White Paper on the review of Regulation 4056/86, applying the EC competition rules to maritime transport  {SEC(2004) 1254}
Date: 2004-10-13
Institutions: European Commission
Subjects: competition law, competition policy, control of restrictive practices, maritime transport, transport company

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 13.10.2004 
COM(2004) 675 final 

WHITE PAPER 

on the review of Regulation 4056/86, applying the EC competition rules  
to maritime transport 

(presented by the Commission) 

{SEC(2004) 1254}

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1. 

INTRODUCTION  

1.1. 

Purpose of this White Paper 

1. 

The  purpose  of  the  present  paper  is  to  present  the  way  forward  in  the  maritime 
transport  competition  area.  In  particular,  the  paper  analyses  whether  to  maintain, 
modify  or  repeal  the  currently  applicable  provisions  of  Regulation  4056/86. 
Furthermore,  the  paper  discusses  whether  it  would  be  appropriate  to  replace  the 
present block exemption for liner conferences laid down in Regulation 4056/86 with 
other Community instruments (such as for instance another block exemption or a set 
of  guidelines)  covering  any  new  business  framework  of  cooperation  between  liner 
services operators on trades to and from the EU (in addition to already existing forms 
of cooperation such as consortia and alliances). 

1.2. 

Council Regulation 4056/86 

2. 

Council  Regulation  4056/86,  applying  Article  81  and  82  of  the  Treaty  to  maritime 
transport (hereinafter: “Regulation 4056/86”),1 originally had a dual function. First, it 
contained procedural  provisions, providing the Commission  with the practical tools 
for  effective  fact-finding  and  enforcement  of  the  EC  competition  rules  in  the 
maritime transport sector. Secondly, it contained some substantive provisions for the 
maritime  sector.  The  most  important  one  of  these  substantive  provisions  is  a  block 
exemption from the prohibition of Article 81(1) of the Treaty of certain categories of 
agreements, decisions or concerted practices by liner shipping conferences. The first 
function  of  Regulation  4056/86  has  become  redundant  as  from  1  May  2004,  when 
Council Regulation 1/2003 became applicable, repealing the procedural provisions of 
Regulation  4056/86  and  thus  providing  for  common  competition  enforcement  rules 
for basically all sectors, including the maritime transport sector (with some specific 
exceptions).2  The  substantive  provisions  of  Regulation  4056/86,  however,  have  not 
been amended until today. After ending the specific procedural competition regime 
for maritime transport, a logical next step is to review whether there is, in the current 
market  circumstances,  still  a  justification  for  the  remaining  substantive  specific 
competition provisions in the maritime transport sector. 

1.3. 

The review  

3. 

4. 

The review should be seen in its overall EU context. The Lisbon European Council 
in March 20003 asked the Commission “to speed up liberalisation in areas such as 
gas,  electricity,  postal  services  and  transport”.  Furthermore,  the  review  has  also 
been inspired by a report of the OECD Secretariat that was published in April 2002 
and that recommended to consider removing anti-trust exemption for price fixing and 
rate discussions.4  

The  main  issue  of  the  review  is  the  present  block  exemption  for  certain  restrictive 
practices  by  liner  conferences,  in  particular  price  fixing  and  supply  regulation. 
However,  the  review  also  covers  some  other  provisions  contained  in  Regulation 
4056/86, that is the exclusion of certain maritime services (cabotage (that is national 
maritime  services)  and  tramp  (non-scheduled)  services)  from  the  competition 
implementing rules, a provision for technical agreements and a provision on conflict 
of laws. 

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5. 

6. 

In the  18 years since  the adoption of Regulation 4056/86 the liner shipping market 
has changed. In particular, the role of carriers offering liner shipping services outside 
a conference (independent operators) on most routes to and from the EU has become 
more  important.  Furthermore,  operational  forms  of  co-operation  between  carriers 
(not involving price fixing), such as consortia and alliances have increased. What is 
more,  there  has  been  a  substantial  growth  of  individual  confidential  contracting 
between  carriers  and  shippers,  such  as  individual  service  contracts.  These 
developments  raise  the  question  whether  a  block  exemption  for  price  fixing  and 
capacity  regulation  by  liner  conferences  is  still  justified  under  Article  81(3)  of  the 
Treaty. 

It has been agreed with the Member States5 that the review is a three step process, 
consisting  of:  1)  fact  finding,  2)  a  Commission  paper  and  3)  a  proposal  for 
legislation.  The  review  process  started  in  March  2003,  with  the  publication  of  a 
consultation  paper  (hereinafter:  “Consultation  Paper  of  2003”),  that  is  available  at 
http://europa.eu.int/comm/competition/antitrust/legislation/maritime/en.pdf.  In  total 
36  submissions  were  received,  from  providers  of  liner  shipping  services  (carriers), 
transport  users  (shippers  and  freight  forwarders),  Member  States,  consumer 
associations and others. A team of economists from Erasmus University Rotterdam 
was commissioned to assist in processing the replies. The replies to the consultation 
paper and the final Erasmus report have been posted on the Commission’s web-site. 
Following a public hearing that took place in December 2003, DG Competition has 
set  out  the  outcome  of  the  consultation  process  and  its  preliminary  analysis  in  a 
discussion paper (hereinafter: “Discussion Paper”). The Discussion Paper served as a 
basis for a discussion with the Member States in May 2004 and was also published at 
http://europa.eu.int/comm/competition/antitrust/others/. 

1.4. 

Issues  

7. 

The review of Regulation 4056/86 raises basically the following issues:  

(a) 

(b) 

(c) 

(d) 

(e) 

Is there, in the present market circumstances, still a justification under Article 
81(3) of the Treaty for the block exemption for freight rate fixing, supply and 
market regulation by liner shipping conferences? 

If  not,  would  it  be  necessary  and  appropriate  to  adopt  other  Community 
instruments  (such  as  for  instance  another  block  exemption  or  a  set  of 
guidelines) covering any new business framework of cooperation between liner 
services operators on trades to and from the EU (in addition to already existing 
forms of cooperation such as consortia and alliances)? 

Is  there  still  a  justification  for  the  exclusion  of  tramp  services  and  cabotage 
from the competition implementing rules in Regulation 1/2003? 

Is  there  a  valid  reason  to  maintain  the  specific  exception  for  purely  technical 
agreements in Regulation 4056/86? 

Is there a valid reason to maintain the conflict of laws provision in Regulation 
4056/86? 

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2. 

8. 

9. 

10. 

THE BLOCK EXEMPTION FOR LINER CONFERENCES  

Regulation  4056/86  provides,  under  certain  conditions  and  obligations,  for  a  so-
called  block  exemption  for  agreements,  decisions  and  concerted  practices  of  all  or 
part of the members of one or more liner conferences, as defined in Article 1(3)(b) of 
Regulation 4056/86, that have as their objective the fixing of rates and conditions of 
carriage,  and  that,  in  addition,  cover  one  or  more  of  the  following  forms  of  co-
operation: 

– 

– 

– 

– 

– 

the co-ordination of shipping timetables, sailing dates or dates of calls; 

the determination of the frequency of sailings or calls; 

the co-ordination or allocation of sailings or calls among members of the 
conference; 

the regulation of the carrying capacity offered by each member;  

the allocation of cargo or revenue among members. 

It follows from the Regulation itself, from the decisional practice of the Commission 
and  the  case  law  of  the  Court  that  Regulation  4056/86  contains  a  “wholly 
exceptional”  block  exemption6,  because  it  exempts  price  fixing  and  capacity 
regulation,  which  are  normally  regarded  as  hard-core  restrictions7,  for  an  unlimited 
duration  and  does  not  contain  any  market  share  thresholds.  Indeed,  the  Regulation 
can only be explained in its historical context. 

Liner  conferences  have  sought  to  interpret  the  block  exemption  in  broad  terms.  In 
particular,  liner  conferences  considered  capacity  non-utilization  agreements8  and 
inland price fixing9 to be covered by the block exemption. This has however not been 
accepted  by  the  Commission,  nor  by  the  Court.  Indeed,  the  block  exemption 
derogates  from  Article  81(1)  of  the  Treaty  and  should  therefore  be  interpreted 
narrowly10. Goals pursued by other Treaty provisions can be taken into account only 
to the extent that they can be subsumed under the four conditions of Article 81(3) of 
the Treaty.11 

2.1. 

Assessment 

11. 

The EU competition rules are modelled on the presumption that competition provides 
the best services to the consumer at the most affordable prices. For that reason, the 
starting  point  under  the  Treaty  is  that  competition  should  not  be  distorted  and  that 
any  exemption  from  that  rule  needs  to  be  justified.  Agreements  which  restrict 
competition within the meaning of Article 81(1) of the Treaty (such as price fixing 
and  capacity  regulation  agreements)  could  only  be  exempted  if  they  fulfil  the  four 
cumulative conditions laid down in Article 81(3) of the Treaty, namely: 

1) 

the  production  or 
to 
the  agreement  must  contribute 
distribution  of  goods  or  contribute  to  promoting  technical  or  economic 
progress (efficiency),  

improving 

2) 

consumers must receive a fair share of the resulting benefits (pass-on),  

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12. 

13. 

14. 

15. 

3) 

4) 

the  restrictions  must  be  indispensable  to  the  attainment  of  these 
objectives (indispensability), and finally  

the  agreement  must  not  afford  the  parties  the  possibility  of  eliminating 
competition in respect of a substantial part of the products in question (no 
elimination of competition).  

The application of Article 81(3) of the Treaty to categories of agreements by way of 
a block exemption regulation is based on the presumption that restrictive agreements 
that fall within its scope fulfil each of the four conditions laid down in Article 81(3) 
of the Treaty. 

The justification of the liner conference block exemption is provided for in recital 8 
of the preamble  of  Regulation  4056/86, which in essence assumes that conferences 
bring  stability,  assuring  reliable  services  which  could  not  be  achieved  by  less 
restrictive means. In this regard the Court of First Instance stated that “the Council 
did not assert (and indeed could not have asserted) that stability is more important 
than competition”.12 

It  should  be  noted  that  the  justification  in  recital  8  of  Regulation  4056/86  has  not 
been  based  on  experience  of  the  Commission  in  applying  Art  81(3)  to  liner 
conferences13.  In  this  regard,  the  core  question  examined  in  the  review  process  is 
whether,  in  light  of  the  cumulative  conditions  of  Article  81(3)  of  the  Treaty,  the 
justification for price fixing and supply regulation by liner conferences in Regulation 
4056/86 could (still) be said to be valid in light of the present market circumstances. 
If not, there would no longer be a legal justification for the block exemption, which 
consequently would have to be either abolished or revised. To that end parties have 
been invited to provide factual evidence.  

As is explained in further detail in the annex, it follows from the consultation that the 
four cumulative conditions to justify an exemption for liner conference price fixing, 
supply  and  market  regulation  would  appear  to  be  no  longer  fulfilled.  There  is  no 
conclusive  economic  evidence  that  the  assumptions  on  which  the  block  exemption 
was  justified  at  the  time  of  its  adoption  in  1986  are,  in  the  present  market 
circumstances and on the basis of the four cumulative conditions of Article 81(3) of 
the Treaty, still justified.  

3. 

OTHER FORMS OF LINER SHIPPING CO-OPERATION 

3.1. 

Introduction 

16. 

Conferences  are  not  the  only  form  of  liner  shipping  organisation.  Liner  services 
could  also  be  provided  by  consortia  and  alliances.  The  activities  of  consortia  are 
group exempted pursuant to Article 81(3) of the Treaty under certain conditions and 
obligations, as set out in Regulation 823/2000. Carriers could also  decide  to  merge 
their activities, which will have to be assessed under the applicable (national or EC) 
merger control rules.  

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3.2. 

Discussion agreements 

17. 

Other forms of liner shipping co-operation than those already available on trades to 
and from the EU would for example be so-called discussion agreements. Discussion 
agreements exist in particular on US trades and on trades to and from Australia.14 A 
discussion  agreement  is  a  sort  of  framework  agreement  by  virtue  of  which  carriers 
which are members of conferences and outsiders are able to co-ordinate flexibly their 
competitive  conduct  on  the  market  in  relation  to  freight  rates  and  other  service 
conditions.  The  scope  and  content  of  such  agreements  may  vary.  Discussion 
agreements involve normally the exchange of sensitive business information between 
competitors  and  should  therefore  respect  the  settled  case  law  of  the  Court  on 
exchange  of  information.  More  importantly,  as  shown  in  the  US,  the  inherent 
traditionally 
flexibility  of  discussion  agreements  makes 
independent lines. In that respect, discussion agreements could in competition policy 
terms be worse than conferences, since they are liable to eliminate effective external 
competition to conferences.  

them  attractive 

to 

18. 

Having said that, other forms of co-operation between ship-owners which would be 
in line with EC competition law are conceivable. 

3.3. 

The ELAA proposal  

19. 

European  Liners  Affairs  Association  (ELAA)  has  presented  to  the  Commission  a 
proposal for a new “regulatory structure” for liner shipping services operating to and 
from  the  EU15,  which  it  believes  could  replace  Regulation  4056/86.16  The 
Commission has taken note of this proposal and would like to stress that it is not the 
result  of  any  negotiation  or  agreement  with  the  Commission.  The  proposal  merely 
reflects what the ELAA considers to be an appropriate business framework for liner 
shipping co-operation. In essence the ELAA proposal amounts to17: 

–  Exchange  and  discussion  between  lines  of  aggregated  capacity  utilization  and 
market size data by trade and on a region/zone to region/zone basis (data with a 
month delay);  

–  Exchange, discussion and evaluation of commodity developments by trade (based 

on data aggregated with a month delay);  

–  Discussion  and  evaluation  of  aggregate  supply  and  demand  data  by 
trade/commodity;  forecasts  of  demand  by  trade  and  commodity  would  be 
published;  

–  Lines  will  obtain  their  own  market  share  by  trade,  by  region  and  by  port  (data 

aggregated with a month delay);  

–  Price index differentiated by type of equipment (e.g. reefer, dry) and/or trade (data 
aggregated  with  a  quarterly  delay).  This  information  would  be  made  publicly 
available;  

–  Surcharges  and  ancillary  charges  based  on  publicly  available  and  transparent 

formulae; the details of which would be discussed with shippers. 

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3.4. 

Preliminary comments on the ELAA Proposal 

20. 

21. 

The  Commission  welcomes  the  willingness  of  carriers  to  think  about  a  future 
organisation of liner shipping, other than the current conference system. The industry 
itself  has  in  fact  suggested  that  certain  carriers  today  are  not  always  particularly 
interested  in  the  activities  exempted  in  Regulation  4056/86  (that  is  to  say  notably 
price fixing and supply and market regulation), but rather in the “discussion process” 
surrounding  it.  This  goes  without  saying  that  any  newly  proposed  co-operation 
framework  between  liner  shippers  will  have  to  be  carefully  scrutinized  as  to  its 
compatibility of the EC competition rules. 

The  Commission  is  well  aware  that  conference  carriers  have  been  used  to  carrying 
out activities that in any other economic sector would normally have been prohibited 
under the EC competition rules. This privileged position of conference carriers might 
make it difficult for some of them to adapt to a situation in which they will have to 
comply with the normal EC competition rules like any other industry. In this light it 
is also understandable that, from a business point of view, carriers might seek for a 
“fading out” of the current regime or at least for an alternative regime that is close to 
the present regime and in which their perceived specific position is reflected best. It 
should however be kept in mind that any continued different treatment under the EC 
competition  rules  of  the  liner  shipping  industry  compared  to  other  capital-intensive 
industries  with  high  fixed  costs  and  fluctuations  in  demand  (like  for  example  air 
transport),  should  be  convincingly  motivated.  Furthermore,  the  impact  of  any 
alternative  system  on  the  overall  liner  shipping  industry  should  be  taken  into 
account;  not  only  the  interests  of  conference  carriers  but  also  the  interests  of  their 
competitors  (independent  operators),  customers  (shippers)  and  final  consumers 
should be considered. ELAA has emphasized that its proposal is good for the whole 
liner shipping industry, not just for carriers but also for their customers. In this light, 
the Commission would explicitly welcome the views of all interested parties, notably 
shippers,  associations  like  the  ESC  as  well  as  individual  shippers,  on  the  various 
elements of the proposal. 

3.5. 

Conclusion 

22. 

If  the  current  block  exemption  for  liner  conference  price  fixing  and  capacity 
regulation is repealed this will basically make liner conferences on trades to and from 
the  EU,  as  defined  in  Regulation  4056/86,  incompatible  with  Article  81  of  the 
Treaty.18  The  question  is  what  kind  of  Community  legal  instrument  would  be 
required  giving  guidance  on  the  applicability  of  Article  81  to  other  forms  of  co-
operation  for  liner  shipping  services.  Naturally,  the  need  and  type  of  such  legal 
instrument  would  depend  very  much  on  the  content  of  the  proposed  co-operation 
framework.  In  particular,  whether  it  involves  restrictions  of  competition  within  the 
meaning  of  Article  81(1)  of  the  Treaty  and  if  so,  whether  the  conditions  for  an 
exemption under Article 81(3) of the Treaty can be said to be fulfilled. 

23. 

The Commission would welcome the views of third parties on the need and possible 
form  of  a  legal  instrument  for  a  possible  new  form  of  business  co-operation 
framework between shipping lines. 

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4. 

24. 

25. 

5. 

26. 

27. 

6. 

28. 

CABOTAGE AND TRAMP SERVICES  

International  tramp  vessel  services  as  defined  in  Article  1(3)(a)  of  Regulation 
4056/86 and maritime transport services that take place exclusively between ports in 
one and the same Member State (cabotage) as foreseen in Article 1(2) of Regulation 
4056/86 are currently excluded from the Community competition implementing rules 
pursuant to Article 32 (a) and (b) of Regulation 1/2003.19,20 

As is explained in further detail in the annex, no credible consideration has been put 
forward  to  justify  why  these  services  need  to  benefit  from  different  enforcement 
rules than those which the Council has decided should apply to  all other sectors of 
the economy. It has also not been explained what legitimate negative consequences 
such procedural changes could have for the industry. On that basis, the Commission 
proposes  to  bring  maritime  cabotage  and  tramp  vessel  services  within  the  scope  of 
the  general  enforcement  rules  of  Regulation  1/2003.  In  order  to  help  the  tramp 
industry  to  correctly  assess  notably  their  “pool  agreements”,  however,  the 
Commission will consider issuing some form of guidance in a manner that is to be 
determined.  

TECHNICAL AGREEMENTS  

Article  2  of  Regulation  4056/86  allows  maritime  transport  providers  to  conclude 
agreements which have the sole object and effect to achieve technical improvements 
or cooperation. Such agreements are not caught by Article 81(1) of the Treaty. The 
provision contains certain examples, such as standards or types in respect of vessels 
and equipment and the coordination of transport timetables for connecting routes.  

As  is  explained  in  further  detail  in  the  annex  this  specific  exception  for  technical 
agreements,  as  confirmed  by  the  European  Court  of  Justice,  is  merely  declaratory 
and the paper therefore proposes to repeal this provision, like it was repealed by the 
Council in the air transport sector earlier this year. 

CONFLICT OF LAWS 

Article 9 of Regulation 4056/86 provides for a procedure which should be followed 
in case the application of the Regulation would amount to a conflict with the law of a 
third country. In that case the Commission should consult the relevant authorities in 
third  countries  and  ask  the  Council  to  authorize  it  to  open  negotiations,  if  needed. 
The  ratio  of  including  this  provision  in  Regulation  4056/86  at  the  time  was 
apparently that it was felt that, in view of the characteristics of international maritime 
transport,  the  application  of  Regulation  4056/86  might  lead  to  a  conflict  with  the 
laws and rules of certain third countries and prove harmful to important Community 
trading and shipping interests (recital 15 of Regulation 4056/86). 

29. 

As is explained in further detail in the annex, a conflict of law has not arisen in the 
past  and  is  unlikely  to  arise,  even  if  the  liner  conference  block  exemption  is  fully 
repealed.  Therefore  there  would  appear  to  be  no  justification  for  maintaining  this 
provision. 

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7. 

30. 

CONCLUSIONS 

It  follows  from  the  above  that  the  conclusions  on  the  various  issues  are  the 
following: 

(a) 

(b) 

(c) 

(d) 

(e) 

Is  there,  in  the  present  market  circumstances,  still  a  justification  under 
Article  81(3)  of  the  Treaty  for  the  block  exemption  for  price  fixing  and 
supply and market regulation by liner shipping conferences?. There is no 
conclusive  economic  evidence  that  the  assumptions  on  which  the  block 
exemption  was  justified  at  the  time  of  its  adoption  in  1986  are,  in  the 
present  market  circumstances  and  on  the  basis  of  the  four  cumulative 
conditions of Article 81(3) of the Treaty, still justified. On that basis, the 
Commission  considers  proposing  to  repeal  the  present  block  exemption 
for liner shipping conferences. 

If not, would the Commission propose to replace the block exemption by 
a  different  legal  instrument  for  liner  shipping  services  applicable  to 
trades  to  and  from  the  EU?  The  Commission  will  assess  the  relevant 
suggestions  from  the  industry  and  comments  from  stakeholders  with  a 
view to taking a position, by means of an appropriate legal instrument, on 
an alternative co-operation  framework among liners.  ELAA has already 
put  forward  concrete  ideas  about  such  a  framework.  Before  taking  a 
position  on  those  ideas,  the  Commission  would  like  to  invite  interested 
third parties to submit their comments, as well as to provide alternative 
options.  

from 

Is  there  still  a  justification  for  the  exclusion  of  tramp  services  and 
the  competition 
cabotage  (i.e.  national  maritime  services) 
implementing rules of Regulation 1/2003? No credible consideration has 
been  put  forward  to  justify  why  these  services  would  need  to  benefit 
from  different  enforcement  rules  than  those  which  the  Council  has 
decided should apply to all sectors. It has also  not been explained what 
legitimate negative consequences such procedural changes could have for 
the industry. On that basis, the Commission considers bringing maritime 
cabotage  and  tramp  vessel  services  within  the  scope  of  Regulation 
1/2003.  The  Commission  will  provide  the  tramp  industry  with  some 
guidance on the implementation of competition rules to this sector.  

Is  there  a  valid  reason  to  maintain  the  specific  exception  for  purely 
technical agreements? The provision on technical agreements laid down 
by Article 2 of Regulation 4056/86, as confirmed by the Court, is merely 
declaratory  and  the  Commission  considers  proposing  to  repeal  this 
provision, like it was repealed by the Council in the air transport sector 
earlier this year.  

Is  there  a  valid  reason  to  maintain  the  conflict  of  laws  provision  in 
Regulation  4056/86?  A  conflict  of  laws  has  not  arisen  in  the  past  and 
there  would  appear  to  be  no  justification  for  maintaining  Article  9  of 
Regulation  4056/86.  However,  before  taking  a  position  on  this  the 
its 
invite 
Commission  would 

interested  parties,  notably 

like 

to 

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international counter-parts, to submit their views on the need of a conflict 
of laws provision. 

8. 

PROPOSED ACTION 

31. 

In light of the above conclusions the Commission proposes the following: 

–  To  consider  repealing  the  currently  applicable  substantive  provisions  of 
Regulation  4056/86,  in  particular  the  block  exemption  for  liner  conferences  and 
the exception for technical agreements.  

–  To  examine  what  type  of  instrument  would  be  needed  to  replace  Regulation 
4056/86 and make an appropriate proposal in that regard, taking into account also 
the competitive position of the EU liner shipping industry in a global context. 

–  To  carefully  examine  the  ELAA  proposal  as  set  out  in  this  paper  in  light  of  the 
comments received from interested third parties, as well as any other proposal that 
might be made by the industry or other interested parties. 

–  To propose a change to Regulation 1/2003, as to remove the current exclusion of 

tramp and cabotage services from its scope. 

–  To  carefully  examine  whether  there  are  reasons  to  maintain  a  conflict  of  laws 

provision. 

9. 

32. 

INVITATION TO SUBMIT COMMENTS 

The  Commission  invites  the  Member  States,  all  other  institutions  and  interested 
parties to submit comments on this White Paper within two months from publication 
to the following address: 

By post, to the following address: 

Directorate-General for Competition 
European Commission 
Unit D2 (transport) 
White Paper on Maritime Review 
Rue Joseph II 70, 2/237  
1049 Bruxelles 

By electronic mail, to the following address: 

COMP-D2-REVIEW4056@cec.eu.int 

Enclosure: Background paper 

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1 

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18 

Council  Regulation  (EEC)  No  4056/86  of  22  December  1986  laying  down  detailed  rules  for  the 
application of Articles 85 and 86 of the Treaty to maritime transport, OJ L 378, 31.12.1986, p. 24, as 
amended by Council Regulation 1/2003 of 16 December 2002 (OJ L 1 of 4.1.2003, p. 1). 

Council Regulation 1/2003 of 16 December 2002 (OJ L 1 of 4.1.2003, p. 1). 

SN 100/1/100. 

OECD  Secretariat  report  of  April  2002,  Competition  policy  in  liner  shipping,  p.  74-80,  available  at 
http://www.oecd.org/dataoecd/13/46/2553902.pdf.  

Ad hoc Advisory Committee of 25 March 2002. 

See e.g. Case T-86/95, Companie Générale Maritime, [2002] ECR II-1011, para 254, 393 and 484.  

Hard-core  restrictions  are  generally  considered  as  restrictions  of  competition  by  object  caught  by 
Article 81(1) of the Treaty, which generally do not fulfil the conditions for an exemption under Article 
81(3) of the Treaty. 

See  TAA, EATA, Revised TACA decisions of 14 November 2002 (OJ L 26 of 31.01.2003, p. 53) and 
Commission press release of 14.11.2022, IP/02/1677. 

See TAA, FEFC, TACA, Rev TACA decisions of 14 November 2002 (OJ L 26 of 31.1.2003, p. 53) and 
Commission press release of 14.11.2022, IP/02/1677. 

Joined Cases T-191/98 and T-212/98 to T-214/98 TACA [2003] ECR –not yet reported, para 568. 

See to that effect implicitly para 139 of Case T-17/93, Matra, ECR [1994] II-595 and Case 26/76, Metro 
(I), [1977] ECR 1875, para 43. 

Case T-395/94, TAA [2002] ECR II-00875, para 261. 

To  compare,  see  for  example  Regulation  823/2000  on  Consortia  (OJ  L  100  of  20.4.2000  p.  24), 
Regulation 1400/2002 on motor vehicles and Regulation 2790/1999 on vertical agreements (OJ L 336 
of  29.12.1999,  p.  21),  in  which  the  Commission  explicitly  referred  to  the  experience  acquired  in  the 
sector  concerned  which  enabled  it  to  define  categories  of  agreements  which  could  be  regarded  as 
normally satisfying the conditions laid down in Article 81(3).  

See for a further description of the situation in those jurisdictions the annex to this paper. 

Liner  shipping  services  are  defined  by  ELAA  in  its  Proposal  as  "the  transport  of  goods  on  a  regular 
basis on a particular route or routes between ports and in accordance with timetables and sailing dates 
advertised in advance and available, even on an occasional basis, to any transport user against payment, 
and ancillary activities" (compare Article 2(2) of Regulation 823/2000). 

ELAA Final Proposal of 6 August 2004, available at  
http://europa.eu.int/comm/competition/antitrust/others/maritime/elaa_proposal/elaa_proposal_6_august
_2004_en.pdf. 

For a more detailed description of the ELAA proposal reference is made to the annex. 

At least a liner conference in the sense of a group of two or more vessel-operating carriers providing 
liner services under uniform or common freight rates (compare the definition of a liner conferences in 
Article 1(3)(b) of Regulation 4056/86).  

EN 

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   EN 

 
 
                                                 
 
19 

20 

Regulation 1/2003 replaced as from 1 May 2004 the procedural provisions of  Regulation 4056/86. The 
exclusion of cabotage and tramp from the scope of Regulation 4056/86 has in fact since 1 May 2004 no 
longer any practical meaning.  

To avoid any misunderstanding, the substantive competition rules (Article 81 and 82 EC) are applicable 
also to these services. The exclusion is limited to the competition implementing rules, in other words: 
Regulation 1/2003 is not applicable to tramp and cabotage. 

EN 

12 

   EN