Guidelines on the application of Article 81 of the EC Treaty to maritime transport services — Draft (Text with EEA relevance )
Date: 2007-09-14
Institutions: European Commission
Subjects: EU policy, exchange of information, maritime transport, organisation of transport, transport company, transport market, transport policy, vessel

14.9.2007

EN

Official Journal of the European Union

C 215/3

Guidelines on the application of Article 81 of the EC Treaty to maritime transport services

Draft

(Text with EEA relevance)

(2007/C 215/03)

1.

1.

2.

3.

4.

5.

6.

Introduction

These Guidelines set out the principles that the Commission of the European Communities will
follow when defining markets and assessing cooperation agreements in the maritime transport
services sectors directly affected by the changes brought about by Council Regulation (EC)
No 1419/2006 of 25 September 2006 repealing Regulation (EEC) No 4056/86 laying down detailed
rules for the application of Articles 85 and 86 (now 81 and 82) of the Treaty to maritime transport,
and amending Regulation (EC) No 1/2003 as regards the extension of its scope to include cabotage
and international tramp services (1).

They are intended to help undertakings and associations of undertakings operating those services to
and/or from a port or ports in the European Union to assess whether their agreements (2) are compa-
tible with Article 81 of the Treaty establishing the European Communities. The Guidelines do not
apply to other sectors.

Regulation (EC) No 1419/2006 extended the scope of Council Regulation (EC) No 1/2003 of
16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and
82 of the EC Treaty (3) and Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to
the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (4)
to include cabotage and tramp vessel services. As of 18 October 2006, all maritime transport services
sectors are subject to the generally applicable procedural framework.

Regulation (EC) No 1419/2006 also repealed Council Regulation (EEC) No 4056/1986 of
22 December 1986 on the application of Articles 85 and 86 (now 81 and 82) of the EC Treaty to
maritime transport (5) containing the liner conference block exemption which allowed shipping lines
meeting in liner conferences to fix rates and other conditions of carriage, as the conference system
no longer fulfilled the criteria of Article 81(3) of the Treaty. The repeal of the block exemption takes
effect as of 18 October 2008. Thereafter, liner carriers operating services to and/or from a port(s) in
the European Union must cease all liner conference activity contrary to Article 81 of the Treaty. This
is the case regardless of whether other jurisdictions allow, explicitly or tacitly, rate fixing by liner
conferences or discussion agreements.

These Guidelines complement the guidance already issued by the Commission. As maritime transport
services are characterised by extensive cooperation agreements between competing carriers, the
Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agree-
ments (6)
(the Guidelines on Horizontal Cooperation) and the Guidelines on the application of
Article 81(3) of the Treaty (7) are particularly relevant.

Horizontal cooperation agreements in liner shipping regarding the provision of joint services are
covered by Commission Regulation (EC) No 823/2000 of 19 April 2000 on the application of
Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices
between liner shipping companies (consortia) (8). It sets out the conditions, pursuant to Article 81(3)
of the Treaty, under which the prohibition in Article 81(1) of the Treaty does not apply to agree-
ments between two or more vessel operation carriers (consortia). It will be reviewed following the
changes introduced by Regulation (EC) No 1419/2006 (9).

(1) OJ L 269, 28.9.2006, p. 1.
(2) The term ‘agreement’ is used for agreements, decisions by associations of undertakings and concerted practices.
(3) OJ L 1, 4.1.2003, p. 1.
(4) OJ L 123, 27.4.2004, p. 18.
(5) OJ L 378, 31.12.1986, p. 4.
(6) OJ C 3, 6.1.2001, p. 2.
(7) OJ C 101, 27.4.2004, p. 97.
(8) OJ L 100, 20.4.2000, p. 24. Regulation as last amended by Regulation (EC) No 463/2004 (OJ L 77, 13.3.2004, p. 23) and

by Regulation (EC) No 611/2005 (OJ L 101, 21.4.2005, p. 10).

(9) Recital 3 of Regulation (EC) No 611/2005.

C 215/4

EN

Official Journal of the European Union

14.9.2007

7.

These Guidelines are without prejudice to the interpretation of Article 81 of the Treaty which may be
given by the Court of Justice or the Court of First Instance of the European Communities. The princi-
ples in the Guidelines are to be applied in the light of the circumstances specific to each case.

8.

The Commission will apply these guidelines for an initial period of five years.

2.

Maritime transport services

2.1.

Scope

9.

Liner shipping services, cabotage and tramp vessel services are the maritime transport sectors directly
affected by the changes brought about by Regulation (EC) No 1419/2006.

10.

Liner shipping involves the transport of cargo, chiefly by container, on a regular basis to ports of a
particular geographic route, generally known as a trade. Other general characteristics of liner shipping
are that timetables and sailing dates are advertised in advance and services are available to any trans-
port user. Article 1(3)(a) of Regulation (EEC) No 4056/86 defined tramp vessel services as the trans-
port of goods in bulk or in break-bulk in a vessel chartered wholly or partly to one or more shippers
on the basis of a voyage or time charter or any other form of contract for non-regularly scheduled or
non-advertised sailings where the freight rates are freely negotiated case by case in accordance with
the conditions of supply and demand.
is mostly the unscheduled transport of one single
commodity which fills a vessel (10). Cabotage involves the provision of maritime transport services
linking two or more ports in the same Member State (11).
including tramp and liner shipping,
Although these Guidelines do not specifically address cabotage services they nevertheless apply to
these services insofar as they are provided either as liner or tramp shipping services.

It

2.2.

Effect on trade between Member States

11.

Article 81 of the Treaty applies to all agreements which may affect trade between Member States. In
order for there to be an effect on trade it must be possible to foresee with a sufficient degree of
probability on the basis of a set of objective factors of law or fact that the agreement or conduct may
have an influence, direct or indirect, actual or potential, on the pattern of trade between Member
States, such as might prejudice the realisation of the aim of a single market (12). The Commission has
issued guidance on how it will apply the concept of affectation of trade in its Guidelines on the effect
of trade concept contained in Articles 81 and 82 of the Treaty (13).

12.

Transport services offered by liner shipping and pool operators are often international
in nature
linking Community ports with third countries and/or involving exports and imports between two or
more Member States (i.e. intra Community trade) (14). In most cases they are likely to affect trade

(10) The Commission has identified a series of characteristics specific to specialised transport which render it distinct from
liner services and tramp vessel services. They involve the provision of regular services for a particular cargo type. The
service is usually provided on the basis of contracts of affreightment (CoAs) using specialised vessels technically adapted
and/or built to transport specific cargo. Commission Decision No 94/980/EC in Case IV/34.446 — Trans-Atlantic Agree-
ment OJ L 376, 31.12.1994, p. 1 (hereinafter the TAA Decision), paragraphs 47-49.

(11) Article 1 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide

services to maritime transport within Member States (maritime cabotage) (OJ L 364, 12.12.1992, p. 7).

(12) Case 42/84 Remia BV and others v Commission [1985] ECR 2545, paragraph 22. Moreover, the effect on inter-State trade

must be appreciable, Case 319/82 Ciments et Bétons de l'Est v Kerpen & Kerpen [1983] ECR 4173, paragraph 9.

(13) OJ C 101, 27.4.2004, p. 81.
(14) The fact that the service is to/from a non-EU port does not in itself preclude that trade between Member States is affected.
A careful analysis of the effects on customers and other operators within the Community that rely on the services needs to
be carried out to determine whether they fall under Community jurisdiction. See Guidelines on the effect on trade concept
contained in Articles 81 and 82 of the Treaty.

14.9.2007

EN

Official Journal of the European Union

C 215/5

between Member States inter alia on account of the impact they have on the markets for the provision
of transport and intermediary services (15).

13.

Effect on trade between Member States is of particular relevance to maritime cabotage services
insofar as it also determines the scope of application of Article 3 of Regulation (EC) No 1/2003 on
the implementation of the rules on competition laid down in Articles 81 of the Treaty. The extent to
which such services may affect trade between Member States must be evaluated on a case by case
basis (16).

2.3.

The relevant market

14.

15.

In order to assess the effects on competition of an agreement for the purposes of Article 81 of the
Treaty, it is necessary to define the relevant product and geographic market(s). The main purpose of
market definition is to identify in a systematic way the competitive constraints faced by an under-
taking. Guidance on this issue can be found in the Commission Notice on the definition of the rele-
vant market for the purposes of Community competition law (17). This guidance is also relevant to
market definition as regards maritime transport services.

The relevant product market comprises all those products and/or services which are regarded as inter-
changeable or substitutable by the consumer, by reason of the products' characteristics, their prices
and their intended use (18). The relevant geographic market comprises the area in which the undertak-
ings concerned are involved in the supply and demand of products or services, in which the condi-
tions of competition are sufficiently homogeneous and which can be distinguished from neigh-
bouring areas because the conditions of competition are appreciably different in those areas (19).
Carrier(s) cannot have a significant impact on the prevailing conditions of the market if customers
are in a position to switch to other service providers, in the short term, in response to small and
permanent changes in the relative price without incurring significant additional costs or risks (20).

2.3.1. Liner shipping

16.

Containerised liner shipping services have been identified as the relevant product market for liner
shipping in several Commission decisions and Court judgments (21). Other modes of transport have
not been included in the same service market even though in some cases these services may be, to a
marginal extent, interchangeable. This is because a substantial proportion of the goods carried by
container cannot easily be switched to other modes of transport, such as air transport services (22).

(15) Commission Decision No 93/82/EEC (Cases IV/32.448, IV/32.450, IV/32.448 and IV/32.450 CEWAL), OJ L 34,
10.2.1993, p. 1, paragraph 90, confirmed by the Court of First Instance in Joined Cases T-24/93, T-25/93 and
T-2828/93, Compagnie Maritime Belge and others v Commission of the European Communities [1996] ECR II-1201, para-
graph 205. TAA Decision, cited above in footnote 10, paragraphs 288-296, confirmed by the Judgment of the Court of
First Instance of 28 February 2002, in Case T-395/94, Atlantic Container Line and others v Commission (hereinafter the TAA
Judgment), paragraphs 72-74; Commission Decision No 1999/243/EC (Case IV/35.134 — Trans-Atlantic Conference Agree-
ment) (hereinafter the TACA Decision), OJ L 95, 9.4.1999, p. 1, paragraphs 386-396, Commission Decision No 2003/68/EC
(Case COMP/37.396/D2 — Revised TACA) (hereinafter the Revised TACA Decision), OJ L 26, 31.1.2003, p. 53, paragraph 73.

(16) For guidance on the application of the effect on trade, see the Commission Guidelines, cited above in footnote 13.
(17) OJ C 372, 9.12.1997, p. 5.
(18) Firms are subject to three main sources or competitive constraints: demand substitutability, supply substitutability and
potential competition. From an economic point of view, for the definition of the relevant market, demand substitution
constitutes the most immediate and effective disciplinary force on the suppliers of a given service. The competitive
constraints arising from supply side substitutability are in general less immediate and in any case require an analysis of
additional factors. Potential competition is not taken into account when defining markets since the conditions under which
potential competition will actually represent an effective competitive constraint depend on the analysis of specific factors
and circumstances related to the conditions of entry.

(19) Notice on market definition, cited above in footnote 17, paragraph 10.
(20) Notice on market definition, cited above in footnote 17, paragraphs 13 and 20.
(21) Commission Decision No 1999/485/EC (Case IV/34.250 — Europe Asia Trades Agreement) (OJ L 193, 26.7.1999, p. 23);
TAA Decision, cited above in footnote 10, and the TACA Decision, cited above in footnote 15, paragraphs 60-84.
The market definition in the TACA Decision was confirmed by the Court of First Instance in its judgment in Joined Cases
T-191/98, T-212/98 to 214/98, Atlantic Container Line AB and others v Commission [2003] ECR II-3275, (hereinafter the
TACA Judgment), paragraphs 781-883.

(22) Paragraph 62 of the TACA Decision, cited above in footnote 15 and paragraphs 783-789 of the TACA Judgment, cited

above in footnote 21.

C 215/6

EN

Official Journal of the European Union

14.9.2007

17.

It may be appropriate under certain circumstances to define a narrower product market limited to a
particular type of product transported by sea. For example, the transport of perishable goods could
be limited to reefer containers or include transport in conventional reefer vessels (23). While it is
possible in exceptional circumstances for some substitution to take place between break bulk and
container transport (24), there appears to be no lasting change over from container towards bulk. For
the vast majority of categories of goods and users of containerised goods, break bulk does not offer a
reasonable alternative to containerised liner shipping (25). Once cargo becomes regularly containerised
it is unlikely ever to be transported again as non-containerised cargo (26). Containerised liner shipping
is therefore mainly subject to one way substitutability (27).

18.

The relevant geographic market consists of the area where the services are marketed, generally a
range of ports at each end of the service (28). As far as the European end of the service is concerned,
to date the geographical market has been identified as a range of ports in Northern Europe and/or in
the Mediterranean. As liner shipping services from the Mediterranean are only marginally substitu-
table for those from Northern European ports, these have been identified as separate markets (29).

2.3.2. Tramp ser vices

19.

The Commission has not yet applied Article 81 of the Treaty to tramp shipping. Undertakings may
consider the following elements in their assessment inasmuch as they are relevant to the tramp ship-
ping services they provide.

Elements to take into account when determining the relevant product market from the
demand-side (demand substitution)

20.

The ‘main terms’ of an individual transport request are a starting point for defining relevant service
markets in tramp shipping since they generally identify the essential elements (30) of the transport
requirement at issue. Depending on the transport users' specific needs they will be made up of negoti-
able and non-negotiable elements. Once identified, a negotiable element of the main terms, for
example the vessel type or size, may indicate, for instance, that the relevant market with respect to
this specific element is wider than laid down in the initial transport requirement.

21.

The nature of the service in tramp shipping may differ and there is a variety of transport contracts. It
may be necessary, therefore, to ascertain whether the demand-side considers the services provided
under time charter contracts, voyage charter contracts and contracts of affreightment (CoAs) to be
substitutable. Should this be the case they may belong to the same relevant market.

(23) The question was left open in Commission Decision of 29 March 2004 (Case COMP/M.3379 — P&O/Royal Nedloyd/P&O
Nedloyd) (OJ C 49, 28.2.2006, p. 4); in Commission Decision of 29 July 2005 (Case COMP/M.3829 — MAERSK/PONL),
OJ C 207, 24.8.2005, p. 8 and in Commission Decision of 19 August 2005 (Case COMP/M.3798 — NYK/Lauritzen Cool/
Laucool JV) (OJ C 224, 13.9.2005, p. 4).

(24) TACA Decision, cited above in footnote 15, paragraph 71.
(25) TAA Judgement, cited above in footnote 15, paragraph 273 and TACA Judgment, cited above in footnote 21, para-

graph 809.

(26) TAA Judgment, cited above in footnote 15, paragraph 281, Commission Decision in MAERSK/PONL, cited above in foot-

note 23, paragraph 13.

(27) TACA Decision, cited above in footnote 15, paragraphs 62-75; TACA Judgment, cited above in footnote 21, para-

graph 795 and Commission Decision in MAERSK/PONL, cited above in footnote 23, paragraphs 13 and 112-117.

(28) Revised TACA Decision, cited above in footnote 18, paragraph 36.
(29) TACA Decision, cited above in footnote 15, paragraphs 76-83 and Revised TACA Decision, cited above in footnote 15,

paragraph 39.

(30) For voyage charter for instance the essential elements of a transport requirement are the cargo to be carried, the cargo

volume, the loading and discharging ports, the laydays and technical details regarding the vessel required.

14.9.2007

EN

Official Journal of the European Union

C 215/7

Elements to take into account when determining the relevant product market from the
supply-side (supply substitution)

22.

23.

24.

The physical and technical conditions of the cargo to be carried and the vessel type provide the first
indications as to the relevant market from the supply-side (31). If vessels can be adjusted to transport
different cargos at negligible cost and in a short time-frame (32), tramp shipping service providers are
able to compete for the transport of several types of cargo. In such circumstances, the relevant
market will comprise more than one type of cargo.

However, there are a number of vessel types that are technically adapted and/or specially built to
provide specialised transport services. Although specialised vessels may also carry other types of
cargo, they are generally at a competitive disadvantage. The ability of specialised service providers to
compete in other markets may, therefore, be limited.

Vessel types are usually subdivided into a number of standard industrial sizes (33). In normal market
conditions, due to considerable economies of scale, a service with a significant mismatch between
cargo volume and vessel size does not appear to be able to offer a competitive freight rate. In addi-
tion, substitutability of vessel sizes may be limited by draught restrictions in ports and canals. In
general therefore, the substitutability of different vessel sizes needs to be assessed so as to ascertain
whether each vessel size constitutes a separate relevant market.

25.

The existence of chains of substitution between vessel sizes in tramp shipping should also be
considered. In certain tramp shipping markets, vessel sizes at the extreme of the market are not
directly substitutable. Chain substitution effects may nevertheless constrain pricing at the extremes
and lead to their inclusion in a broader market definition.

26.

In certain tramp shipping markets, consideration must be given to whether vessels can be considered
as captive capacity and should not be taken into account when assessing the relevant market.

27.

Additional factors such as the reliability of the service provider, security, safety and regulatory require-
ments may influence supply and demand-side substitutability, for example the double hull require-
ment for tankers in Community waters.

Geographic dimension

28.

29.

Transport requirements usually contain geographic elements such as the loading and discharging
ports or regions. These ports provide the first orientation for the definition of the relevant geographic
market from the demand-side.

In tramp shipping, ports are generally substitutable from the supply-side as services are not scheduled
but respond to a specific demand. Substitutability of ports may be limited by restrictions on vessel
mobility such as terminal and draught restrictions or environmental standards for particular vessel
types in certain ports or regions.

(31) For example, liquid bulk cargo cannot be carried on dry bulk vessels or reefer cargo cannot be transported on car carriers.
Many oil tankers are able to carry dirty and clean petroleum products. However, a tanker cannot immediately carry clean
products after having transported dirty products.

(32) Switching a dry bulk vessel from the transport of coal to grain might require only a one-day cleaning process that might

be done during a ballast voyage.

(33) It appears to be the industry's perception that vessel sizes constitute separate markets. The trade press and the Baltic
Exchange publish price indexes for each standard vessel size. Consultants' reports divide the market on the basis of vessels'
sizes.

C 215/8

EN

Official Journal of the European Union

14.9.2007

30.

Repositioning of vessels, ballast voyages and trade imbalances should be taken into account for the
delineation of relevant geographic markets. Certain geographic markets may be defined on a direc-
tional basis or may occur only temporarily for instance when climatic conditions or harvest periods
periodically affect the demand for transport of particular cargos.

2.4.

Calculation of Market share

31.

32.

In liner shipping, volume and/or capacity data have been identified as the basis for calculating market
shares in several Commission decisions and Court judgments (34).

In tramp shipping markets, service providers compete for the award of transport contracts, that is to
say, they sell voyages. Depending on the specific services in question, the various data may allow
operators to calculate their annual market shares (35) for instance:

(a) the number of voyages;

(b) the parties' volume or value share in the overall transport of a specific cargo;

(c) the parties' share in the market for time charter contracts;

(d) data in relation to the parties' contract negotiations;

(e) the parties' capacity shares in the relevant fleet (by vessel type and size) (36).

3.

Horizontal agreements in the maritime transport sector

33.

Cooperation agreements are a common feature of maritime transport markets. Considering that these
agreements may be entered into by actual or potential competitors and may adversely affect the para-
meters of competition, undertakings must take special care to ensure that they comply with the
competition rules. In service markets, such as maritime transport, the following elements are particu-
larly relevant for the assessment of the effect an agreement may have in the relevant market: prices,
innovation, marketing and
costs, quality,
commercialisation of the service.

frequency and differentiation of

the service provided,

34.

Three issues are of particular relevance to the services covered by these guidelines: technical agree-
ments, exchanges of information and pools.

3.1.

Technical agreements

35.

Certain types of technical agreements may not fall under the prohibition set out in Article 81 of the
Treaty on the ground that they do not restrict competition. This is the case, for instance, of hori-
zontal agreements the sole object and effect of which is to implement technical improvements or to
achieve technical cooperation. Agreements relating to the implementation of environmental standards
can also be considered to fall into this category. Agreements between competitors relating to price,
capacity, or other parameters of competition will, in principle, not fall into this category (37).

(34) TACA Decision, cited above in footnote 15, paragraph 85; the Revised TACA Decision, cited above in footnote 15, para-

graphs 85 and 86 and the TACA Judgment, cited above in footnote 21, paragraphs 924, 925 and 927.
(35) Depending on the specificities of the relevant tramp shipping market shorter periods may be envisaged.
(36) Vessel capacity provides information on the parties' ability to compete for voyages. Volume and value share data may illus-
trate the parties' general position in the market. Data in relation to contract negotiations may indicate the parties' possibili-
ties to exert market power in contract negotiations.

(37) Commission Decision No 2000/627/EC of (Case IV/34.018 — Far East Trade Tariff Charges and Surcharges Agreement
(FETTSCA)), OJ L 268, 20.10.2000, p. 1, paragraph 153. Judgment of the Court of First Instance in Case T-229/94,
Deutsche Bahn AG v Commission of the European Communities [1997] ECR II-1689, paragraph 37.

14.9.2007

EN

Official Journal of the European Union

C 215/9

3.2.

Information exchanges between competitors in liner shipping

36.

37.

38.

An information exchange system entails an arrangement on the basis of which undertakings exchange
information amongst themselves or supply it to a common agency responsible for centralizing,
compiling and processing it before returning it to the participants in the form and at the frequency
agreed.

It is common practice in many industries for aggregate statistics and general market information to
be gathered, exchanged and published. This published market information is a good means to
increase market transparency and customer knowledge, and thus may produce efficiencies. However,
the exchange of commercially sensitive and individualised market data can, under certain circum-
stances, breach Article 81 of the Treaty. These guidelines are intended to assist providers of liner ship-
ping services in assessing when such exchanges breach the competition rules.

In the liner shipping sector, exchanges of information between shipping lines taking part in liner
consortia which otherwise would fall under Article 81(1) of the Treaty are permitted to the extent
that they are ancillary to and necessary for the joint operation of liner transport services and the
other forms of co-operation covered by the block exemption in Commission Regulation (EC)
No 823/2000 (38) or irrespective and outside the scope of the block exemption, if and to the extent
that they can be individually justified on the basis of Article 81 of the Treaty.

3.2.1. In general

39.

40.

41.

In assessing information exchange systems under Community competition law, the following distinc-
tions must be made.

The exchange of
information may be a facilitating mechanism for the implementation of an
anti-competitive practice, such as monitoring compliance with a cartel. Where an exchange of infor-
mation is ancillary to an anti-competitive practice its assessment must be carried out in combination
with an assessment of that practice. These Guidelines do not address such exchanges of information.

However, an exchange of information might constitute an infringement of Article 81 of the Treaty in
its own right. This situation arises when the information exchange reduces or removes the degree of
uncertainty as to the operation of the market in question with the result that competition between
undertakings is restricted (39).

42. Where there is a truly competitive market, transparency between traders is likely to lead to intensifi-
cation of competition between suppliers (40). Furthermore, it is settled case-law that Article 81 of the
Treaty does not prevent undertakings from adapting themselves intelligently to the existing or antici-
pated conduct of competitors (41).

43.

Every economic operator must, however, determine autonomously the policy which it intends to
pursue on the market. Undertakings are, therefore, precluded from direct or indirect contacts with
other operators which influence the conduct of a competitor or reveal their own (intended) conduct
if the object or effect of those contacts is to give rise to conditions of competition which do not
correspond to the normal conditions of the market in question, taking into account the nature of the
products or the services provided, the size and number of the undertakings and the volume of the
market (42).

(38) OJ L 100, 20.4.2000, p. 24. Regulation (EC) No 823/2000 applies to international liner transport services from or to one
or more Community ports exclusively for the carriage of cargo chiefly by container — see Articles 1, 2 and Article 3(2)(g)
thereof.

(39) Judgment of the Court of Justice in Case C-7/95 P, John Deere v Commission [1998] ECR I-3111, paragraph 90 and Judg-

ment of the Court of Justice in Case C-194/99 P, Thyssen Stahl v Commission [2003] ECR I-10821, paragraph 81.

(40) Judgment in John Deere v Commission, Case C-7/95 P, cited above in footnote 39, paragraph 88.
(41) Judgment in Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie v Commission [1975] ECR 1663, para-

graphs 173-174.

(42) Judgment of the Court of Justice of 23 November 2006, in Case C-238/05, Asnef-Equifax v Asociación de Usuarios de
Servicios Bancarios (Ausbanc), OJ C 331, 30.12.2006, p. 10, paragraph 52 and Judgment of the Court of Justice in
Case C-49/92 P, Commission v Anic Partecipazioni [1999] ECR I-4125, paragraphs 116 and 117.

C 215/10

EN

Official Journal of the European Union

14.9.2007

44.

The case law of the Community Courts provides some general guidance in examining the likely
effects of an information exchange. The Court has found that, on a highly concentrated oligopolistic
market on which competition is already greatly reduced, exchanges of precise information on indivi-
dual sales at short intervals between the main competitors, to the exclusion of other suppliers and of
consumers, are likely to impair substantially the competition that exists between traders. In such
circumstances, the sharing, on a regular and frequent basis, of information concerning the operation
of the market has the effect of periodically revealing to all competitors the market positions and stra-
tegies of the various individual competitors (43). The Court of Justice has also found that an informa-
tion exchange system may constitute a breach of the competition rules even when the market is not
highly concentrated but there is a reduction of the undertakings' decision making autonomy resulting
from pressure during subsequent discussions with competitors (44). By contrast, the Court has found
that a system of quarterly price announcements that did not lessen each undertakings uncertainty as
to the future attitude of its competitors did not constitute an infringement of Article 81(1) of the
Treaty (45).

45.

It follows that the actual or potential effects of an information exchange must be considered on a
case-by-case basis as the results of the assessment depend on a combination of factors, each specific
to an individual case. The structure of the market where the exchange takes place and the characteristics
of the information exchange, are two key elements that the Commission examines when assessing an
information exchange. The assessment must also consider the potential effects that the information
exchange could have in the market compared to the competitive situation that would result in the
absence of the information exchange agreement (46). To be caught by Article 81(1) of the Treaty, the
exchange must have an appreciable adverse impact on the parameters of competition (47).

46.

The guidance below is related to the analysis of a restriction of competition under Article 81(1) of
the Treaty. Guidance on the application of Article 81(3) of the Treaty is to be found in the general
notice on the subject (48).

3.2.2. Market str ucture

47.

The level of concentration and the structure of supply and demand on a given market are key issues in
considering whether an exchange falls within the scope of Article 81(1) of the Treaty (49).

48.

The level of concentration is particularly relevant since, on highly concentrated oligopolistic
markets (50), restrictive effects are more likely to occur and are more likely to be sustainable than in
less concentrated markets. Greater transparency in a concentrated market may strengthen the interde-
pendence of firms and reduce the intensity of competition (51).

(43) Judgment of the Court of First Instance in Case T-35/92 John Deere Ltd v Commission [1994] ECR II-957, paragraph 51,
upheld on appeal by the Judgment in John Deere Ltd v Commission, Case C-7/95 P, cited above in footnote 39, paragraph 89.
More recently, the Judgment in Asnef-Equifax v Ausbanc, cited above in footnote 42.

(44) Judgment of the Court of First Instance in Case T-141/94 Thyssen Stahl AG v Commission [1999] ECR II-347, para-

graphs 402 and 403.

(45) Judgment of the Court of Justice in Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to

C-129/85 A. Ahlström Osakeyhtiö and others v Commission [1993] ECR I-01307, paragraphs 59-65.
(46) Judgment in John Deere Ltd v Commission, Case C-7/95 P, cited above in footnote 39, paragraphs 75-77.
(47) Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 16.
(48) Guidelines on the application of Article 81(3), cited above in footnote 7.
(49) Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 25.
(50) There are several ways to assess the degree of concentration of a market. One of these is the Herfindahl-Hirschmann Index

(HHI).

(51) While transparency between traders is likely to intensify competition in a truly competitive market, the exchange of
detailed market information on a highly concentrated oligopostic market may enable traders to know the market positions
and strategies of their competitors and thus impair appreciably the competition that exists between them. See the Judg-
ment in John Deere Ltd v Commission, Case C-7/95 P, cited above in footnote 39, paragraph 88.

14.9.2007

EN

Official Journal of the European Union

C 215/11

49.

The structure of supply and demand is also important, notably the number of competing operators and
the symmetry and stability of their market shares and the existence of any structural links between
competitors (52). The Commission may also analyse other factors such as the homogeneity of services
and the overall transparency in the market.

3.2.3. Character istics of the infor mation exchanged

50.

51.

52.

53.

54.

55.

The exchange of information already in the public domain does not constitute an infringement of
Article 81(1) of the Treaty (53). However, it is important to establish whether the exchange of infor-
mation enhances and/or combines publicly available information with other information rendering
the combined information commercially sensitive and its exchange potentially restrictive of competi-
tion.

Information which is not historic and relates to parameters of competition, such as price, capacity or
costs will be considered commercially sensitive. The exchange of such data between competitors is more
likely to be caught by Article 81(1) of the Treaty than the exchange of information that is commer-
cially less sensitive.

Information may be individual or aggregated. Individual data relates to a designated or identifiable
undertaking. Aggregate data combines the data from a sufficient number of independent undertak-
ings so that the recognition of individual data is impossible. The exchange of individual information
between competitors is more likely to be caught by Article 81(1) of the Treaty (54) when it relates to
commercially sensitive data. The exchange of aggregated information does not,
in principle, fall
within Article 81(1) of the Treaty. The Commission will pay particular attention to the level of aggre-
gation. It should be such that the information cannot be disaggregated so as to allow undertakings
directly or indirectly to identify the competitive strategies of their competitors.

The age of the data and the period to which it relates are also important factors. Data can be historic,
recent or future. Exchange of historic information is generally not regarded as falling within
Article 81(1) of the Treaty because it cannot have any real impact on the undertaking's future beha-
viour. In past cases, the Commission has considered information which was more than one year old
as historic (55) whereas information less than one year old has been viewed as recent (56). The historic
or recent nature of the information should be assessed with some flexibility taking into account the
extent to which data becomes obsolete in the relevant market. Future data relates to an undertaking's
view of how the market will develop or to the strategy it intends to follow in that market. The
exchange of future data is particularly likely to be problematic, especially when it relates to prices or
output. It may reveal the commercial strategy an undertaking intends to adopt in the market. In so
doing, it may appreciably reduce rivalry between the parties to the exchange and is thus potentially
restrictive of competition.

The frequency of the exchange should also be considered. The more frequently the data is exchanged,
the more swiftly competitors can react. This facilitates retaliation and ultimately lowers the incentives
to initiate competitive actions on the market. So-called hidden competition could be restricted.

In liner shipping, for example, exchanges of historic data on volume and capacity, even on a disaggre-
gated basis, are unlikely to be restrictive of competition; whether data can be considered historic
must be determined by the effect its disclosure is likely to have on the relevant market. The time
when the data becomes historic is likely to be shorter if the data is aggregated rather than individual.
Exchanges of recent data on volume and capacity are similarly unlikely to be restrictive of

(52) In liner shipping there are operational and/or structural links between competitors, for example membership of consortia
agreements that allow shipping lines to share information for the purposes of providing a joint service. The existence of
any such link, will have to be taken into account on a case by case basis when assessing the impact an additional exchange
of information has in the market in question.

(53) TACA Judgment, cited above in footnote 21, paragraph 1154.
(54) Commission Decision No 78/252/EEC of 23 December 1977 relating to a proceeding under Article 85 of the Treaty

(Case IV/29.176 — Vegetable Parchment) (OJ L 70, 13.3.1978, p. 54).

(55) Commission Decision No 92/157/EEC in Case IV/31.370 — UK Agricultural Tractor Registration Exchange, OJ L 68,

13.3.1992, p. 19, paragraph 50.

(56) Commission Decision 98/4/ECSC in Case IV/36.069 — Wirtschaftsvereinigung Stahl, OJ L 1, 3.1.1998, p. 10, paragraph 17.

C 215/12

EN

Official Journal of the European Union

14.9.2007

56.

57.

58.

competition if the data is aggregated to an appropriate level such that individual shippers' or carriers'
transactions cannot be identified either directly or indirectly.

Conversely, caution should be used when assessing exchanges of capacity forecasts not based on
generally publicly available data, even in aggregate form, especially when it takes place in concen-
trated markets. In liner markets, capacity data is the key parameter to coordinate competitive conduct
and it has a direct effect on prices. Aggregated capacity forecasts indicating in which trades capacity
will be deployed may be anticompetitive to the extent that they may lead to the adoption of a
common policy by several or all carriers and result in the provision of services at above competitive
prices. Additionally, there is a risk of disaggregation of the data as it can be combined with individual
announcements by liner carriers. This would enable undertakings to identify the market positions
and strategies of competitors.

In liner shipping, a price index shows average price movements for the transport of a sea container.
A price index based on appropriately aggregated price data is unlikely to infringe Article 81(1) of the
Treaty, provided that the level of aggregation is such that the information cannot be disaggregated so
as to allow undertakings directly or indirectly to identify the competitive strategies of their competi-
tors. If a price index has the effect of reducing carriers' uncertainty as to the future attitude of compe-
titors, it would violate Article 81(1) of the Treaty. In assessing the likely effect of such a price index
on a given relevant market, account should be given to the level of aggregation of the data and its
historical or recent nature and the frequency at which the index is published. It is also important to
assess all individual elements of any information exchange scheme together, in order to take account
of potential interactions, for example between exchange of capacity and volume data on the one
hand and of a price index on the other.

An exchange of information between carriers that restricts competition may nonetheless create effi-
ciencies, such as, better planning of investments and more efficient use of capacity. Such pro-compe-
titive benefits will have to be passed on to customers and weighed against the anti-competitive effects
of the information exchange in the framework of Article 81(3) of the Treaty. In this context, it is
important to note that one of the conditions of Article 81(3) of the Treaty is that consumers should
receive a fair share of the benefits generated by the restrictive agreement. If all four cumulative condi-
tions set out in Article 81(3) of the Treaty are fulfilled, the prohibition of Article 81(1) of the Treaty
does not apply (57).

3.2.4. Availability of the infor mation and institutional str ucture

59.

60.

The more the information is shared with customers, the less likely it is to be problematic. If market
transparency is improved for the benefit of suppliers only, it may deprive customers of the possibility
of getting the advantage of increased ‘hidden competition’. An exchange between suppliers only may
also constitute a barrier to entry.

In liner shipping, for example, carrier only meetings convened to discuss recent and detailed data
violate Article 81(1) of the Treaty where they eliminate rivalry between the parties to the exchange.
In this case, participants to the exchange would have to demonstrate that it fulfils the four cumulative
conditions of Article 81(3) of the Treaty. This situation should be distinguished from the discussions
legitimately conducted within a trade association, for example, on the basis of publicly available
market information, or on technical and environmental standards.

3.3.

Pool agreements in tramp shipping

61.

The most recurrent form of horizontal cooperation in the tramp shipping sector is the shipping
pool. There is no universal model for a pool. Some features do, however, appear to be common to
all pools in the different market segments as set out below.

(57) Guidelines on the application of Article 81(3) of the Treaty, cited above in footnote 7.

14.9.2007

EN

Official Journal of the European Union

C 215/13

62.

63.

64.

A standard shipping pool brings together a number of similar vessels (58) under different ownership
and operated under a single administration. A pool manager is normally responsible for the commer-
cial management (for example, joint marketing (59), negotiation of freight rates and centralization of
incomes and voyage costs (60)) and the commercial operation (planning vessel movements and
instructing vessels, nominating agents in ports, keeping customers updated, issuing freight invoices,
ordering bunkers, collecting the vessels' earnings and distributing them under a pre-arranged
weighting system etc.). The pool manager often acts under the supervision of a general executive
committee representing the vessel owners. The technical operation of vessels remains the responsi-
bility of each owner (safety, crew, repairs, maintenance etc.). Although they market their services
jointly, the pool members perform the services individually.

It follows from this description that the key feature of standard shipping pools is joint selling,
coupled with some features of joint production. The guidance on both joint selling, as a variant of a
joint commercialisation agreement, and joint production in the Commission Guidelines on
the applicability of Article 81 of the Treaty to horizontal cooperation agreements (61) is therefore
relevant. However, given the variation in pools' characteristics, each pool must be analysed on a
case-by-case basis to determine whether it is caught by Article 81(1) of the Treaty and, in the affirma-
tive, if it fulfils the four cumulative conditions of Article 81(3) of the Treaty.

Pools that fall within the scope of Council Regulation (EC) No 139/2004 (62) because they are created
as a joint venture performing on a lasting basis all the functions of an autonomous economic entity
(so called full-function joint ventures, see Article 3(4) of Council Regulation (EC) No 139/2004) are
not directly affected by the changes brought about by Regulation (EC) No 1419/2006. Guidance on
the relevant issues can be found,
inter alia, in the Commission Consolidated Jurisdictional Notice
under Council Regulation (EC) No 139/2004 on the control of concentrations between undertak-
ings (63). Insofar as such pools have as their object or effect the coordination of the competitive beha-
viour of
the coordination shall be appraised in accordance with the criteria of
Article 81(1) and (3) EC with a view to establishing whether or not the operation is compatible with
the common market (64).

their parents,

3.3.1. Pools that do not fall under Ar ticle 81(1) of the Treaty

65.

Pool agreements do not fall under the prohibition of Article 81(1) of the Treaty if the participants to
the pool are not actual or potential competitors, or are competing companies that cannot by any
means provide the service(s) covered by the agreement individually. This would be the case, for
instance, when two or more ship-owners set up a shipping pool for the sole purpose of tendering for
and providing CoAs for which as individual operators they could not bid successfully or which they
could not carry out on their own. In practice, however, pools may often not assign all their ships to
CoAs since engaging all the pool's ships in one sole type of contract could result in other opportu-
nities for maximising revenue being lost, hence invalidating the purposes for which pools are usually
set up.

66.

Pools whose activity does not influence the relevant parameters of competition because they are of
minor importance and/or do not appreciably affect trade between Member States (65), are not caught
by Article 81(1) of the Treaty. For the former criterion to apply the pool in question cannot contain
provisions regarding joint price fixing and joint marketing. As for the latter criterion, considering the

(58) Vessels participating in the pool are often of a more or less similar type. This results in the pool being able to attract large

CoAs, combine various CoAs and reduce the number of ballast legs by careful fleet planning.

(59) For example, the pool's vessels are marketed as one commercial unit offering transport solutions regardless of which ship

performs the actual voyage.

(60) For example, the pool's income is collected by the central administration and revenue is distributed to the participants

based on a complex weighting system.

(61) Respectively in section 5 and section 3 of the Guidelines, cited above in footnote 5.
(62) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the

EC merger Regulation) (OJ L 24, 29.1.2004, p. 1).

(63) To be published.
(64) Article 2(4) of Regulation (EC) No 139/2004.
(65) Commission Notice on agreements of minor importance which do not appreciably restrict competition under
Article 81(1) of the Treaty, OJ C 368, 22.12.2001, p. 13 and Guidelines on the effect on trade concept, cited above in foot-
note 13.

C 215/14

EN

Official Journal of the European Union

14.9.2007

nature of
States (66).

transport services offered by pools they are likely to affect

trade between Member

3.3.2. Pools that generally fall under Ar ticle 81(1) of the Treaty

67.

If a pool agreement between competitors has as its object the restriction of competition by means of
price fixing, output limitation or sharing of markets or customers it will fall under Article 81(1) of
the Treaty. Agreements between competitors involving price fixing (67) will always fall under
Article 81(1) of the Treaty irrespective of the market power of the parties (68).

3.3.3. Pools that may fall under Ar ticle 81(1) of the Treaty

68.

69.

70.

71.

If the pool does not have as its object a restriction of competition, an analysis of its effects in the
market concerned is necessary. An agreement is caught by Article 81 (1) of the Treaty when it is
likely to have an appreciable adverse impact on the parameters of competition on the market such as
prices, costs, service differentiation, service quality, and innovation. Agreements can have this effect
by appreciably reducing rivalry between the parties to the agreement or between them and third
parties (69).

The pool's ability to cause appreciable negative market effects depends on the economic context,
taking into account the nature of the agreement and the parties' combined market power together
with other structural factors in the relevant market. It must also be considered whether the pool
agreement affects the behaviour of the parties in neighbouring markets closely related to the market
directly affected by the cooperation (70). This may be the case for example where the pool's relevant
market is that for the transport of cars in specialised car carrier vessels (market A) and the pool's
members also operate ships in the ro-ro market (market B).

Concerning the nature of the agreement consideration should be given to whether the pool agree-
ment contains clauses prohibiting members from being active in the same market outside the pool
and the extent to which there is an exchange of commercially sensitive information which could for
example unduly influence the competitive behaviour of pool members operating in the same market
outside the pool in relation to the pool's commercial policy. Any links between pools, whether in
terms of management or members as well as cost and revenue sharing should also be considered.

As regards the structural factors in the relevant market, if the pool has a low market share, it is unli-
kely to produce restrictive effects. Market concentration, the position and number of competitors the
stability of market shares over time, multi-membership in pools, market entry barriers and the likeli-
hood of entry, market transparency, countervailing buying power of transport users and the nature of
the services (for example, homogenous versus differentiated services) should be taken into account as
additional factors in assessing the impact of a given pool on the relevant market.

3.3.4. Applicability of Ar ticle 81(3) of the Treaty

72. Where pools are caught by Article 81(1) of the Treaty it is necessary to assess whether they fulfil the
four cumulative conditions of Article 81(3). It is up to the undertakings involved to demonstrate
that:

(a) The pool improves the transport services or promotes technical or economic progress. It must be
shown that the pool causes efficiency gains. The efficiencies generated cannot be the saving of
costs that are an inherent part of competition but must result from the integration of economic
activities. The level of the parties' contribution in terms of investment and technology should be
considered.

(66) See above footnote 13.
(67) Price-fixing activities of independent ship-brokers when fixing a vessel do not fall under this category.
(68) Guidelines on Horizontal Cooperation Agreements, cited above in footnote 6, paragraphs 144 and 148.
(69) Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 16.
(70) Horizontal Guidelines, cited above in footnote 6, paragraph 142.

14.9.2007

EN

Official Journal of the European Union

C 215/15

(b) The economic efficiencies mentioned in (a) must benefit not only the members of the pool but
also consumers in the sense that they must at least compensate the consumer for the loss
resulting from the restriction of competition. The greater the restriction of competition, the
greater must be the efficiencies and the pass on of benefits to transport users. For example, the
lower cost base could translate into lower rates and/or more flexible terms. Pools could be a
response to customer demand for a specific service.

(c) There are no less restrictive ways of achieving similar benefits.

(d) The pool must not be afforded the possibility of eliminating competition in respect of a substan-

tial part of the services in question.