Commission notice pursuant to Article 12(2) of Council Regulation (EEC) No 1017/68 concerning Case COMP/D-2/38.086 — European Rail Shuttle (ERS) (Text with EEA relevance)
Date: 2002-01-17
Institutions: European Commission
Subjects: European Commission, container, economic concentration, maritime transport, merger control, rail transport

17.1.2002

EN

Official Journal of the European Communities

C 13/5

Article 14

Service by post

is not allowed (Section 3 of the EU Service of Documents
Implementation Act).

In the territory of the Federal Republic of Germany, direct
service by post within the meaning of Article 14(1) of the
Regulation is accepted only in the form of registered letter
with advice of delivery and only on the further condition
that the document to be served is in one of the following
languages or accompanied by a translation into one of the
following languages: German or one of the official languages
of the transmitting State, if the addressee is a national of that
State (Section 2(1) of the EU Service of Documents Implemen-
tation Act).

Article 19

Defendant not entering an appearance

Where the conditions of Article 19(2) are fulfilled, German
courts may give judgment where a writ of summons or
equivalent document has been publicly served in the Federal
Republic of Germany.

Article 15

Direct service

In the territory of the Federal Republic of Germany, direct
service within the meaning of Article 15(1) of the Regulation

No application may be entertained for the restoration of the
original situation within the meaning of Article 19(4) of the
Regulation more than one year after the end of the missed
deadline.(cid:146)

Commission notice pursuant to Article 12(2) of Council Regulation (EEC) No 1017/68 concerning
Case COMP/D-2/38.086 (cid:151) European Rail Shuttle (ERS)

(2002/C 13/03)

(Text with EEA relevance)

1. Application

The parties listed in section 3 below have submitted an
to Article 12 of Regulation (EEC) No
application pursuant
1017/68 with a view to obtaining,
for a further three-year
period, a declaration of non-applicability of the prohibition
in Article 2 to the continuing operation of ERS, in accordance
with Article 5 of that Regulation.

2. Background

ERS was set up in 1994 as a joint venture company engaged in
the movement of deep-sea containers by scheduled rail shuttle
services between Rotterdam and points in Germany and Italy.
ERS acts as an intermediary between its parent shipping lines
and the railway undertakings and contracts with the latter for
train crew and traction. ERS sells any available spare capacity
to third parties.

The ERS agreement was originally notified to the Commission
on 15 June 1995. Details of the application were published by
the Commission on 30 October 1997 (1). By decision of 30
January 1998 ((cid:145)the decision(cid:146)), the Commission acknowledged
that the agreement should be exempted for a period of three
years.

The parties contend that the nature, content and objectives of
the current arrangements are essentially the same as those

(1) Case No IV/35.592 (OJ C 328, 30.10.1997, p. 13).

which were the subject of
the decision and that
differences relate to shareholding and routes served.

the only

3. The parties

The parties to the notified agreement are:

(cid:151) M(cid:230)rsk Intermodal Europe BV ((cid:145)MIE(cid:146)),

an intermodal
operator based in the Netherlands and specialising in the
inland distribution of deep-sea containers moved by M(cid:230)rsk
Sealand. MIE is a subsidiary of M(cid:230)rsk Benelux BV and part
of the A P Młller Group,

(cid:151) P & O Nedlloyd BV ((cid:145)PONL(cid:146)), a container transport company
based in the Netherlands and formed by the merger of
P & O Containers Ltd and Nedlloyd Lines BV.

4. Arguments of the parties for negative clearance or

exemption

Shareholding

ERS originally had five shareholders i.e. Nedlloyd, M(cid:230)rsk,
Sea-land Service, P & O Containers Ltd and Holland Rail
Container BV. The four shipping companies had the same
shareholding and decisions were taken on the basis of

C 13/6

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Official Journal of the European Communities

17.1.2002

unanimity. P & O Containers Ltd and Nedlloyd established
P & O Nedlloyd in 1996 (1). Subsequently, Holland Rail
In 1999, the AP Młller
Container BV withdrew from ERS.
Inc (2).
Group
Service
of
Consequently, MIE and PONL are the sole shareholders of
ERS, each with 50 % of
the shares. The European Rail
Shuttle Agreement BV ((cid:145)ERS Shareholders Agreement(cid:146)) of 12
December 2000 supersedes that of 1998.

Sea-Land

acquired

control

The parties contend that the reduction in the number of share-
holders cannot be considered a change of control, as the
reduction in the number of shareholders having joint control
i.e. MIE and PONL does not lead to a change in the quality of
control (3). Nor does it involve any new entry or substitution of
shareholders acquiring control.

The parties argue, furthermore, that ERS cannot be considered
a full-function joint venture as it was established primarily to
provide services to the parent companies: ERS was devised as a
joint operating company for existing and new rail shuttle
services. It is only in the event of spare capacity on a particular
rail shuttle train that third parties are offered this capacity by
ERS, on behalf of its parents. Nor does ERS take the decisions
on pricing itself. Instead, the parties jointly agree on the terms
and prices for the allocation of excess capacity to third parties.
Additionally, it is for the parties themselves to decide upon the
shuttle
establishment and operation of possible new rail
services and for the parties to bear the associated costs.
It
follows that ERS lacks commercial independence.

New routes

the time of

ERS has expanded its route network. At
the
decision adopted on 30 January 1998, ERS operations were
confined to services between Rotterdam and each of
Germersheim, Neuss, Milan and Padova. ERS now serves in
Poznan,
addition Mainz, Mannheim, Athus, Mouscroun,
from
Warsaw,
Rotterdam.
also operates between Bremerhaven and
Munich, Nurnberg and Stuttgart and between those three
points and Hamburg.

Prague, Bratislava

Szombathely,

and

all

It

Relevant market

The parties are of the opinion that the relevant service market
is inland transport as part of multimodal transport operations
but take the view that,
irrespective of the precise definition
adopted, ERS does not raise competition concerns and that,
consequently, the exact definition of the product market can
be left open.

in its
As for the geographic market, the parties recall that,
decision, the Commission took the view that because of the
substitutability of the principal ports of Germany, Belgium and
the Netherlands for the handling of substantial container traffic,
the geographic market to be taken into consideration included
the territories of Germany, Belgium, the Netherlands and Italy
in the case of services to Milan and Padova. The parties
conclude that, consistent with the reasoning in the decision,
and bearing in mind the expansion of ERS services,
the
geographic market now includes at least the above territories
plus Poland, Hungary, the Czech Republic and Slovakia.

5. Third party comments

This notice is published pursuant to the procedure established
by Article 12(2) of Regulation (EEC) No 1017/68.

The Commission has not, at this stage, formed any view on the
applicability of Article 5 of the said Regulation to the ERS
agreement.

The Commission invites all interested parties to submit their
comments to it within 30 days of publication of this notice,
quoting Case COMP/D-2/38.086 (cid:151) European Rail Shuttle, by
fax ((32-2) 296 98 12) or by post to:

European Commission
DG Competition
Directorate D
J-70
B-1049 Brussels.

(1) Case IV/M.831 (cid:151) P & O/Royal Nedlloyd of 19 December 1996.
(2) Case IV/M.1651 (cid:151) M(cid:230)rsk/Sea-Land of 6 October 1999.
(3) See Commission notice on the concept of undertakings concerned
under Council Regulation (EEC) No 4064/89 on the control of
concentrations between undertakings (OJ C 66, 1998).