COMMISSION STAFF WORKING DOCUMENT EVALUATION of the 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)
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) 411 final  COMMISSION STAFF WORKING DOCUMENT  EVALUATION of the   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) {SWD(2019) 412 final}  
 
 
Table of contents 

1. 

2. 

3. 

4. 

INTRODUCTION ................................................................................................................................ 3 

BACKGROUND TO THE INTERVENTION ..................................................................................... 4 

2.1. 

Legal and policy framework ............................................................................................ 4 

2.2. 

The context of the liner shipping industry ...................................................................... 6 

2.3. 

The Consortia BER and its logic ....................................................................................... 8 

2.4. 

Baseline ......................................................................................................................... 10 

THE IMPLEMENTATION OF THE CONSORTIA BER ................................................................. 12 

EVALUATION METHODS .............................................................................................................. 14 

4.1.  Method for data collection ........................................................................................... 14 

4.2. 

Assessment method ...................................................................................................... 15 

4.3. 

Limitations to the methodology .................................................................................... 15 

5.  ANSWERS TO THE EVALUATION QUESTIONS AND ANALYSES ......................................... 17 

5.1. 

Effectiveness .................................................................................................................. 17 

5.2. 

Efficiency ....................................................................................................................... 18 

5.3. 

Relevance ...................................................................................................................... 19 

5.3.1. 

Prevalence of consortia ......................................................................................... 20 

5.3.2. 

Concentration levels .............................................................................................. 21 

5.3.3. 

ULCVs ..................................................................................................................... 25 

5.3.4. 

Efficiency gains ...................................................................................................... 27 

5.3.5. 

Benefits for consumers ......................................................................................... 28 

5.3.6. 

Conclusions on relevance ...................................................................................... 32 

5.4. 

Coherence ..................................................................................................................... 32 

5.5. 

EU added value .............................................................................................................. 33 

6. 

CONCLUSIONS ................................................................................................................................. 35 

ANNEX 1: SYNOPSIS REPORT OF THE STAKEHOLDER CONSULTATION .................................... 36 

1 

 
 
 
 
 
 
Glossary 

Term or acronym  Meaning or definition 

BER(s)  

Block Exemption Regulation(s). 

CLECAT  

European Association for Forwarding, Transport, Logistics and 
Customs Services. 

Commission  

European Commission. 

Council  

European Council. 

ECSA 

European Community Shipowners' Associations. 

ESC 

ETA 

European Shippers’ Council. 

European Tugowners’ Association. 

Evaluation  

2018-2019 Evaluation of Consortia BER. 

FEPORT 

The Federation of European Private Port Companies and Terminals. 

FTA 

ICS 

ITF 

NCA 

SCA 

SWD 

TEU 

Freight Transport Association.  

International Chamber of Shipping 

International Transport Forum 

National Competition Authority, i.e. competition authority of an EU 
Member State. 

Slot charter agreement 

Staff Working Document (present document). 

Twenty-foot equivalent units. 

TFEU  

Treaty on the functioning of the European Union. 

VSA 

WSC 

Vessel sharing agreements 

World Shipping Council. 

2 

 
 
 
 
 
 
1. 

INTRODUCTION 

Liner  shipping  services  consist  of  the  provision  of  regular,  scheduled  maritime  cargo 
transport on a specific route. They require significant levels of investment1 and therefore 
are  regularly  provided  by  several  shipping  companies  ("carriers")  cooperating  in 
consortia agreements.2  

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").3  While  it  was  initially  due  to  expire  on  25  April  2015, 
with  the  Commission  Regulation  (EU)  No  697/2014  (“Prolonging  Regulation”)  the 
Consortia  BER  was  prolongued  for  an  additional  5  years  and  will  expire  on  25  April 
2020.4  

The current evaluation of the Consortia BER is prompted by the approaching expiry date. 
The purpose of the evaluation is to assess whether the Consortia BER is still relevant and 
delivering  on  its  objectives.  The  criteria  applied  in  the  evaluation  are  Effectiveness, 
Efficiency, Relevance, Coherence, and EU added value.5 The evaluation will inform the 
decision of whether to let the Consortia BER expire or prolong it and, if so, under which 
conditions, if any.6 

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

This  Staff  Working  Document  (“SWD”)  reflects  the  findings  and  views  of  the 
Commission’s staff and does not reproduce the formal position of the Commission itself. 

1   See e.g. Council Regulation (EC) No 246/2009 of 26 February 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  79,  25.3.2009,  p.  1–4,  recital  4:  “Liner  shipping  is  a  capital 
intensive industry.” 

2   A  consortium  agreement  consists  of  one  or  a  set  of  separate  but  interrelated  agreements  between 
carriers  which  provide  international  liner  shipping  services,  the  object  of  which  is  to  bring  about 
cooperation in the joint operation of service.  

3   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. 

4   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. 

5   The assessment criteria are further elaborated in Section 5. 

6   Allowing the Consortia BER to expire would mean that consortia agreements would be examined on a 
case-by-case  basis  under  the  general  rules  on  competition  just  like  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.  

3 

 
                                                            
It  does  not  prejudge  the  final  nature  of  any  act  or  the  content  of  any  delegated  or 
implementing acts that may be prepared by the Commission.   

2.  BACKGROUND TO THE INTERVENTION 

2.1.  Legal and policy framework  

Article  101(1)  TFEU8  prohibits  agreements  between  undertakings 
that  restrict 
competition.  However,  Article  101(3)  TFEU9  allows  declaring  such  agreements 
compatible with the internal market provided they contribute to improving the production 
or  distribution  of  goods  or  to  promoting  technical  or  economic  progress  (“Efficiency 
Gains”), while allowing consumers a fair share of the resulting benefits.10  

In  an  historical  perspective,  under  Regulation  17  of  196211,  the  Commission  had  sole 
power  (subject  to  review  by  the  Union  Courts)  to  grant  individual  exemptions  to 
agreements on the basis of criteria nowadays set out in Article 101(3) TFEU.12 As a rule, 
agreements, decisions and concerted practices falling under what is today Article 101(1) 
TFEU and in respect of which the parties sought application of Article 101(3) TFEU had 
to be notified to the Commission.13  

In  these  circumstances,  block  exemptions  were  introduced  into  EU  competition  law  to 
exempt  whole  categories  of  agreements,  decisions  and  concerted  practices  that  were 
considered  unproblematic  from  that  notification  obligation.  The  Commission  has  been 
granted by Enabling Regulations of the Council the power to declare that certain types of 
agreements,  decisions  and  concerted  practices  are  compatible  with  the  internal  market 
under  Article  101(3)  TFEU.  Such  declarations  are  made  by  the  Commission  through 
measures known as BERs. 

Since the entry into force 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,  (“Regulation  1/2003”)14  on  1 May  2004,  agreements,  decisions  and  concerted 

8   Previously Art. 81(1) of the Treaty establishing the European Community (“TEC”). As of 1 December 
2009, the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the 
European Community of 13 December 2007 (OJ C 306, 17.12.2007, p. 1) renumbered the articles of 
the  TEC.  Article  81  TEC  became  Article  101  TFEU  and  remained,  in  substance,  unchanged. 
According to Article 5(3) of the Treaty of Lisbon, references to Article 81 TEC in instruments or acts 
of EU law are to be understood as referring to Article 101 TFEU. 

9   Previously Art. 81(3) TEC. 

10   On Efficiency Gains, see Section 3.2 of the Guidelines on the application of Article 81(3) [now Article 

101(3)] of the Treaty, OJ C 101, 27.4.2004, pp. 97-118, 104, (“Article 101(3) Guidelines”). 

11   EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty, OJ 

13, 21.2.1962, p. 204. 

12   Article 9(1) of Regulation No 17. 

13   Article 5(1) of Regulation No 17; Article 5(2) stipulated which agreements, decisions and practices are 

not obliged to, but may be, notified.  

14   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, OJ L 1, 4.1.2003, p. 1–25. 

4 

 
                                                            
practices caught by Article 101(1) TFEU do not have to be notified to the Commission 
anymore.  In  addition,  those  agreements,  decisions  and  concerted  practices  caught  by 
Article  101(1)  TFEU  which  satisfy  the  conditions  of  Article  101(3)  TFEU  are  not 
prohibited, without any prior decision to that effect being required.15  

A  common  trait  of  BERs  is  that  they  contribute  to  the  legal  clarity  and  certainty  and 
therefore facilitate self-assessment. The reasons for this are twofold: Firstly, by declaring 
the specific conditions for exemption from the application of Article 101(1) TFEU, BERs 
give users reliable “check lists” and indicate which elements are (and conversely which 
are  not)  relevant  for  establishing  that  an  agreement  will  be  exempt.  Secondly,  in  their 
very  essence  BERs  (in  particular  sectoral  BERs)  are  more  specific  and  concrete  than 
general  competition  rules.  The  Consortia  BER  for  example  uses  industry-specific 
terminology  and  refers  to  arrangements  that  are  very  specific  to  consortia  (that  differ 
significantly  to  other  sectors).  By  providing  more  specific  and  concrete  guidance  than 
general instruments of competition law, BERs provide legal clarity as to the way those 
rules would apply in a specific industry and to specific contracts and leave less space for 
misinterpretation of the rules. This in turn increases the certainty of a self-assessment for 
compliance (See also Section 5 for the Consortia BER).  

Regarding  liner  shipping,  the  current  enabling  Council  Regulation  No  246/2009 
(“Consortia Enabling Regulation”)16 was adopted in 2009.17 It provides that in accordance 
with the provisions of Article 101(3) TFEU, the Commission may by way of regulation, 
adopt  decisions  exempting,  under  specific  terms  and  conditions,  agreements  and 
practices that have as an object to promote or establish cooperation in the joint operation 
of  maritime  transport  services  between  liner  shipping  companies,  for  the  purpose  of 
rationalising  their operations  by  means  of  technical,  operational  or  commercial 
arrangements (with the exception of price fixing) from the application of Article 101(1) 
TFEU. According to the Consortia Enabling Regulation such BER for consortia can be 
adopted for a period of five years with the possibility of prolongation. Furthermore, the 
BER for consortia may be repealed or amended if factual circumstances underpinning its 
adoption have changed.18  

On  the  basis  of  the  Consortia  Enabling  Regulation,  on  28  September  2009  the 
Commission  adopted  the  Consortia  BER,  which  sets  the  specific  conditions  for  the 
Article  101(3)  exemption  of  consortia  agreements.  This  exemption  applies  if  the 
combined market share of the parties to a consortium agreement does not exceed 30% on 
the relevant market affected by the agreement.19 Namely, it is considered that users can 

15   Art 1(2) of Regulation 1/2003. By contrast, in notification procedures, commercial subjects are obliged 
to  notify  their  agreements  for  approval  by  a  competition  authority.  Until  30 April  2004,  such  a 
notification  procedure  was  in  place  for  agreements,  decisions  and  concerted  practices  satisfying  the 
conditions of Article 81(3) TEC. 

16   Council Regulation (EC) No 246/2009 of 26 February 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 79, 25.3.2009, pp. 1–4. 

17    BERs for consortia have been in place continuously since 1995. 

18   Consortia Enabling Regulation, Article 2. 

19   Article 5(1) of the Consortia BER.  

5 

 
                                                            
only  benefit  effectively  from  consortia  if  there  is  sufficient  actual  or  potential 
competition in the relevant markets in which the consortia operate. If this market share 
threshold  is  exceeded  the  Consortia  BER  does  not  apply,  but  an  individual  exemption 
under  Article  101(3)  TFEU  still  may.  Finally,  in  case  agreements  falling  under  the 
Consortia BER would nevertheless have effects incompatible with Article 101(3) TFEU, 
the Commission may withdraw the benefit of the block exemption.20 

2.2.  The context of the liner shipping industry 

Liner  shipping  is  an  assets-heavy,  capital-intensive  industry  with  high  fixed  costs 
(running, maintenance, insurance of vessels, staffing), low variable cost (each additional 
container transported represents a very low additional cost for the operation of a vessel), 
and  perishable  services  (unexploited  capacity  cannot  be  transferred  to  and  sold  in  the 
next voyage). In principle, vessels sail regardless of whether they are empty or full, and 
capacity  that  is  not  used  on  one  voyage  cannot  be  used  on  another.  To  offer  a  liner 
shipping service on a certain trade route once a week, a minimum number of vessels is 
required, which is known as a string or loop. For example, on the North Asia to Northern 
Europe trade, a string consists of between 10 and 12 vessels. Often, a consortium must 
deploy multiple strings to offer the multi-port services required by many shippers.21  

Consequently,  liner  shipping  services  are  regularly  provided  through  cooperation 
agreements  with  other  shipping  companies.  Cooperation  agreements  can  consist  of  slot 
charter agreements22, consortia (also called VSAs, or alliances).23  

For the purposes of the Consortia BER a consortium agreement consists of one or a set of 
separate but interrelated agreements between liner shipping companies under which the 

20   Consortia BER, Recital 12. In that respect, the negative effects that may derive from the existence of 
links between the consortium and/or its members and other consortia and/or liner carriers on the same 
relevant  market  are of  particular  importance.  Besides,  according  to Article  29 of  Regulation  1/2003, 
the  Commission  and  the  NCAs  may  withdraw  the  benefit  of  a  BER,  and  hence  the  benefit  of  the 
Consortia  BER.  An  NCA  may  withdraw  the  benefit  of  the  Consortia  BER  in  the  territory  of  its 
Member State, or in part thereof. 

21   See submission of WSC, ECSA, ISC and ASA of 20 December 2018, p.3 and 6. 

22   Under a SCA a shipping company ("charterer") "rents" a predetermined number of container slots on a 
vessel  of  another  shipping  company  in  exchange  for  cash  (normal  slot  charter)  or  slots  on  its  own 
vessels (slot exchange). SCAs do not normally involve joint decision making concerning marketing, 
ports of call, schedule or the use of the same port terminals (See e.g. COMP/M.8594 COSCO/OOIL 
paragraph 26). With SCAs carriers only buy or exchange capacity on existing services of other carriers 
and  do  not  rationalise  or  improve  the  service.  They  therefore  are  not  covered  by  Article  2(1)  of  the 
Consortia BER. A VSA can include several SCAs between the parties to the agreement (Commission 
services  document,  Technical  paper  on  the  revision  of  Commission  Regulation  EC  823/2000  on  the 
application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted 
practices between liner shipping companies (consortia), paras. 21 and 40).  

23   Alliances are basically vessel sharing  agreements, the main difference as opposed to consortia being 
that they cover multiple trades rather than one trade, i.e. they are a matrix of vessel sharing agreements 
operating  on  the  east-west  trades  (Asia-Europe;  trans-Atlantic  and  trans-pacific)  (see  e.g.  M.7908  - 
CMA  CGM  /  NOL,  Commission  decision  of  8.7.2016,  paragraph  25).  Since  2017  there  are  three 
alliance  that  brought  together  all  the  major  global  carriers:  2M  (Maersk  and  MSC),  Ocean  alliance 
(CMA CGM, Cosco, Evergreen), THE alliance (Hapag Lloyd, ONE, Yang Ming). 

6 

 
                                                            
parties operate their joint service.24 The legal form of the arrangements is less important 
than the underlying economic reality that the parties provide a joint service.25 Consortia 
agreements are typically entered into for renewable periods of 1-2 years.  

The main features of a consortium agreement are the sharing of space, the determination 
of  port  calls  and  schedules  between  the  parties.26  There  is  however  a  great  variety  of 
different consortia agreements operating in the market, ranging from those that are highly 
integrated,  requiring  a  high  level  of  investment  for  example  due  to  the  purchase  or 
charter  by  their  members  of  vessels  specifically  for  the  purpose  of  setting  up  the 
consortium  and  the  setting  up  of  joint  operations  centres  to  flexible  slot  exchange 
agreements.  

Liner  shipping  companies  tend  to  participate  in  numerous  consortia.27  However,  liner 
shipping  companies  will  likely  have  services  both  within  consortia  (VSA,  SCA)  and 
services run without any partnership. The types of services appear to vary between liner 
shipping companies, and among trades. 

Consortia  can  lead  to  economies  of  scale  and  better  utilisation  of  the  space  of  the 
vessels.28 In principle, a fair share of the benefits resulting from these efficiencies can be 
passed  on  to  users  of  the  shipping  services  in  terms  of  better  coverage  of  ports 
(improvement  in  the  frequency  of  sailings  and  port  calls)  and  better  services 
(improvement  in  scheduling,  better  or  personalised  services  through  the  use  of  more 
modern vessels, equipment and port facilities).29  

The  establishment  and  consolidation  of  consortia  between  shipping  lines  may  have 
effects  on  the  customers  (freight  forwarders  and  direct  customers)30,  on  the  companies 

24    For  a full definition refer to Consortia BER, article 2(1). 

25    Consortia BER, recital 3. 

26   Under a consortium, all parties provide one or more vessels and in exchange receive a number of slots 
across all vessels in the joint service. Each carrier's allocation of slots is determined by the total vessel 
capacity  that  they  contributed.  The  costs  of  each  vessel  are  borne  by  its  respective  owner,  not  the 
consortium.  The  parties  to  the  consortium  jointly  decide  the  sailing  timetable,  but  there  is  no  price 
coordination,  joint  marketing,  revenue  sharing  or,  with  some  limited  exceptions,  joint  purchasing 
(seee.g.  COMP/M.8594  COSCO/OOIL  paragraph  28).  The  Consortia  BER  exempts  both  single  and 
multi-trade arrangements. 

27   This  has  also been  confirmed  by  carriers  and  their  associations  (for  example  in  submission of WSC 

and others of 20 December 2018, Annex 1, pp. 22 ff).  

28    See e.g. Consortia BER, recital 5: “Consortia generally bring rationalisation and economies of scale 
which help to improve the productivity and quality of available liner shipping services”, and Consortia 
Enabling Regulation, Recitals 4 and 5. 

29   See for example Consortia BER, Recital 6 and Consortia Enabling Regulation, Recital 7. 

30   Freight  forwarders  organise  the  transportation  of  goods  on  behalf  of  customers  according  to  their 
needs  as  intermediaries  or  freight  ‘brokers’.  In  order  to  provide  these  services,  freight  forwarders 
purchase  deep-sea  container  liner  shipping  services  (usually  port-to-port  service,  including  feeder 
services  where  applicable),  and  inland  transportation.  Direct  customers  are  typically  large 
manufacturers or distributors of products which in whole or in part require overseas transport. 

7 

 
                                                            
that  provide  services  to  the  shipping  lines  in  ports  (cargo  handling,  towage,  etc.),  and 
possibly on some other stakeholders (e.g. tonnage providers).  

2.3.  The Consortia BER and its logic 

In the Consortia Enabling Regulation, the Council recognized the increasing importance 
of rationalisation, cooperation and economies of scale in the liner shipping industry and 
the positive contribution consortia agreements have to them.31 The Council also identified 
that  legalisation  of  consortia  agreements  could  make  a  positive  contribution  to  the 
competitiveness  of  shipping  in  the  Union.32  In  adopting  the  Consortia  Enabling 
Regulation  the  Council  concluded  the  Commission  should  be  enabled  to  adopt  and 
declare a BER for certain categories of consortia agreements “in order to make it easier 
for  undertakings  to  cooperate  in  ways  which  are  economically  desirable  and  without 
adverse effect from the point of view of competition policy.”33  

Subsequently, in 2009 the Commission considered 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”,34 while “users of the shipping services 
[…]  may  benefit  from  the  improvements  in  productivity  which  consortia  can  bring 
about.”35 

The  adopted  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 in respect to which it can be assumed with sufficient degree of certainty that 
they  constitue  an  economically  efficient  cooperation  that  also  benefit  consumers36  and 
sets  the  specific  conditions  under  which  they  are  exempt.  The  Consortia  BER  declares 
exempt from Article 101(1) the following activities in a consortium:  the joint operation 
of  liner  shipping  services  (e.g.  fixing  of  sailing  timetables  and  ports  of  call,  exchange, 
sale or cross-chartering of space or slots on vessels, the pooling of vessels, etc.), the joint 
operation or use of port terminals and related services, capacity adjustments in response 
to  fluctuations  in  supply  and  demand  and  any  other  ancillary  activity  in  relation  to  the 
consortium, which is necessary for its implementation.37 The exemption does not apply to 

31   See  for  example  Consortia  Enabling  Regulation,  Recital  4:  “Liner  shipping  is  a  capital  intensive 
industry.  Containerisation  has  increased  pressures  for  cooperation  and  rationalisation.  The 
Community  shipping  industry  should  attain  the  necessary  economies  of  scale  in  order  to  compete 
successfully on the world liner shipping market.”  

32   See,  for  example,  Consortia  Enabling  Regulation,  Recital  6:  “The  legalisation  of  [consortia 
agreements] is a measure which can make a positive contribution to improving the competitiveness of 
shipping in the Community.” 

33   Consortia Enabling Regulation, Recital 8.  

34   Consortia BER, Recital 5. 

35   Consortia BER, Recital 6. 

36   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). 

37   See Consortia BER, Article 4 (Exempted agreements). 

8 

 
                                                            
a consortium if its direct or indirect object is the fixing of prices of service to customers, 
limitation  of  capacity  or  sales  or  the  allocation  of  markets  and  customers.38In  addition, 
the abovementioned exemption only applies if the following conditions are fulfilled:  

-  First,  the  consortium  meets  the  market  share  threshold,  meaning  that  the  joint 
market  share  of  the  members  of  the  consortium  does  not  exceed  30%  (whereby 
the individual market share of a consortium member includes all volumes carried 
by that member in the relevant market, whether within or outside the consortium 
in question).39  

-  Second,  the  members  of  the  consortium  have  a  right  to  withdrawal  from  the 
agreement, which can be subject to a maximum period of notice of 6 months (12 
months in case of a highly integrated consortium).40    

By identifying under which conditions consortia agreements were likely to satisfy Article 
101(3) TFEU and by exempting them from the application of Article 101(1) TFEU, the 
Consortia  BER  provides  guidance,  clarity  and  legal  certainty  with  respect  to  their 
compatibility  with  Article  101  TFEU.  Liner  shipping  carriers  entering  into  consortia 
agreements  or  already  engaged  in  them  can  self-assess  the  compatibility  of  their 
agreement  with  Article  101(1)  TFEU  and  their  exemption  from  it,  by  assessing  if  they 
meet the conditions of the BER. 41  

When the Consortia BER was prolonged in 2014 the Commission explained that “on the 
basis  of  [its]  experience  in  applying  the  [Consortia  BER],  it  appears  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”.42  

In this context, the objective of the Consortia BER against which it will be evaluated 
is to facilitate the creation and operation of consortia. The Consortia BER achieves this 
objective  by  providing  consortia  with  clarity  and  legal  certainty  with  respect  to  their 
compliance with EU competition rules.  

The intervention logic of Consortia BER is presented below.  

38   See Consortia BER, Article 4 (Hardcore restrictions). 

39   See Consortia BER, Article 5 (Conditions relating to market share). 

40   See Consortia BER, Article 6 (Other conditions). 

41   The Consortia BER does not have the effect of legalising all consortia agreements and activities. Nor 
would the repeal of the Consortia BER render consortia agreements unlawful.  If there were no BER 
for consortia, or if the current Consortia BER did not apply (e.g. due to exceeding the  market share 
condition), an exemption under Article 101(3) TFEU may still apply.   

42   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). 

9 

 
                                                            
2.4.  Baseline 

The point of comparison for the evaluation as regards the objective of the Consortia BER 
(to facilitate the creation and operation of consortia) is the hypothetical situation if there 
were no Consortia BER.43 Without a BER for consortia, carriers could no longer rely on a 
general exemption of certain types of consortia agreements.  

With respect to the evaluation of relevance criterion (see section  ‎5.3 below) a different 
baseline  has  to  be  used.  In  evaluating  whether  the  Consortia  BER  is  still  relevant  it  is 
examined  whether  consortia  can  still  be  considered  economically  efficient  cooperation 
that also benefits consumers. Here the point of comparison for the evaluation is the state 
of the industry in year 2014 (just before the current intervention), when the Commission 
after examination considered consortia to be economically efficient cooperation that also 
benefits  consumers.  The  evaluation  relies  on  available  data  to  track  developments,  in 
particular since 2014 to this day. 

When adopted in 2009 the Consortia BER was based on and conditioned by the existence 
of  efficiency  gains  and  benefits  to  consumers,  without  providing  any  quantitative 
benchmarks for those two elements.44 However, the Consortia BER contains safeguards 
(some of them quantitative) for sufficient competitive pressure (both inside and outside 
of  a  consortium)  in  order  to  ensure  that  a  fair  share  of  the  benefits  resulting  from 
consortia will be passed on to consumers.45 

43   This  point  of  comparison  is  hypothetical  since  before  the  current  intervention  started,  there  was 
another BER for consortia in place. It is also recalled that BERs for consortia have been continuously 
in place since 1995. 

44    Consortia BER, Recitals 5-6. 

45   See  Consortia  BER,  Recitals  7-8.  The  Hardcore  restrictions  (Article  4)  and  Conditions  relating  to 
market share (Article 5) are examples of mechanisms ensuring intra and inter-consortia competition.  

10 

 
 
                                                            
In accordance with the above, the Commission has applied the same methodology in its 
reviews  of  Consortia  BER:  assessing  the  continuous  existence  of  efficiencies  and  their 
pass-on  (absence  of  deterioration),  rather  than  assessing  their  benchmark  values. 
Similarly,  in  its  last  review  of  the  Consortia  BER  the  Commission  reaffirmed  that  the 
efficiency  gains  and  benefits,  established  at  the  adoption  of  that  regulation,  were  still 
present  at  the  time.46  The  same  approach  and  point  of  comparison  is  applied  in  this 
evaluation, where the Commission looks at what has happened or changed in the market 
since 2014 and assesses whether these developments raise any concern that a fair share of 
efficiency gains or pass-on of benefits to consumers would not materialise any more. 

46   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). 

11 

 
 
 
                                                            
3.  THE IMPLEMENTATION OF THE CONSORTIA BER 

The  Consortia  BER  is  a  measure  assisting  in  the  enforcement  of  and  compliance  with 
Article  101  TFEU.  The  Consortia  BER  does  not  require  the  adoption  of  any 
implementing measures.  

The  Commission  staff  had  regular  opportunities  to  closely  examine  the  state  of 
competition  in  the  liner  shipping  industry.  For  instance,  in  2015  it  participated  in  an 
OECD  meeting  on  competition  in  the  industry.47  Several  proceedings  not  directly 
connected  to  the  Consortia  BER  were  also  conducted.  In  July  2016  the  Commission 
adopted  a  decision  making  legally  binding  the  commitments  offered  by  14  carriers  to 
stop their practice of publishing their intentions on future price increases and to increase 
price  transparency  for  customers  thus  reducing  the  likelihood  of  coordinating  prices.48 
Moreover,  investigations  were  also  carried  out  in  a  line  of  6  significant  concentrations 
involving major carriers.49 In all of these cases the Commission cleared the concentration, 
some  subject  to  conditions.50  Other  investigations  were  carried  out  with  respect  to 
numerous  smaller  concentrations  involving  carriers  and  other  companies  on  different 
levels of the logistics production chain (for example: terminals and logistic companies).51 
In all of these cases the notified concentrations were cleared by the Commission.  

The  Commission  has  not  initiated  proceedings52  or  taken  any  other  formal  action  with 
respect to any carrier in connection with the Consortia BER.  

In monitoring the applicable regulatory framework, the Commission has also forged ties 
with  its  regulatory  counterparts  internationally53,  recognising  the  importance  of 

47   See  e.g.  European  Commission,  "Competition  Issues  in  Liner  Shipping  –  European  Union",  written 
contribution  submitted  for  Item  IV  of  the  59th  meeting  of  the  OECD's  Working  Party  No.  2  on 
Competition 
on 
on 
http://ec.europa.eu/competition/international/multilateral/2015_june_liner_shipping_en.pdf 
(last 
accessed: 26 March 2019). 

Regulation 

Available 

2015. 

June 

and 

19 

48   See Commission press release IP/16/2446 of 7 July 2016. Accessible on http://europa.eu/rapid/press-

release_IP-16-2446_en.htm (last accessed: 26 March 2019).  

49   Case No COMP/M.7268 - CSAV/ HGV/ KÜHNE MARITIME/ HAPAG-LLOYD AG, Commission 
decision of 11 September 2014; Case M.7908 - CMA CGM / NOL, Commission decision of 29 April 
2016;  Case  M.8120  -  HAPAG-LLOYD  /  UNITED  ARAB  SHIPPING  COMPANY,  Commission 
decision of 23 November 2016; Case M.8330 - MAERSK LINE / HSDG, Commission decision of 10 
April  2017;  Case  M.8472  -  NIPPON  YUSEN  KABUSHIKI  KAISHA  /  MITSUI  OSK  LINES  / 
KAWASAKI KISEN KAISHA / JV, Commission decision of 28 June 2017; Case M.8594 – COSCO 
SHIPPING / OOIL, Commission decision of 5 December 2017. 

50   Conditions  were  attached  to  the  Commission  decisions  in  cases  M.7268,  M.7908,  M.8129  and 

M.8330.  

51   See  for  example:  M.9221  CMA  CGM  /  CEVA,  Commission  decision  of  06.02.2019;  M.9093  DP 
WORLD INVESTMENTS / UNIFEEDER, Commission decision of 04.12.2018; M.9016 CMA CGM 
/  CONTAINER  FINANCE,  Commission  decision  of  22.10.2018;  M.8459  TIL  /  PSA  /  PSA  DGD, 
Commission decision of 12.09.2017.  

52   Article 11(6) of Council Regulation (EC) No 1/2003 and Article 2 of Regulation 773/2004. 

12 

 
 
                                                            
 
maintaining  an  international  overview  of  the  liner  shipping  sector  and  in  the  spirit  of 
global cooperation. 

Besides, the competition authorities of the Member States may take actions with respect 
to  the  Consortia  BER  when  they  apply  Article  101  TFEU54  or  they  may  withdraw  the 
application of  Consortia  BER  in  individual  cases.55  Moreover,  the  EU  and  the  Member 
States courts may be called to adjudicate on the Consortia BER in cases where actions of 
the competition authorities are challenged or when damages due to breach of Article 101 
TFEU  are  claimed.  However,  according  to  information  received  from  the  competition 
authorities of the Member States, no such cases were handled by them or by the courts of 
the Member States. 

53   In  particular,  DG  Competition  has  entertained  structural  dialogue  together  with  the  United  States 

Federal Maritime Commission and the Ministry of Transport of the People's Republic of China. 

54   Council Regulation (EC) No 1/2003, Article 5.  

55   Council Regulation (EC) No 1/2003, Article 29(2).  

13 

 
                                                                                                                                                                                 
4.  EVALUATION METHODS 

4.1.  Method for data collection56  

The  Roadmap  of  the  Evaluation  was  published  on  the  Commission’s  Consultation 
website  on  7  May  2018  after  which  a  four-week  consultation  was  open  for  public 
feedback until 4 June 2018.57  

The Commission received three responses to the Roadmap: a response from CLECAT, a 
joint response by WSC, ECSA and ICS and a response from an anonymous source.58 The 
common  procedural  comment  from  the  responses  was  that  the  consultation  period  (for 
the public and targeted consultations, described under Sections 5.2. and 5.3.) should run 
longer or finish later than indicated in the Roadmap and run at least until end of 2018. 
The Commission took these comments into account to the extent possible and compatible 
with its overall procedural schedule.  

From  27  September  to  20  December  2018  the  Commission  ran  an  online  Public 
Consultation on the Consortia Block Exemption Regulation in three official languages.59 
The  Public  consultation  was  published  on  the  Commission’s  website  for  legislative 
initiatives  as  well  as  the  designated  website  of DG  COMP,  and  was accompanied  by  a 
press release.60  

In  October  2018  the  Commission  sent  also  three  separate  types  of  Targeted 
questionnaires  to  several  stakeholders  (Targeted  Questionnaire  for  Carriers,  Targeted 
Questionnaire  for  Shippers  and  Freight-forwarders,  Targeted  Questionnaire  for  Port 
operators),  as  well  as  emails  to  all  NCA’s  through  the  European  Competition  Network 
(ECN), informing them about the ongoing evaluation and inviting them to take part in the 
public consultation as well as to submit any observations. 

As  part  of  the  evaluation,  the  Commission  has  conducted  its  own  internal  study  of  the 
liner  shipping  market  and  its  developments,  analysing  e.g.  relevant  merger  decisions, 
looking  at  guidance  documents,  etc.  The  Commission  has  also  used  several  sector-
specific  reports,  of  which  in  particular  the  reports  of  the  OECD’s  ITF  “Impact  of 
alliances  in  container  shipping”,  2018  (“ITF  Report”)61  and  “Container  Shipping  in 

56   From hereinafter the term “data” shall be used as to represent all facts and statistics collected together 
for reference or analysis, regardless of their format or size, whether they represent raw, numerical data 
or processed information.  

57   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).  

58   The  responses  and  accessible  at:  https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-

2422025/feedback_en?p_id=229482 (last accessed: 12 December 2018). 

59   English, German and French. 

60   The  press  release  is  accessible  at:  http://europa.eu/rapid/press-release_IP-18-5921_en.htm  (last 

accessed 3 December 2018). 

61   OECD  International  Transport  Forum,  The  Impact  of  Alliances  in  Container  Shipping,  2  November 
2018,  accessible  at:  https://www.itf-oecd.org/impact-alliances-container-shipping  (last  accessed:  26 
March 2019). 

14 

 
                                                            
Europe”, 2018 (“ITF EU Report”);62 the OECD Secretariat Note “Competition Issues in 
Liner Shipping”63, and the UNCTAD report “Review of Maritime Transport 2018”.64  

Several  bilateral  meetings  were  organised  with  requesting  stakeholders.  Commission 
staff also participated to a number of forums and conferences on the matter: conferences 
organised by European Commission’s DG EMPL on 7 November 2018 and 15 December 
2019, and by DG MOVE, on 14 December 2018; conference organized by the ITF on 8 
February 2019; conference organised by ESC on 20 March 2019. 

4.2.  Assessment method 

The  evaluation  consist  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 the collected data and knowledge.  

The Commission assessed the collected data based on its relevance and credibility. The 
Commission first sieved through the responses and identified which data are relevant for 
the evaluation.65 Those data, which exceeded the scope of the objectives of the evaluation 
of  the  Consortia  BER66  or  have  limited  relevance  with  the  objectives  of  the  Consortia 
BER or its impact, would receive subsidiary consideration. Conversely, any data which 
would for example pertain to benefits (or absence thereof) of consortia agreements (and 
their pass-on to customers) would receive more weight in the evaluation. Generally, the 
Commission  considered  data  which  were  supported  by  quantitative  information  and 
figures,  or  references  to  external  (verified  or  verifiable)  sources  as  more  reliable. 
Generally, data which was corroborated by several credible sources or references, were 
given most weight in the assessment. 

4.3.  Limitations to the methodology  

The evidence basis of this evaluation is to a large extent made of input of stakeholders. 

62   OECD International Transport Forum, Container Shipping in Europe, Data for the Evaluation of the 
EU  Consortia  Block  Exemption,  19  March  2019,  accessible  at:  https://www.itf-oecd.org/container-
shipping-europe-data-evaluation-eu-consortia-block-exemption-regulation  (last  accessed:  26  March 
2019). 

63   OECD Secretariat, Note: Competition in Liner Shipping, 19 June 2015, accessible at: 

http://www.oecd.org/daf/competition/competition-issues-in-liner-shipping.htm (last accessed 11 
December 2018). 

64   UNCTAD, Review of Maritime Transport 2018, accessible at: 

https://unctad.org/en/pages/PublicationWebflyer.aspx?publicationid=2245 (last accessed: 2 April 
2019). 

65  

 “Data  relevant  for  the  evaluation”  imply  data  and  information  which  pertain  to  the  remits  of 
competition  law,  the  objectives  of  the  Consortia  BER  and  to  our  mandate  for  the  evaluation. 
Conversely,  data  which  pertain  exclusively  to  labour  law  issues  or  issues  of  commercial  contracts 
could not be considered as immediately relevant for the evaluation.  

66   The objectives of the evaluation of the Consortia BER were identified in the Evaluation Roadmap.  

15 

 
                                                            
The  limitations  regarding  the  collection  and  analysis  of  data  which  apply  to  this 
evaluation can be divided into three types.  

The  first  type  consists  in  the  objective  limitations  of  data  collection,  meaning  the 
limitations which pertain to the nature of business and data, and are not a consequence of 
a chosen method or its execution. Such limitations were most pertinent to the collection 
of  overall  service  price  and  the  calculation  of  precise  market  shares.  While  some 
elements of prices for liner shipping services are publicly available, the final prices and 
surcharges  are  terms  of  individual  contracts,  which  represent  business  secrets. 
Consequently, the overall (final) prices cannot be established or calculated with precise 
certainty.  Similarly,  it  was  not  possible  to  calculate  carriers’  market  shares  with  full 
precision.  This  is  due  to  the  possible  divergence  between  capacity  and  volume  figures 
(known only to individual carriers), and to the fact that the information is not granulated 
enough to have accurate market share calculations. Some stakeholders have pointed out 
that  this  limitation  leads  to  some  studies  double  counting  the  market  shares  from 
consortia  when  calculating  a  carriers’  market  share.  However,  considering  information 
received in the context of its activities in the sector67, i.a. merger control decisions, this 
first type of limitation is not expected to have any material impact on the evaluation. 

The  second  type  of  limitations  consists  in  other  limitations  related  to  the  collection  of 
data.  In particular, respondents  contributing to  the public consultation may not  be  fully 
representative of all stakeholders (for example, a low number of responses received may 
not  be  a  representative  sample  of  the  entire  group).  However,  responses  were  received 
notably from sectoral organizations (e.g. WSC, ESC, FEPORT, ESPO, CLECAT, ETA, 
GSF and others) with wide sector-based memberships. They were analysed alongside the 
responses from individual stakeholders. For this reason this SWD refers to responses and 
views in a qualitative manner (referring to the analysis of the responses, the views given 
therein and the common, shared opinions per stakeholder group) and not in a quantative 
manner (e.g. by stating number of views or responses behind an idea).  

Lastly, the third type of limitations relates to the difficulty in establishing and assessing 
causal links, if any, between factors. When confronted with these limitations, an effects-
based analysis was used, e.g. whether the alleged causal links would have had positive, 
neutral or negative effects on customers.  

67   No academic evidence has been identified in the context of the Evaluation on this issue. 

16 

 
 
 
 
                                                            
5.  ANSWERS TO THE EVALUATION QUESTIONS AND ANALYSES 

5.1.  Effectiveness  

The question on effectiveness focuses on whether, considering the major developments 
in the industry, the Consortia BER still facilitates the creation and operation of consortia 
that meet certain conditions (by providing legal certainty).  

As  described  in  more  details  in  the  Synopsis  Report, the  carriers and  their  associations 
that  responded  to  the  public  consultation  explain  that  they  are  typically  members  of  a 
large  number  of  consortia  agreements  that  are  frequently  replaced  or  amended  and 
therefore require regular assessment of compliance with competition rules. They consider 
that the Consortia BER is a clear and easy instrument to apply in-house (without external 
legal  advice)  and  that  it  provides  a  high  level  of  legal  certainty.  They  argue  that  in  its 
absence legal uncertainty and increased legal fees (due to the need to conduct complex 
self-assessment)  will  have  a  chilling  effect  on  consortia,  mostly  on  the  smaller  ones. 
Their self-assessment could rely on other sources, such as the Commission’s guidelines 
(Commission  Horizontal  Guidelines,68 
the 
Specialisation  Regulation70),  enforcement  practice  and  case  law,  only  to  a  very  limited 
extent. 

the  Article  101(3)  Guidelines,69  and 

Responding customers and their associations are of the view that the Consortia BER does 
not provide them with certainty regarding the legality of consortia because carriers do not 
publish  their  self-assessment.71  Responding  customers,  ports  and  their  associations  also 
considered that following the changes in the industry the Consortia BER cannot provide 
anymore legal certainty to consortia. This specific argument however will be discussed in 
the section on “Relevance” below.  

The Consortia BER’s aim is to facilitate consortia by providing them with legal certainty 
with respect to their compliance with Article 101 TFEU. Just as it is the case with any 
economic  enterprise,  the  assessment  of  legal  compliance  and  legal  risks  are  important 
considerations  before  entering  into  consortia  agreements.  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 
arrangements that are specific to consortia. It also employs industry-specific terminology 
that is easily understandable to industry participants. Other sources that provide guidance 

68   Commission  Guidelines  on  the  applicability  of  Article  101  of  the  Treaty  on  the  Functioning  of  the 

European Union to horizontal co-operation agreements, OJ C11, 14.1.2011, p. 1. 

69   Communication from the Commission — Notice — Guidelines on the application of Article 81(3) of 

the Treaty (Text with EEA relevance) OJ C 101, 27.4.2004, p. 97–118. 

70   Commission  Regulation  1217/2010/EU  of  14  December  2010  on  the  application  of  Article  101(3) 

TFEU to certain categories of specialisation agreements, OJ L 335/43, 18.12.2010. 

71   While  not  explained  in  their  replies,  customers  and  their  associations  could  consider  that  legal 
certainty  as  provided  by  the  Consortia  BER  would  be  of  importance  e.g  because  they  would  like  to 
understand whether their contractual partners’ behaviour is legal. 

17 

 
 
                                                            
on the application of Article 101 TFEU such as Commission’s  guidelines (Commission 
Horizontal Guidelines, the Article 101(3) Guidelines and the Specialisation Regulation), 
enforcement  practice  and  case  law  do  not  refer  specifically  to  consortia  and  their 
application to consortia agreement must be deduced by analogy and interpretation. Such 
an approach cannot provide the same level of legal certainty as the Consortia BER that 
was tailored specifically to consortia, and is also more complex, requiring higher degree 
of  expertise  in  competition  law. In  turn,  this  may  require carriers to  seek  the advice  of 
external  experts  and  may  leave  a  degree  of  uncertainty  given  the  need  for  legal 
interpretations. It therefore cannot be performed with the same facility as the application 
of the Consortia BER.  

Regarding  publication  of  the  self-assessment  made  by  consortium  members,  such 
documents  would  typically  discuss  confidential  business  information  and  could  not  be 
made  public.  Besides,  where  stakeholders  have  ground  for  concern  with  respect  of  the 
compatibility of consortia with Article 101 TFEU they may complain to the Commission. 

Therefore, compared to a baseline in which the Consortia BER is absent, it is concluded 
that 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.72 

5.2.  Efficiency 

The Commission uses this criterion to assess the effect of the Consortia BER on costs. In 
particular,  for  this  evaluation,  information  was  sought  on  whether  the  Consortia  BER 
helps undertakings to reduce costs or conversely whether it increases compliance costs.73 

Consortia agreements appear to be very dynamic, meaning new consortia agreements are 
frequently signed and the terms of existing agreements often change.74 Market conditions 
and market shares of carriers and their consortia on the various geographic markets are 
also  dynamic  and  change  over  time.  Carriers  are,  therefore,  expected  to  regularly  self-
assess  the  compatibility  of  their  consortia  agreements  with  the  Consortia  BER  and 
Article  101  TFEU.75  Consequently,  for  all  carriers  involved  in  consortia,  compliance 
costs exist on a continuous basis.  

As described in more details in the Synopsis Report, all respondent carriers consider that 
assessment  under  the  Consortia  BER  is  relatively  simple,  can  be  done  in-house,  and 
generates little cost. In practice, a quick check of a (planned) consortium agreement and 
its characteristics (incl. market shares) versus the limited number of conditions specified 

72   It should be noted however that it is difficult to quantify the facilitating effect of the Consortia BER; 
some information on the Consortia BER cost savings is provided below in the section on “Efficiency”. 
There is no information regarding the precise number of consortia agreements that were concluded but 
would not have been in the absence of the Consortia BER. 

73  

 “Efficiency” as a criterion in an evaluation exercise is therefore different from Efficiency Gains for 
the purpose of Article 101(3) TFEU that were explained above.   

74   Submission of WSC and others of 20 December 2018, pp. 21-22. 

75   Ibid. 

18 

 
                                                            
in  the  Consortia  BER  is  sufficient.  Without  the  Consortia  BER,  a  more  complex  and 
expensive assessment would be required involving external lawyers and increasing costs. 
It  is,  however,  difficult  for  carriers  to  quantify  the  expected  costs  increase.  Only  one 
carrier  responding  to  the  consultation  estimated  that  an  external  assessment  (with  an 
economic study) for a new consortium could cost more than EUR 200 000 (to be shared 
between the parties), while a self-assessment under the Consortia BER could cost as little 
as EUR 1000. 

The  respondent  carriers  argue  that  the  increased  assessment  costs  may  discourage  the 
small  carriers  from  entering  into  consortia  agreements.  Moreover,  the  relatively  short 
time needed for self-assessment under the Consortia BER allows carriers to adjust their 
strategies  more  swiftly  to  market  changes  as  well  as  to  reply  quicker  to  new  market 
opportunities.  

As noted above in Section ‎5.1, the Consortia BER is specific to this type of cooperation 
and uses terminology specific to it. It follows that the assessment of a consortium on the 
base of the Consortia BER is simpler and quicker compared to  an assessment based on 
other existing instruments providing general guidance on the application of competition 
rules. This in turn allows carriers to enter easier and faster into new consortia agreements 
and, as a consequence, better reply to market changes and benefit from new opportunities 
which would eventually benefit customers through e.g. lower prices. 

Conversely, in the absence of the Consortia BER, the assessment of consortia compliance 
with competition rules may become more complex, thereby affecting the costs associated 
with self-assessment and possibly requiring the advice of external lawyers.  

Although the carriers have not provided very precise figures on the expected increase in 
the cost of compliance assessment, it is clear that such cost would increase in the absence 
of  the  Consortia  BER.  This  increase  could  be  principally  significant  for  small  and 
medium  carriers,  for  which  it  is  more  difficult  to  operate  in  the  sector  that  is 
characterised by a general low profitability (see Section ‎5.3.5.1).76 

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

5.3.  Relevance  

The  criterion  of  relevance  focuses  on  the  question  whether  the  Consortia  BER  is  still 
relevant  considering  the  major  developments  in  the  industry  and  the  modes  of 
cooperation  between  carriers.  As  the  Consortia  BER  aims  to  facilitate  consortia,  the 
consortia BER remains relevant as long as consortia generate efficiency gains a fair share 
of which would benefit consumers. 

As described in more detail in the Synopsis Report, carriers and vessel owners consider 
that cooperation in consortia is the mainstay of the industry and that this fact is not likely 

76   See  also  Brooks,  Meersman,  Sys,  Voorde,  Vanelslander:  Technical  Report  “Regulation  in  the  liner 
shipping  industry:  pathways  to  a  balance  of  interests”,  June  2019,  p.  24:  “Such  self-assessment  of 
single or multiple trade co-operations means increased risk and increased legal compliance costs. For 
the  small-  and  medium-sized  carriers  that  are  the  backbone  of  smaller  trade  lanes,  a  case-by-case 
approach may create transition costs.” 

19 

 
                                                            
to  change  anytime  soon.  Most  are therefore  of  the  view  that  the  Consortia  BER  is  still 
very  much  relevant.  The  carriers  consider  that  consortia  generate  efficiency  gains: 
consortia  allow  carriers  to  achieve  economies  of  scale  and  rationalise  their  services 
resulting in lower prices for customers and better services in terms such as numbers of 
routes, ports of call and reliability. The carriers’ view is that customers also benefit from 
strong competition between consortia and between members of the same consortia. 

Customers  and  ports  on  the  other  hand  consider  that,  in  view  of  the  changes  in  the 
industry  the  Consortia  BER  has  lost  its  relevance.  They  consider  that  the  industry  has 
become  too  concentrated  and  that  this  change  combined  with  the  deployment  of  ultra 
large container vessels (“ULCVs”) resulted in significant deterioration in the quality of 
services provided by carriers which results in increased costs to  customers. Customers’ 
opinions diverge on the level of price competition in the industry but overall customers 
seem to suggest that there is some degree of price competition. 

Ports complain about the bargaining power of alliances, and note that accommodating the 
alliances’  ULCVs  requires  them  to  make  high  investments  that  they  consider  risky 
(because the alliances can change ports or lower frequencies of call); ULCVs would also 
cause some disturbance: when a ULCV arrives, it creates a peak  period in  activity that 
causes  congestion,  and  delays  that  ultimately  adversely  affect  customers.  Thereinafter 
follows a period of underutilisation of resources until the next ULCV arrives.77 

It is however acknowledged by the respondent customers, port and terminal associations 
that cooperation in consortia will remain important to the liner shipping industry in the 
future. 

5.3.1.  Prevalence of consortia  

First, it appears undisputed among the respondents that reliance on cooperation between 
carriers has been made more pressing by over-capacity, low prices, and low profitability 
because,  as  it  will  be  explained  below,  consortia  allow  carriers  to  rationalise  services, 
achieve economies of scale and reduce costs. Consortia will therefore continue to play a 
major role in the sector in the medium term. 

Secondly, according to the information provided by the WSC, 61 consortia operate in the 
EU  in  addition  to  the  three  alliances.78  A  material  number  of  these  consortia  appear  to 
fall  within  the  scope  of  the  Consortia  BER.  Indeed,  there  are  at  least  9  consortia  with 
respect  to  which  it  could  be  said  with  certainty  that  their  market  shares  are  below  the 
30% ceiling and additional 20 consortia that may be below that ceiling (and 7 consortia 
only would have with certainty a market share above 30%).79  

77   See Synopsis Report; ITF Report, p. 55. 

78   Submission of WSC and others of 20 December 2018, p. 5 and Annex1. 

79   ITF EU Report, p. 13 and Annex 1. As explained in this report, it is however difficult to estimate the 
exact  market  shares  of  consortia  due  to  the  lack  of  accurate  data  on  transported  volumes  and  the 
complex network of cross- membership between consortia. 

20 

 
 
                                                            
5.3.2.  Concentration levels 

There  is  no  doubt  that  the  level  of  concentration  in  the  liner  shipping  has  increased  in 
recent years, as shown Chart 1 below:  

Chart 1: Concentration rate (combined global capacity market share in %) in container 
shipping 1998-201880 - Top 4 and top 10 carriers 

Source: ITF report based on data from Alphaliner (1996-2018) 

The WSC argued (on the basis of the individual market shares of the largest 12 carriers) 
that HHI levels81 in the industry are below 1000 and that according to recital 19 of the 
Horizontal Merger Guidelines82 such level is unproblematic.83 

80   ITF report, Figure 8. The concentration rate refers to the share of global capacity in terms of TEUs of 

the top 4 and top 10 carriers.  

81   The Herfindahl-Hirschman Index (HHI) is a measure of the concentration of a market. It is calculated 

by summing the squares of the individual market shares of all the firms in the market. 

82   Guidelines  on  the  assessment  of  horizontal  mergers  under  the  Council  Regulation  on  the  control  of 

concentrations between undertakings, OJ C 31, 5.2.2004, p.5. 

83   Joint submission of the WSC and others of 20 December 2018, Annex 1, p. 13. 

21 

 
 
 
                                                            
Table 1: Global capacity shares largest 12 carriers84 

Source: WSC based on Alphaliner 

However,  for  the  purpose  of  the  Consortia  BER,  the  relevant  parameter  for  the 
application of the Consortia BER is the market share of the consortium calculated as the 
sum of the share of each of its individual members of the relevant market including those 
shares achieved outside of the consortium.85  

Moreover,  according  to  the  ITF  EU  Report  “within  the  past  five  years,  alliances  have 
become  the  dominant  players  on  the  main  East-West  routes  involving  Europe  (North 
Europe,  Asia-Med,  North  Europe-North  America  East  Coast  and  Med-North  America 
East Coast). Until 2015, all alliances taken together had market shares below 50% on all 
of  these  four  trade  lanes,  ranging  from  49%  (Asia-North  Europe)  to  0%  (Med-North 
America East Coast) in the last quarter of 2014. This changed in 2015, with the arrival 
of the 2M and O3 Alliances. The market share of non-alliances has decreased further in 
2017 when container shipping witnessed the transition from four to three liner shipping 

84   Joint submission of the WSC and others of 20 December 2018, Annex 1, Table 2. 

85   A  similar  (although  not  identical  approach)  is  used  in  merger  cases  where  is  was  said  that  “In  its 
decisional practice in this sector, the Commission however considered that it was not appropriate to 
assess the effects of a concentration only on the basis of the Parties' individual market shares. Such an 
approach would not adequately take into account that a member of an alliance/consortium, even when 
carrying  limited  volumes,  can  have  a  significant  influence  on  operational  decisions  determining 
service  characteristics,  in  particular  capacity,  over  a  much  larger  part  of  the  market,  i.e.  that 
corresponding to the entire alliances/consortia of which it is a member.(fn omitted) This influence can 
have a dampening effect on competition on those trades served by the alliances/consortia in question. 
Therefore,  for  the  assessment  of  this  case  and  in  line  with  the  Commission's  past  practice,  the 
aggregate  shares  of  the  Parties'  alliances/consortia  and  all  their  members  will  also  be  taken  into 
account,  thus reflecting  the  more  limited  competitive  constraints  that  the    Parties'  partners  exert  on 
them. Conversely, the part of the market, over which the Parties have no influence, i.e. corresponding 
to carriers that are not members to any of the Parties' alliances/consortia (the "free market"), will be 
viewed  as  fully  competing  with  the  Parties  in  the  respective  trade.”  See  e.g.  M.8594  COSCO 
SHIPPING / OOIL, Commission decision of 5/12/2017, paras. 32 - 33. 

22 

 
 
                                                            
alliances.  This  transition  in  2017  has  also  resulted  in  larger  market  shares  for  the 
remaining alliances.”86 

The period under review has indeed seen the emergence of three large global alliances: 
2M, Ocean Alliance, and THE Alliance. 

Chart 2: Global market share (container carrying capacity) of global alliances (1996-
2018)87 

Source: ITF report based on data from Alphaliner (1996-2018) 

Conversely, market shares of non-alliance carriers have fallen materially. 

Chart 3: Market shares of non-alliances on main European trade lanes, per quarter 
(2012-2018)88 

Source: ITF based on data from Sea Intelligence  

86   ITF EU Report, p. 5. 

87   ITF report, Figure 1.  

88   ITF EU report, pp. 5-6. The market shares are based on fleet capacity deployed by alliances on these 
trade lanes, so these shares do not represent the actual TEU volumes transported by alliances on these 
trade lanes. 

23 

 
 
 
                                                            
More specifically, looking at trades, the 2M and the Ocean alliance enjoy market shares 
above the 30% ceiling set in the Consortia BER on the key trades between Asia and the 
EU (Northern Europe and Mediterranean).89  

Regarding vertical concentration, many carriers have over the last decade acquired stakes 
in  terminals  resulting  in  an  increase  of  the  global  market  share  of  carrier-controlled 
terminals  from  18%  in  2001  to  38%  in  2017.90  This  includes  dedicated  terminals91  and 
multi-user  terminals.92  In  Europe  the  share  of  carriers  in  terminal  operations  is  now 
slightly  below  30%,  but  only  slightly  higher  than  in  2014  at  the  start  of  the  evaluation 
period, indicating limited changes over the evaluation period. 93  

Chart 4: Types of terminal operators in Europe (volume shares, 2007-2017)94

Source: ITF based on Drewry 2008-2017 

The changes do not appear to have had negative effects on liner shipping prices because 
they  have  actually  decreased  during  that  period  in  close  correlation  to  the  decrease  in 
carriers’ costs.95  

89   ITF EU Report, Figures 2-5.  

90   See  ITF  report,  p.  45:  During  2001-2017,  the  share  of  independent  private  terminal  operators  has 
remained  stable,  whereas  the  share  of  other  operators,  in  particular  public  port  authorities  operating 
terminals, has declined.  

91   Dedicated container terminals are terminals dedicated to the traffic of one or more carriers. These are 
usually subject to a private agreement between one or more carriers and a port operator or authority. 

92   Multi-user  terminals  are  terminals  that  are  open  to  all  carriers  that  would  like  to  use  it,  so  not  for 

exclusive use of the carrier controlling the terminal. 

93   With  respect  to  vertical  integration,  a  concern  was  raised  by  freight  forwarders  that  carriers  are 
increasingly competing with freight forwarders and may gain unfair competitive advantage over them 
through  exchanges  of  information  between  members  of  consortia  on  customers  and  cargo.  These 
concerns were not substantiated with robust evidence that such exchanges actually took place or are 
likely  to  take  place.  It  is  recalled  that  in  any  case  exchanges  of  commercially  sensitive  information 
between competitors is covered by Section 2 of the Horizontal Guidelines.   

94   ITF EU Report, Figure 10. 

24 

 
 
                                                            
Further, on vertical relationships, ports/terminal operators, few vessel owners (chartering 
out  vessels to the members of the alliances) and tug  boat operators complain  about  the 
increasing bargaining power of the alliances that would allow the latter to negotiate very 
low charges.96 This concern is mainly directed towards the alliances, the two biggest of 
which  (2M  and  Ocean  Alliance)  do  not  enjoy  in  any  case  the  benefit  of  the  Consortia 
BER on their key trades, and is therefore outside the scope of this evaluation.  

In addition, joint purchasing of inputs upstream may lead to lower prices or better quality 
products  or  services  for  consumers.97  Joint  purchasing  typically  raises  competition 
concerns when the parties enjoy significant degree of market power on the downstream 
selling market which allows them not to pass-on to consumers the lower purchase prices 
they achieve.98 As shown in Section ‎5.3.5 below, a fair share of the efficiencies gained by 
consortia have been passed on to customers.  

With respect to ports and terminals, seven out of the nine carriers that have responded to 
the targeted questionnaires stated that they negotiate individually charges with terminals 
and  not  collectively  with  the  other  alliance  or  consortia  members;  the  same  statements 
was also supported by one port authority.99 The two remaining carriers, both members of 
the same alliance, confirmed that they would negotiate collectively, but this would then 
depend on the preference of the terminal operator and that sometimes it is not even in the 
interest of the individual carriers to negotiate collectively as an alliance.  

It is therefore not apparent that over the evaluation period the Consortia BER would have 
increased  the  bargaining  power  of  carriers  towards  the  ports  and  terminals,  to  the 
detriments of customers. 

5.3.3.  ULCVs 

As highlighted by stakeholders in response to the evaluation questionnaires, an important 
development in recent years has been the increase in the average size of container vessels 
and  the  trend  towards  ULCVs  which  are  deployed  by  the  alliances  in  particular  on  the 
east-west trades. 

Chart 5: Average vessel size by trade: 2010-2018100 

95   Submission of WSC of 14 March 2019, figure 1. For further analysis see Section ‎5.3.5.1. 

96   SWD Annex 1: Synopsis report, p. 6. 

97  

 Horizontal Guidelines, paragraph 194. 

98   Horizontal Guidelines, paragraph 201. 

99   Response of an anonymous port authority, Germany, to the public questionnaire, question 22. 

100   Alphaliner, Vol. 2018/51 (12.12.2018 to 18.12.2018), p. 2.  

25 

 
                                                                                                                                                                                 
Source: Alphaliner 

This  trend  is  expected  to  continue  in  the  medium  term,  for  instance  as  orders  for  new 
ULCVs  (and  even  bigger  vessels)  represented  in  2017  and  2018  the  largest  group  of 
orders:  

Chart 6: ULCVs’ share of container ship orders101 

Source: ITF based on data from Clarksons Research 

Ports  /  terminal  operators  and  customers,  among  the  respondents  expressing  a  view  on 
the  effects  of  UCLVs,  argue  that  the  deployment  of  ULCVs  by  the  alliances  raises 
challenges and disturbances to terminals in terms of infrastructure investment, congestion 
and delays.102 However, they provided neither precise evidence on the extent and impact 
of  such  disturbances,  nor  any  robust  indication  of  a  causal  link  between  the  alleged 
challenges  and  disturbances  and  the  functioning  of  the  Consortia  BER  over  the 
evaluation period. 

101   ITF Report, Figure 2. 

102   SWD Annex 1: Synopsis report, p. 6.  

26 

 
 
 
                                                            
Besides, Charts 5 and 6 indicate that the average size of vessels has been on the increase 
already before the formation of the current three alliances. Maersk for example ordered 
20 ULCVs in 2011 when it was not yet a member of any alliance.103 

It is recalled that ULCVs are essentially used on the Europe-Asia trades, in particular by 
the two alliances, which fall outside of the scope of the Consortia BER. The deployment 
of ULCVs is therefore of limited relevance to the evaluation of the Consortia BER.  

To conclude, over the evaluation period, no clear evidence of a direct link between the 
Consortia BER and the ordering/use of ULCVs has appeared in the evaluation. 

5.3.4.  Efficiency gains  

Since the adoption of the first Consortia BER in 1995104 and until its latest prolongation 
in 2014, the Commission’s consistent view has been that consortia covered by the BER 
generate efficiency gains.  

In  the  Consortia  BER  and  at  the  occasion  of  its  last  prolongation,  the  Commission 
considered that consortia have generally helped to improve the productivity and quality 
of  available  liner  shipping  services  by  reason  of  the  rationalisation  they  bring  to  the 
activities  of  member  companies  and  through  the  economies  of  scale  they  allow  in  the 
operation of vessels  and utilisation of port facilities. They have  also helped to  promote 
technical  and  economic  progress  by  facilitating  and  encouraging  greater  utilisation  of 
containers and more efficient use of vessel capacity.105  

These efficiency gains of the consortia covered by the BER were confirmed in the Public 
Consultation by the respondent carriers also for the period relevant for this evaluation106 
and were not materially contested by the other stakeholders.107 In general, consortia allow 
their  members  to  pool  their  vessels  together  and  provide  services  or  frequencies  that 
carriers would not be able to provide on their own means. A larger pool of vessels could 
also allow for optimisation of the deployment of vessels to better fit size and type to the 
conditions of the service.  

103   See for example: Janet Porter "Maersk expects to limit Triple-E fleet to 20 vessels", Lloyds List, 27 
June  2011,  accessible  at:  https://lloydslist.maritimeintelligence.informa.com/LL011121/Maersk-
expects-to-limit-TripleE-fleet-to-20-vessels (last accessed: 26 March 2019). 

104   Commission Regulation (EC) No 870/95 of 20 April 1995 on the application of Article 85 (3) of the 
Treaty  to  certain  categories  of  agreements,  decisions  and  concerted  practices  between  liner  shipping 
companies (consortia) pursuant to Council Regulation (EEC) No 479/92, OJ L 89, 21.4.1995, p. 7–14. 

105   Consortia BER, recital 5.  

106   Additional 

submission 

by 

the 

WSC 

available 

http://www.acceptance.ec.europa.eu/competition/consultations/2018_consortia/wsc2.pdf; 
response to the Targeted Questionnaire, question 15. 

on 
MSC’s 

107   It  was  noted  above  that  some  stakeholders  are  concerned  by  the  externalities  created  by  UCLVs  at 
ports leading to disturbances and inefficiencies. It was explained however above that no clear evidence 
of  a  direct  link  between  the  Consortia  BER  and  the  ordering/use  of  ULCVs  has  appeared  in  the 
evaluation. 

27 

 
                                                            
Cargo  consolidation  is  also  an  important  efficiency  gain.  For  a  vessel  to  be  operated 
profitably  it  has  to  reach  a  certain  level  of  space  utilisation;  a  higher  utilisation  also 
means lower cost per container. A vessel may wait in a port or call at several ports until 
the required level of utilisation is reached. A consortium serves the customer base of all 
its  members  allowing  higher  utilisation  of  the  vessels  which  increases  profitability  and 
reduces cost per container. Transit times are shortened because the vessels wait less time 
or call at fewer ports before they reach the required level of utilisation. This means that 
less  vessels  are  required  to  provide  the  same  frequency  of  service  and  they  can  be 
deployed  on  other  routes  or  used  to  increase  the  frequency.  Cargo  consolidation  also 
facilitates investment in more modern (normally larger) cost-efficient vessels because it 
is easier to fill and operate them profitably. 

5.3.5.  Benefits for consumers  

5.3.5.1. Prices  

It  appears  that  users  of  the  shipping  services  provided  by  consortia  generally  could 
benefit  from  a  fair  share  of  the  improvements  in  productivity  which  consortia  bring 
about.  

Those benefits might take the form of lower prices due to the reduction in carriers’ costs, 
an  improvement  in  the  frequency  of  sailings  and  port  calls,  or  an  improvement  in 
scheduling  as  well  as  better  quality  and  personalised  services  through  the  use  of  more 
modern vessels and other equipment, including port facilities.108  

As  noted  above,  the  customers  responding  to  the  public  consultation  consider  that 
concentration in the market has increased significantly since the last prolongation of the 
Consortia  BER  and  that  consequently  competitive  pressures  in  the  market  are  not 
sufficient to ensure that they enjoy a fair share of the benefits generated by consortia.  

As  shown  in  Chart  7  below  prices for  customers  of  the  liner  shipping  industry  have  in 
fact diminished in recent years alongside costs to carriers. The decrease in both costs and 
prices, with low profitability of the carriers, demonstrates that competitive constraints on 
the  carriers  are  still  strong  enough  to  pressure  carriers  to  transfer  a  fair  share  of  the 
efficiency gains they have generated to customers in the form of lower prices.  

108   Consortia  BER, 

recital 

6;  Additional 

submission 

by 

the  WSC 

available 

on 

http://www.acceptance.ec.europa.eu/competition/consultations/2018_consortia/wsc2.pdf. 

28 

 
                                                            
Chart 7: Development of revenues and costs (USD per TEU) and bunker prices (USD 
per tonne)109 

Source: WSC based on Drewry Maritime Research 

Chart 7 indicates also that, at Q3 2018 both revenues and costs per TEU remain below 
Q1 2013, with revenues per TEU being 23% lower compared to Q1 2013 and operating 
costs per TEU being 25% lower. 

This  view  on  price  evolution  is  shared  by  industry  analysists;  Alphaliner  for  example 
stated  that  “Real  container  freight  rates,  after  accounting  for  changes  in  the  price  of 
bunker,  have  fallen  by  more  than  50%  in  the  last  20  years.  While  average  nominal 
freight  rates… have  fallen by over 20%  since the beginning of  1998, inflation-adjusted 
freight rates have shown an even larger reduction, as bunker prices have increased more 
than five-fold since 1998….the savings from operational and organisational efficiencies 
in  the  last  two  decades  have  mostly  been  passed  on  to  shippers  in  the  form  of  lower 
freight rates - both in nominal and in real terms.”110 This adds to the picture described for 
example  by  UNCTAD  as  “difficult  market  conditions  faced  since  the  2008  global 
financial crisis. For many years, container shipping has struggled with low freight rates, 
dwindling earnings and poor financial returns.”111 

To conclude, the nearly identical decrease of costs and prices,  with low profitability of 
the  carriers,  demonstrates  in  particular  that  cost  efficiencies  have  been  passed  on  to 
customers to a material extent over the evaluation period. 

No  substantial  indication  of  changes  in  circumstances  in  the  short-medium  term  were 
found. 

109   Submission of WSC of 14 March 2019, Figure 1.  

110   See for example Alphaliner, Vol. 2018/23 (30.05.2018 to 05.06.20), p. 1. 

111   UNCTAD  Policy  Brief  No.  69,  September  2018  "Market  consolidation  in  container  shipping,  what 
next?",  page  1.  See  for  example:  Alphaliner,  Vol.  2019/18  (24.04.2019  –  30.04.2019),  pp.  1; 
Alphaliner, Vol. 2019/1 (27.12.2018 – 02.01.2019), pp. 1-2; Alphaliner, Vol. 2018/18 (24.04.2018 – 
30.04.2018),  pp.  1;  Alphaliner,  Vol.  2017/52  (20.12.2017  –  26.12.2017),  pp.  1-5;  Alphaliner,  Vol. 
2017/1 (28.12.2016 – 03.01.2017), pp. 1-2; Alphaliner, Vol. 2016/1 (30.12.2015 – 05.01.2016), pp. 1-
2.   

29 

 
 
                                                            
5.3.5.2. Services 

Data available on services does not appear to support the claim made by customers and 
their  associations  that  competition  has  not  functioned  well  in  the  market  over  the 
evaluation period, compared to the past.112  

The  quality  of  services  in  the  liner  shipping  industry  is  commonly  measured  in 
parameters of connectivity, availability of services, and reliability. 

According to the ITF EU Report, the number of direct port-to-port pair connections on 
European  trade  lanes  has  declined  since  2012.  On  the  Asia-North  Europe  trade,  the 
number of distinct port pairs dropped from approximately 210 in March 2014 to 189 in 
September 2018 and on Asia - Mediterranean from approximately 330 in March 2014 to 
294 in September 2018.113 The WSC on the other hand submitted that between 2013 and 
2018  on  the  Asia  –  North  Europe  trade,  the  number  of  unique  ports  called  actually 
increased  from  45  (20  in  North  Europe,  25  in  Asia)  to  47  (24  in  North  Europe,  23  in 
Asia)  and  the  number  of  countries  called  increased  from  19  (12  in  North  Europe,  7  in 
Asia)  to  22  (14  in  North  Europe,  8  in  Asia).114  In  addition,  the  WSC  notes  that  the 
UNCTAD connectivity index improved for all 21 EU countries measured between 2013 
and 2018.115  

According  to  the  ITF  EU  Report  the  number  of  weekly  services  between  Asia  and 
Europe decreased between 2014 and 2018: from 14 to 11 on Asia  – Mediterranean and 
from 20 to 17 on Asia – Northern Europe,116 although at least with respect to the latter the 
WSC  identified  4  independent  services  in  addition  to  the  17  provided  by  the  three 
alliances.117  

On the transatlantic trades the ITF EU Report notes between 2014 and 2018 a decrease 
from 14 to 12 weekly services between Northern Europe and the US’ east coast but an 
increase  from  7  to  9  weekly  services  between  the  Mediterranean  and  the  US’  east 
coast.118  

112   See Section ‎5.3 above. 

113   ITF EU Report, page 31.  

114   WSC submission of 14 March 2019, Table 1.  

115   WSC  submission  of  14  March  2019,  pp.  4-6.  The  UNCTAD  Liner  Shipping  Connectivity  Index 
(LSCI)  is  generated  from  five  components:  (a)  the  number  of  ships;  (b)  the  total  annual  container-
carrying capacity of those ships; (c) the maximum vessel size; (d) the number of services; and (e) the 
number of companies that deploy container ships on services from and to a country’s ports. The data 
are derived from Containerisation International Online (until 2015) and MDS Transmodal (from 2016 
onwards).  The  UNCTAD  Liner  Shipping  Connectivity  Index  (2004-2018)  is  accessible  at: 
https://unctad.org/en/pages/PublicationWebflyer.aspx?publicationid=2240  (last  accessed:  3  April 
2019). 

116   ITF EU report, Figure 23. 

117   WSC submission of 14 March 2019, Table 1. These 4 services however represent only 1% of capacity 

on this trade. See Chart 6 above.  

118   ITF EU report, Figure 24. 

30 

 
                                                            
Schedule reliability on European trades (defined as arrival of at least one day before or 
after  schedule)  was  volatile  through  the  period  between  2014  and  2018  without 
presenting a discernible trend:  

Chart 8: Schedule reliability on European trade lanes, 2012-2018119 

Source: ITF based on Sea Intelligence 

The available statistics on the cancellation of sailings (“blank sailings”)120 have remained 
stable  between  2014  and  2018  both  with  respect  to  the  number  sailings  that  were 
cancelled  (85)  and  the  capacity  affected  (942,000  TEUs  in  2014,  1  million  TEUs  in 
2018)  they  have  in  fact  improved  in  a  longer  time  perspective  offered  by  the  available 
information (130 cancellations affecting 1.1 million TEU in 2012).121 Because the overall 
capacity  on  the  Asia  –  Europe  trades  has  increased,  the  share  of  cancelation  has 
decreased. 

Nevertheless, the views of the customers and their associations, which participated in the 
public  consultation,  are  that  the  quality  of  liner  shipping  services  has  deteriorated  in 
recent  years.  However,  the  available  statistical  data  on  customers'  sentiment,  which  is 
based  on  a  large  sample  of  customers,122  suggests  overall  stability  in  the  quality  of 
services over the most recent years. In more details, the available statistical information 
on  customer  satisfaction  in  Europe  shows  a  mixed  picture  where  on  some  parameters 
customers’ satisfaction has improved while on others it has decreased. In both cases, the 
change, either positive or negative, in the levels of satisfaction is moderate. In addition, 

119   ITF EU report, Figure 25. 

120   Relating to the Asia –Europe trades (Asia- North Europe and Asia-Mediterranean).  

121   ITF EU Report, p. 35-37.  

122   The data is based on three customer satisfaction studies carried out by the European Shippers Council 
(ESC) and Drewry in 2017, 2018 and 2019 analysing the responses of several hundred customers, a 
much larger sample than the respondents to the consultation. The results of the 2017 and 2018 studies 
are  presented  in  the  ITF  EU  Report,  p.27.  The  results  of  the  2019  study  are  accessible  at 
https://safety4sea.com/shippers-not-satisfied-with-clarity-of-surcharges-and-transit-times-report-says/ 
(last accessed 27 May 2019). 

31 

 
 
                                                            
and  importantly,  the  alleged  deterioration  (if  any)  would  not  appear  to  be  imputable  to 
the Consortia BER, but rather to the emergence of the three big alliances, the two biggest 
of which do not enjoy the benefit of the Consortia BER. 

Overall  the  available  data  suggest  that  the  quality  of  services  has  not  deteriorated  but 
rather remained stable since 2014. 

No  substantial  indication  of  changes  in  circumstances  in  the  short-medium  term  would 
appear. 

5.3.6.  Conclusions on relevance  

To  conclude,  cooperation  in  consortia  remains  prevalent.  Arguments  that  the  high 
concentration  level  in  the  industry  harms  customers  remain  unsubstantiated  as 
competition  in  the  industry  seems  to  function  well,123  transferring  a  fair  share  of  cost 
savings  to  customers  in  the  form  of  lower  prices  and  keeping  the  quality  of  services 
stable. 124 

In  these  circumstances  the  consortia  BER  remains  relevant,  facilitating  types  of 
cooperation that generate efficiency gains and benefit consumers. 

5.4.  Coherence  

Under  this  criterion,  it  is  assessed  whether  the  Consortia  BER  is  coherent  with  the 
general competition policy and, in particular, instruments (BERs or guidelines) providing 
general guidance on the application of Article 101 TFEU. It is also assessed whether the 
Consortia BER is coherent with other sector-specific rules or EU policies. 

As  described  in  more  details  in  the  Synopsis  Report  annex,  the  respondent  carriers 
consider that the Consortia BER does not present inconsistencies with other instruments 
of EU competition law. They consider liner shipping merits an exceptional sector specific 
BER due to the special feature of the industry of heavily relying on cooperation.  

Furthermore,  the  carriers  argue  that  the  Consortia  BER  is  coherent  with  other  EU 
policies.  For  example,  vessel  sharing  agreements  have  environmental  benefits  through 
reduced consumption and lower vessel emissions, and they bring technological benefits 

123 It is noted that the purpose of the 30% ceiling set in the Consortia BER is to ensure that the market 
exerts sufficient competition pressure on the consortia so that a fair share of their efficiency gains are 
passed on to consumers. By comparison,  the Specialisation Regulation and the Horizontal Guidelines 
set a 20% ceiling for joint production agreements; and a ceiling of 25% is set by the Guidelines for the 
assessment of horizontal mergers (OJ C 31, 5 February 2004, p.5). The ceiling set in the Consortia BER 
is not significantly higher than the ceilings set by these other instruments and under which horizontal 
competition concerns are assumed not to arise. Moreover, in the Consortia BER context, the ceiling is 
also  mitigated by  the  additional  requirement  of  the  Consortia  BER  that members  of  a consortium  set 
their  prices  independently,  adding  additional  competitive  constraint  of  internal  price  competition 
between them. Because the Evaluation found that competition in the liner shipping industry continues 
to  function  well,  the  30%  ceiling  serves  its  purpose  and  is  still  relevant.  No  sufficient  evidence  was 
brought forward to suggest that a different threshold would be more appropriate. 

124   See  also  Brooks,  Meersman,  Sys,  Voorde,  Vanelslander;  Technical  Report  “Regulation  in  the  liner 
shipping industry: pathways to a balance of interests”, June 2019, p. 24: “[letting the Consortia BER 
expire  without replacement  legislation]  would  increase  industry uncertainty  so much that all parties 
would lose.” 

32 

 
                                                            
through  newer,  more  efficient,  more  technically  up-to-date  modern  ships  and improved 
IT systems for container tracking to meet shipper demands.  

Other stakeholders do not question the coherence of the Consortia BER with the general 
competition policy, other instruments related to Article 101 and other policies of the EU. 
However, they argue that the liner shipping industry should not enjoy special treatment 
under the EU competition rules and be subjected to the general regime since, in view of 
today’s market conditions, the Consortia BER provides benefits only to the carriers. 

The special features and terminology of the liner shipping sector which have necessitated 
the  existence  of  a  special  BER  for  consortia  are  still  present  today.  Furthermore,  the 
Consortia  BER  does  not  present  inconsistencies  with  other  instruments  of  EU 
competition law. 

Besides,  there  is  coherence  between  Consortia  BER  and  the  broader  policies  and 
objectives  of  the  EU.  Firstly,  by  facilitating  certain  consortia,  the  Consortia  BER 
contributes  to  reducing  the  environmental  impact  of  maritime  transport.  Secondly,  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.125 

To  conclude,  the  Consortia  BER  is  coherent  with  other  policies  and  instruments  of  the 
EU, including instruments providing general guidance on the application of Article 101 
TFEU. Moreover, even if maintaining the Consortia BER as one of the latest BER in EU 
antitrust  legislation  may  appear  as  an  exception,  in  the  very  specific  circumstances 
applying to the liner shipping industry (e.g. strong role of cooperation), the existence of 
the Consortia BER remains justified. 

5.5.  EU added value 

Under  this  criterion  it  is  assessed  what  the  added  value  of  the  Consortia  BER  is, 
considering  in  particular  the  Commission’s  measures  of  providing  general  guidance  on 
the application of Article 101 TFEU.  

As  described  in  more  details  in  the  Synopsis  Report,  the  carriers  consider  that  the 
Consortia  BER  provides  very  helpful  sector-specific  guidance  that  cannot  be  found  in 
other  instruments  or  the  decisional  practice  of  the  Commission  and  the  EU’s  case  law. 
They also consider that the Consortia BER is an influential source of guidance to non-EU 
jurisdictions that facilitates coherent treatment of consortia across jurisdictions. Coherent 
treatment is of special importance to carriers because of the cross-border nature of their 
business.  

Other  stakeholders  (in  particular  shippers,  freight  forwarders,  ports)  are  of  the  opinion 
that the general guidance instruments on the application of EU competition law provide 
sufficient relevant help for the liner shipping industry. 

125   More 

on 

Commission 

priorities 

for 

2015-2019 

is 

available 

at: 

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

33 

 
                                                            
It  is  preliminarily  noted  that  the  Enabling  Council  Regulation  grants  only  the 
Commission,  and  not  the  Member  States,  the  power  to  adopt  a  BER  for  consortia. 
Indeed, the appropriate level for guidance on the application of competition rules to the 
provision of international liner shipping services is the EU level rather than the level of 
the individual Member States. Liner shipping is an industry whose very nature is cross-
border and with respect to deep-sea liner shipping126 the relevant geographic markets are 
often regions encompassing several Member States.127  

The  question  whether  a  sector-specific  BER  applying  to  consortia  has  added  value 
considering  the  existing  instruments  providing  general  guidance  on  the  application  of 
competition  rules  has  been  already  touched  upon  above  with  respect  to  legal  certainty 
and  efficiency  (see  Sections  ‎5.1  and  ‎5.3).  The  Consortia  BER  uses  industry-specific 
terminology,  refers  to  arrangements  that  are  very  specific  to  consortia  (that  differ 
significantly  to  other  sectors),  and  therefore  offers  more  precise  guidance  than  other 
instruments providing general guidance on the application of competition rules.  

By  its  very  nature  as  a  sector-specific  instrument  the  Consortia  BER  provides  higher 
legal certainty to consortia than would have been the case without it. Its application also 
saves  to  a  certain  extent  resources  dedicated  to  the  assessment  of  compliance  with 
competition rules (see Section ‎5.2).  

It is therefore concluded that the Consortia BER provides EU added value. 

126   Deep-sea liner shipping is the provision of liner shipping service on the oceans, to and from the EU. 

Shipping services inside the EU between the Member States are referred to as “cabotage”.  

127   Deep sea liner shipping markets are often defined as routes between regions of the world (for example: 
Far  East  Asia,  North America  East  Coast) and  two distinct  regions  in  the  EU: Northern  Europe  and 
Mediterranean region. See for example. COMP/M.8594 COSCO/OOIL paras. 14-1 and the reference 
there. 

34 

 
 
 
                                                            
6.  CONCLUSIONS 

Since  the  adoption  of  the  first  Consortia  BER  in  1995  the  consistent  view  of  the 
Commission has been that consortia, under certain conditions set in the Consortia BER, 
could be rendered compliant with Article 101(3) TFEU. The Consortia BER in its current 
form  was  adopted  in  2009  and  was  prolonged  in  2014.  Since  then  the  liner  shipping 
industry has been going through a process of consolidation, increased concentration and 
technological change, expressed in particular in the increasingly growing size of vessels. 
The  ports/terminal  operators,  customers  and  their  associations  that  participated  in  the 
public consultation expressed concerns regarding the increasing bargaining power of the 
carriers  and  deteriorating  levels  of  service.  Their  complaints  however  were  materially 
directed towards  the alliances that to a large extent  do not appear to  be covered by the 
Consortia BER.  

The evidence basis of this evaluation is to a large extent made of input of stakeholders. In 
spite of the methodological limitations in this evaluation, the overall available evidence 
reveals that there was no deterioration in the parameters of competition. Indeed, in recent 
years both costs for carriers and prices for customers per TEU decreased by approximatly 
30% and levels of services seem not to have deteriorated but rather remained stable since 
2014.  Consequently  there  is  no  reason  to  depart  from  the  longstanding  view  that 
consortia  are  an  efficient  way  for  providing  and  improving  liner  shipping  services  that 
also  benefits  customers.  A  fair  share  of  the  benefits  resulting  from  the  efficiencies  is 
passed on to transport users. 

The  Consortia  BER  remains  relevant  as  its  objective  to  facilitate  consortia  remains 
appropriate in view of the ensuing benefits for customers.  

The  Consortia  BER  is  a  sector-specific  measure  referring  directly  to  the  special 
arrangements of this type of cooperation. Consequently it provides clearer guidance and 
higher level of legal certainty to consortia than would have been the case in its absence. 
The  Consortia  BER  thus  facilitates  the  assessment  of  consortia’s  compliance  with 
competition rules, and helps carriers to save resources. 

Although  sector-specific  BERs  are  today  exceptional  measures,  the  reliance  on 
cooperation that allows to rationalise services and lower costs is made more pressing in 
view of the global economic challenges facing the container shipping industry. 

Therefore,  at  this  stage,  the  market  conditions  of  the  liner  shipping  sector  appear  to 
necessitate the existence of a sector-specific BER. Considering the major developments 
in the liner shipping industry in recent years, the evaluation indicates at this stage that the 
Consortia BER is relevant and delivering on its objectives; it would do so in a coherent, 
effective and efficient manner, creating EU added value. 

However, developments in the sector in the coming years should continue to be followed 
to monitor their effects on competition and on consumers. 

35 

 
ANNEX 1: SYNOPSIS REPORT OF THE STAKEHOLDER CONSULTATION   

I.  INTRODUCTION 

Commission Regulation (EC) No 906/2009 on the application of Article 81(3)1 of the 
Treaty to certain categories of agreements, decisions and concerted practices between 
liner  shipping  companies  (‘Consortia  BER’)2  will  expire  on  25  April  2020.  The 
Consortia  BER  sets  the  specific  conditions  under  which,  in  accordance  with  the 
provisions  of  Article  101(3)  TFEU,  shipping  companies  (“carriers”)  can  agree  to 
provide  services  together  (“consortia  agreements”)  and  be  exempted  from  the 
application  of  Article  101(1)  TFEU.  The  approaching  expiry  prompted  the  current 
evaluation, which is due to be finalized before the expiry date.  

The purpose of the evaluation is to assess the application, impact and relevance of the 
Consortia BER in order to inform the decision on the policy options after its expiry. 
The Commission collected evidence and views from numerous stakeholders in order 
to  assess  whether  the  Consortia  BER  is  effective,  efficient,  coherent  with  other 
competition policy measures, relevant, and creating EU added value. 

II.  STAKEHOLDER GROUPS COVERED BY THE CONSULTATION ACTIVITIES 

The  consultation  was  open  to  the  general  public  as  well  as  public  authorities 
(including national parliaments) by means of the public consultation on the Roadmap 
and  the  public  questionnaire.  The  responses  to  these  two  consultations  came  from 
both  private  entities  (various  stakeholders)  as  well  as  public  authorities  such  as 
national competition authorities (“NCA’s”).3  

The  Commission  identified  the  following  main  groups  of  stakeholders  of  the 
consultation:  

  Carriers  

  Shippers and freight forwarders (as the customers of liner shipping services);  

  Port authorities and terminal operators. 

This also includes the associations of the respective groups of stakeholders. 

1   As of 1 December 2009, the Treaty of Lisbon amending the Treaty on European Union and the Treaty 
establishing the European Community of 13 December 2007 (OJ C 306, 17.12.2007, p. 1) renumbered 
the  articles  of  the  TEC.  Article  81  TEC  became  Article  101  TFEU  and  remained,  in  substance, 
unchanged.  According  to  Article  5(3)  of  the  Treaty  of  Lisbon,  references  to  Article  81  TEC  in 
instruments or acts of EU law are to be understood as referring to Article 101 TFEU. 

2   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. 

3   The Commission did not receive contributions from national parliaments.   

36 

 
 
                                                            
Furthermore, the Commission has also been in close contact with other international 
organisations such as the OECD-ITF (International Transport Forum). Additionally, 
the  Commission  collected  views  from  industry  analysts,  academics,  labour  unions 
and  law  firms  specialising  in  competition  law  and  the  maritime  sector  (“Other 
stakeholders”).   

III.  CONSULTATION ACTIVITIES AND INFORMATION SOURCES 

A.  Feedback on Roadmap  

The  Roadmap  of  the  Evaluation  was  published  on  Commissions’  Consultation 
website4  on  7  May  2018  after  which  a  four-week  consultation  was  open  for  public 
feedback until 4 June 2018.  

The  Commission  received  three  responses  to  the  Roadmap:  a  response  from 
CLECAT,5  a  joint  response  by  WSC,6  ECSA,7  and  ICS8  and  a  response  from  an 
anonymous source.9 Two respondents commented that the consultation period for the 
public consultation should be longer or finish later than indicated in the Roadmap and 
run  at  least  until  end  of  2018.  The  Commission  took  these  comments  into 
consideration  by  amending  the  schedule  so  that  the  public consultation  ran  until  20 
December 2018. The third response contained a written submission on reasons why 
the Consortia BER should be prolonged.  

B.  Public consultation  

From  27  September  to  20  December  2018,  the  Commission  ran  an  online  Public 
Consultation  on  Commissions’  website  for  legislative  initiatives  as  well  as  on  the 
designated website of DG COMP. The launch of the consultation was accompanied 
with  a  press  release.10  In  addition,  informative  emails  were  sent  to  several 
associations of carriers, shippers, and port operators, which had previously contacted 
the  Commission  and  expressed  interest  in  the  evaluation,  inviting  them  and  their 
members to partake in the consultation. 

4   Link  to  the  website:  https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-2422025_en 

(last accessed 3 December 2018).  

5   European Association for Forwarding, Transport, Logistics and Customs Services. 

6   World Shipping Council. 

7   European Community Shipowners' Associations. 

8  

International Chamber of Shipping. 

9   The 

responses 

link:  https://ec.europa.eu/info/law/better-
regulation/initiatives/ares-2018-2422025/feedback_en?p_id=229482 (last accessed 16 January 2019).  

available  on 

are  publicly 

this 

10   Link  to  the  press  release:  http://europa.eu/rapid/press-release_IP-18-5921_en.htm  (last  accessed  3 

December 2018). 

37 

 
 
                                                            
The  consultation  was  published  in  three  languages  (English,  German  and  French), 
while  replies  would  have  been  accepted  in  all  official  language  of  the  EU.  The 
respondents could answer the consultation online or by sending it per email; in both 
cases  they  could  submit  additional  supporting  documents.  The  questionnaire 
comprised  28  questions,  which  were  both  closed-type  questions  (such  as  multiple-
choice questions), inviting stakeholders to quantify the parameters, as well as open-
ended-type  questions,  inviting  stakeholders  to  express  their  views  and  identify 
concrete issues.  

The  objectives  of  the  questions  corresponded  to  the  five  assessment  criteria  (see 
section I). 

The Commission received 32 responses to the public consultation, of which  5 were 
from carriers, 10 from their customers (6 from shippers, 2 from logistics companies, 
1  from  a  freight-forwarding  company),  4  from  port  authorities  or  port  service 
providers and 13 who self-categorized themselves as none of the above.  

C.  Targeted consultation  

In October 2018 the Commission sent targeted questionnaires to several stakeholders.  

The  consultation  consisted  of  three  separate  questionnaires  according  to  the  main 
groups  of  stakeholders: Targeted  Questionnaire  for  carriers,  Targeted Questionnaire 
for customers (shippers and freight-forwarders), and Targeted Questionnaire for port 
operators.  

In  order  to  assure  a  broad  outreach  and  representative  sample  of  the  stakeholders 
concerned,  the  Commission  turned  to  their  respective  associations:  ESC,11  ECSA, 
ICS, CLECAT, ESPO12 and FEPORT13 and FTA.14 With protection of personal data 
in mind, the Commission asked the associations to distribute to all their members an 
open  call  to  express  their  interest  in  participating  in  the  targeted  consultation  by 
sending  the  Commission  an  email;  the  Commission  would  in  turn  send  them  the 
relevant targeted questionnaire. 

The  Commission  sent  71  questionnaires  in  total  (61  to  shippers  and  freight-
forwarders and their associations, 6 to carriers and their associations, and 4 to ports 
and their associations). The Commission received 14 responses from shippers, 3 from 
ports and 4 from carriers.   

D.  Other consultation activities 

11   European Shippers’ Council. 

12   European Sea Ports Organisation. 

13   The Federation of European Private Port Companies and Terminals. 

14   Freight Transport Association. 

38 

 
                                                            
In  October  2018,  the  Commission  informed  all  NCA’s  through  the  European 
Competition Network about the ongoing evaluation and invited them to take part in 
the  public  consultation  as  well  as  to  submit  any  observations.  Two  NCAs  (Greece 
and Norway) responded to this invitation and contributed to the consultation.  

Additionally, in the period between March 2018 and January 2019 the Commission 
has received several ad hoc additional position papers and submissions, sent outside 
the  framework  of  the  activities (consultations),15  mostly  on  those  stakeholders’  own 
initiative. The Commission received 7 of such submissions. 

The Commission granted all stakeholders’ requests for a bilateral meeting or call. 

The Commission also participated in a number of forums and conferences to inform 
participants on the ongoing evaluation and encouraged the participants to take part in 
it.16 

IV.  THE RESULTS OF THE CONSULTATION ACTIVITIES 

This chapter summarizes the views and evidence collected in all of the activities of 
the consultation. The views of the carriers, vessel owners and their associations were 
generally  aligned  and  are  presented  below  together.  Those  of  the  other  market 
participants  having  contributed  the  public  consultation  are  presented  separately,  as 
relevant. 

A. Effectiveness 

The  question  on  effectiveness  focused  on  whether,  considering  the  major 
developments  in  the  industry,  the  Consortia  BER  still  facilitates  economically 
efficient cooperation that also benefits consumers. 

Views of the carriers, vessel owners and their associations  

The  carriers,  vessel  owners  and  their  associations  explain  that  they  are  typically 
parties  to  several,  sometimes  many,  consortia  agreements  on  a  large  number  of 
trades;  the  agreements  are  frequently  replaced  or  amended  in  reaction  to  changing 
market  conditions.  For  instance,  the  majority  of  carriers  who  responded  to  the 
targeted  questionnaire  concluded  a  new  consortium  agreement  or  amended  an 
existing less than a year beforehand.17 According to the carriers, vessel owners and 
their  associations,  in-house  lawyers  as  well  as  the  business  and  operations  officers 

15   Submissions  outside  the  framework  of  the  activities  (consultations)  are  ad  hod  “unsolicited” 
contributions which did not answer questions asked in the consultations, but adressed the topic in an 
open format and style. 

16  Conferences  organized  by  European  Commission’s  DG  EMPL  on  7  November  2018  and  15  March 
2019,  by  DG  MOVE,  on  14  December  2018,  and  ESPO  on  11  December  2018  all  in  Brussels; 
Conference organized by the OECD’s International Transport Forum (ITF), Paris, 8 February 2019.   

17   Responses to question 6 of the targeted questionnaires to carriers.  

39 

 
                                                            
find  the  Consortia  BER  easily  understandable  and  quite  straightforward  to 
implement. They consider that it generally provides them with a high degree of legal 
certainty. Indeed, the carriers who responded to the public questionnaires generally 
rated  as  “very  high”  or  “high”  the  level  of  legal  certainty  the  Consortia  BER 
provides with respect to various matters,18 although some considered the concept of 
highly integrated consortia19 as less clear.  

They  are  also  of  the  view  that  the  Consortia  BER  facilitates  the  creation  and 
operation of consortia because other instruments providing general guidance on the 
application of Article 101 TFEU20 are not specific to consortia and are therefore not 
as easy to apply and do not provide the same level of legal certainty. The majority of 
carriers who responded to the public questionnaire generally estimate that they rely 
on  such  other  instruments  to  an  intermediate  or  low  degree.  The  Commission 
decisional practice however is relied on to a “very high” or “high degree”.21 

Other stakeholders  

The prevalent view among the customers and their associations having expressed an 
opinion is that the Consortia BER does not provide legal certainty.22 Their responses 
can be divided into two groups.  

The  first  group  of  respondents  -  composed  of  four  customer  associations  -  express 
the view that the Consortia BER provides customers with little or no legal certainty 
with  respect  to  the  legality  of  the  carriers’  actions  because  carriers  do  not  publish 
their self-assessment of compliance with the Consortia BER.  

A second group of respondents is composed of five customer associations. The view 
of this group of responses, in essence, is that the Consortia BER cannot provide legal 
certainty anymore to carriers after the industry has undergone a significant process 
of horizontal and vertical integration. Specific issues are, with respect to horizontal 
cooperation,  the  creation  of  the  three  mega-alliances,  and  with  respect  to  vertical 
integration,  the  exchange  of  information  between  carriers  in  relation  to  services 
provided  outside  of  the  ocean  voyage.  In  addition,  one  port  authority  and  an 
association representing ports express similar views.   

18   Market definition, market share calculation, exchange of information, capacity adjustments in response 
to fluctuations in supply and demand, overall compliance with competition law; Question 11.a) of the 
public questionnaire.  

19   Article 6, second paragraph of the Consortia BER. 

20   Such as the Horizontal Guidelines, the Article 101(3) TFEU Guidelines, the Specialisation BER and 

the Commission’s decisional practice.  

21   Question 12 of the public questionnaire.  

22   Responses to question 10 of the public questionnaire. 

40 

 
                                                            
A  group  of  vessels  owners  who  charter  their  vessels  to  carriers  explain  in  its  joint 
submission that the Consortia BER is not clear on cooperation between carriers with 
respect  of  chartering  vessels  and  therefore  does  not  provide  legal  certainty  with 
respect to that issue. 

B.  Efficiency 

The  Commission  has  used  this  criterion  to  assess  what  the  effect  of  the  Consortia 
BER is on costs. Precisely, the Commission has tried to get answers on whether the 
Consortia BER helps undertakings to reduce costs or conversely whether it increases 
compliance costs for carriers.  

Views of the carriers, vessel owners and their associations  

The  carriers,  vessel  owners  and  their  associations  reply  that  usually  if  a  vessel 
sharing  agreement  falls  within  the  Consortia  BER  the  self-assessment  can  be 
conducted  relatively  easily  and  quickly.  Moreover,  an  assessment  under  the 
Consortia BER is generally done internally, i.e. within the company, limiting cost. If 
the Consortia BER expired, the compliance costs would increase significantly due to 
higher  complexity  and  the  likely  need  to  employ  external  consultancy,  at  least  in 
some circumstances. However, this cost increase is difficult to be assessed precisely. 
This is because the compliance assessment is done generally in parallel to other tasks 
by  the  relevant  companies’  departments  and  usually  it  does  not  require  employing 
additional staff. As to the cost of external consultancy for compliance assessment, it 
is  also  difficult  to  be  estimated  precisely  as  it  depends  on  the  complexity  of 
arrangement.  Nonetheless,  it  is  perceived  that  removing  the  Consortia  BER  would 
lead to a disproportionately costly competition law assessment. 

There is also a common view that the increased compliance costs due to the expiry 
of the Consortia BER, would be particularly difficult to cope with by small carriers. 
They  usually  operate  only  on  a  few  routes  and  thus  do  not  have  large  legal 
departments. In addition, they have more limited financial resources to hire external 
competition consultants. Thus, the costs of undertaking a self-assessment are likely 
to be disproportionately burdensome for smaller companies, which may deter them 
from participating in consortia. 

Apart from direct financial costs, the carriers refer also to indirect costs that would 
appear if the Consortia BER expired, in particular in relation to the time necessary to 
conduct  a  self-assessment.  The  relatively  short  time  of  self-assessment  under  the 
Consortia BER allows the carriers to respond more quickly to market changes, and 
also  to  new  opportunities.  Without  the  Consortia  BER,  the  carriers  would  be  less 
agile  to  the  changing  environment.  In  addition,  they  would  develop  less  consortia 
that as such allow them to operate more efficiently.  

Other stakeholders 

41 

 
Some  respondents  coming  from  the  different  groups  of  stakeholders  agree  that  the 
increased  legal  uncertainty,  due  to  expiry  of  the  Consortia  BER  would  have  to  be 
compensated  by  additional  legal  costs  to  be  borne  by  carriers.  However,  these 
respondents  underline  that  the  Consortia  BER  has  indirectly  resulted,  in  the  recent 
years, in additional costs for: (i) shippers, who have had to build higher stock levels 
at  their  manufacturing  sites  or  warehouses,  caused  by  the  increase  congestion  and 
service  concentration;  (ii)  ports,  which  have  had  to,  because  of  ULCVs,  make 
investments into infrastructure (berthing capacity, terminal storage, hinterland access 
capacity (roads and rail) and nautical capacity, which many cannot recuperate under 
current market conditions. 

C.  Relevance  

Under  this  criterion,  the  Commission  asked  whether  the  Consortia  BER  is  still 
relevant,  considering  the  major  developments  in  the  industry  and  the  modes  of 
cooperation between carriers.  

1. Major developments in the industry 

Views of the carriers, vessel owners and their associations   

The  main  development  in  the  liner  shipping  industry  since  2010  noted  by  the 
carriers, vessel owners and their association has been the progressive consolidation 
in the sector. The industry has seen several significant mergers,23 exits,24 the reshuffle 
of the consortia landscape and the creation of the three major alliances (2M, Ocean 
Alliance, THE Alliance).25 The market shares of 2M and the Ocean Alliance on the 
trade  between  Far  East  Asia  and  Europe  are  above  the  30%  ceiling  for  the 
application of the Consortia BER. However, according to the carriers, vessel owners 
and their associations, the industry remains rather fragmented with the top-5 carriers 
accounting for less than 65% of world’s fleet capacity and the industry’s overall HHI 
levels remaining below 1000 suggesting low level of concentration.  

The  trend  towards  ultra  large  container  vessels  (ULCV)  has  continued  and  the 
industry suffers from structural excess of capacity. Ocean freight rates decreased by 

23   In 2014 Hapag-Lloyd and CSAV; In 2015 COSCO and CSCL; In 2016 CMA CGM and NOL; In 2017 
Hapag-Lloyd and UASC, Maersk and HSDG, the creation of the joint venture ONE by NYK, K-Line 
and MOL; In 2018 COSCO and OOIL.  

24   MISC withdraw from the industry in 2010; Hanjin went bankrupt in 2017.  

25   The term “alliances” refers to large consortia that operate on global scale (Asia – Europe, transpacific 
and transatlantic). The members of the 2M alliance are Maersk and MSC; HMM and ZIM cooperate 
with  2M.  The  members  of  THE  alliance  are  Hapag  Lloyd,  Yang  Ming  and  the  ONE  joint  venture 
whose  members  are  NYK,  K-Line  and  MOL.  The  members  of  the  Ocean  alliance  are  CMA  CGM, 
COSCO and Evergreen.   

42 

 
                                                            
30%  since  2013;  consequently,  profitability  levels  of  the  industry  are  low. 
Nevertheless, the choice and level of services has not decreased or even improved.26 

Other stakeholders 

Respondents  coming  from  the  different  groups  of  stakeholders  having  expressed 
opinion on the matter of relevance generally considered that the developments in the 
sector  in  recent  years,  namely  the  process  of  horizontal  and  vertical  integration  of 
carriers and their impact on competition and services have changed significantly the 
conditions in the sector compared to the time when the Consortia BER was adopted, 
rendering the latter irrelevant.  

Specifically, the 30% ceiling and the rules on joint purchasing in the Consortia BER 
are considered outdated and the general view expressed is that these rules should be 
made stricter. Consequently, respondents mainly call either for the non-prolongation 
of the Consortia BER or suggest that an amended Consortia BER is adopted, limiting 
the  scope  of  the  exemptions  and  enhancing  the  Commission’s  oversight  over 
consortia  and  the  benefits  they  bring  to  consumers.  Few  favour  replacing  or 
supporting  the  Consortia  BER  with  more  detailed  guidelines  on  consortia.  It  is 
however widely acknowledged by the customer, port and terminal associations that 
consortia will remain important to the liner shipping industry in the future.27 

2. Efficiency gains and benefits for consumers 

Views of the carriers, vessel owners and their associations 

The  carriers,  vessel  owners  and  their  associations  explain  that  consortia  allow 
carriers  to  achieve  economies  of  scale,  rationalise  and  improve  their  services. 
Consortia allow several carriers to consolidate cargo into fewer vessels and decrease 
the cost per container. It also allows rationalising services by decreasing the number 
of ports vessels are required to call at before they are profitably loaded. In this way, 
carriers  can  cut  the  journey  shorter  making  it  faster,  cheaper  and  more  reliable. 
Carriers cooperating in consortia agreements can offer new services on more routes 
or alternatively offer more frequencies on the same routes. Cooperation in consortia 
agreements  may  allow  carriers  to  invest  in  modernising  their  fleets  switching  to 
more efficient (and usually larger) vessels. Cooperation in consortia is also lowering 

26   Responses to question 20 of the public questionnaire.  

27   See  response  of  ESC  to  the  public  questionnaire,  question  26;  response  of  CLECAT  to  the  public 
questionnaire,  question  23;  response  of  the  Belgian  Shipper  Council  to  the  public  questionnaire, 
question 26; response of Anonymous, association, logistics companies, United Kingdom to the public 
questionnaire,  question  26;  response  of  Anonymous,  association,  freight-forwarding  companies, 
Portugal to the public questionnaire, question 26; response of the Global Shippers Forum, to the public 
questionnaire, question 26; response of FEPORT to the public consultation, page 2, response of ESPO 
to the public questionnaire, annex, point 1.   

43 

 
                                                            
entry barriers by allowing carriers to provide services that they would not have been 
able to offer alone.28  

The  carriers,  vessel  owners  and  their  associations  submit  that  customers  enjoy  the 
efficiencies  generated  by  consortia.  Customers  enjoy  lower  prices,  more  choice  in 
terms of the number of carriers that are able to offer services, more choice in terms 
of  the  number  of  services  (routes,  ports  of  call),  and  their  quality  (frequencies, 
reliability).29   

In  addition,  the  carriers,  vessel  owners  and  their  association  are  of  the  view  that 
customers enjoy the benefits of strong internal competition between the members of 
the  same  consortium;  indeed  members  of  consortia  do  not  cooperate  in  the  sale  of 
the consortia services. They compete between each other on prices and on elements 
of service such as the quality of customer services; tailored transportation solutions; 
inland transportation; warehousing; documentation; digitalisation; tracking services; 
customs  services;  choice,  quality  and  availability  of  containers  they  can  offer 
customers; space availability guarantee; credit terms.30 

Other stakeholders 

The  customers  and  their  associations  direct  generally  their  responses  to  the  three 
major alliances. As described above, they express concerns about deterioration in the 
level of choice and quality of services. Their overall view is that they do not benefit 
from  the  efficiencies  achieved  by  the  major  alliances  and  consider  that  on  balance 
they are worse off with the development of the major alliances.31   

The  customers  and  their  organisations  have  mixed  views  with  respect  to  price 
competition between consortia and between members of the same consortia; overall 
the  responses  seem  to  suggest  that  there  is  a  degree  of  price  competition  in  both 
cases.32  The  customers  and  their  organisation  are  more  sceptical  with  respect  to 
competition  on  service  levels.  Even  those  who  consider  that  there  is  some 
competition on service, noting similar elements to those mentioned above from the 
carriers’ responses, are of the opinion that such competition is limited.33 Overall, the 

28   Response to question 11 of the targeted questionnaire to carriers.  

29   Response to question 17 of the targeted questionnaire to carriers.  

30   Responses to question 15 of the public questionnaire and question 11 of the targeted questionnaire to 

carriers. 

31   Response to question 7.2 of the targeted questionnaire to customers.   

32   Responses to questions 8 and 11 of the targeted questionnaire to customers; responses to question 15 

of the public questionnaire.  

33   Responses to questions 9, 10 and 12 of the targeted questionnaire to customers; responses to question 

15 of the public questionnaire. 

44 

 
                                                            
customers and their association consider that in the past  5 years the level of prices 
has remained stable while the choice of services and their quality have deteriorated.34 

3. Conclusions 

Views of the carriers, vessel owners and their associations 

The carriers, vessel owners and their associations consider that the Consortia BER is 
still very relevant. As mentioned above, they consider that despite the developments 
in the industry, consortia agreements covered by the Consortia BER remain the main 
stay  of  the  industry.  They  estimate  that  in  addition  to  the  three  major  alliances,  at 
least  61  consortia  agreements  apply  to  EU  routes  and  consider  that  there  is  no 
alternative to cooperation in consortia. They note that even with respect to the three 
major alliances, the Consortia BER is still relevant with respect to the trades where 
their  market  shares  are  below  30%.  In  response  to  the  question  about  types  of 
cooperation  that  fall  outside  of  the  Consortia  BER,  it  is  mentioned  that  2M  and 
Ocean Alliance are not covered by the Consortia BER to the extent that their market 
shares  exceed  the  30%  ceiling.  They  noted  in  addition  slot  agreements  with  other 
carriers.35 There exist also cooperating in associations dealing with the digitalisation 
of  the  industry.36  The  carriers,  vessel  owners  and  their  associations  do  not  identify 
possible developments in the types of cooperation in the industry in the near future37 
and consider that there is no alternative to cooperation in consortia.  

Carriers,  vessel  owners  and  their  associations  explain  that  the  liner  shipping  sector 
has unique features justify a sector-specific BER, including:  

- 

it is a capital intensive industry;  

-  demand  for  service  is  seasonal,  cyclical  with  changes  in  trading  patterns  and 

variations in the global economy (leading to proneness to overcapacity); 

-  cargo volumes of trade are always unbalanced;  

- 

- 

ships sail whether they are empty or full, the products have no storability;  

it  has  cross-border  reach,  and  a  single  trade  string  calls  ports  in  multiple 
jurisdictions with different laws;  

34   Responses to question 15 of the public questionnaire.  

35   With slot agreements, carriers buy or exchange capacity on existing services of other carriers and do 
not rationalise or improve the service. They therefore are not covered by Article 2(1) of the Consortia 
BER;  see  paragraph  40  of  the  Commission's  technical  paper  of  October  2008  on  the  Regulation 
823/2000 (the previous Consortia BER). 

36   Responses  to  questions  21-22  of  the  public  questionnaire  and  question  21-23  of  the  targeted 

questionnaire to carriers.  

37   Response to question 23 of the targeted questionnaire to carriers.  

45 

 
                                                            
- 

- 

state intervention into shipbuilding and liner shipping that artificially fuels global 
surplus capacity; and 

the  time  lag  between  ordering  new  vessels  and  their  delivery  and  how  market 
conditions can change in the period between. 

The  customers  and  their  associations  direct  generally  their  responses  to  the  three 
major alliances. As described above, they express concerns about deterioration in the 
level of choice and quality of services. Their overall view is that they do not benefit 
from  the  efficiencies  achieved  by  the  major  alliances  and  consider  that  on  balance 
they are worse off with the development of the major alliances.38   

Other stakeholders 

Respondents  coming  from  the  different  groups  of  stakeholders  having  expressed 
opinion on the matter of relevance generally considered that the developments in the 
sector  in  recent  years,  namely  the  process  of  horizontal  and  vertical  integration  of 
carriers  and  their  impact  on  competition  and  services  (see  Section  IV.A  on 
Effectiveness  above)  have  changed  significantly  the  conditions  in  the  sector 
compared  to  the  time  when  the  Consortia  BER  was  adopted,  rendering  the  latter 
irrelevant.  

Specifically, the 30% ceiling and the rules on joint purchasing in the Consortia BER 
are considered outdated and the general view expressed is that these rules should be 
made stricter. Consequently, respondents mainly call either for the non-prolongation 
of the Consortia BER or suggest that an amended Consortia BER is adopted, limiting 
the  scope  of  the  exemptions  and  enhancing  the  Commission’s  oversight  over 
consortia  and  the  benefits  they  bring  to  consumers.  Few  favour  replacing  or 
supporting  the  Consortia  BER  with  more  detailed  guidelines  on  consortia.  It  is 
however widely acknowledged by the customer, port and terminal associations that 
consortia will remain important to the liner shipping industry in the future.39 

D.  Coherence 

Under this criterion, the Commission asked whether the Consortia BER is coherent 
with  the  general  policy  of  harmonising  competition  rules  and  replacing  sector-
specific rules with measures (BERs or guidelines) providing general guidance on the 
application of Article 101 TFEU. 

Views of the carriers, vessel owners and their associations  

38   Response to question 7.2 of the targeted questionnaire to customers.   

39   See  response  of  ESC  to  the  public  questionnaire,  question  26;  response  of  CLECAT  to  the  public 
questionnaire,  question  23;  response  of  the  Belgian  Shipper  Council  to  the  public  questionnaire, 
question 26; response of Anonymous, association, logistics companies, United Kingdom to the public 
questionnaire,  question  26;  response  of  Anonymous,  association,  freight-forwarding  companies, 
Portugal to the public questionnaire, question 26; response of the Global Shippers Forum, to the public 
questionnaire, question 26; response of FEPORT to the public consultation, page 2, response of ESPO 
to the public questionnaire, annex, point 1.   

46 

 
 
 
                                                            
From the carriers’ point of view, none of other existing instruments (e.g. Horizontal 
Guidelines,  Specialisation  BER)  offer,  to  container  shipping,  self-assessment 
guidelines and legal certainty equivalent to the Consortia BER. 

Carriers, vessel owners and their associations consider that the Consortia BER is not 
vitiated by any internal inconsistencies that would compromise the attainment of its 
objectives.  Moreover,  in  their  views  the  Consortia  BER  is  coherent  with  the  EU 
competition policy, with EU maritime policies, and EU environmental policies. 

According  to  carriers,  vessel  owners  and  their  associations,  the  Commission 
overstates  its  general  policy  of  harmonisation  of  competition  law  in  the  form  of 
removing  sector-specific  competition  regulations.  Sector-specific  legislation  and 
guidelines exist, among others, for motor vehicle distribution, certain road and inland 
waterways undertakings, or agricultural products. 

They  also  note  that  the  general  policy  of  harmonisation  competition  rules  is  only 
justified  for  removing  sector-specific  block  exemptions  if  there  were  already 
equivalent  Commission  guidance  in  place  to  self-assess  the  specific  form  of 
cooperation in  a sector in question.  This  is  not  a case for the liner shipping  sector. 
Removing  the  Consortia  BER  would  lead  to  disproportionately  costly  competition 
law assessment. This increased cost would be particularly  difficult to cope with  by 
smaller carriers (including regional or feeder carriers). 

Other stakeholders 

Other stakeholders note that while the Consortia BER was a good instrument when it 
was introduced, its existence is no longer justified – in particular, because its original 
goals  have  been  already  accomplished.  Moreover,  the  Consortia  BER  creates  now 
benefits  almost  entirely  to  the  shipping  lines  and  works  to  the  detriment  of  other 
shareholders  of  the  logistic  chain.  A  minority  of  stakeholders  also  expressed  the 
opinion  that  the  liner  shipping  sector  should  the  subject  to  the  same  rules  as  other 
sectors since there is no reason to conclude otherwise. 

E.  EU added value 

With this criterion the Commission has sought answers to the question whether the 
Consortia BER offers guidance on essential matters not covered by other instruments 
providing general guidance on the application of Article 101 TFEU. In particular, the 
Commission  has  tried  to  check  whether  the  Consortia  BER  has  added  value  in  the 
assessment of the compatibility of consortia with Article 101 TFEU compared to, in 
its absence, self-assessment based on other instruments that provide guidance on the 
interpretation of Article 101 TFEU. 

Views of the carriers, vessel owners and their associations  

The  carriers,  vessel  owners  and  their  associations  consider  that  the  Consortia  BER 
provides a clear legal environment in which it is easy for liner companies to set up 
consortia. The expiry of the Consortia BER would place the liner shipping sector in a 
situation of considerable legal uncertainty because, in contrast to other sector without 
BERs,  the  guidance  from  Commission  practice  and  decisions,  publications  of  the 

47 

 
 
Commission and decisions taken by courts of Member States for the liner shipping 
sector  is  at  best  very  limited.  By  contrast,  the  Consortia  BER  is  a  sector-specific 
instrument  that  reflects  well  the  characteristics  of  the  liner  shipping  sector,  which 
differs significantly from other sectors. Therefore, it constitutes an important added 
value  for  the  compatibility  assessment,  particularly  if  compared  to  the  self-
assessment based on other instruments for the compatibility assessment under Article 
101  TFEU.  Neither  the  Horizontal  Guidelines  nor  the  Specialisation  BER,  nor  the 
Article 101(3) Guidelines provide equivalent degree of guidance, protection or legal 
certainty as the Consortia BER. 

In addition, in their view the Consortia BER also ensures a regulatory level playing 
field  between  the  EU  and  other  major  jurisdictions  in  which  the  Consortia  BER  is 
well  understood  and  serves  as  a  useful  reference  point.  Most  of  these  jurisdictions 
have regulatory systems in place to guarantee that certain consortia would not be the 
subject to ex-post antitrust scrutiny. If the Commission decided not to provide legal 
certainty on consortia, carriers whose operations are focused on the European trades 
would  be  in  a  competitive  disadvantage.  Moreover,  several  respondents  argue  that 
the Consortia BER is a benchmark used by other non-EU jurisdictions that follow the 
Commission’s method in providing this safe harbour to the liner shipping. There is a 
fear  that  if  the  Commission  decided  not  to  renew  the  Consortia  BER,  other 
jurisdictions  may  over  time  follow  suit,  and  thus  the  compatibility  costs  for  other 
jurisdictions would also increase.40 

Other stakeholders 

Stakeholders (shippers, freight forwarders, ports) note that consortia-like agreements 
could be formed and operate successfully without a block exemption regulation, on 
the  basis  of  general  guidance  as  done  in  other  sectors,  most  notably  in  the  airline 
sector.  

V.  CONCLUSION  

The  responses  to  the  consultation  have  provided  a  wide  spectrum  of  views  and 
addressed  all  of  the  five  assessment  criteria.  Overall,  there  is  a  noticeable 
polarization  of  the  replies  between  the  groups  of  stakeholders.  Carriers  are 
predominantly supportive of the Consortia BER, see it as beneficial and argue for its 
prolongation. On the other hand, the majority of shippers and port/terminal operators 
are critical towards the Consortia BER and are warning about its negative effects and 
advocating for a change to the status quo (either non-prolongation or modification).  

40   Responses to question 23 of the public questionnaire.  

48