicana SA de CV, established in Mexico City,

represented by J. Pheasant, N. Bromfield and, initially, S. Kim and, subsequently, M. Levitt, solicitors, with an address for service in Luxembourg,

applicants,

supported by

The European Community Shipowners' Associations ASBL, having its head office in Brussels (Belgium), represented by D. Waelbroeck, lawyer,

and

The Japanese Shipowners' Association, having its head office in Tokyo (Japan), represented, initially, by N. Forwood QC and P. Ruttley, solicitor, and, subsequently, by F. Murphy, avocat, 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 Freight Transport Association Ltd, having its head office in Tunbridge Wells (United Kingdom), incorporating the British Shipping Council,

Association des utilisateurs de transport de fret, having its head office in Paris (France), incorporating the Conseil des chargeurs français,

and

The European Council of Transport Users ASBL, having its head office in Brussels, incorporating the European Shippers' Council,

represented by M. Clough, solicitor-advocate QC, with an address for service in Luxembourg,

interveners,

APPLICATION for the annulment of Commission Decision 94/980/EC of 19 October 1994 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.446 - Trans-Atlantic Agreement) (OJ 1994 L 376, p. 1),

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 8 June 2000,

gives the following

Judgment

Grounds

Relevant legislation

1 Council Regulation No 17 of 6 February 1962 - First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87) initially applied to all activities covered by the EEC Treaty. However, given the common transport policy, and in view of the distinctive features of the transport sector, it proved necessary to lay down rules governing competition different from those laid down for other sectors of the economy, and the Council therefore adopted on 26 November 1962 Regulation No 141 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291).

2 The detailed rules for the application of Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) to inland transport are defined in Council Regulation (EEC) 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).

3 On 22 December 1986 the Council adopted Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4).

4 Article 1(2) of Regulation No 4056/86 provides that [i]t shall apply only to international maritime transport services from or to one or more Community ports, other than tramp vessel services [meaning the transport of goods in bulk by means of vessels chartered on demand].

5 Liner conference is defined in Article 1(3)(b) of Regulation No 4056/86 as:

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.

6 The eighth recital in the preamble to Regulation No 4056/86 reads as follows:

[w]hereas provision should be made for block exemption of liner conferences; whereas liner conferences have a stabilising effect, assuring shippers of reliable services; whereas they contribute generally to providing adequate efficient scheduled maritime transport services and give fair consideration to the interests of users; whereas 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; whereas 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; whereas 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.

7 Article 3 of Regulation No 4056/86 provides for a block exemption for [a]greements, decisions and concerted practices of all or part of the members of one or more liner conferences ... when they have as their objective the fixing of rates and conditions of carriage, and, as the case may be, one or more of the following objectives:

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

(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.

8 In order to prevent liner conferences from engaging in practices which are incompatible with Article 85(3) of the Treaty and, in particular, from imposing restrictions on competition which are not indispensable to the attainment of the objectives on the basis of which exemption is granted, Regulation No 4056/86 attached certain conditions and obligations to the block exemption. First, Article 4 of that regulation provides that, subject to the nullity of the agreement or the relevant part of that agreement, the exemption is to be granted subject to the mandatory condition that such an agreement is not to cause detriment to certain ports, transport users or carriers by applying differentiated conditions of carriage. Second, Article 5 of Regulation No 4056/86 attaches to the exemption certain obligations relating, in particular, to loyalty arrangements and to services not covered by the freight charges.

9 Furthermore, it is noted in the 13th recital in the preamble that there can be no exemption if the conditions set out in Article 85(3) [of the Treaty] are not satisfied; ... the Commission must therefore have power to take the appropriate measures where an [exempted] agreement or concerted practice owing to special circumstances proves to have certain effects incompatible with that article.

10 For that purpose, Article 7 of Regulation No 4056/86 provides for a mechanism for monitoring exempted agreements. Where the persons concerned are in breach of an obligation laid down in Article 5 of that regulation or where, owing to special circumstances, agreements which qualify for an exemption have effects which are incompatible with the conditions laid down in Article 85(3) of the Treaty, the Commission may take certain measures. Special circumstances expressly include those created by acts of conferences or a change of market conditions in a given trade resulting in the absence or elimination of actual or potential competition. In that case, Article 7 of Regulation No 4056/86 provides that the Commission is to withdraw the benefit of the block exemption.

11 For the purposes of the application of Article 85(3) of the Treaty and pursuant to Article 12 of Regulation No 4056/86, undertakings which seek application of Article 85(3) of the Treaty in respect of agreements, decisions and concerted practices falling within the provisions of Article 85(1) of the Treaty to which they are parties are to submit applications to the Commission. Unless the Commission notifies those applicants, within 90 days from the date of the publication in the Official Journal of the European Communities of a summary of the application, that there are serious doubts as to the applicability of Article 85(3) of the Treaty, the agreement, decision or concerted practice is to be deemed exempt for a maximum of six years from the date of that publication (first subparagraph of Article 12(3) of Regulation No 4056/86). If the Commission finds, after expiry of the 90-day time-limit, but before expiry of the six-year period, that the conditions for applying Article 85(3) of the Treaty are not satisfied, it is to issue a decision declaring that the prohibition in Article 85(1) of the Treaty is applicable (second subparagraph of Article 12(3) of Regulation No 4056/86). Finally, if the Commission finds that the conditions of Article 85(1) and of Article 85(3) of the Treaty are satisfied, it is to issue a decision applying Article 85(3) of the Treaty (second subparagraph of Article 12(4) of Regulation No 4056/86).

Facts

12 The present action for annulment concerns Commission Decision 94/980/EC of 19 October 1994 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.446 - Trans-Atlantic Agreement) (OJ 1994 L 376, p. 1; the TAA decision or the contested decision). By that decision, the Commission took the view that certain provisions of the Trans-Atlantic Agreement (the TAA), an agreement on the scheduled transport (liner transport) of containers across the Atlantic between Northern Europe and the United States of America and on the inland carriage of containers, to which the 15 applicant shipping companies were parties, infringed Article 85(1) of the Treaty. The Commission refused to grant an exemption to those provisions under Article 85(3) of the Treaty. The Commission did not impose any fines in respect of the infringements found.

13 The uncontested facts, according to the TAA decision and the written submissions of the parties, may be summarised as follows.

14 The transatlantic trade is the third-largest world trade after the transpacific and the Europe/Far East trade. In 1984, the nine liner conferences which had until then been operating on the transatlantic route were replaced by two conferences: the North Europe-USA Rate Agreement (Neusara) in respect of westbound traffic and the USA-North Europe Rate Agreement (Usanera) in respect of eastbound traffic. In 1992, the seven shipping companies which belonged to both of those conferences (Atlantic Container Line, Compagnie générale maritime, Hapag Lloyd, Maersk, Nedlloyd, P & O and Sea-Land) jointly held 52.9%, in the westbound sector, and 55.7%, in the eastbound sector, of the market in containerised liner transport services. Their main competitors were, at that time, Orient Overseas Container Line (OOCL), Cho Yang, DSR-Senator Lines, Mediterranean Shipping Company (MSC), Polish Ocean Line (POL), Atlantic Cargo Shipping, Evergreen, Independent Container, Lykes and Star Shipping. All the other companies independent of the liner conferences had market shares of less than 1%.

15 The Neusara and Usanera conferences operated according to the same principles. The rates charged for transport services were based on a published tariff which was valid for all members of the conference. For a given route, the rates for shipping were dependent on the nature of the goods transported. Thus, for the same route, rates could vary by a multiple of five according to the goods transported. Shippers could have their goods transported by any member of the conference and pay the rate indicated in the conference tariff.

16 In order to obtain a rate lower than the conference tariff, shippers had two options. First, they could obtain a discount on the tariff from one of the conference members by means of an independent rate action. That expression refers to the mechanism prescribed in certain provisions of the relevant United States legislation, the US Shipping Act 1984, in order to guarantee to all the members of a conference serving the ports of that country the option of unilaterally granting a discount on the conference tariff. In the Usanera and Neusara conferences, a shipping company which decided to take independent rate action was required to inform the other members of it.

17 Second, shippers could conclude a service contract with the conference. Under such a contract, the shipper undertook to have the conference ship a minimum quantity of goods over a specified period. In exchange for that undertaking, the conference granted the shipper a discount on its tariff. No conference allowed its members to enter into service contracts individually.

18 The markets in containerised maritime liner transport services are generally subject to economic conditions which vary according to the direction of the traffic. Thus, on the transatlantic route, there is a significant imbalance between the demand for eastbound services and that for westbound services. In 1987 and 1988, westbound traffic was much greater than eastbound traffic. However, as from 1991, the situation was reversed, with eastbound traffic slightly exceeding westbound traffic. In 1992, the rates of utilisation of vessels - the ratio between the volume of demand and total capacity available - were estimated at 72.4% for eastbound traffic and at 62.6% for westbound traffic. Finally, during 1993, westbound traffic grew strongly while eastbound traffic decreased considerably.

19 Rates for maritime transport services, or freight rates, on the transatlantic route fell significantly between 1980 and 1992. Thus, between 1988 and 1992, the decrease in westbound traffic was followed by a steady decline in freight rates. From 1988 to 1991, the rates in the westbound sector fell by more than 23%, while they rose by 10% to 13% in the eastbound sector.

20 In that economic context, shipowners suffered significant financial losses.

21 As early as 1985, faced with the deterioration in market conditions, conference members and certain independent companies (Evergreen, POL, MSC, OOCL and Lykes) concluded so-called discussion agreements which allowed them to discuss, in particular, their rates, tariffs and conditions of carriage. Those agreements, called Eurocorde and Gulfway, did not provide for any binding decisions. As from 1990, certain shipowners took the view that the Eurocorde and Gulfway agreements did not allow for the imposition of freight rate increases which might satisfy both conference and non-conference members and they expressed the wish to adopt a new framework of cooperation going beyond discussion agreements and the traditional structures of liner conferences.

22 Negotiations were begun between the shipowners with a view to concluding an agreement of a type as yet unknown in the transatlantic trade in order to combat the fall in freight rates. In order to achieve that objective, the shipowners considered that it was imperative to have a framework of cooperation which governed both the fixing of freight rates and the limitation of the carrying capacity offered.

23 According to the explanations supplied by the applicants, such an agreement could succeed in stemming the instability of the market only by bringing together a sufficient number of shipping companies. In order to bring freight rates back to a level ensuring sufficient viability, the shipowners took the view that it was necessary to bring together within one and the same structure both members of the Usanera and Neusara conferences and independent companies. However, the realisation of such an objective encountered a major obstacle. The independent shipowners refused to join conferences which, like Usanera and Neusara, operated on the basis of a single tariff, since they could not impose on their clients freight rates as high as those charged by those conferences.

24 On 6 May 1992, the member companies of Usanera and Neusara, on the one hand, and five independent shipping companies (DSR-Senator Lines, Cho Yang, OOCL, POL and MSC), on the other, concluded the TAA.

25 After the TAA was concluded, four other independent shipping companies joined that agreement, namely Nyppon Yusen Kaisha (NYK), Neptune Orient Lines (NOL) and Transportación Marítima Mexicana and Tecomar. After having ceased trading on the transatlantic route, Compagnie générale maritime withdrew from the TAA, with the result that the number of parties to the TAA stabilised at 15.

26 The TAA regulated several aspects of containerised liner transport, including slot and space charters and equipment exchange, the fixing of the price of transport and port handling services and the common management of maritime transport capacity. For the purposes of considering the present application, the relevant provisions of the TAA are those relating to the fixing of the price of transport services and the transport capacity management programme.

27 As regards prices, the TAA provided for the fixing in common of the tariffs applicable to maritime transport and intermodal transport. The latter, which the parties also call multimodal or door-to-door transport, includes, in addition to maritime transport, the inland carriage of maritime containers between the coast and inland locations. The price of an intermodal transport service is made up of two elements, one relating to the maritime service, the other to the inland service. Thus, the TAA established, in addition to a maritime tariff, a tariff for the inland transport services operated in the territory of the Community in the context of an intermodal transport operation.

28 The provisions of the TAA on price agreements for maritime and inland transport services are noted in recitals 11 to 15 in the preamble to the TAA decision in the following terms:

(11) The members of the TAA establish their tariffs for both the maritime and inland sectors and publish them jointly. Any independent action by one of the members (the offer of a lower [freight] rate than the tariff ...) must be notified 10 days in advance to the secretariat of the TAA, which informs the other members (Article 13 of the agreement as amended).

(12) A standing "Rate Committee" monitors the application of the objectives of the agreement in so far as they concern tariffs (Article 13 of the agreement). It is made up of the former members of the conferences established in the trade between Northern Europe and the east coast of the United States (i.e. [Atlantic Container Line], Hapag Lloyd, P & O, Nedlloyd, Sealand and Maersk) plus OOCL and NYK. Application of those conference agreements was suspended following the entry into force of the TAA (see recital 117 et seq.).

... Service contracts

(13) The service contracts concluded by the members of the TAA must conform to certain rules, of which the principal ones are the following:

- no contracts may last longer than one year; all contracts must terminate on or before 31 December of the relevant year,

- no contracts may be signed for annual volumes less than 250 TEU containers (20-foot equivalent units). On 16 September 1993 the Commission was informed by the parties that they had lodged with the Federal Maritime Commission [independent administrative authority responsible, in particular, for the implementation of the US Shipping Act 1984] an amendment to the agreement lowering the limit to 200 TEU as from 1 January 1994.

(14) A standing "Contract Committee", made up of the same members as the Rate Committee, i.e. mainly the former members of the conferences, monitors the implementation of the policy of the TAA so far as service contracts are concerned (Article 14 of the agreement).

(15) In particular, Contract Committee members can jointly negotiate and enter into collective service contracts but are not allowed to enter into individual service contracts. Non-members may negotiate and enter into contracts individually and/or jointly among themselves without prior notice. Non-members can enter into Contract Committee members' service contracts only on a case-by-case basis, subject to mutual agreement.

29 As regards transport capacity, Article 18 of the TAA provided for a Capacity Management Programme (the CMP). Under that provision, the purpose of the TAA could not be achieved unless the parties extended their cooperation to the management of their supply of transport capacity. To do that, the shipowners agreed not to utilise a substantial part (up to 25%) of their available capacity. The members of the TAA had established for two years, by periods of three months, the real available capacity of each of them and the volume of goods that each member was authorised to carry. Thus, the shipowner which exceeded its authorised quota over a given three-month period undertook to pay a fine of USD 500 (United States dollars) per TEU container. However, it could charter slots from other TAA members if they had not reached their quota. The volumes prescribed by the programme could be revised. All the parties to the TAA participated in the CMP. At the date of the TAA decision, the CMP was implemented only in the westbound sector of the trade.

30 On 28 August 1992, the TAA was notified to the Commission. On the basis of Article 12(1) of Regulation No 4056/86, the signatories of the TAA requested a decision applying Article 85(3) of the Treaty.

31 By letter of 24 September 1992, the Commission informed the members of the TAA that it would also examine the agreement in the light of Regulation No 1017/68.

32 Between 13 October 1992 and 19 July 1993, the Commission received numerous complaints concerning the implementation of the TAA. The complaints were from exporters and associations of exporters established in various Member States of the Community who exported to the United States of America, the authorities of several European ports, and forwarding agents and associations of forwarding agents. The TAA was accused in those complaints of various breaches of Articles 85 and 86 of the Treaty in connection with the unfairness of the contract conditions imposed by the members of the TAA and the artificial limitation of the supply of transport.

33 By letter of 10 December 1993, the Commission sent the applicants a statement of objections. The addressee undertakings submitted their written observations and, in addition, were heard on 28 and 29 April 1994.

34 On 5 July 1994, following discussions during the pre-litigation procedure, the applicants notified the Commission of a new agreement, the Trans-Atlantic Conference Agreement (the TACA), which was presented as an amended version of the TAA. After various amendments were made, the new agreement took effect on 24 October 1994, replacing the TAA.

35 In those circumstances, on 19 October 1994, the Commission adopted the TAA decision, after having consulted the Advisory Committee on Restrictive Practices and Dominant Positions (land and maritime transport). The contested decision is divided into four parts. In Part One, the Commission set out the main provisions of the TAA. Part Two is devoted to an analysis of the market and the economic context of transport services on the transatlantic route. In Part Three, relating to the role of the TAA, the Commission examines the origin of that agreement, the economic power of the structure which it establishes, its impact on the market and the complaints made against it. Part Four contains a legal assessment of the TAA's provisions on the CMP and on price-fixing for maritime and inland transport.

36 At the end of its analysis, the Commission decided as follows:

Article 1

The provisions of the TAA relating to price-fixing and capacity infringe Article 85(1) of the EC Treaty.

Article 2

Application of Article 85(3) of the EC Treaty and of Article 5 of Regulation (EEC) No 1017/68 to the provisions of the TAA referred to in Article 1 of this decision is hereby refused.

Article 3

The undertakings to which this decision is addressed are hereby required to bring an end forthwith to the infringements referred to in Article 1.

Article 4

The undertakings to which this decision is addressed are hereby required to refrain in future from any agreement or concerted practice which may have the same or a similar object or effect as the agreements and practices referred to in Article 1.

Article 5

The undertakings to which this decision is addressed are hereby required, within a period of two months of the date of notification of this decision, to inform customers with whom they have concluded service contracts and other contractual relations in the context of the TAA that such customers are entitled, if they so wish, to renegotiate the terms of those contracts or to terminate them forthwith.

37 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 FEFC decision). On 16 March 1995, pursuant to Article 173 of the EC Treaty (now, after amendment, Article 230 EC), some of the companies to which that decision was addressed lodged at the Registry of the Court of First Instance an application for annulment of the FEFC decision (Case T-86/95).

38 On 27 January 1997, pursuant to Article 173 of the Treaty, the parties to the TACA lodged at the Registry an application for annulment of Commission Decision C(96) 3414 final of 26 November 1996 relating to a proceeding pursuant to Article 85 of the Treaty (Case No IV/35.134 - Trans-Atlantic Conference Agreement) withdrawing any immunity from fines which might arise from notification of the TACA (Case T-18/97).

39 On 16 September 1998, the Commission adopted Decision 1999/243/EC relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty (Case No IV/35.134 - Trans-Atlantic Conference Agreement) (OJ 1999 L 95, p. 1; the TACA decision). By applications lodged on 7, 29 and 30 December 1998, the parties to the TACA made applications for annulment of the TACA decision, which were registered under the numbers T-191/98, T-212/98, T-213/98 and T-214/98.

Procedure

40 On 23 December 1994, pursuant to Article 173 of the Treaty, the applicants lodged at the Registry of the Court of First Instance an application for annulment of the TAA decision. By separate application under Articles 185 and 186 of the EC Treaty (now Articles 242 EC and 243 EC), they also sought suspension of the operation of the TAA decision.

41 By order of 10 March 1995 of the President of the Court of First Instance in Case T-395/94 R Atlantic Container Line and Others v Commission [1995] ECR II-595, the operation of Articles 1, 2, 3 and 4 of the TAA decision was suspended until delivery of the final judgment of the Court of First Instance in the main action, in so far as those articles prohibit the applicants from jointly exercising rate-making authority in respect of the inland portions within the Community of through-intermodal transport services. The Commission's appeal against that order was dismissed by order of the President of the Court of Justice on 19 July 1995 (Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165).

42 By order of 8 June 1995, the President of the Fourth Chamber (Extended Composition) of the Court of First Instance granted leave to intervene to the Japanese Shipowners' Association (the JSA) and the European Community Shipowners' Association ASBL (the ECSA) in support of the form of order sought by the applicants, and to the Freight Transport Association Ltd (the FTA), incorporating the British Shipping Council, the Association des utilisateurs de transport de fret (the AUTF), incorporating the Conseil des chargeurs français, and the European Council of Transport Users ASBL (the ECTU), incorporating the European Shippers' Council, in support of the form of order sought by the Commission.

43 By application lodged at the Court Registry on 3 October 1995, the applicants submitted a second application for interim measures pursuant to Article 186 of the Treaty, in which they requested the President of the Court of First Instance to address an order to the Commission to the effect that a decision to withdraw immunity from fines from the applicants in respect of European intermodal [rate-making] authority be stated to become effective, if ever, only after final judgment by the [Court] on an application to be lodged expeditiously by the applicants under Articles 173 and 174 [of the EC Treaty] for the annulment of such decision (point 1.26 of the application for interim measures). By order of 22 November 1995 (Case T-395/94 R II Atlantic Container Line and Others v Commission [1995] ECR II-2893), the President of the Court dismissed that application as inadmissible.

44 On 30 October 1995, the High Court of Justice of England and Wales referred to the Court of Justice for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) a number of questions relating, in particular, to the application of Article 85 of the Treaty and to the interpretation of Regulations No 4056/86 and No 1017/68 in the field of maritime liner transport (Case C-339/95 Compagnia di Navigazione Marittima and Others, OJ 1995 C 351, p. 4). By order of 26 June 1996, the Court of First Instance stayed proceedings in Case T-395/94 pending delivery of the judgment in Case C-339/95, 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. Immediately prior to the date fixed for the Advocate General to deliver his Opinion in Case C-339/95, the Court of Justice was informed that an agreement had been concluded between the parties to the proceedings and that the case would be removed from the register of the national court, which was therefore withdrawing its request for a preliminary ruling. Consequently, by order of the President of the Court of Justice of 11 March 1998, Case C-339/95 was removed from the register and proceedings in Case T-395/94 resumed their course without the Court of Justice having given any answers to the various questions referred for a preliminary ruling.

45 In the light of the particularly voluminous nature of the applications lodged in the four actions against the TACA decision and the connection between the substantive issues raised in them and in the present case, Case T-86/95 and Case T-18/97, an informal meeting with the parties was held on 18 January 1999 for the purpose of examining the measures which might be adopted in order to ensure that the cases were dealt with efficiently. However, it was not feasible to group together the cases relating to the TAA and TACA decisions or to obtain from the applicants a summary of the written pleadings in the cases concerning the TACA decision.

46 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, requested the parties to produce certain documents and to answer a number of written questions. The parties complied with those requests within the time-limits set.

47 The parties presented oral argument and replied to the Court's questions at the hearing on 8 June 2000.

Forms of order sought by the parties

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

- annul the TAA decision;

- in the alternative,

- annul Articles 1, 2, 3 and 4 of the TAA decision in so far as they have the effect of prohibiting the applicants from fixing the rates applying to inland transport as part of intermodal transport in the context of any cooperative agreement for the provision of liner shipping services;

- annul Article 5 of the TAA decision;

- annul Articles 1, 2, 3 and 4 of the TAA decision in so far as they have the effect of prohibiting the applicants from concluding joint service contracts, agreements to refrain from entering into individual service contracts and agreements to refrain from taking independent action on joint service contracts;

- order the Commission to pay the costs.

49 The Commission, supported by the FTA, the AUTF and the ECTU, interveners, contends that the Court should:

- dismiss the application;

- order the applicants to pay the costs.

The need to rule on the case

50 The interveners, the FTA, the AUTF and the ECTU, have raised the question as to whether there is any continuing need to rule on the action in that the TAA decision relates to an agreement which is no longer in force.

51 Under Article 113 of the Rules of Procedure, the Court of First Instance may at any time, of its own motion, consider whether there exists any absolute bar to proceeding with an action or declare that there is no need to adjudicate on it. Thus there is no need to adjudicate on an application for annulment of a decision which has not had, and can no longer have, any adverse effects on the applicants and which has accordingly become devoid of purpose (Case 74/81 Flender and Others v Commission [1982] ECR 395, paragraph 9).

52 The Court finds that the contested decision produces legal effects vis-à-vis the applicants. First of all, the Commission found that the provisions of the TAA relating to price-fixing for transport services and the common management of maritime transport capacity infringed Article 85(1) of the Treaty. It then required the applicants to bring an end to those infringements and to refrain in future from any agreement or concerted practice which might have the same or a similar object or effect as those provisions. Finally, it required the applicants to inform customers with whom they had concluded service contracts and other contractual relations in the context of the TAA that such customers were entitled, if they so wished, to renegotiate the terms of those contracts or to terminate them forthwith.

53 Those effects have not necessarily disappeared by reason of the cancellation of the TAA, which was moreover the result of the Commission's negative assessment of the TAA in the light of the Treaty competition rules. In addition, the annulment of the contested decision might preclude a subsequent finding by the Commission that provisions which were the same or similar to those criticised in the TAA decision infringed the competition rules.

54 It follows that, notwithstanding the cancellation of the TAA, the contested decision continues to prejudice the applicants and produces binding legal effects such as to adversely affect their interests, so that the applicants retain an interest in seeking the annulment of that decision. The conditions which might warrant not ruling on an action are not satisfied therefore in the present case.

Substance

55 In support of the principal claim for annulment of the contested decision, the applicants rely in effect on three pleas in law. The first plea alleges breach of Article 85(1) of the Treaty. The second alleges infringement of Article 3 of Regulation No 4056/86 by reason of the non-application to the TAA of the block exemption. The third plea is based on the refusal to grant an individual exemption. The interveners supporting the applicants rely on breach of the Agreement on the European Economic Area (the EEA Agreement). In the alternative, the applicants submit three claims for partial annulment of the contested decision. First, they seek annulment of Articles 1, 2, 3 and 4 of that decision in so far as they prohibit price-fixing for intermodal transport. Second, they seek annulment of Article 5 of the contested decision. Third, they seek annulment of Articles 1, 2, 3 and 4 of that decision in so far as they prohibit joint service contracts.

The principal claim for annulment of the contested decision

I - The first plea in law asserting infringement of Article 85(1) of the Treaty

A - Arguments of the parties

[56 to 68]

B - Findings of the Court

69 The TAA, in so far as it included price-fixing agreements on both maritime and inland transport services and agreements on the non-utilisation of maritime transport capacity, involved, as set out in recitals 286, 298 and 306 of the contested decision, an agreement which manifestly restricted competition. These are restrictions of competition expressly referred to in Article 85(1)(a) and (b) of the Treaty.

70 Moreover, the applicants do not dispute the anti-competitive nature of the TAA provisions in issue, but submit that, although it had a particular obligation to do so in this case, involving as it does an agreement relating to international trade, the Commission has not established that there was an appreciable restriction of competition within the common market and an appreciable effect on trade between Member States.

71 As a preliminary point, the Court finds that that line of argument cannot be accepted in the light of the wording of Regulation No 4056/86. In fact, international maritime transport, in particular that with non-member countries, appears as the first type of transport referred to in that regulation. Article 1(2) of Regulation No 4056/86 provides that the regulation shall apply only to international maritime transport services from or to one or more Community ports, and the sixth recital in the preamble specifies that trade between Member States may be affected where restrictive practices or abuses concern international maritime transport, including intra-Community transport, from or to Community ports. Similarly, the 15th recital in the preamble to Regulation No 4056/86 provides that account should be taken of the fact that the application of this regulation to certain restrictive practices or abuses may result in conflicts with the laws and rules of certain third countries. Finally, and most importantly, it would be pointless to provide for a block exemption in favour of liner conferences, almost all of which concern only routes with non-member countries, if those conferences could not be caught by Article 85(1) of the Treaty.

72 As regards, first, the general objections relating to the Commission's failure to demonstrate that there were restrictions of competition within the common market, it must be emphasised that the TAA related to transport services, both maritime and inland, between Europe and the United States. As the Court of First Instance has already held, the relevant markets directly affected were those in transport services and not that in the export of goods to the United States (see Joined Cases T-24/93 to T-26/93 and T-28/93 Compagnie maritime belge transports and Others v Commission [1996] ECR II-1201, paragraph 205). Bulk Oil and Junghans are thus irrelevant to the present case since they concerned restrictions on the export of goods outside the Community and not the sale of services within the Community. In this case, the restrictions of competition occurred within the common market because it is there that the members of the TAA, including several shipping companies established in the Community, were in competition to sell their services to clients, namely shippers, established in the Community. The fact that certain members of the TAA are not established in the Community does not, moreover, cast doubt on that conclusion. In that regard, the Court of Justice has held that where producers established outside the Community sell directly to purchasers established in the Community and engage in price competition in order to win orders from those customers, that constitutes competition within the common market, so that concertation between those producers on the prices to be charged to their customers in the Community has the object and effect of restricting competition within the common market within the meaning of Article 85 of the Treaty (Joined Cases 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85 Ahlström Osakeyhtiö and Others v Commission (Wood pulp) [1988] ECR 5193, paragraphs 12 and 13).

73 The statement of reasons for the contested decision is sufficient in that respect because it is explained, particularly in recital 289, that [t]he TAA covers shipping lines operating in several Member States and restricts competition between those lines in respect of the services and prices each of them offers ... the elimination or reduction of competition in respect of the services or prices of the shipping lines is capable of reducing to a significant extent the benefits to be derived by the more efficient shipowners. This may in turn affect the normal interplay of gains and losses of market share which would have taken place in the absence of the TAA. The Commission also stated, in recital 67 in the preamble to the contested decision, that the geographic market in which the TAA's maritime transport services were marketed, that is to say containerised liner shipping services between Northern Europe and the United States via the maritime routes between the Northern European ports and ports in the United States and Canada, was made up of the catchment areas of such Northern European ports. In recital 68 in the preamble to the TAA decision, the Commission stated as follows: [t]he catchment areas in question depend both on distances from the ports and on the costs of inland haulage. In the case in point, the catchment areas of the Northern European ports can be regarded as covering, in particular, Ireland, the United Kingdom, Denmark, the Netherlands, Belgium, Luxembourg, most of Germany and Northern and central France. The contested decision has therefore explained to the required legal standard that the TAA included restrictions of competition in respect of prices and the capacity of the transport services which TAA members marketed within the Community.

74 Furthermore, the Commission pointed out in the contested decision that the TAA brought about, in other respects, restrictions of competition within the common market. As is stated in recitals 290 to 293, 301 and 305 in the preamble to that decision, the agreements on prices and transport capacity also influenced competition between ports in different Member States by artificially extending or diminishing their catchment areas. It should be noted in that regard that the sixth recital in the preamble to Regulation No 4056/86 states that restrictive practices or abuses may influence competition, firstly, between ports in different Member States by altering their respective catchment areas, and secondly, between activities in those catchment areas, and disturb trade patterns within the common market.

75 The Court finds, next, that the appreciable nature of those restrictions has been established to the required legal standard in the contested decision. First, the Commission stressed the seriousness of the restrictions of competition at issue and, in recitals 189 to 263 in the preamble to that decision, it made clear the impact of the TAA on the structure and level of prices and its effect on the market. Second, the Commission pointed out, without being contradicted, the considerable economic importance of the services to which the TAA related. In recitals 83, 84 and 438, the defendant thus noted that the transatlantic trade is the third-largest world trade, that a substantial proportion of the trade between Europe and the United States, which amounts to some 80 billion euro in each direction, is carried by liner shipping and that the members of the TAA held a market share of the order of 75% in 1991 and 1992 or, at the very least, of 50% according to their own definition of the market.

76 In any event, in so far as the applicants' objections may be understood as requiring the demonstration of actual anti-competitive effects, even though the anti-competitive object of the provisions in issue is manifestly proven, those objections cannot be upheld. It is settled case-law that, for the purposes of applying Article 85(1) of the Treaty, there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition within the common market (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, at p. 342; see also, to the same effect, Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraphs 14 and 15; and Case C-235/92 P Montecatini v Commission [1999] ECR I-4539, paragraph 122).

77 Finally, in so far as the applicants' arguments seek to challenge the anti-competitive nature of the CMP, suffice it to say that the CMP clearly had the object and effect of restricting the TAA members' planned supply of transport capacity in order to increase or, at the very least, maintain freight rates. Moreover, the applicants' assertion that supply has always exceeded demand on the transatlantic route is true only of overall supply on the market and not of the supply, expressed in terms of transport capacity, of each member of the TAA, which the CMP is indeed specifically designed to restrict. It cannot therefore be denied that the CMP constituted a restriction of competition within the meaning of Article 85(1)(b) of the Treaty. Furthermore, that restriction of competition was appreciable and affected trade between Member States for the same reasons as the provisions of the TAA fixing the prices of maritime transport services.

78 It follows that the Commission has established to the required legal standard in the contested decision that the TAA restricted competition within the common market for the purposes of Article 85(1) of the Treaty.

79 As regards, second, the effect on trade between Member States, it should be recalled, first of all, that it is settled case-law that, 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 factors 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 (Wood pulp II) [1993] ECR I-1307, 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 respect of Article 85 of the Treaty, Case T-29/92 SPO and Others v Commission [1995] ECR II-289, paragraph 235; and, in respect of Article 86 of the Treaty, Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR I-743, paragraph 69).

80 It must be stated, next, that the TAA was an agreement between shipping companies, including a number established in the Community, which related to the conditions for the sale of maritime and inland transport services to shippers established in various Member States of the Community. Such an agreement was capable of affecting trade between Member States for the purposes of Article 85(1) of the Treaty. Given that the condition concerning the effect on trade between the Member States is intended to define the scope of Community law in contrast to that of the laws of the Member States (Consten and Grundig v Commission, and SPO and Others v Commission, paragraph 227), it cannot be disputed that the TAA, which imposed conditions for the sale of transport services on a large proportion of the Community's shippers, falls within the scope of Community competition law.

81 Furthermore, the TAA was capable of modifying the pattern of trade in goods transiting through the ports served by the shipping companies which are TAA members. As a result, the TAA must be regarded as having affected trade between Member States, over and above the trade consisting of only maritime transport services, since port and auxiliary services linked to the carriage of goods were also affected.

82 Finally, although more indirectly, the TAA had, or at the very least was capable of having, an effect on the trade in goods between Member States, in so far as the transport prices fixed by the TAA represented a proportion of the end selling price of the goods transported. The intensity of competition in the maritime transport sector seems indeed to indicate that the price of that transport is an element in the cost of the goods thus transported, such as to have an impact on their sale.

83 As regards, third, the applicants' objections in respect of the Commission's analysis of inland transport services, it should first be noted that, for the purposes of applying Article 85 of the Treaty, the reason for defining the relevant market is to determine whether the agreement at issue 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. That is why, for the purposes of applying Article 85 of the Treaty, the applicants' objections to the Commission's definition of the market cannot be viewed in isolation from their objections concerning the effect on trade between Member States and the impairment of competition (SPO and Others v Commission, paragraphs 74 and 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).

84 It should be noted next that in recitals 71 and 72 in the preamble to the contested decision the Commission clearly identified the inland transport services concerned. It rightly considered that the relevant inland transport services were those for the inland haulage of containers offered to shippers, between ports in Northern Europe and inland points in Europe, as part of a transatlantic intermodal transport operation (see the judgment in Case T-86/95 Compagnie générale maritime and Others v Commission [2002] ECR II-0000, paragraphs 117 to 130, delivered on the same day).

85 The applicants' objections alleging a failure to define, or an error in the definition of, the relevant market must therefore be dismissed.

86 In addition, the applicants' argument that the relevant market should include all inland transport movements of a type similar to, or substitutable for, the movement of TAA containers is unfounded. As the applicants themselves have indeed stated in the context of another plea: [w]hat is at issue here is not inland transport per se, but rather inland transport as part of a through-intermodal transport service ... The TAA inland tariff is a tariff for use only in relation to through-intermodal transatlantic maritime transport services and produces no effects on any other market (such as the market for purely inland movements). (See, by analogy, the judgment in Case T-30/89 Hilti v Commission [1991] ECR II-1439, upheld by the Court of Justice in Case C-53/92 Hilti v Commission [1994] ECR I-667). The inland transport concerned included only the inland haulage of containers in connection with transatlantic maritime transport services.

87 As regards the complaints that the Commission did not prove that the agreements fixing inland transport rates were a restriction of competition within the common market and affected trade between Member States, suffice it to recall the finding above that TAA members competed against each other in respect of the sale of their transport services within the common market. That was also true of the inland haulage transport services supplied with other services including the maritime transportation proper of containers as part of an intermodal transport operation. The prices of those inland transport services were an important element in the price of the intermodal transport sold by the members of the TAA. The agreements fixing inland transport rates therefore appreciably reduced competition between those companies and affected trade between Member States in the same way as the agreements on maritime transport. As regards inland transport services, the effect on inter-State trade and the localisation within the common market of the restriction of competition are even less open to challenge because some of those transport services are actually operated in the territory of the different Member States. The assertion in recital 306 in the preamble to the contested decision that agreements fixing the rates and conditions of the inland element of intermodal transport services are a restriction of competition within the meaning of Article 85(1) of the Treaty can therefore not be validly challenged.

88 Furthermore, as is stated in recital 309 in the preamble to the contested decision, the price agreements on inland transport services changed the nature of the relationship between shipowners and inland transport undertakings, which was liable to affect trade in inland transport services between Member States. Fixing the sale price of inland transport services could, in particular, influence the shippers' decision to entrust the inland haulage of their containers to members of the TAA or to an inland transport undertaking, thereby distorting competition on the inland segment between the shipping companies which were TAA members and the inland transport undertakings in various Member States.

89 Similarly, in recital 310 in the preamble to the contested decision, the Commission made the further correct finding that the collective fixing of inland transport rates altered the natural catchment areas of the ports of the various States. Fixing those prices on the basis of an assumed move between an inland point and the nearest port served by any member of the TAA, and thus regardless of which ports were actually served by the various members of the TAA, neutralised the economic advantage which a shorter distance from a given port might confer. The applicants have not in fact challenged the existence of such deflection of freight resulting from the application of the inland transport tariff, but have merely qualified its importance. The suggestion, which has after all not been proven, that, even without the TAA, the shipping companies would absorb the additional costs of moving goods to a more distant port does not alter the fact that the object, or at least the effect, of the practice known as port equalisation was to drain goods towards ports to which otherwise they would not have been sent and that that modification in the pattern of trade in goods was a consequence of the price agreements on inland transport.

90 In any event, it is settled case-law that the condition relating to the effect on trade between Member States is satisfied where it is possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or of fact that the agreement in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States (see, to this effect, inter alia Case 99/79 Lancôme and Coparfrance [1980] ECR 2511, paragraph 23; Case T-22/97 Kesko v Commission [1999] ECR II-3775, paragraph 103). The Commission has no obligation therefore to demonstrate that trade has actually been so affected (Ferriere Nord v Commission, paragraphs 19 and 20), which, moreover, is difficult to prove to a sufficient legal standard in most cases, but it is required to establish that the agreement is capable of having that effect (Case 19/77 Miller v Commission [1978] ECR 131, paragraph 15; and Ferriere Nord v Commission, paragraph 19). Accordingly, the applicants' objections must be dismissed in so far as they may be understood as requiring from the Commission proof that trade between Member States has actually been affected, on each of the markets or sub-markets which they deem relevant.

91 Finally, as regards the appreciable nature of the restrictions of competition resulting from the price agreement on inland transport, it should be recalled, first, that, according to recital 146 in the preamble to the contested decision, which has not been challenged by the applicants, in 1992, TAA members shipped more than 1.5 million TEU containers of the almost 2 million shipped in the context of transatlantic trade and, second, that, according to the applicants' answers to the Court's written questions, between 40% and 50% of the containers shipped by TAA members were carried to or from the ports in the context of intermodal transport contracts. Consequently, the price agreements on inland transport services concerned at least 600 000 containers, namely 30% of the containers shipped between Europe and the United States.

92 It is clear from the foregoing that, first, by virtue of its anti-competitive object and in the light of the economic power of its members, the TAA was capable of having an appreciable effect on trade between Member States and significantly modified the conditions of competition in the territory of a number of Member States and, second, the contested decision contains a sufficient statement of reasons for that assessment.

93 The first plea in law alleging a breach of Article 85(1) of the Treaty must therefore be dismissed.

II - The second plea in law based on the non-application to the TAA of the block exemption provided for in Article 3 of Regulation No 4056/86

94 The Commission decided that the TAA was not covered by the block exemption granted to liner conferences by Article 3 of Regulation No 4056/86 because, first, it was not a liner conference within the meaning of that regulation, in that it established at least two rate levels and, second, even if the TAA were regarded as a liner conference, the CMP was not an activity covered by the exemption under Article 3. The Commission also considered in the TAA decision that, whichever interpretation of the concept of liner conference were adopted, Regulation No 4056/86 was, in any event, inapplicable to agreements fixing inland transport rates in the context of intermodal transport.

A - Arguments of the applicants

[95]

1. Incorrect assessment of the economic characteristics of maritime liner transport

(a) Partial inadmissibility of the Commission's defence

[96]

(b) Economic characteristics of the liner shipping market

[97 to 105]

(c) Stabilising effects of the TAA on the transatlantic trade

[106 to 109]

(d) Recognition by Community law of the inherent instability of the liner shipping market

[110 to 121]

2. Definition of liner conference within the meaning of Regulation No 4056/86 and the dual tariff structure of the TAA

[122 to 127]

B - Arguments of the ECSA and the JSA

[128 to 129]

C - The arguments of the Commission

[130]

D - Arguments of the FTA, the AUTF and the ECTU

[131 to 133]

E - Findings of the Court

134 The applicants submit, in substance, that by virtue of an excessively narrow definition of the concept of stability, the Commission wrongly considered in the contested decision that the TAA was not covered by the block exemption provided for in Article 3 of Regulation No 4056/86, since that decision was based on the fact that, first, the TAA was not a liner conference because its members did not charge uniform or common freight rates, second, the CMP was not covered by the block exemption and, third, agreements fixing inland transport rates in the context of intermodal transport did not fall within the scope of Regulation No 4056/86.

135 Recital 319 in the preamble to the contested decision states:

The TAA is not a liner conference agreement exempted by Article 3 of Regulation No 4056/86, the main reasons being that:

- it establishes at least two rate levels,

- it provides for non-utilisation of capacity.

136 It must be noted that, according to the contested decision, the dual tariff structure prevents the TAA from being regarded as a liner conference within the meaning of Regulation No 4056/86, while the CMP is regarded as an activity which could not be exempted under Article 3 of that regulation. According to recital 359 in the preamble to the contested decision, even if the TAA were a conference agreement within the scope of Article 1 of Regulation ... No 4056/86, the capacity management programme set up by TAA members would not be exempted by Article 3 of that regulation.

137 It is also clear from recitals 320 to 358 in the preamble to the contested decision, as was, moreover, confirmed by the Commission in the defence and the rejoinder as well as at the hearing, that the refusal to consider that the TAA was covered by the group exemption provided for in Article 3 of Regulation No 4056/86 is based, first and foremost, on the ground that the TAA was not a liner conference within the meaning of Article 1 of Regulation No 4056/86 because it did not provide for uniform or common freight rates.

138 Article 3 of Regulation No 4056/86 provides for an exemption from the prohibition in Article 85(1) of the Treaty for agreements, decisions and concerted practices of all or part of the members of one or more liner conferences ... when they have as their objective the fixing of rates and conditions of carriage.

139 The group exemption provided for in Article 3 of Regulation No 4056/86 thus relates to agreements fixing rates in the context of liner conferences. As is clear from the eighth recital in the preamble to Regulation No 4056/86, that group exemption is accorded to liner conferences on the grounds that they have a stabilising effect, assuring shippers of reliable services, and that they contribute generally to providing adequate, efficient, scheduled maritime transport services and also give fair consideration to the interests of users. The eighth recital also states that such results cannot be obtained without the cooperation that shipping companies promote within conferences in relation to rates.

140 It follows that an agreement can qualify for the exemption provided for in Article 3 of Regulation No 4056/86 only if it is the agreement of a liner conference.

141 It is first necessary, therefore, to define liner conference within the meaning of Regulation No 4056/86 and, next, to determine whether the TAA could be regarded as a liner conference.

1. The definition of liner conference within the meaning of Regulation No 4056/86

142 According to Article 1(3)(b) of Regulation No 4056/86, a liner conference is 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.

143 The existence of a liner conference within the meaning of Regulation No 4056/86 thus depends on the charging of uniform or common freight rates by its members.

144 The applicants submit, in substance, that the Commission wrongly considered in the TAA decision that uniform or common freight rates means that those rates must be identical for all the members of the conference for the same product. According to the applicants, a group of shipping companies may constitute a liner conference within the meaning of Regulation No 4056/86 and therefore qualify for the block exemption, so long as the freight rates are established in common by the members of the group, even if they vary from one member to another. The term uniform refers only to uniformity in the rates charged to shippers, but not between shipowners.

145 In order to determine the meaning of the expression uniform or common freight rates, it is necessary to have regard not only to the terms used, but also to the mechanism of the block exemption, to the context of Regulation No 4056/86 and to the objectives which it pursues.

146 First, it should be recalled that, according to settled case-law, having regard to the general principle of the prohibition of agreements restricting competition in Article 85(1) of the Treaty, provisions derogating therefrom in an exempting regulation must, by their nature, be strictly interpreted (Compagnie maritime belge de transports, paragraph 48; Case T-9/92 Peugeot v Commission [1993] ECR II-493, paragraph 37). This conclusion applies, a fortiori, to the provisions of Regulation No 4056/86 by virtue of its unlimited duration and the exceptional nature of the restrictions on competition authorised (horizontal agreement having as its object the fixing of prices). It follows that the block exemption provided for by Article 3 of Regulation No 4056/86 cannot be interpreted broadly and progressively so as to cover all the agreements which shipping companies deem it useful, or even necessary, to adopt in order to adapt to market conditions. The exemption can relate only to the types of agreement which the Council, when Regulation No 4056/86 was adopted, regarded, in the light of experience, as satisfying the conditions of Article 85(3) of the Treaty. Apart from the power enjoyed by the Council, if the need arose, to amend Regulation No 4056/86, the undertakings concerned also always have the option to apply for an individual exemption to offset any disadvantages of the limitations inherent in the block exemption.

147 Second, it is common ground that the definition of liner conference in Article 1(3)(b) of Regulation No 4056/86 was taken word for word from the United Nations Convention on a Code of Conduct for Liner Conferences, which was adopted on 6 April 1974 and entered into force on 6 October 1983. The link between Regulation No 4056/86 and the Unctad Code is also clear from the third recital in the preamble to that regulation, according to which the regulation applying the rules of competition to maritime transport foreseen in the last recital of Regulation (EEC) No 954/79 should take account of the adoption of the [Unctad] Code; [and] as far as conferences subject to the [Unctad] Code ... are concerned, the regulation should supplement [that] Code or make it more precise. The Unctad Code thus constitutes an important point of reference for the interpretation of the concept of liner conference referred to in Regulation No 4056/86.

148 As is clear, in particular, from the numerous references to academic writing in recitals 321 and 322 in the preamble to the contested decision, the Unctad Code refers to traditional liner conferences whose essential characteristic is that all their members agree to charge the same freight rates for the maritime transport of the same product on a regular service. It must, however, be said that the applicants have not cited any publication or referred to any work which would contradict that assertion. At most, they have identified, rightly but without its having any relevance, the exact scope of a work to which reference is made in recital 324 in the preamble to the TAA decision. Furthermore, the applicants have not specifically claimed that the operation of traditional liner conferences is not based on the charging of uniform freight rates, but have merely stated, vaguely, in a part of their application other than that containing the statement of the second plea, that [t]he history of liner conferences indicates that all three types of agreement on price have been a feature of cooperation between liner operators.

149 The requirement of uniformity of rates for all members of a traditional liner conference, referred to by the Unctad Code, is also clear from Article 13(2) of that code which, in the French version, as in most of the other language versions except the English, provides that conference tariffs must specify one freight rate for each commodity.

150 Moreover, although a provision of Community law must be interpreted in the light of that law and obviously cannot depend on the law of a non-member State, it can none the less be noted, since Regulation No 4056/86 refers to the liner conferences covered by the Unctad Code, as is stated in recital 346 in the preamble to the TAA decision, that the analysis of the United States Department of Justice also confirms that liner conferences are based on uniform freight rates for all conference members and are thereby different from agreements such as the TAA, known as rate agreements, which provide for rates which are different for different members. According to the Department of Justice, [c]onference membership in these rate agreements allows conferences to meet with all major "independent" lines to fix rates. Thus conference monopoly power can be extended, through rate agreements, to encompass most non-conference lines. ... Such an agreement need not specify uniform rates: the parties may agree on rates which are different for different carriers, reflecting service variations or other factors. ... Rate agreements typically provide for the right of independent action by agreement members. Where conferences are members of rate agreements, the lines normally agree upon a rate differential between conference and non-conference rates, rather than on uniform rates as is the case with respect to conferences. (The Regulated Ocean Shipping Industry, a report of the US Department of Justice, January 1977, pp. 69, 70 and 142.)

151 Third, it is also clear from the documents preparatory to the adoption of the Unctad Code cited in recital 327 in the preamble to the contested decision, such as the 1970 preparatory report for that code, drawn up by the secretariat of the United Nations Conference on Trade and Development (Unctad) and entitled The Liner Conference System, that the fixing of uniform freight rates for the same cargo and for all conference members is an essential characteristic of a liner conference. Thus, point 156 of that report states that [i]n any conference the basic agreement between the members is to charge uniform rates (emphasis added by the Court). Similarly, conferences are described as groups of lines operating on routes with basic agreements to charge uniform rates ... (point 8). It is noted that [t]he competition between the members of the conference is controlled by all the members agreeing to charge uniform rates (point 14). The report states that the advantages brought by conferences include the fact that they maintain that all the member lines charge uniform rates without discrimination between shippers on the basis of their economic power or the size of their shipment. A conference shipper is sure that his competitors cannot, by shopping around, obtain a lower rate (point 27). Conferences further argue that they provide fixed rates which are reasonably stable (point 28). In Chapter VI on the stability of freight rates, it is noted that [o]ne important claim made by conferences is that they give to importers and exporters stability of freight rates which they believe will enable long-range planning of trade to take place (point 225). To meet this widespread desire on the part of shippers is one main reason why cargo-carrying lines combine into conferences and agree to quote the same rates and conditions for similar cargo to all shippers (point 226). Rate stability, therefore, seems possible only if the lines enter into an agreement or understanding to charge uniform rates (point 227). Similarly, point 6 of the 1972 preparatory report of the Unctad secretariat entitled The Regulation of Liner Conferences (A Code of Conduct for the Liner Conference System) states that liner conferences are groups of shipping lines operating on routes with basic agreements for charging uniform rates.

152 It is clear from the foregoing that, contrary to the applicants' submissions, the history of the drafting of the Unctad Code shows that the essential characteristic of liner conferences is the fixing of uniform freight rates applicable by all the members of the conference for the transport of a particular product.

153 Accordingly, the fact, relied on by the applicants, that, before the expression uniform or common freight rates was adopted, formulations including uniform on its own, agreed on its own and uniform or agreed were proposed, is irrelevant. Those successive proposals merely highlight the semantic difficulty in international discussions of translating a common concept designated by numerous expressions in the different States or in the different languages.

154 Moreover, the alleged difference in meaning between uniform and common is scarcely of consequence, since the two terms appear to be synonymous. Where shipping companies charge freight rates characterised as uniform or common, the client pays the same price, whichever company transports the cargo.

155 Finally, the joint use of uniform and common is explained by the need to ensure that the definition in the Unctad Code also covers the practice of promotional freight rates (referred to in Article 15 of the Unctad Code) and that of special rates under loyalty arrangements (referred to in Article 7 of the Unctad Code). In those two cases, the freight rates are indeed common, since they are identical for all members and vis-à-vis all shippers, but they are not uniform, since a different price will be charged for the carriage of the same cargo according to whether it comes under the general tariff or the tariff applicable to promotional activities or loyalty arrangements.

156 Fourth, the Court of First Instance has held that a liner conference, as emerges from Article 1 of Regulation No 4056/86, by virtue of its nature ... is intended to define and apply uniform freight rates and other common conditions of carriage (Compagnie maritime belge de transports, paragraph 65).

157 Similarly, the Court of Justice has confirmed that by its very nature and in the light of its objectives, a liner conference, as defined by the Council for the purposes of qualification for block exemption under Regulation No 4056/86, can be characterised as a collective entity which presents itself as such on the market vis-à-vis both users and competitors (Joined Cases C-395/96 P and C-396/96 P Compagnie maritime belge de transports and Others v Commission [2000] ECR I-1365, paragraph 48). The conference puts itself forward as an entity on the market since it fixes uniform freight rates for all its members, in the sense that the same price will be charged for the carriage of the same cargo from point A to point B, regardless of which shipowning member of the conference is responsible for carriage.

158 Fifth, as is clear, in particular, from the eighth recital in the preamble to Regulation No 4056/86, liner conferences qualify for a block exemption because of their stabilising effect. That stability is best ensured if all the members of the conference adopt uniform freight rates rather than if there are several rates according to the members concerned. A uniform level of freight rates within the conference also allows users, account of whose interests is also a requirement for the exemption, to be assured of being able to obtain the transport service at the same price, whichever conference member it approaches. That interest of the shippers in having access to a reference rate in respect of a particular commodity is appreciably reduced if the members of the conference do not charge one rate, but two or more, in respect of the same product.

159 Contrary to the applicants' submissions, that interpretation of the concept of liner conference is not inconsistent with the possibility, acknowledged by the Commission, for a conference member to take independent action. That action is fundamentally different from the system of differentiated prices. The taking of independent action, which enables a conference member, subject usually to 10 days' notice, to offer, for a specific product, a lower freight rate than that in the conference tariff, does not create another level of prices which may be generally charged, since that action concerns only a single ad hoc transaction. The stabilising effect of the existence of uniform or common freight rates for all conference members therefore continues in the event of independent action, whereas it is undermined where the conference tariff, which lists all the freight rates applicable, is replaced by a system of rates which vary according to the members. In addition, independent action is, by definition, decided on and taken by a carrier in accordance with the principle of competition law that each operator determines, completely independently, the policy which he intends to follow on the market; by contrast, a system of differentiated prices implies an anti-competitive arrangement additional to that of the liner conference, since it is in practice akin to an agreement between a conference and independent companies.

160 Similarly, the interpretation in the contested decision of uniform or common freight rates as meaning that those rates must be identical for all conference members cannot be regarded as inconsistent with the fact that loyalty arrangements, as defined in Article 5(2) of Regulation No 4056/86, are exempted under Article 6 of that regulation. Loyalty arrangements, on the basis of which reductions on the freight rates laid down in the tariff are granted to the shippers who agree to be loyal to the conference, do not undermine the stabilising effect of the conference since those reductions are granted whichever conference member undertakes the carriage and charged uniformly to all the shippers which are parties to those arrangements and dispatch the same cargo.

161 Sixth, according to Article 85(3)(b) of the Treaty, an exemption cannot be granted to an agreement which eliminates competition. In that regard, the Court of Justice has stated that if Article [3(g)] provides for the institution of a system ensuring that competition in the common market is not distorted, then it requires a fortiori that competition must not be eliminated. This requirement is so essential that without it numerous provisions of the Treaty would be pointless (Case 6/72 Europemballage Corporation and Continental Can v Commission [1973] ECR 215, paragraph 24). Similarly, it is clear from the case-law that price competition is so important that it can never be eliminated (Case 26/76 Metro v Commission [1977] ECR 1875, paragraph 21).

162 In Regulation No 4056/86, the Council did not intend to derogate, and indeed could not have derogated, from Article 85(3) of the Treaty. On the contrary, the Council refers on several occasions, in particular in the 13th recital in the preamble to Regulation No 4056/86 and in Article 7 thereof, to the need to ensure that the block exemption does not cover practices which are incompatible with Article 85(3) of the Treaty. As regards the exemption of a horizontal price-fixing agreement which has as its object or effect the elimination, at least to a large extent, of internal competition between conference members, the existence of external competition from the independent shipping companies, that is those which operate outside the conference, constitutes the principal guarantee of maintaining effective competition where