Guidelines on the application of Article 81 of the EC Treaty to maritime transport services (Text with EEA relevance)
Date: 2008-09-26
Institutions: European Commission
Subjects: carriage of goods, chartering, competition law, cooperation agreement, horizontal agreement, maritime transport, service, transport regulations

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

(Text with EEA relevance)

(2008/C 245/02)

1. INTRODUCTION

1. 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).

2. 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.

3. 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.

4. Regulation (EC) No 1419/2006 also repealed Council Regulation (EEC) No 4056/86 of 22 December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.

5. These Guidelines complement the guidance already issued by the Commission in other notices. As mari-
time 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 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.

6. 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

(1) 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).

(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.

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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).

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 a period of five years.

2. MARITIME TRANSPORT SERVICES

2.1. Scope

9. 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.

10. Liner shipping involves the transport of cargo, chiefly by container, on a regular basis to ports of a par-
ticular 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.

11. 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).

12. 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.

2.2. Effect on trade between Member States

13. 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).

(8) OJ L 100, 20.4.2000, p. 24.
(9) Recital 3 of Regulation (EC) 611/2005, cited above in footnote 8.
(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 using specialised vessels technically adapted and/or
built to transport specific cargo. Commission Decision 94/980/EC of 19 October 1994 in Case IV/34.446 —
Trans-Atlantic Agreement (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. 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.

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14. 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
intra Community trade (14)). In most cases they are likely to affect trade
more Member States (i.e.
between Member States inter alia on account of the impact they have on the markets for the provision
of transport and intermediary services (15).

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 compe-
tition law under Article 3 of Regulation (EC) No 1/2003 on the implementation of the rules on compe-
tition laid 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).

2.3. The relevant market

16. 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.

17. 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. 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 posi-
tion to switch easily to other service providers (19).

2.3.1. Liner shipping

18. Containerised liner shipping services have been identified as the relevant product market for liner ship-
ping 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).

(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, cited above in footnote 13.

(15) Commission Decision 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
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 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.
(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) Notice on market definition, cited above in footnote 17, paragraph 8.
(19) Notice on market definition, cited above in footnote 17, paragraph 13.
(20) Commission Decision 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, para-
graphs 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.

(21) Paragraph 62 of the TACA decision, cited above in footnote 15 and paragraphs 783-789 of the TACA judgment, cited

above in footnote 20.

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19. It may be appropriate under certain circumstances to define a narrower product market limited to a par-
ticular 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 trans-
port (22), 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 alterna-
tive 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).

20. 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 identi-
fied 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. 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)

22. 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 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.

23. 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.

24. 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 rele-
vant market.

(22) TACA decision, cited above in footnote 15, paragraph 71.
(23) TAA judgement, cited above in footnote 15, paragraph 273 and TACA judgment, cited above in footnote 20, para-

graph 809.

(24) TAA judgment, cited above in footnote 15, paragraph 281. Commission Decision of 29 July 2005 in Case COMP/M.3829

— MAERSK/PONL, paragraph 13.

(25) TACA decision, cited above in footnote 15, paragraphs 62-75; TACA judgment, cited above in footnote 21, paragraph 795

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

(26) TACA decision, cited above in footnote 15, paragraphs 76-83 and Revised TACA decision, cited above in footnote 15,

paragraph 39.

(27) 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.

(28) 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.

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

25. 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 provi-
ders 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.

26. 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.

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

Additional
product market

considerations

to take

into account when deter mining the

relevant

28. 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.

29. 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.

30. 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 requirement
for tankers in Community waters (31).

Geographic dimension

31. 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.

32. 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.

(29) 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.

(30) 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.

(31) 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 (OJ L 64, 7.3.2002).

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2.4. Market shares

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).

34. 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) the number of voyages;

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

port ranges);

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

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

3. HORIZONTAL AGREEMENTS IN THE MARITIME TRANSPORT SECTOR

35. 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 compe-
tition rules. In service markets, such as maritime transport, the following elements are particularly rele-
vant for the assessment of the effect an agreement may have in the relevant market: prices, costs,
quality, frequency and differentiation of the service provided, innovation, marketing and commercialisa-
tion of the service.

36. Three issues are of particular relevance to the services covered by these guidelines: technical agreements,

exchanges of information and pools.

3.1. Technical agreements

37. 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 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 (34).

3.2. Information exchanges between competitors in liner shipping

38. An information exchange system entails an arrangement on the basis of which undertakings exchange
information amongst
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.

themselves or supply it

(32) TACA decision, cited above in footnote 15, paragraph 85; Revised TACA decision, cited above in footnote 15, para-

graphs 85 and 86 and the TACA judgment, cited above in footnote 20, paragraphs 924, 925 and 927.

(33) 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.

(34) Commission Decision 2000/627/EC of 16 May 2000 (Case IV/34.018 — Far East Trade Tariff Charges and Surcharges Agree-
ment (FETTCSA)) (OJ L 268, 20.10.2000, p. 1), paragraph 153. Judgment of the Court of First Instance of 21 October
1997 in Case T-229/94, Deutsche Bahn AG v Commission [1997] ECR II-1689, paragraph 37.

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39. 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
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.

transparency and customer knowledge, and thus may produce efficiencies. However,

40. 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. In assessing information exchange systems under Community competition law, the following distinc-

tions must be made.

42. The exchange of information may be a facilitating mechanism for the implementation of an anti-compe-
titive practice, such as monitoring compliance with a cartel; where an exchange of information is ancil-
lary to such an anti-competitive 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.

43. 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 undertakings is restricted (37). Every economic operator must determine autono-
mously the policy which it intends to pursue on the market. The Court further considered that under-
takings 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,
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).

i.e.

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 where there is a truly competitive market, trans-
parency 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

(35) 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.

(36) Judgment of the Court of Justice in Case C-49/92 P, Commission v Anic Partecipazioni [1999] ECR I-4125, paragraphs 121

to 126.

(37) 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.

(38) 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, [1999] ECR I-4125, cited above in footnote 36, paragraphs 116 and 117.

(39) 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.

(40) Judgment in John Deere v Commission, Case C-7/95 P, cited above in footnote 37, paragraph 88.

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the operation of the market has the effect of periodically revealing to all competitors the market posi-
tions and strategies of the various individual competitors (41). The Court 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 (42).

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 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 appre-
ciable 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. 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).

48. 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.

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

(41) 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 Case C-7/95 P, John Deere Ltd v Commission, cited above in footnote 37, paragraph 89;
and more recently, the Judgment in Asnef-Equifax v Ausbanc, cited above in footnote 38.

(42) 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.

(43) Judgment in Case C-7/95 P, John Deere Ltd v Commission, cited above in footnote 37, paragraphs 75-77.
(44) Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 16.
(45) Guidelines on the application of Article 81(3), cited above in footnote 7.
(46) Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 25.
(47) 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.

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51. The exchange of information already in the public domain does not in principle constitute an infringe-
ment 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.

52. 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
information
between competitors is more likely to be caught by Article 81(1) of the Treaty (49) than the exchange of
in principle, does not fall within Article 81(1) of the Treaty. The
aggregated information which,
Commission will pay particular attention to the level of aggregation. It should be such that the informa-
tion cannot be disaggregated so as to allow undertakings directly or indirectly to identify the competi-
tive strategies of their competitors.

individual data is impossible. The exchange of

individual

53. 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.

future. Exchange of historic information is generally not

54. The age of the data and the period to which it relates are also important factors. Data can be historic,
recent or
regarded as falling within
Article 81(1) of the Treaty because it cannot have any real impact on the undertakings' future beha-
viour. 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 appro-
priate level such that individual shippers' or carriers' transactions cannot be identified either 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.

55. 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.

56. 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’.

(48) TACA judgment, cited above in footnote 20, paragraph 1154.
(49) Commission Decision 78/252/EEC of 23 December 1977 in Case IV/29.176 — Vegetable Parchment (OJ L 70, 13.3.1978,

p. 54).

(50) Commission Decision 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.

(51) Commission Decision 98/4/ECSC of 26 November 1997 in Case IV/36.069 — Wirtschaftsvereinigung Stahl (OJ L 1,

3.1.1998, p. 10), paragraph 17.

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57. 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
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 indivi-
dual elements of any information exchange scheme together, in order to take account of potential inter-
actions, for example between exchange of capacity and volume data on the one hand and of a price
index on the other.

that competition between undertakings is restricted,

58. An exchange of information between carriers that restricts competition may nonetheless create efficien-
cies, 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.
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).

In this context,

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 struc-
ture that issues anti-competitive decisions or 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.

3.3. Pool agreements in tramp shipping

60. 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.

61. 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
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,

joint marketing (57), negotiation of

(for example,

(52) Guidelines on the application of Article 81(3) of the Treaty, cited above in footnote 7.
(53) Commission Decision 2004/421/EC of 16 December 2003 in Case COMP/38.240 — Industrial tubes (OJ L 125,

28.4.2004, p. 50).

(54) Commission Decision 82/896/EEC of 15 December 1982 in Case IV/29.883 — AROW/BNIC (OJ L 379, 31.12.1982,

p. 1); Commission Decision 96/438/EC of 5 June 1996 in Case IV/34.983 — Fenex (OJ L 181, 20.7.1996, p. 28).

(55) Decision 92/157/EEC (UK Agricultural Tractor Registration Exchange), cited above in footnote 50.
(56) 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.

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

performs the actual voyage.

(58) 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.

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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 repre-
senting 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.

62. 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 commerciali-
sation 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).

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 Article 3(4) of 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 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 compe-
titive behaviour of their parents, the coordination shall be appraised in accordance with the criteria of
Article 81(1) and (3) of the EC 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).

(59) Respectively in Section 5 and Section 3 of the Guidelines, cited above in footnote 6.
(60) Guidelines on Horizontal Cooperation Agreements, cited above in footnote 6, paragraph 12.
(61) 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).
(62) OJ C 95, 16.4.2008, p. 1.
(63) Article 2(4) of Council Regulation (EC) No 139/2004.
(64) 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.

(65) 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.

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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 appreci-
ably reducing rivalry between the parties to the agreement or between them and third parties (66).

68. Some tramp shipping pools do not involve joint selling but nevertheless entail some degree of coordi-
nation 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).

69. 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).

70. Concerning the structural factors in the relevant market,

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 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.

if the pool has a low market share,

71. 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. 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 effi-
ciencies and the pass-on to consumers must be.

73. 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.

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

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

75. 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.

76. 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) Judgment in Case C-238/05, Asnef-Equifax v Ausbanc, cited above in footnote 38, paragraph 70.
(71) Guidelines on the application of Article 81(3), cited above in footnote 7, paragraph 24.