Guidelines on the application of Article 81 of the EC Treaty to maritime transport services (Text with EEA relevance)
Date: 2008-07-01
Institutions: European Commission
Subjects: competition law, exchange of information, maritime transport, transport company, transport market

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 1.7.2008 
SEC(2008) 2151 final 

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

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

(Text with EEA relevance) 

INTRODUCTION 

These  Guidelines  set  out  the  principles  that  the  Commission  of  the  European 
Communities  will  follow  when  defining  markets  and  assessing  cooperation 
agreements  in  those  maritime  transport  services  directly  affected  by  the  changes 
brought about by Council Regulation (EC) No 1419/2006 of 25 September 2006, i.e. 
liner shipping services, cabotage and international tramp services.(1)  

These Guidelines are intended to help undertakings and associations of undertakings 
operating  those  services,  mainly  if  operated  to  and/or  from  a  port  or  ports  in  the 
European Union, to assess whether their agreements (2) are compatible with Article 
81  of  the  Treaty  establishing  the  European  Community  (hereinafter  "the  Treaty"). 
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  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 Treaty (4) to include cabotage and tramp vessel 
services.  Consequently,  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Regulation  (EC)  No  1419/2006  also  repealed  Council  Regulation  (EEC)  No 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 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 fulfils 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  one  or 
more ports 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. 
Moreover,  conference  members  should  ensure  that  any  agreement  taken  under  the 
conference system complies with Article 81 as of 18 October 2008. 

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, OJ L 269, 28.9.2006, p. 1.  
The term "agreement" is used for agreements, decisions by associations of undertakings and concerted 
practices. 
OJ L 1, 4.1.2003, p. 1.  
OJ L 123, 27.4.2004, p. 18. 
OJ L 378, 31.12.1986, p. 4. 

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5. 

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These  Guidelines  complement  the  guidance  already  issued  by  the  Commission  in 
other  notices.  As  maritime  transport  services  are  characterised  by  extensive 
cooperation  agreements  between  competing  carriers,  the  Guidelines  on  the 
applicability of Article 81 of the Treaty to horizontal cooperation agreements (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 agreements between two 
or  more  vessel  operating  carriers  (consortia).  It  will  be  reviewed  following  the 
changes introduced by Regulation (EC) No 1419/2006 (9).  

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 principles in the Guidelines are to be applied in the 
light of the circumstances specific to each case. 

The Commission will apply these Guidelines for a period of five years. 

MARITIME TRANSPORT SERVICES 

2.1. 

Scope 

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

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 transport user.  

Article 1.3(a) of Regulation (EEC) No 4056/86 defined tramp vessel services as the 
transport 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. It is mostly the unscheduled transport of one single commodity which 
fills a vessel (10). 

OJ C 3, 6.1.2001, p. 2. 
OJ C 101, 27.4.2004, p. 97. 
OJ L 100, 20.4.2000, p. 24, as amended by Commission Regulation (EC) 463/2004 of 12 March 2004, 
OJ L 77, 13.3.2004, p. 23 and by Commission Regulation (EC) 611/2005 of 20 April 2005, OJ L 101, 
21.4.2005, p. 10. 
Recital 3 of Commission Regulation (EC) 611/2005, cited above in footnote 8. 
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 
using  specialised  vessels  technically  adapted  and/or  built  to  transport  specific  cargo.  Commission 

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12. 

2.2. 

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15 

Cabotage involves the provision of maritime transport services including tramp and 
liner  shipping,  linking  two  or  more  ports  in  the  same  Member  State  (11).  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. 

Effect on trade between Member States 

Article 81 of the Treaty applies to all agreements which may appreciably 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 (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). 

Transport  services  offered  by  liner  shipping  and  tramp  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 between Member States inter 
alia on account of the impact they have on the markets for the provision of transport 
and intermediary services (15). 

Effect  on  trade  between  Member  States  is  of  particular  relevance  to  maritime 
cabotage  services  since  it  determines  the  scope  of  application  of  Article  81  of  the 
Treaty  and  its  interaction  with  national  competition  law  under  Article  3  of 
Regulation (EC) No 1/2003 on the implementation of the rules on competition laid 

Decision No 94/980/EC of 19 October 1994 in Case IV/34.446 – Transatlantic Agreement, OJ L 376, 
31.12.1994, p. 1 (hereinafter the TAA decision), paragraphs 47-49.  
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. 
Case 42/84 Remia BV and others v Commission [1985] ECR 2545, paragraph 22. Case 319/82 Ciments 
et Bétons de l’Est v Kerpen & Kerpen [1983] ECR 4173, paragraph 9.  
OJ C 101, 27.4.2004, p. 81. 
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, cited above in footnote 13. 
Commission  Decision  No.  93/82/EEC  of  23  December  1992  (Cases  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  to  T-26/93 and  T-28/93,  Compagnie Maritime  Belge  and  others v  Commission [1996] 
ECR II-1201, paragraph 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  of  16  September  1998  (Case  IV/35.134  –  Trans-Atlantic 
Conference Agreement) (hereinafter the TACA decision), OJ L 95, 9.4.1999, p. 1, paragraphs 386-396; 
Commission  Decision  No  2003/68/EC  of  14  November  2002  (Case  COMP/37.396  –  Revised  TACA) 
(hereinafter the Revised TACA decision), OJ L 26, 31.1.2003, p. 53, paragraph 73.  

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2.3. 

16. 

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down  in  Articles  81  and  82  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).  

The relevant market  

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 undertaking.  Guidance  on  this  issue  can  be 
found  in  the  Commission  Notice  on  the  definition  of  the  relevant  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  interchangeable  or  substitutable  by  the  consumer,  by  reason  of  the 
products' characteristics, their prices and their intended use. The relevant geographic 
market comprises the area in which the undertakings concerned are involved in the 
supply and demand of  products or services, in which the conditions of competition 
are  sufficiently  homogeneous  and  which  can  be  distinguished  from  neighbouring 
areas because the conditions of competition are appreciably different in those areas 
(18).  A  carrier  (or  carriers)  cannot  have  a  significant  impact  on  the  prevailing 
conditions  of  the  market  if  customers  are  in  a  position  to  switch  easily  to  other 
service providers (19). 

2.3.1.  Liner shipping 

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Containerised  liner  shipping  services  have  been  identified  as  the  relevant  product 
market for liner shipping in several Commission decisions and Court judgments (20). 
Those  decisions  and  judgments  related  to  maritime  transport  in  deep  sea  trades. 
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  was  because  only  an  insufficient  proportion  of  the  goods  carried  by  container 
can easily be switched to other modes of transport, such as air transport services (21).  

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.  While  it  is  possible  in  exceptional 
circumstances for some substitution to take place between break bulk and container 
transport  (22),  there  appears  to  be  no  lasting  change  over  from  container  towards 

For guidance on the application of the effect on trade, see the Commission Guidelines cited above in 
footnote 13. 
OJ C 372, 9.12.1997, p. 5. 
Notice on market definition, cited above in footnote 17, paragraph 8. 
Notice on market definition, cited above in footnote 17, paragraph 13. 
Commission  Decision  No  1999/485/EC  of  30  April  1999  (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 T-
214/98,  Atlantic  Container  Line  AB  and  others  v  Commission,  [2003]  ECR  II-3275  (hereinafter  the 
TACA judgment), paragraphs 781-883. 
Paragraph 62 of the TACA decision, cited above in footnote 15 and paragraphs 783-789 of the TACA 
judgment, cited above in footnote 20. 
TACA decision, cited above in footnote 15, paragraph 71.  

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20. 

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 (23). 
Once  cargo  becomes  regularly  containerised  it  is  unlikely  ever  to  be  transported 
again  as  non-containerised  cargo  (24).  To  date  containerised  liner  shipping  is 
therefore mainly subject to one way substitutability (25). 

The relevant geographic market consists of the area where the services are marketed, 
generally  a  range  of  ports  at  each  end  of  the  service,  determined  by  ports' 
overlapping catchment areas. As far as the European end of the service is concerned, 
to date the geographical market in liner cases has been identified as a range of ports 
in  Northern  Europe  or  in  the  Mediterranean.  As  liner  shipping  services  from  the 
Mediterranean  are  only  marginally  substitutable  for  those  from  Northern  European 
ports, these have been identified as separate markets (26). 

2.3.2.  Tramp services 

21. 

22. 

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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 shipping services they provide.  

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

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 (27) of the transport requirement at issue. Depending on the transport users' 
specific  needs,  they  will  be  made  up  of  negotiable  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. 

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 to be substitutable. Should this be the case 
they may belong to the same relevant market. 

TAA  judgement,  cited  above  in  footnote  15,  paragraph  273  and  TACA  judgment,  cited  above  in 
footnote 20, paragraph 809. 
TAA  judgment,  cited  above  in  footnote  15,  paragraph  281.  Commission  Decision  in  Case  No 
COMP/M.3829 – MAERSK/PONL, 29.07.2005, paragraph 13. 
TACA decision, cited above in footnote 15, paragraphs 62-75; TACA judgment, cited above in footnote 
20,  paragraph  795  and  Commission  Decision  in  MAERSK/PONL,  cited  above  in  footnote  24, 
paragraphs 13 and 112-117. 
TACA decision, cited above in footnote 15, paragraphs 76-83 and Revised TACA decision, cited above 
in footnote 15, paragraph 39. 
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 or the ultimate date by which 
the cargo has to arrive and technical details regarding the vessel required. 

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25. 

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29. 

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30 

Vessel  types  are  usually  subdivided  into  a  number  of  standard  industrial  sizes  (28). 
Due  to  considerable  economies  of  scale,  a  service  with  a  significant  mismatch 
between cargo volume and vessel size may not be able to offer a competitive freight 
rate. Therefore, the substitutability of different vessel sizes needs to be assessed case 
by  case  so  as  to  ascertain  whether  each  vessel  size  constitutes  a  separate  relevant 
market.  

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

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  (29).  If 
vessels can be adjusted to transport a particular cargo at negligible cost and in a short 
time-frame  (30),  different  tramp  shipping  service  providers  are  able  to  compete  for 
the  transport  of  this  cargo.  In  such  circumstances,  the  relevant  market  from  the 
supply side will comprise more than one type of vessel.  

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 may be at a competitive disadvantage. The 
ability  of  specialised  service  providers  to  compete  for  the  transport  of  other  cargo 
may, therefore, be limited.  

In tramp shipping, port calls are made in response to individual demand. Mobility of 
vessels  may  however  be 
terminal  and  draught  restrictions  or 
environmental standards for particular vessel types in certain ports or regions. 

limited  by 

Additional  considerations  to  take  into  account  when  determining  the  relevant 
product market 

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. 

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 on a case by case basis. 

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 vessel sizes. 
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. 
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. In other tramp shipping markets this cleaning period 
may be longer. 

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30. 

31. 

32. 

Additional factors such as the reliability of the service provider, security, safety and 
regulatory  requirements  may  influence  supply  and  demand-side  substitutability,  for 
example the double hull requirement for tankers in Community waters (31).  

Geographic dimension 

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, without prejudice 
to the final definition of the relevant geographic market. 

Certain geographic markets may be defined on a directional basis or may occur only 
temporarily  for  instance  when  climatic  conditions  or  harvest  periods  periodically 
affect the demand for transport of particular cargos. In this context, repositioning of 
vessels,  ballast  voyages  and  trade  imbalances  should  be  considered  for  the 
delineation of relevant geographic markets. 

2.4.  Market shares 

33. 

34. 

3. 

35. 

31  

32 

33 

Market  shares  provide  useful  first  indications  of  the  market  structure  and  of  the 
competitive  importance  of  the  parties  and  their  competitors.  The  Commission 
interprets market shares in the light of the market conditions on a case-by-case basis. 
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 (32). 

In  tramp  shipping  markets,  service  providers  compete  for  the  award  of  transport 
contracts,  that  is  to  say,  they  sell  voyages  or  transport  capacity.  Depending  on  the 
specific  services  in  question,  various  data  may  allow  operators  to  calculate  their 
annual market shares (33), for instance: 

(a) 

(b) 

(c) 

(d) 

the number of voyages;  

the  parties'  volume  or  value  share  in  the  overall  transport  of  a  specific  cargo 
(between port pairs or port ranges); 

the parties' share in the market for time charter contracts; 

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

HORIZONTAL AGREEMENTS IN THE MARITIME TRANSPORT SECTOR 

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  parameters  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 particularly 
relevant  for  the  assessment  of  the  effect  an  agreement  may  have  in  the  relevant 

Regulation (EC) No 417/2002 of the European Parliament and of the Council of 18 February 2002 on 
the accelerated phasing-in of double hull or equivalent design requirements for single hull oil tankers 
and repealing Council Regulation (EC) No 2978/94, L 64, 7.3.2002. 
TACA  decision,  cited  above  in  footnote  15,  paragraph  85;  Revised  TACA  decision,  cited  above  in 
footnote 15, paragraphs 85 and 86 and the TACA judgment, cited above in footnote 20, paragraphs 924, 
925 and 927. 
Depending on the specificities of the relevant tramp shipping market shorter periods may be envisaged, 
e.g. in markets where contracts of affreightment are tendered for periods of less than one year. 

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36. 

3.1. 

37. 

3.2. 

38. 

39. 

40. 

market: prices, costs, quality, frequency and differentiation of the service provided, 
innovation, marketing and commercialisation of the service. 

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

Technical agreements 

implement 

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 horizontal agreements the sole object and effect of which is 
to 
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 (34). 

improvements  or 

to  achieve 

technical 

Information exchanges between competitors in liner shipping  

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 
circumstances,  breach  Article  81  of  the  Treaty.  These  guidelines  are  intended  to 
assist providers of liner shipping 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  the  joint  operation  of  liner 
transport  services  and  the  other  forms  of  co-operation  covered  by  the  block 
exemption in Regulation (EC) No 823/2000 (35). The present Guidelines do not deal 
with these information exchanges.  

3.2.1. 

In general  

41. 

42. 

34 

35 

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

The  exchange  of 
the 
implementation of an anti-competitive practice, such as monitoring compliance with 
a  cartel;  where  an  exchange  of  information  is  ancillary  to  such  an  anti-competitive 

information  may  be  a  facilitating  mechanism  for 

Commission  Decision  No  2000/627/EC  of  16  May  2000  (Case  IV/34.018  –  Far  East  Trade  Tariff 
Charges and Surcharges Agreement (FETTCSA)), 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, [1997] ECR II-1689, 
paragraph 37. 
Regulation (EC) No 823/2000, cited above in footnote 8, 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. 

EN 

9 

   EN 

 
                                                 
practice its assessment must be carried out in combination with an assessment of that 
practice. An exchange of information may even have in itself the object of restricting 
competition (36). These Guidelines do not address such exchanges of information.  

is 

restricted 

However,  an  exchange  of  information,  in  its  own  right,  might  constitute  an 
infringement of Article 81 of the Treaty by reason of its effect. 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 
(37).  Every  economic  operator  must  determine 
undertakings 
autonomously the policy which it intends to pursue on the market. The Court further 
considered that 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 restrict competition, 
i.e. 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 (38). By contrast, in the wood pulp market, the Court has found that unilateral 
quarterly price announcements made independently by producers to users constitute 
in themselves market behaviour which does not lessen each undertaking's uncertainty 
as  to  the  future  attitude  of  its  competitors  and  hence,  in  the  absence  of  any 
preliminary concerted practice between producers, do not constitute in themselves an 
infringement of Article 81(1) of the Treaty (39). 

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 
where  there  is  a  truly  competitive  market,  transparency  is  likely  to  lead  to 
intensification  of  competition  between  suppliers  (40).  However,  on  a  highly 
concentrated oligopolistic market, on which competition is already greatly reduced, 
exchanges  of  precise  information  on  individual  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  suppliers.  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 strategies of the various individual competitors 
(41). The Court has also found that an information exchange system may constitute a 

Judgment of the Court of Justice in Case C-49/92 P, Commission v Anic Partecipazioni, [1999] ECR 
I-4125, paragraphs 121 to 126. 
Judgment  of  the  Court  of  Justice  in  Case  C-7/95  P,  John  Deere  v  Commission,  [1998]  ECR  I-3111, 
paragraph 90 and Judgment of the Court of Justice in Case C-194/99 P, Thyssen Stahl v Commission, 
[2003] ECR I-10821, paragraph 81. 
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), [2006] ECR I-11125, paragraph 52 and Judgment of the 
Court  of  Justice  in  Case  C-49/92  P,  Commission  v  Anic  Partecipazioni,  cited  above  in  footnote  36, 
paragraphs 116 and 117. 
Judgment  of  the  Court  of  Justice  in  Joined  Cases  C-89/85,  C-104/85,  C-114/85,  C-116/85,  C-117/85 
and  C-125/85  to  C-129/85,  A.  Ahlström  Osakeyhtiö  and  others  v  Commission,  [1993]  ECR  I-1307, 
paragraphs 59 to 65. 
Judgment in John Deere v Commission, Case C-7/95 P, cited above in footnote 37, paragraph 88.  
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 37, paragraph 89; and more recently, the judgment in Asnef-Equifax v Ausbanc, 
cited above in footnote 38.  

43. 

44. 

36  

37 

38 

39  

40 
41 

EN 

10 

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45. 

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 (42). 

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  consider  the  actual  or  potential  effects 
of the information exchange compared to the competitive situation that would result 
in the absence of the information exchange agreement (43). To be caught by Article 
81(1)  of  the  Treaty,  the  exchange  must  have  an  appreciable  adverse  impact  on  the 
parameters of competition (44). 

46. 

The  guidance  below  mainly  relates  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 paragraph 58 below and in the general notice on the subject 
(45). 

3.2.2.  Market structure 

47. 

48. 

49. 

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 (46).  

The  level  of  concentration  is  particularly  relevant  since,  on  highly  concentrated 
oligopolistic markets, 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  interdependence  of  firms  and  reduce  the 
intensity of competition. 

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 (47).The Commission may also 
analyse  other  factors  such  as  the  homogeneity  of  services  and  the  overall 
transparency in the market. 

3.2.3.  Characteristics of the information exchanged 

50. 

The  exchange  of  commercially  sensitive  data  relating  to  the  parameters  of 
competition, such as price, capacity or costs, between competitors, is more likely to 
be  caught  by  Article  81(1)  of  the  Treaty  than  other  exchanges  of  information.  The 

42 

43 

44 
45 
46 
47 

Judgment of the Court of First Instance in Case T-141/94 Thyssen Stahl AG v Commission [1999] ECR 
II-347, paragraphs 402 and 403.  
Judgment in John Deere Ltd v Commission, Case C-7/95 P, cited above in footnote 37, paragraphs 75-
77.  
Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 16. 
Guidelines on the application of Article 81(3), cited above in footnote 7. 
Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 25. 
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.  

EN 

11 

   EN 

 
                                                 
commercial  sensitivity  of  information  should  be  assessed  taking  into  account  the 
criteria set out below. 

The  exchange  of  information  already  in  the  public  domain  does  not  in  principle 
constitute  an  infringement  of  Article  81(1)  of  the  Treaty  (48).  However,  it  is 
important  to  establish  the  level  of  transparency  of  the  market  and  whether  the 
exchange  enhances  information  by  making  it  more  accessible  and/or  combines 
publicly available information with other information. The resulting information may 
become  commercially  sensitive  and 
its  exchange  potentially  restrictive  of 
competition.  

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  undertakings  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  (49)  than  the  exchange  of 
aggregated information which, in principle, does not fall within Article 81(1) of the 
Treaty. The Commission will pay particular attention to the level of aggregation. 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. 

However,  in  liner  shipping  caution  should  be  used  when  assessing  exchanges  of 
capacity  forecasts  even  in  aggregate  form,  especially  when  they  take  place  in 
concentrated  markets.  In  liner  markets,  capacity  data  is  the  key  parameter  to 
coordinate  competitive  conduct  and  it  has  a  direct  effect  on  prices.  Exchanges  of 
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. 

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  undertakings’  future  behaviour.  In  past  cases,  the  Commission  has 
considered  information  which  was  more  than  one  year  old  as  historic  (50)  whereas 
information  less  than  one  year  old  has  been  viewed  as  recent  (51).  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. 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  competition  if  the  data  is  aggregated  to  an  appropriate 
level such that individual shippers' or carriers' transactions cannot be identified either 

TACA judgment, cited above in footnote 20, paragraph 1154. 
Commission  Decision  No  78/252/EEC  of  23  December  1977  in  Case  IV/29.176  –  Vegetable 
Parchment, OJ L 70, 13.3.1978, p. 54. 
Commission  Decision  No  92/157/EEC  of  17  February  1992  in  Case  IV/31.370  –  UK  Agricultural 
Tractor Registration Exchange, OJ L 68, 13.3.1992, p. 19, paragraph 50. 
Commission  Decision  No  98/4/ECSC  of  26  November  1997 
Wirtschaftsvereinigung Stahl, OJ L 1, 3.1.1998, p. 10, paragraph 17.  

IV/36.069  – 

in  Case 

51. 

52. 

53. 

54. 

48 
49 

50 

51 

EN 

12 

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55. 

56. 

57. 

58. 

directly or indirectly. 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.  

How data is released should also be looked into to assess the effect(s) it may have on 
the market(s). The more the information is shared with customers, the less likely it is 
to be problematic. Conversely, 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”. 

In  liner  shipping,  price  indexes  are  used  to  show  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 
competitors. If a price index reduces or removes the degree of uncertainty as to the 
operation  of  the  market  with  the  result  that  competition  between  undertakings  is 
restricted, 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.  In  general  it  is  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  efficiencies,  such  as  better  planning  of  investments  and  more 
efficient use of capacity. Such efficiencies will have to be substantiated and 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) is that consumers should 
receive a fair share of the benefits generated by the restrictive agreement. If all four 
cumulative conditions set out in Article 81(3) are fulfilled, the prohibition of Article 
81(1) does not apply (52). 

3.2.4.  Trade associations  

59. 

In  liner  shipping,  as  in  any  other  sector,  discussions  and  exchanges  of  information 
can  take  place  in  a  trade  association  provided  the  association  is  not  used  as  (a)  a 
forum for cartel meetings (53), (b) a structure that issues anti-competitive decisions or 

52 
53  

Guidelines on the application of Article 81(3) of the Treaty, cited above in footnote 7. 
Commission Decision No 2004/421/EC of 16 December 2003 in Case COMP/38.240 – Industrial tubes, 
OJ L 125, 28.4.2004, p. 50. 

EN 

13 

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3.3. 

60. 

61. 

62. 

recommendations to its members (54) or (c) a means of exchanging information that 
reduces or removes the degree of uncertainty as to the operation of the market with 
the result that competition between undertakings is restricted while not fulfilling the 
Article 81(3) conditions (55). This should be distinguished from the discussions that 
are  legitimately  conducted  within  trade  associations,  for  example  on  technical  and 
environmental standards. 

Pool agreements in tramp shipping 

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  most  pools  in  the  different  market  segments  as  set  out 
below.  
A  standard  shipping  pool  brings  together  a  number  of  similar  vessels  (56)  under 
different  ownership  and  operated  under  a  single  administration.  A  pool  manager  is 
normally responsible for the commercial management (for example, joint marketing 
(57), negotiation of freight rates and centralization of incomes and voyage costs (58)) 
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 is usually the responsibility of each owner (safety, crew, repairs, 
maintenance  etc.).  Although  they  market  their  services  jointly,  the  pool  members 
often perform the services individually.  

It follows from this description that the key feature of standard shipping pools is joint 
selling, coupled with 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  (59)  is  therefore  relevant.  Given  the  variation  in  pools' 
characteristics, each pool must be analysed on a case-by-case basis to determine, by 
reference to its centre of gravity (60), whether it is caught by Article 81(1) and, in the 
affirmative, if it fulfils the four cumulative conditions of Article 81(3).  

54  

55  

56 

57 

58 

59 
60  

Commission Decision No. 82/896/EEC of 15 December 1982 in Case IV/29.883 – AROW/BNIC, OJ L 
379, 31.12.1982, p. 1; Commission Decision No. 96/438/EC of 5 June 1996 in Case IV/34.983 – Fenex, 
OJ L 181, 20.07.1996, p. 28. 
Commission Decision No. 92/157/EEC (UK Agricultural Tractor Registration Exchange), cited above 
in footnote 50. 
This results in the pool being able to attract large contracts of affeightment, combine various contracts 
of affeightment and reduce the number of ballast legs by careful fleet planning. 
For  example,  the  pool's  vessels  are  marketed  as  one  commercial  unit  offering  transport  solutions 
regardless of which ship performs the actual voyage.  
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.  
Respectively in section 5 and section 3 of the Guidelines, cited above in footnote 6. 
Guidelines on Horizontal Cooperation Agreements, cited above in footnote 6, paragraph 12. 

EN 

14 

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63. 

Pools that fall within the scope of Council Regulation (EC) No 139/2004 (61) 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 Art. 3(4) 
of  Council  Regulation  (EC)  No  139/2004)  are  not  directly  affected  by  the  changes 
brought  about  by  Regulation  (EC)  No  1419/2006  and  are  not  dealt  with  in  these 
Guidelines.  Guidance  on  full-functionality  can  be  found,  inter  alia,  in  the 
Commission  Consolidated  Jurisdictional  Notice  under  Council  Regulation  (EC)  No 
139/2004 on the control of concentrations between undertakings (62). Insofar as such 
pools have as their object or effect the coordination of the competitive behaviour of 
their  parents,  the  coordination  shall  be  appraised  in  accordance  with  the  criteria  of 
Article 81(1) and (3) EC of the Treaty with a view to establishing whether or not the 
operation is compatible with the common market (63). 

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

64. 

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.  This  would  be  the 
case,  for  instance,  when  two  or  more  ship-owners  set  up  a  shipping  pool  for  the 
purpose  of  tendering  for  and  performing  contracts  of  affreightment  for  which  as 
individual operators they could not bid successfully or which they could not carry out 
on  their  own.  This  conclusion  is  not  invalidated  in  cases  where  such  pools 
occasionally carry other cargo representing a small part of the overall volume.  

65. 

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 (64), are not caught by Article 81(1) of the Treaty.  

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

66. 

Pool agreements between competitors limited to joint selling have as a rule the object 
and effect of coordinating the pricing policy of these competitors (65).  

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

67. 

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 (66). 

61 

62 
63 
64 

65 

66 

Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the EC 
Merger Regulation), OJ L 24, 29.1.2004, p. 1. 
OJ C 95, 16.4.2008, p. 1. 
Article 2(4) of Council Regulation (EC) No 139/2004. 
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 footnote 13. 
Guidelines on Horizontal Cooperation Agreements, cited above in footnote 6, section 5. The activities 
of an independent ship-broker when "fixing a vessel" do not fall under this category. 
Guidelines on the application of Article 81(3), cited above in footnote 7. 

EN 

15 

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68. 

69. 

70. 

71. 

Some tramp shipping pools do not involve joint selling but nevertheless entail some 
degree  of  coordination  on  the  parameters  of  competition  (e.g.  joint  scheduling  or 
joint  purchasing).  Such  cases  are  only  subject  to  Article  81(1)  of  the  Treaty  if  the 
parties to the agreement have some degree of market power (67). 

The  pool's  ability  to  cause  appreciable  negative  market  effects  depends  on  the 
economic  context,  taking  into  account  the  parties'  combined  market  power  and  the 
nature of the agreement 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 (68). This may be the case for example where the pool's market is that for 
the transport of forest products in specialised box shaped vessels (market A) and the 
pool's members also operate ships in the dry bulk market (market B).  

Concerning the structural factors in the relevant market, if the pool has a low market 
share, it is unlikely 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  likelihood  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. 

With regard to the nature of the agreement, consideration should be given to clauses 
affecting  the  pool  or  its  members'  competitive  behaviour  in  the  market  such  as 
clauses prohibiting members from being active in the same market outside the pool  
(non-compete  clauses),  lock-in  periods  and  notice  periods  (exit  clauses)  and 
exchanges of commercially sensitive information. Any links between pools, whether 
in terms of management or members as well as cost and revenue sharing should also 
be considered. 

3.3.4.  Applicability of Article 81(3) of the Treaty 

72. 

73. 

74. 

67  
68 
69  

Where  pools  are  caught  by  Article  81(1)  of  the  Treaty,  the  undertakings  involved 
need  to  ensure  that  they  fulfil  the  four  cumulative  conditions  of  Article  81(3)  (69). 
Article 81(3) does not exclude a priori certain types of agreements from its scope. As 
a  matter  of  principle  all  restrictive  agreements  that  fulfil  the  four  conditions  of 
Article 81(3) are covered by the exception rule. This analysis incorporates a sliding 
scale.  The  greater  the  restriction  of  competition  found  under  Article  81(1),  the 
greater the efficiencies and the pass-on to consumers must be. 

It  is  up  to  the  undertakings  involved  to  demonstrate  that  the  pool  improves  the 
transport  services  or  promotes  technical  or  economic  progress  in  the  form  of 
efficiency  gains.  The  efficiencies  generated  cannot  be  cost  savings  that  are  an 
inherent part of the reduction of competition but must result from the integration of 
economic activities.  

Efficiency  gains  of  pools  may  for  instance  result  from  obtaining  better  utilisation 
rates  and  economies  of  scale.  Tramp  shipping  pools  typically  jointly  plan  vessel 
movements  in  order  to  spread  their  fleets  geographically.  Spreading  vessels  may 

Guidelines on Horizontal Cooperation Agreements, cited above in footnote 6, paragraph 149. 
Guidelines on Horizontal Cooperation Agreements, cited above in footnote 6, paragraph 142. 
Guidelines on the application of Article 81(3), cited above in footnote 7. 

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75. 

76. 

reduce  the  number  of  ballast  voyages  which  may  increase  the  overall  capacity 
utilisation of the pool and eventually lead to economies of scale. 

Consumers  must  receive  a  fair  share  of  the  efficiencies  generated.  Under  Article 
81(3) of the Treaty, it is the beneficial effects on all consumers in the relevant market 
that must be taken into consideration, not the effect on each individual consumer (70). 
The  pass-on  of  benefits  must  at  least  compensate  consumers  for  any  actual  or 
potential  negative  impact  caused  to  them  by  the  restriction  of  competition  under 
Article  81(1)  (71).  To  assess  the  likelihood  of  a  pass-on  the  structure  of  tramp 
shipping  markets  and  the  elasticity  of  demand  should  also  be  considered  in  this 
context. 

A  pool  must  not  impose  restrictions  that  are  not  indispensable  to  the  attainment  of 
the efficiencies. In this respect it is necessary to examine whether the parties could 
have achieved the efficiencies on their own. In making this assessment it is relevant 
to consider, inter alia, what is the minimum efficient scale to provide various types 
of services in tramp shipping. In addition, each restrictive clause contained in a pool 
agreement  must  be  reasonably  necessary  to  attain  the  claimed  efficiencies. 
Restrictive clauses may be justified for a longer period or the whole life of the pool 
or for a transitional period only. 

77. 

Lastly, the pool must not afford the parties the possibility of eliminating competition 
in respect of a substantial part of the services in question.  

70  
71  

Judgment in Asnef-Equifax v Ausbanc, cited above in footnote 38, paragraph 70. 
Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 24. 

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