COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE EVALUATION of the Commission Regulation (EC) No 906/2009 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia)
Date: 2019-11-20
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, consortium, exemption from restrictive-practice authorisation, maritime shipping, provision of services, restriction on competition, restrictive trade practice

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 20.11.2019  SWD(2019) 412 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE EVALUATION of the Commission Regulation (EC) No 906/2009 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia) {SWD(2019) 411 final}  
 
 
INTRODUCTION 

On  28  September  2009  the  Commission  adopted  the  Commission  Regulation  (EC)  No 
906/2009  on  the  application  of  Article  81(3)  of  the  Treaty  to  certain  categories  of 
agreements,  decisions  and  concerted  practices  between  liner  shipping  companies 
(consortia)  (“Consortia  BER").1  Initially  due  to  expire  on  25  April  2015,  the  Consortia 
BER was prolongued for an additional 5 years with the Commission Regulation (EU) No 
697/2014 (“Prolonging Regulation”) and will expire on 25 April 2020.2  

OBJECTIVE AND SCOPE OF THE EVALUATION 

The Consortia BER declares that in accordance with Article 101(3) TFEU the prohibition 
in Article 101(1) TFEU does not apply to certain types of consortia agreements and sets 
the specific conditions under which they are exempted.  

The  objective  of  the  Consortia  BER  is  to  is  to  facilitate  the  creation  and  operation  of 
consortia  that  meet  certain  conditions.  The  Consortia  BER  achieves  this  objective  by 
providing consortia with clarity and legal certainty with respect to their compliance with 
EU competition rules. The Commission established that a BER for consortia agreements 
is  justified  because  “consortia  generally  bring  rationalisation  and  economies  of  scale 
which help to improve the productivity and quality of available liner shipping services” 
and “promote technical and economic progress”,3 while “users of the shipping services 
[…]  may  benefit  from  the  improvements  in  productivity  which  consortia  can  bring 
about”.4 When the Consortia BER was prolonged, the Commission established that “the 
justifications for a block exemption for consortia are still valid and that the conditions on 
the basis of which the scope and content of [the Consortia BER] were determined have 
not substantially changed”.5  

With the expiry date of Consortia BER approaching, the purpose of the evaluation is to 
assess  whether  the  Consortia  BER  is  still  relevant  and  delivering  on  its  objective.  This 
will inform the decision of whether to let it expire or prolong it and, if so, under which 

1   Commission Regulation (EC) No 906/2009 of 28 September 2009 on the application of Article 81(3) 
of  the  Treaty  to  certain  categories  of  agreements,  decisions  and  concerted  practices  between  liner 
shipping companies (consortia), OJ L 256, 29.9.2009, p. 31–34. 

2   Commission Regulation (EU) No 697/2014 of 24 June 2014 amending Regulation (EC) No 906/2009 
as regards its period of application, OJ L 184, 25.6.2014, p. 3. The only purpose of this Regulation is 
to amend one provision in Consortia BER and extend its validity until 25 April 2020. 

3   Consortia BER, Recital 5. 

4   Consortia BER, Recital 6. 

5   Prolonging  regulation,  Recital  1.  See  also  Commission  press  release  IP/14/717  of  24  June  2014 
accessible at: http://europa.eu/rapid/press-release_IP-14-717_en.htm (last accessed: 6 May 2019). 

1 

 
 
                                                           
conditions,  if  any.6  The  criteria  that  the  Commission  applied  in  the  evaluation  are 
Effectiveness, Efficiency, Relevance, Coherence, and EU added value.  

The  temporal  scope  of  the  evaluation  is  the  period  since  the  last  prolongation  of  the 
Consortia BER in 2014 to this day.7  

EVALUATION METHODOLOGY 

The  Commission  published  the  Roadmap  of  the  Evaluation  and  ran  a  four-week 
consultation for public feedback on its Consultation.8 The Commission also ran an online 
Public  Consultation  on  the  Consortia  Block  Exemption  Regulation  on  its  website  for 
legislative  initiatives.9  Furthermore,  targeted  questionnaires  were  sent  to  several 
stakeholders as well as contacted all NCA’s to inform them about the ongoing evaluation 
and invite them to submit any observations.10 In addition to the above, the Commission 
has conducted its  own internal  study of the liner shipping market  and its developments 
(analysing  e.g.  relevant  merger  decisions,  guidance  documents,  and  sector-specific 
reports),  organized  several  bilateral  meetings  with  requesting  stakeholders,  and 
participated to a number of forums and conferences. 

The  evaluation  consists  of  the  interrelated  assessments  of  whether  the  Consortia  BER 
fulfils the criteria: Effectiveness, Efficiency, Relevance, Coherence and EU added value. 
For  their  assessment,  the  five  criteria  were  elaborated  into  evaluation  questions.  The 
assessments draw from  knowledge  and collected data,  which have been  assessed based 
on their relevance, credibility and weight. The evaluation faced minor limitations, most 
notably  as  regards  the  collection  of  overall  service  price,  the  calculation  of  precise 
market  shares,  or  to  the  difficulty  in  establishing  and  assessing  causal  links  between 
factors. 

MAIN FINDINGS 

Effectiveness 

The  Consortia  BER  provides  guidance  on  the  conditions  under  which  consortia 
agreements would be compatible with Article 101 TFEU. The Consortia BER is tailored 
to  consortia  agreements,  referring  to  arrangement  that  are  specific  to  consortia.  It  also 
employs  industry-specific  terminology  that  is  easily  understandable  to  industry 

6   Allowing  the  Consortia  BER  to  expire  would  not  mean  that  consortia  agreements  would  become 
unlawful but that they would be examined under the general rules on competition just as cooperation 
agreements in other sectors. 

7   The last prolongation in 2014 also marks the conclusion of the most recent assessment of the Consortia 
BER – this is an additional reason why the temporal scope of the current evaluation starts at that point.  

8   The  consultation  website  and  Roadmap  are  accessible  at:  https://ec.europa.eu/info/law/better-

regulation/initiatives/ares-2018-2422025_en (last accessed: 3 April 2019).  

9   The  Public  Consultation  ran  from  27  September  to  20  December  2018  and  in  English,  German  and 

French. 

10   The  Targeted  Questionnaires  were  prepared  in  three  separate  types:  Targeted  Questionnaire  for 
Carriers, Targeted Questionnaire for Shippers and Freight-forwarders, Targeted Questionnaire for Port 
operators. 

2 

 
                                                           
participants.  Consequently,  compared  to  a  baseline  in  which  it  would  be  absent,  the 
Consortia  BER  facilitates  the  conclusion  of  consortia  agreements  by  making  the 
assessment of their compatibility with Article 101 TFEU easier and by providing higher 
legal certainty that decreases legal risk.  

Efficiency  

This  criterion  is  used  to  assess  what  the  effect  of  the  Consortia  BER  is  on  costs,  in 
particular,  whether  it  helps  undertakings  to  reduce  costs  or  conversely  whether  it 
increases  compliance  costs.  In  the  absence  of  the  Consortia  BER,  the  assessment  of 
consortia  compliance  with  competition  rules  would  become  more  complex,  thereby 
increasing the costs associated with self-assessment and possibly requiring the advice of 
external lawyers.  

Overall, it is concluded that the Consortia BER is efficient as it helps carriers to reduce 
costs.   

Relevance 

Since  the  prolongation  of  Consortia  BER  in  2014,  the  liner  shipping  industry  has  been 
going  through  a  process  of  consolidation,  increased  concentration  and  technological 
change,  expressed  in  particular  in  the  growing  size  of  container  vessels.  Despite  this 
evolution,  the  overall  evidence  available  in  this  evaluation  does  not  reveal  material 
deterioration in the parameters of competition. In particular, over the evaluation period, 
prices have rather diminished alongside costs; levels of services seem to have remained 
broadly stable.  

Consequently, there is no reason to depart from the longstanding view that consortia are 
an  efficient  way  for  providing  and  improving  liner  shipping  services;  moreover  a  fair 
share of the benefits resulting from the efficiencies are passed on to consumers11. 

Cooperation in consortia is and will remain the mainstay of the industry. Furthermore, a 
material  number  of  existing  consortia  appear  to  fall  within  the  scope  of  the  Consortia 
BER,  and  for  those  not  within  its  scope,  the  Consortia  BER  would  still  be  of  some 
relevance as a useful guidance regarding e.g. compliance with Article 101(3) TFEU.  

Therefore,  the  Consortia  BER  is  and  will  remain  relevant  in  the  medium  term 
considering  the  major  developments  in  the  industry  and  the  modes  of  cooperation 
between carriers. 

Coherence 

Consortia  BER  does  not  present  inconsistencies  with  other  instruments  of  EU 
competition  law.  In  addition,  the  evaluation  has  shown  that  the  special  features  of  the 
industry, which relies  heavily on cooperation, still  merits an exceptional  sector specific 
BER. Furthermore, the Consortia BER is coherent with other the EU’s policies, such as 
environmental  protection  (vessel  sharing  agreements  contribute  to  reduced  fuel 
consumption per TEU12) and technological development (through newer, more efficient, 

11   The “consumers” for the purpose of Article 101(3) TFEU include not only the final consumer but also 
the direct customers of the producers concerned (see recital 84 of the Article 101(3) Guidelines).  

12   Twenty-foot equivalent units. 

3 

 
                                                           
more  technically  up-to-date  modern  ships  and  improved  IT  systems  for  container 
tracking  to  meet  shipper  demands).  Lastly,  the  objective  of  the  Consortia  BER  and  its 
actual  contribution  to  the  (global)  competitiveness  of  the  Union’s  shipping  sector  are 
aligned with the Commission priority on jobs, growth and investment.13  

Therefore, the Consortia BER is coherent with other policies and instruments of the EU. 

EU added value 

The EU level is more appropriate for guidance on the application of competition rules to 
the provision of international liner shipping services than the individual Member States 
for  two  reasons.  Firstly,  because  liner  shipping  is  a  cross-border  industry  by  its  very 
nature. Secondly, since the Council granted only the Commission, and not the Member 
States, the power to adopt a BER for consortia. Furthermore, the Consortia BER also has 
added  value  when  compared  to  the  existing  instruments  providing  general  guidance  on 
the  application  of  competition  rules,  since  as  a  sector-specific  instrument  (with  sector 
specific terminology and content) it by nature provides higher legal certainty to consortia 
than they would have without it.  

Therefore, the Consortia BER provides EU added value. 

13   More 

is 
https://ec.europa.eu/commission/priorities_en (last accessed on 21 June 2019). 

Commission 

2015-2019 

priorities 

for 

on 

accessible 

at:  

4