COMMISSION STAFF WORKING DOCUMENT EVALUATION of Commission Regulation (EC) N° 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: 2023-10-10
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, 10.10.2023  SWD(2023) 670 final  COMMISSION STAFF WORKING DOCUMENT  EVALUATION  of Commission Regulation (EC) N° 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(2023) 671 final}  
 
 
Table of Contents 

1. 

INTRODUCTION ....................................................................................................... 3 
1.1.  Purpose of the evaluation ..................................................................................... 4 
1.2.  Scope of the evaluation ........................................................................................ 8 

2.  WHAT WAS THE EXPECTED OUTCOME OF THE INTERVENTION? ........... 10 
2.1.  Description of the intervention .......................................................................... 10 
2.2.  Description of the objectives of the intervention ............................................... 11 
2.3.  Points of comparison ......................................................................................... 17 

3.  HOW  HAS  THE  SITUATION  EVOLVED  OVER  THE  EVALUATION 

PERIOD? ................................................................................................................... 18 
3.1.  State of play in 2019 .......................................................................................... 18 
3.2.  Current state of play ........................................................................................... 18 

4.  EVALUATION FINDINGS (ANALYTICAL PART) ............................................. 27 

4.1.  TO  WHAT  EXTENT  WAS  THE  INTERVENTION  SUCCESSFUL  AND 

WHY? ........................................................................................................................ 27 
4.1.1.  Legal certainty ................................................................................................... 27 
4.1.2.  Administrative supervision ................................................................................ 33 
4.1.3.  Coherence .......................................................................................................... 33 
4.1.4.  Facilitation of pro-competitive consortia ........................................................... 35 
4.1.5.  Conclusion ......................................................................................................... 36 

4.2.  HOW DID THE EU INTERVENTION MAKE A DIFFERENCE AND TO 

WHOM? .................................................................................................................... 37 

4.3.  IS THE INTERVENTION STILL RELEVANT? .................................................... 39 
4.3.1.  Efficiencies and consumer benefits brought by consortia ................................. 39 
4.3.2.  Consortia’s contribution to EU competitiveness and trade ............................... 55 

5.  WHAT ARE THE CONCLUSIONS AND LESSONS LEARNED? ....................... 57 

5.1.  CONCLUSIONS ....................................................................................................... 57 

5.2.  LESSONS LEARNED .............................................................................................. 59 

ANNEX I:   PROCEDURAL INFORMATION ............................................................... 61 

ANNEX II. METHODOLOGY AND ANALYTICAL MODELS USED ....................... 63 

ANNEX III. EVALUATION MATRIX ........................................................................... 66 

ANNEX IV. OVERVIEW OF BENEFITS AND COSTS ................................................ 70 

ANNEX V. STAKEHOLDERS CONSULTATION - SYNOPSIS REPORT ................. 72 

1 

 
 
 
Glossary 

Term or acronym 

Meaning or definition 

CBER 

Consortia Block Exemption Regulation 

Commission  

European Commission 

Council  

EEA 

EFTA 

EU 

SME 

SWD 

TFEU 

European Council 

European Economic Area (27 EU Member States and 
Iceland, Liechtenstein and Norway, the three EEA 
EFTA States) 

European Free Trade Association 

European Union 

Small and medium-sized enterprise 

Staff Working Document  

Treaty on the Functioning of the European Union 

2 

 
1. 

INTRODUCTION 

Liner shipping is the provision of regular, scheduled, maritime freight transport, mainly 
by  container,  between  ports  on  a  particular  route,  generally  known  as  a  trade.  The 
dramatic  supply  chain  crisis  that  followed  the  COVID-19  outbreak  has  highlighted  the 
leading role  played by the sector  in  trade  and globalisation.  In 2020,  about  70% of the 
value of international trade was carried by maritime transport, of which about two-thirds 
was carried by containers.1 

In the 1980s,  the Commission  undertook to  assess  the implications for EU competition 
policies  of  the  organisational  changes  undergone  by  world  shipping.2  Those  changes 
consisted  notably  in  the  development  of  containerisation,3  which  prompted  individual 
shipping  lines  (“carriers”)  to  use  larger  ships  to  minimise  costs,  increased  the  capital 
investment  needed  to  establish  a  regular  service  and  reduced  the  ability  to  transfer 
capacity from one trade to another, thus putting pressure on certain carriers to cooperate 
with  each  other.  A  common  form  of  cooperation  between  carriers  was  joint  service 
agreements, also referred to as consortia.  

The  Commission  found  that  it  was  desirable  that  consortia  benefit,  as  far  as  possible, 
from a group exemption from the EU antitrust rules prohibiting agreements that restrict 
competition.  While  consortia  might  reduce  or  eliminate  competition  between  their 
members  with  regard  to  e.g.  the  provision  and  use  of  capacity  and  determination  of 
timings and sailings, they also offered important advantages to the users of their services 
and contributed to  the competitiveness  of the EU shipping  industry. As a consequence, 
the Commission proposed a regulation setting out the conditions under which consortia 
are exempted from EU antitrust rules, which was adopted in 19954 and has, in essence, 
remained effective since then. 

1   Port  Economics,  Management  and  Policy,  Value  of  Containerized  Trade  2020,  based  on  UNCTAD 

data. 

2   Communication by the Commission of 18 June 1990 – Report on the possibility of a group exemption 
for  consortia  agreements  in  liner  shipping  –  Proposal  for  a  Council  Regulation  (EEC)  on  the 
application of Article 85(3) of the Treaty to certain categories of agreements, decisions and concerted 
practices between shipping companies, COM(90) 260 final. 

3   Containerisation  is  a  logistics  method  in  which  a  large  amount  of  material  (such  as  merchandise)  is 

packaged into large standardised containers. 

4   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, 21.04.1995, p. 7. 

3 

 
 
 
The  conditional  exemption  currently  applicable  to  consortia  is  provided  for  in 
Commission  Regulation  (EC)  No  906/20095  (the  “Consortia  Block  Exemption 
Regulation” or “CBER”). The CBER is due to expire on 25 April 2024. In line with the 
“evaluate first” principle under Better Regulation6, the CBER should be evaluated before 
its expiry, so that the Commission can decide whether to let it expire or extend it again, 
with or without modifications. 

This  evaluation  report, in the form  of a Staff Working Document (“SWD”), constitutes 
the final product of the evaluation process of the CBER. It reflects the findings and views 
of  the  Commission’s  staff  and  does  not  necessarily  reflect  the  formal  position  of  the 
Commission itself.  

1.1.  Purpose of the evaluation 

The purpose of the evaluation was to gather facts and evidence on the functioning of the 
CBER since its latest evaluation in 20197 and extension in 2020,8 which serve as a basis 
for  the  Commission  to  decide  whether  it  should  be  left  to  expire  on  25  April  2024  or 
rather be extended again, with or without modifications. 

As required by the Better Regulation Guidelines,9 the evaluation examines the extent to 
which the CBER fulfilled the five following criteria over the evaluation period: (i) it was 
effective  in  fulfilling  expectations  and  meeting  its  objectives  (effectiveness);  (ii)  it  was 
efficient  in  terms  of  cost-effectiveness  and  proportionality  of  actual  costs  to  benefits 
(efficiency);  (iii)  it  was  relevant  to  current  and  emerging  needs  (relevance);  (iv)  it  was 
coherent  internally  and  externally  with  other  EU  interventions  or  international 
agreements  (coherence);  and  (v)  it  produced  results  beyond  what  would  have  been 
achieved by Member States acting alone (EU added value).  

Accordingly,  one  of  the  main  elements  addressed  by  the  evaluation  of  the  CBER  is 
whether,  over  the  evaluation  period,  block-exempted  consortia  continued  to  bring 

5   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. 

6  

See    section  II.3  of  the  European  Commission  2019-2024  Working  Methods;  see  also  Better 
Regulation  Toolbox  dated  25  November  2021,  Tool  #45  –  What  is  an  evaluation  and  when  it  is 
required. 

7   Commission  Staff  Working Document,  Evaluation  of  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) 411 final (the “2019 evaluation report”). 

8   Commission Regulation (EU) 2020/436 of 24 March 2020 amending Regulation (EC) No 906/2009 as 

regards its period of application, OJ L 90, 25.3.2020, p. 1. 

9   Commission  Staff  Working  Document,  Better  Regulation  Guidelines,  3.11.2021,  SWD(2021)  305 

final. 

4 

 
 
efficiency  gains  which  eventually  benefitted  transport  users  (shippers  and  freight 
forwarders) through e.g. lower prices or better quality of services  (greater connectivity, 
greater  availability  or  greater  reliability).  This  element,  which,  in  line  with  the  2019 
evaluation report, forms part of the assessment of the compliance of the CBER with the 
relevance criterion,10 derives from the legal basis of the CBER, i.e. Article 101(3) of the 
Treaty on the Functioning of the European Union (“TFEU”)11 and Council Regulation No 
246/200912 (the “Enabling Regulation”). According to the Enabling Regulation,13 “Article 
[101](1)  TFEU  may  in  accordance  with  Article  [101](3)  thereof  be  declared 
inapplicable to categories of agreements, decisions and concerted practices that fulfil the 
conditions  contained  in  Article  [101](3)”.  Specifically,  according  to  the  Enabling 
Regulation,14  the  Commission  should,  in  the  CBER,  set  out  the  requirements  to  be 
fulfilled by consortia ensuring that all the conditions of Article 101(3) TFEU are met, “in 
particular that a fair share of the benefits will be passed on to shippers.”15  

While  neither  the  evaluation  criteria  for  the  CBER  nor  the  competitive  structure  of  the 
liner  shipping  sector  has  substantially  changed  since  the  2019  evaluation,  the  market 
circumstances  during  the  two  evaluation  periods  are  radically  different.  The  trend 
towards decreasing freight rates and greater availability of services that prevailed before 

10   See  2019  evaluation  report,  p.  10:  “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.”  As  further  explained  in  section  4.1.3  of  the  present  evaluation  report,  this 
element also forms part of the assessment of the compliance of the CBER with the coherence criterion. 

11   Article 101(1) TFEU prohibits agreements between undertakings and concerted practices that restrict 
competition.  However,  Article  101(3)  TFEU  provides  that  this  prohibition  may  be  declared 
inapplicable  to  agreements  or  categories  of  agreements  contributing  to  improving  the  production  or 
distribution of goods or to promoting technical or economic progress, while allowing consumers a fair 
share of the resulting benefits. Pursuant to Article 103 TFEU, the  Council should lay down detailed 
rules  for  the  application  of  Article  101(3)  TFEU,  taking  into  account  the  need  to  ensure  effective 
supervision on the one hand, and to simplify administration to the greatest possible extent on the other. 

12   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.  As  of  1  December  2009,  the  Treaty  of  Lisbon 
amending  the  TFEU  and  the  Treaty  establishing  the  European  Community  of  13  December  2007 
(“TEC”)  (OJ  C  306,  17.12.2007,  p.  1) renumbered  the  articles  of  the  TEC.  Articles  81 and  83  TEC 
became respectively Articles 101 and 103 TFEU and remained, in substance, unchanged. According to 
Article 5(3) of the Treaty of Lisbon, references to Articles 81 and 83 TEC in instruments or acts of EU 
law are to be understood as referring to Articles 101 and 103 TFEU. 

13   Enabling Regulation, recital (2). 

14   Enabling Regulation, recital (10).  

15   A consortium would meet all the conditions of Article 101(3) TFEU if: (i) the  consortium contributes 
to improving the production or distribution of goods or to promoting technical or economic progress 
(efficiency gains); (ii) the consortium allows consumers a fair share of the resulting benefit (pass-on to 
consumers);  (iii)  the  consortium  does  not  impose  on  its  members  restrictions  which  are  not 
indispensable to the attainment of these objectives (indispensability); and (iv) the consortium does not 
afford its members the possibility of eliminating competition in respect of a substantial part of the liner 
shipping services they jointly provide. 

5 

 
 
the  COVID-19  pandemic  was  interrupted  in  2020,  with  spot  rates  surging  to  reach  a 
historical  peak  in  early  2022  for  services  of  a  much  degraded  quality  (see  section  3 
below). The normalisation of the liner shipping sector since mid-2022 should not detract 
from  the  need  to  draw  lessons  from  the  challenges  faced  by  the  maritime  supply  chain 
over  the  last  three  years  and  to  re-examine  the  role  of  consortia  in  the  productivity  of 
liner  shipping  services,  as  well  as  the  overall  efficiency  and  resilience  of  the  global 
logistics system.  

In  particular,  the  extreme  variations  in  the  price  and  quality  of  liner  shipping  services 
over  the  evaluation  period  call  for  an  adjusted  methodological  approach  to  the 
assessment  of  the  causal  link  between  block-exempted  consortia  and  the  consumer 
benefits that they were expected to bring at the time of the adoption of the CBER (e.g. 
lower prices and/or better service quality).  

On the one hand, in prior reviews of the CBER, the approach consisted in assuming the 
causal link between the existence of block-exempted consortia and benefits for the users 
of  their  services  and  assessing  whether  the  market  developments  over  the  evaluation 
period  raised  any  concern  that  consumers  would  not  benefit  from  block-exempted 
consortia any more.16  

As  an  illustration,  for  the  2019  evaluation,  it  was  found  that  the  parameters  of 
competition had not deteriorated during the evaluation period, in particular the costs for 
carriers and prices for customers per TEU17 had decreased in parallel and the quality of 
services  had  remained  stable.  It  was  therefore  concluded  that  there  was  no  reason  to 
depart from the longstanding view that consortia were an efficient way for providing and 
improving  liner  shipping  services  that  also  benefits  customers.18  On  that  basis,  the 
Commission  was  able  to  conclude  with  a  sufficient  degree  of  certainty,  in  spite  of  the 
methodological  limitations  in  the  evaluations,  that  block-exempted  consortia  still 
satisfied the conditions of Article 101(3) TFEU.19  

16   See the 2019 evaluation report, p. 11: “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.  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 
anymore.” 

17   Containers usually come in two standard sizes (twenty-foot and forty-foot length). The CBER uses the 
first one (twenty-foot equivalent units or TEUs) as a reference to establish the condition for exemption 
relating to the market share of a consortium. 

18   See 2019 evaluation report, p. 35. 

19   See  Commission  Regulation  (EU)  2020/436  of  24  March  2020  amending  Regulation  (EC)  No 
906/2009  as  regards  its  period  of  application  (OJ  L  90,  25.3.2020,  p.  1),  recital  (2);  Commission 

6 

 
 
 
Such  an  approach  cannot  be  followed  for  the  present  evaluation  due  to  the  price  hikes 
and service disruptions faced by transport users during the evaluation period. Regardless 
of their temporary nature, and without prejudice to the exceptional combination of factors 
to which they may be attributed, they remove the factual grounds on the basis of which, 
in prior reviews of the CBER, the consumer welfare-enhancing effects of consortia had 
been assumed and confirmed.  

On the other hand, the volatility in the price and quality of services over the evaluation 
period has incited carriers to submit not only qualitative but also quantitative elements to 
substantiate  the  effects  of  consortia  on  the  supply  chain  and  consumers.  The  data  and 
studies  provided  by  carriers  notably  aimed  to  isolate  the  effects,  over  the  evaluation 
period (2020-2023), of consortia and of the other main demand, supply and cost factors 
that may influence the price and quality of liner shipping services on a trade (e.g. overall 
demand level, bunker prices, productivity of the other operators along the supply chain, 
degree of competition between carriers). 

The  prominence  given  by  carriers  in  their  feedback  to  the  substantiation  of  the  actual 
consumer  benefits  attributable  to  block-exempted  consortia  nevertheless  calls  for  two 
words of caution.  

First, the results of the quantitative analyses carried out  or commissioned by carriers in 
relation  to  the  role  of  consortia  (if  any)  in  the  massive  freight  increases  in  2020-2022 
should  not  be  extrapolated  to  other  periods,  notably  the  period  covered  by  the  2019 
evaluation report, which was characterised by a clear trend in terms of price and service 
quality. In addition, despite the analytical efforts of all categories of stakeholders, it has 
not been possible, for the purpose of the present evaluation, to establish with a sufficient 
degree  of  certainty20  the  causal  effects  of  block-exempted  consortia  on  the  price  and 
quality of liner shipping services, due notably to methodological limitations (for example 
difficulties  in  tackling  “chicken  and  egg”  type  of  problems,  such  as  whether  consortia 
lead to an increase in the average size of vessels or whether the increase in the average 
size of vessels leads to consortia) or the complex interrelations between the productivity 
of  carriers  and  of  the  operators  upstream  and  downstream  the  supply  chain.  In  other 
words,  it  has  not  been  possible,  for  the  purpose  of  this  evaluation,  to  find  a 
methodological  approach  that isolates the effects  of the CBER from  the general  factors 
affecting liner shipping.   

In this context, particular attention has been paid in the present evaluation to collecting 
evidence covering as comprehensively as possible all five evaluation criteria, not limited 
to  the  relevance  of  the  CBER  in  terms  of  consumer  benefits  generated  by  block-

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), recital (1). 

20   See footnote 19 above. 

7 

 
 
exempted consortia, so as to be able to reach clear-cut conclusions as to the effectiveness, 
efficiency, coherence and EU added value of the CBER.  

Second,  the  evaluation  of  the  CBER  neither  aims  at  –  nor  is  capable  of  –  determining 
whether any specific consortium complies with Article 101 TFEU. This would require (i) 
a determination of whether it prevents, restricts or distorts competition and is thus caught 
by the prohibition of Article 101(1) TFEU; and, if so, (ii) a balanced assessment of both 
its adverse effects on competition on the relevant market (which may differ from a trade) 
and  its  pro-competitive  effects.  This  goes  beyond  the  purpose  of  the  evaluation.  For 
block-exempted  consortia,  the  evaluation  only  addresses,  as  part  of  the  relevance 
criterion,  the  question  of  whether  sufficient  evidence  supports  their  pro-competitive 
effects, as identified by stakeholders during the consultation process. The evaluation does 
not  attempt  to  quantify  those  pro-competitive  effects,  since  the  CBER  was  adopted  in 
2009 without providing any quantitative benchmarks for the efficiency gains or benefits 
to consumers.21 For consortia not benefitting from the CBER, as recalled in the CBER, 
there is no presumption that they fall within the scope of Article 101(1) TFEU or, if they 
do,  that  they  do  not  satisfy  the  conditions  of  Article  101(3)  TFEU.22  Therefore,  the 
evaluation does not address the question of whether consortia outside of the CBER  fall 
within the scope of prohibited agreements under Article 101 TFEU.  

1.2. 

Scope of the evaluation 

The substantive scope of the evaluation is the CBER, which applies to consortia only in 
so  far  as  they  provide  international  liner  shipping  services  from  or  to  one  or  more  EU 
ports.23 Trades not involving an EU port (e.g. transpacific trades) are not covered by the 
CBER. Therefore, they are taken into account in the evaluation only to the extent that the 
liner shipping services provided on those trades had an impact on the services provided 
on trades to or from the EU or shed some light on the systemic, overall functioning of the 
sector.  

The  CBER  is  the  only  remaining  block  exemption  from  EU  antitrust  rules  in  the 
maritime sector. The Liner Conference Block Exemption Regulation,24 which exempted 
agreements between liner shipping companies on prices and other conditions of carriage 
on  routes  to  and  from  the  EU,  was  repealed  with  effect  from  18  October  2008.25  The 

21   See 2019 evaluation report, p. 10.  

22   See CBER, recital (4).  

23   See CBER, Article 1. 

24   Council  Regulation  (EEC)  No  4056/86  of  22  December  1986  laying  down  detailed  rules  for  the 
application of Articles 85 and 86 of the Treaty to maritime transport, OJ L 378, 31.12.1986, p. 4. 
25   Council  Regulation  (EC)  No  1419/2006  of  25  September  2006  repealing  Regulation  (EEC)  No 
4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime 
transport,  and amending Regulation (EC) No 1/2003 as regards the extension of its scope to include 
cabotage and international tramp services, OJ L 269, 28.9.2006, p. 1. 

8 

 
 
Antitrust  Maritime  Guidelines26  issued  by  the  Commission  in  2008  to,  notably, 
accompany  carriers  following  the  end  of  the  conference  system,  were  left  to  expire  in 
2013. 

The temporal scope of the evaluation is the 2020-2023 period, i.e. the period between the 
latest extension of the CBER in 202027 and the date of the drafting of this document. 

The geographic scope of the evaluation extends to all Member States.28 Article 101(1) of 
the Treaty has direct applicability in all Member States by virtue of the case law of the 
Union courts.  

Regulation  (EC)  No  1/200329  created  a  system  of  parallel  competences  in  which  the 
competition authorities and the courts of the Member States, alongside the Commission, 
have  the  power  to  apply  not  only  Article  101(1)  TFEU,  but  also  Article 101(3)  TFEU. 
When  assessing  the  compatibility  of  consortia  that  may  affect  trade  between  Member 
States  within  the  meaning  of  Article  101  TFEU,30  national  competition  authorities  and 
national courts are bound by the directly applicable provisions of the CBER. Thus, apart 
from  the  Commission,  national  competition  authorities  and  national  courts  are 
responsible for the administrative supervision of consortia, the simplification of which is 
one  of  the  two  specific  objectives  of  the  CBER  defined  for  the  purposes  of  this 
evaluation (see section 4.1.2 below). 

26   Guidelines on the application of Article 81 of the EC Treaty to maritime transport services, OJ C 245, 

26.9.2008, p. 2. 

27   The  2019  evaluation  report  covered  the  2014-2019  period,  so  that  there  is  no  gap  between  the  two 

evaluation periods.  

28   The United Kingdom (UK) withdrew from the European Union as of 1 February 2020. According to 
Article 92 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern 
Ireland from the European Union and the European Atomic Energy Community (OJ L 29, 31.1.2020, 
p.  7),  the  Commission  continued  to  be  competent  to  apply  Union  law  as  regards  the  UK  for 
administrative procedures which were initiated before the end of the transition period on 31 December 
2020.  In  this  context,  the  external  contractor  in  charge  of  the  fact-finding  study  in  2020-2021  has 
collected data on consortia active  in the EU and in the UK and confirmed that the UK’s withdrawal 
had no material impact on the number or market position of consortia active to and from the EU. In 
addition,  since  the  consultation  activities  for  this  evaluation  were  initiated  after  the  end  of  the 
transition period, the UK’s Competition and Markets Authority was not invited to contribute as part of 
the  European  Competition  Network.  The  UK’s  Competition  and  Markets  Authority  is  currently 
reviewing the CBER that was retained in UK law following the end of the transition period.    

29   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 (“Regulation (EC) 
No 1/2003”). 

30   Liner shipping services are often international in nature  linking EU ports with third countries and/or 
involving exports and imports between two or more Member States. In most cases, they are thus likely 
to affect trade between Member States. 

9 

 
 
 
In  view  of  the  Commission’s  obligation  to  informally  seek  advice  from  experts  of  the 
EEA EFTA States for the elaboration of new legislative proposals,31 the Commission has 
informed  those  States  of  the  evaluation  of  the  CBER  in  order  to  provide  them  with  an 
early opportunity to share their experience in this regard. 

2.  WHAT WAS THE EXPECTED OUTCOME OF THE INTERVENTION? 

2.1. 

  Description of the intervention  

In  essence,  the  CBER  is  a  competition  law  instrument  “legalising”  certain  consortia.32 
More specifically, the CBER sets out the conditions under which consortia are exempted 
from the prohibition of agreements between competitors set out in Article 101(1) TFEU. 

Consortia are defined as joint service agreements between carriers designed to rationalise 
their  operations.33  Although  consortia  may  be  organised  in  many  forms,  they  generally 
fall  within  three  categories,  which  involve  varying  degrees  of  cooperation.34  The  least 
integrated form of consortium is a slot35 exchange agreement, in which carriers exchange 
space on each other’s vessels operated on a given trade.36 The second form of consortium 
is a vessel sharing agreement, in which each carrier contributes vessels to a given service 
on a trade  and  is  entitled to  a number of slots on  all vessels contributed to  the service, 
proportionate  to  its  vessel  contribution.  The  most  integrated  form  of  consortium  is  an 
alliance, in which carriers pool a pre-decided number of vessels contributed by each of 
them and operate these vessels jointly on a number of trades.  

The Commission acknowledges in the CBER that, due to the seasonality and cyclicality 
of demand for liner shipping services, an essential component of consortia is the ability 
to  adjust  capacity  deployed  on  the  trade  in  response  to  changing  supply  and  demand 
conditions.37 

31   Agreement on the European Economic Area, Article 99(1). 

32   See Enabling Regulation, recital (6). 

33   See Enabling Regulation, recital (5). 

34   Stand-alone slot charter or purchase agreements, whereby a  carrier buys  space on vessels of another 
carrier,  are  not  reciprocal  and  do not  involve  the  provision  of  joint  services.  Therefore, they  are  not 
consortia within the meaning of the CBER. 

35   A slot is the space for a container on-board a container ship.  

36   A slot exchange agreement (also called “swap agreement”) whereby a carrier makes available space on 
vessels operated on a trade and obtains, in exchange, space on another carrier’s vessels operated on a 
different  trade  does  not  involve  the  provision  of  a  joint  service,  which  implies  the  operation  of  two 
carriers on the same trade. Therefore, it is not a consortium within the meaning of the CBER. 

37   CBER, Article 3(2). 

10 

 
 
 
The  CBER  contains  three  types  of  conditions  for  exemption.  First,  consortia  may  not 
contain  hardcore  restrictions.38  These  refer  to  price  fixing,  capacity  or  sales  limitations 
(except capacity adjustments in response to fluctuations in supply and demand) and the 
allocation  of  markets  or  customers.  Second,  the  exemption  applies  to  consortia  with 
combined  market  shares  not  exceeding  30%  on  the  relevant  market  on  which  they 
operate.39  Third,  consortia  must  give  members  the  right  to  withdraw  with  a  maximum 
period of notice of 6 months (12 months in case of a highly integrated consortium).40 

Those  conditions  are  meant  to  ensure  that,  although  consortia  allow  carriers  to 
coordinate, and therefore remove differentiation, on certain service parameters (e.g. ports 
of call, frequency, transit time, historical schedule reliability), block-exempted consortia 
are unlikely to give rise to a restriction of competition or if they do, their positive effects 
are likely to outweigh their restrictive effects.   

2.2. 

  Description of the objectives of the intervention  

The  CBER  aims  at  contributing  to  the  improvement  of  the  competitiveness  of  the  EU 
liner shipping industry and the development of EU trade.41 The overall aim of the CBER 
pertains  to  Sustainable  Development  Goal  9  (“Build  resilient  infrastructure,  promote 
inclusive and sustainable industrialization, and foster innovation”), Target 9.1 (“Develop 
quality,  reliable,  sustainable  and  resilient  infrastructure,  including  regional  and 
transborder infrastructure, to support economic development and human well-being, with 
a focus on affordable and equitable access for all”). 

General objective of the CBER 

The  general  objective  of  the  CBER  is  to  protect  effective  competition  in  the  liner 
shipping sector for the benefit of EU transport users, by promoting ways of cooperation 
between carriers which are economically desirable and without adverse effects from the 
point  of  view  of  competition.42  In  other  terms,  the  general  objective  of  the  CBER  is  to 
facilitate the creation and operation of consortia, to the extent that they do not pose risks 
to effective competition.43  

38   CBER, Article 4. 

39   CBER, Article 5. 

40   CBER, Article 6. 

41   See Enabling Regulation, recital (6). 

42   See  Enabling  Regulation,  recital  (8).  The  CBER  shares  the  same  general  objective  as  the  other 
interventions on the application of Article 101 TFEU to cooperation between undertakings operating at 
the same level of supply chain, including actual or potential competitors (“horizontal agreements”), in 
particular  Commission  Regulation  (EU)  No  1218/2010  of  14  December  2010  on  the  application  of 
Article 101(3) of the Treaty on the Functioning of the European Union to categories of specialisation 
agreements, OJ L 335, 18.12.2010, p. 43 (the “Specialisation Block Exemption Regulation”).  

43   See 2019 evaluation report, p. 9. 

11 

 
 
This  general  objective draws from  findings in  2009  about both:  (i)  the efficiency gains 
and  consumer  benefits  brought  by  consortia  between  small  and  medium-sized  carriers 
(e.g.  improved  frequency  of  sailings  and  port  coverage,  better  quality  and  personalised 
services);  and  (ii)  the  role  of  these  consortia  in  preventing  the  creation  of  oligopolistic 
market structures.44  

Regarding point (i), at the date of the adoption of the CBER (2009) and of its renewals 
(2014 and 2020), consortia were found to generally help to improve the productivity and 
quality of available liner shipping services by reason of the rationalisation they bring to 
the  activities  of  their  members  and  through  the  economies  of  scale  they  allow  in  the 
operation  of  vessels  and  utilisation  of  port  facilities.  The  graph  below  (Figure  1) 
illustrates the economies of scale (lower cost per slot available) that were expected to be 
achieved through the use of larger vessels.45  

Figure 1: Ship System Cost (USD per TEU) Asia-North Europe service (round trip) 

Source: Drewry, Consolidation in the liner industry, White Paper, March 2016 

Consortia  were  also  found  to  have  promoted  technical  and  economic  progress  by 
facilitating  and  encouraging  greater  utilisation  of  containers  and  more  efficient  use  of 
vessel  capacity.  In  addition,  users  were  found  to  benefit  from  the  improvement  in 
productivity  brought  by  consortia,  in  the  form  of  an  improvement  in  the  frequency  of 
sailings  and  port  calls,  or  an  improvement  in  scheduling  as  well  as  better  quality  and 

44   Those findings echo those on the basis of which the  Specialisation Block Exemption Regulation was 
adopted.  It  was  considered  that  specialisation  agreements  (including  joint  production  agreements) 
generally  contribute  to  improving  the  production  process  and  that  they  are  particularly  suited  to 
strengthen the competitive position of small- and medium-sized firms (see Commission Staff Working 
Document, Evaluation of the Horizontal Block Exemption Regulations, SWD(2021) 103 final, p. 9). 

45   It is acknowledged that there is no consensus on the achievement of economies of scale for the largest 
vessels (see e.g. feedback from Ulrich Malchow in response to the call for evidence,  indicating that, 
above a certain size of ships, fuel use, and thus emissions, and total cost per TEU increase again). This 
will  be  discussed  as  part  of  the  assessment  of  the  relevance  criterion.  Nevertheless,  such  lack  of 
consensus  does  neither  call  into  question  the  initial  purpose  of  the  CBER  nor  the  achievement  of 
significant economies of scale for most vessel categories.   

12 

 
 
 
personalised  services,  provided  that  consortia  were  subject  to  sufficient  external 
competition.46  

The description above of the pro-competitive effects of consortia corresponds to the more 
general  description  of  the  favourable  economic  effects  of  joint  production  or 
specialisation agreements (of which consortia are a form) in the latest evaluation report 
of the Specialisation Block Exemption Regulation, i.e. the achievement of economies of 
scale or, in a wider sense, in rationalisation measures which enable firms to cut costs by 
concentrating  operations.  Such  measures  should  lead,  in  conditions  of  effective 
competition, to lower prices and thus benefit the consumer.47 

Regarding point (ii), at the date of the adoption of the CBER (2009), the liner shipping 
sector was still considered as relatively fragmented with low levels of concentration, not 
only on a global scale, but also on a trade-by-trade basis. As examples, in 2008, on each 
of  the  four  large  East-West  trades,  i.e.  from  North  Europe  or  Mediterranean  to  the  Far 
East or North America, more than 20 carriers offered services, out of which at least five 
were operated individually.48  

However, only a limited number of individual carriers had the financial resources to bear 
the  upfront  investment  for  the  acquisition  of  larger,  more  efficient  vessels  and  had  the 
route coverage to maintain a sufficiently high utilisation rate.49 Consortia between small 
or medium-sized carriers were seen as a way for them to maintain their ability to compete 
with  larger  carriers,  in  particular  the  top-three  carriers  (Maersk,  MSC,  CMA  CGM) 
which  had  engaged  in  a  race  for  scale  to  win  cost  leadership.  Consortia  were  notably 
considered  indispensable  for  smaller  carriers  to  bridge  the  capacity  and  frequency  gap 
with Maersk, MSC and CMA CGM on the Far East-Europe trades.50  

Furthermore, it was recognised that demand for liner shipping services was also seasonal 
and cyclical and, notably due to the structural trade imbalance,51 prone to overcapacity. In 

46   CBER, recitals 5 to 7. 

47   Commission  Staff  Working  Document,  Evaluation  of  the  Horizontal  Block  Exemption  Regulations, 

SWD(2021) 103 final, p. 9. 

48   Commission services document, Technical paper on the revision of Commission Regulation (EC) No 
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),  as  last  amended  by 
Commission Regulation (EC) 611/2005 of 20 April 2005 (the “2008 technical paper”), points 33 and 
34. 

49   See COM(90) 260 final, p. 2. 

50   In 2009, none of those three carriers were members of integrated consortia (alliances). The latter (New 

World, Grand, CKHY) were rather used by small and medium-sized carriers. 

51   For example, China’s position in global manufacturing means that exports of containerised cargo from 
China  largely  exceed  imports,  so  that  the  demand  for  liner  shipping  services  from  China  to  Europe 
largely exceeds the demand for services from Europe to China. The capacity deployed on a round trip 

13 

 
 
 
this  context,  small  and  medium-sized  carriers  without  strong  financial  resources  were 
considered  as  being  in  a  particularly  vulnerable  situation  if  they  were  operating  on  a 
stand-alone basis.52  

The specific added value of consortia for smaller carriers has been consistently used as a 
justification in connection with subsequent reviews of the CBER.53 

Specific objectives  

The CBER has two specific objectives. First, it aims to provide legal certainty to carriers, 
in  particular  small  and  medium-sized  ones,  as  to  the  forms  of  cooperation  that  can  be 
considered  as  compliant  with  Article  101  TFEU.54  Second,  it  aims  to  simplify 
administrative  supervision  by  providing  a  common  framework  for  the  Commission, 
national  competition  authorities  and  national  courts  for  assessing  cooperation  between 
carriers under Article 101 TFEU.55 

These  specific  objectives  are  better  understood  in  the  context  of  the  changes  in  the 
general  and  sectorial  legal  framework  for  applying  Article  101  TFEU  introduced  by 
Regulation (EC) No 1/2003.  

Regulation  (EC)  No  1/2003  abolished  the  system  of  notification  of  cooperation 
agreements  to  the  Commission  which  had  prevailed  before  its  entry  into  force. 
Companies therefore can no longer notify their agreements to the Commission in order to 
exclude the existence of an infringement and, notably, benefit from immunity from fines. 
They  have  to  self-assess  the  compliance  of  their  agreements  with  Article  101  TFEU. 
Self-assessment may, in certain circumstances, create a significant burden, especially for 
SMEs,  which  may  lack  the  necessary  resources  or  legal  expertise.  Regulation  (EC)  No 

is  set  by  reference  to  the  dominant  leg  of  the  trade  (i.e.  from  Far  East  to  North  Europe  or  to  the 
Mediterranean), which is the main contributor of revenues on the trade.  

52   See COM(90) 260 final, p. 2. 

53   See  e.g.  Commission  Vestager,  EMLO  Conference,  5  October  2015:  “Consortia  are  a  logical 
response to the difficulties that beset the industry and we know that they can create efficiencies. Both 
small and large carriers see benefits; for smaller carriers, consortia are often the only way to offer a 
regular service.” 

54   See 2019 evaluation report, p. 9: “The Consortia BER achieves this objective by providing consortia 
with  clarity  and  legal  certainty  with  respect  to  their  compliance  with  EU  competition  rules.”  The 
reference  to  the  specific  need  for  legal  certainty  for  smaller  carriers  is  to  be  found  in  the  section 
assessing the effectiveness and efficiency of the  CBER (see e.g.   “[Carriers and their associations] 
argue  that  in  [the  CBER]  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”, 
p.  18  on  effectiveness,  or  “The  respondent  carriers  argue  that  the  increased  assessment  costs  may 
discourage the small carriers from entering into consortia agreements”, p. 19 on efficiency). 

55   This specific objective was not referred to in the 2019 evaluation report. However it directly derives 
from Article 103 TFEU, which sets out the need to ensure effective supervision where laying detailed 
rules for the application of Article 101(3) TFEU (see footnote 11 above).  

14 

 
 
1/2003  also  decentralised  the  application  of  Article  101(3)  TFEU  by  empowering 
national competition authorities and national courts, alongside the Commission, to apply 
Article 101(3) TFEU, which in the past was a prerogative of the Commission only. This 
decentralised  enforcement  system  created  a  need  to  foster  a  consistent  application  of 
Article 101 TFEU and ensure that companies operating across the EU could benefit from 
a level playing field.   

In  addition  to  those  changes  in  the  general  legal  framework  applicable  to  cooperation 
agreements, the adoption of the CBER in 2009 took place in the particular context of the 
repeal of the Liner Conference Block Exemption, which introduced an important change 
in the specific legal framework applicable to the liner shipping markets.56 Maintaining the 
block exemption for consortia was considered as a means to facilitate the transition of the 
industry to the standard competition regime applied to all other economic sectors.57 

56   Shipping  companies  had  organised  themselves  since  the  nineteenth  century  in  the  form  of  liner 
conferences  to  fix  prices  and  regulate  capacity.  Liner  conferences  were  most  prevalent  on  routes 
between Europe, on the one hand, and North America and the Far East, on the other hand. They  were 
associations of shipowners operating on the same route, served by a secretariat. The Liner Conference 
Block Exemption Regulation allowed them to set common freight rates, to take joint decisions on the 
limitation of supply and to coordinate timetables. The exemption had been granted on the assumption 
that it was necessary to ensure the provision of reliable services. The repeal of the  Liner Conference 
Block Exemption Regulation put an end to the possibility for liner carriers to meet in conferences, fix 
prices and regulate capacities on routes to and from Europe as of October 2008. 

57   See 2008 technical paper, point 15. 

15 

 
 
 
 
 
Logic of the CBER 

The figure below (Figure 2) summarises the intervention logic of the CBER. 

Figure 2: Intervention logic for the CBER 

Needs 

•  To  contribute  to  the  improvement  of  the  competitiveness  of  the  EU  liner 

shipping industry  

•  To contribute to the development of EU trade 

Objectives 

General objective 
•  To protect effective competition in the liner shipping sector for the benefit of 

EU transport users 

Specific objectives 
•  To provide legal certainty to carriers, in particular small and medium-sized 
ones, as to the forms of cooperation compliant with Article 101 TFEU 
•  To simplify administrative supervision of cooperation between carriers 

•  Definition  of  the  cooperation  agreements  that  may  be  block-exempted  and 

Inputs 

may not be block-exempted (hardcore restrictions) 

•  Definition of the conditions for the block exemption of consortia  

Outputs 

•  Carriers using the CBER to self-assess compliance with Article 101 TFEU 
•  National competition authorities and national courts applying Article 101(3) 

TFEU based on the CBER 

•  Legal certainty for carriers, in particular small and medium-sized ones, as to 

Results 

the forms of cooperation compliant with Article 101 TFEU  

•  Simplified administrative supervision of cooperation between carriers 

Impact 

•  Effective  competition  in  the  liner  shipping  sector  for  the  benefit  of  EU 

transport users 

External factors 

•  Global economic growth or recession impacting demand for containerised goods 
•  Modification  in  trade  patterns  (due  to  e.g.  trade  tensions,  protectionism,  relocation  of 

production) 
In- or outsourcing by shippers 

• 
•  Fluctuations in operating costs of carriers (e.g. fuel) 
•  Change  in  the  regulatory  framework  applicable  to  liner  shipping  (e.g.  environmental 

regulations) 

•  Supply chain disruptions (due to e.g. lockdowns, strikes, weather events) 
•  Technological developments (e.g. digitalisation) 

16 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2.3.  Points of comparison  

The point of comparison for the assessment of the effectiveness of the CBER consists in 
assessing the extent to which the CBER has fulfilled its two specific objectives, i.e. (i) to 
provide legal  certainty to  carriers, in  particular small  and medium-sized  ones, as to  the 
forms of cooperation that can be considered as compliant with Article 101 TFEU, and (ii) 
to  simplify  administrative  supervision  by  providing  a  common  framework  for  the 
Commission, national competition authorities and national courts. 

The  point  of  comparison  for  the  assessment  of  the  efficiency  of  the  CBER  consists  in 
assessing  the  savings  in  compliance  costs  and  time  achieved  by  carriers  thanks  to  the 
CBER,  in  addition  to  assessing  the  extent  to  which  the  CBER  has  fulfilled  its  two 
specific objectives (same point of comparison as for the assessment of the effectiveness 
of the CBER).  

The  point  of  comparison  for  the  assessment  of  the  coherence  of  the  CBER  consists  in 
looking  at  the  changes  during  the  evaluation  period  (2020-2023)  resulting  from  the 
review of the other rules and guidance for carriers to self-assess compliance of consortia 
with  Article  101  TFEU,  in  particular  the  Commission  Horizontal  Guidelines58  and  the 
Specialisation  Block  Exemption  Regulation.59    That  point  of  comparison  also  includes 
the  changes  in  other  applicable  EU  and  international  rules,  most  notably  the  initiatives 
aimed  at  decarbonising  the  sector  (e.g.  inclusion  of  maritime  emissions  in  the  EU 
Emissions Trading System (ETS)60 and mandatory energy efficiency requirements set by 
the International Maritime Organization). 

The point of comparison for the assessment of the EU added value of the CBER consists 
in  assessing  whether  it  has  achieved  its  operational  objective  of  creating  a  legal 
framework supporting the competitiveness of small and medium-sized carriers active on 
EU trades. 

58   Version applicable until 20 July 2023: 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; version applicable as from 21 July 2023: Guidelines on the applicability of Article 101 
of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, OJ C 
259, 21.7.2023, p. 1. 

59   Version applicable until 30 June 2023: 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, 
18.12.2010, p. 43; version applicable as from 1 July 2023: Commission Regulation (EU) 2023/1067 of 
1  June  2023  on  the  application  of  Article  101(3)  of  the  Treaty  on  the  Functioning  of  the  European 
Union to certain categories of specialisation agreements, OJ L 143, 2.6.2023, p. 20. 

60   Directive  (EU) 2023/959  of  the  European  Parliament  and of  the  Council of 10  May  2023  amending 
Directive 2003/87/EC establishing a system for greenhouse gas emission allowance trading within the 
Union and Decision (EU) 2015/1814 concerning the establishment and operation of a market stability 
reserve  for  the  Union  greenhouse  gas  emission  trading  system  (OJ  L  130,  16.5.2023,  p.  134);  and 
Regulation (EU) 2023/957 of the European Parliament and of the Council of 10 May 2023 amending 
Regulation (EU) 2015/757 in order to provide for the inclusion of maritime transport activities in the 
EU  Emissions  Trading  System  and  for  the  monitoring,  reporting  and  verification  of  emissions  of 
additional greenhouse gases and emissions from additional ship types (OJ L 130, 16.5.2023, p. 105). 

17 

 
 
The  points  of  comparison  for  the  assessment  of  the  relevance  of  the  CBER  are  the 
original needs and objectives behind the CBER (i.e. to contribute to the improvement of 
the competitiveness of the EU liner shipping industry and the development of EU trade) 
and the new needs arising from, notably, the changes in the market structure as well as 
the economic, environmental and technological challenges faced by the sector. 

The main source used for those points of comparison is the latest 2019 evaluation report. 

3.  HOW HAS THE SITUATION EVOLVED OVER THE EVALUATION PERIOD? 

3.1. 

State of play in 2019 

In  the  2019  evaluation  report,  it  was  concluded  that  the  CBER  was  relevant  and 
delivering on its objectives, considering the state of the liner shipping industry over the 
2014-2019  period.  That  conclusion  was  principally  based  on  the  following  market 
circumstances:  (i)  consortia  played  a  major  role  in  the  sector  and  were  expected  to 
continue  to  do  so  in  the  medium  term  due  to  over-capacity,  low  prices  and  low 
profitability;  (ii) the level  of concentration in  the liner shipping  sector had increased in 
recent  years;  although  requiring  close  monitoring,  this  trend  was  not  found  to  have 
negatively affected consumers; and (iii) both costs for carriers and prices for customers 
per TEU had decreased by approximately 30% and levels of services had remained stable 
since 2014. 

3.2.  Current state of play 

Over  the  2020-2023  evaluation  period,  consortia  remained  a  prevalent  feature  of  the 
sector. This is without prejudice to the increasing tendency of certain large carriers to run 
their networks on a stand-alone basis, by operating services outside of their alliance, and 
the announcement of the dissolution of the 2M alliance in 2025. In 2020, approximately 
43  unique61  consortia  operated  in  the  EU  (excluding  intra-North  Europe  and  intra-
Mediterranean services). Those included the three global alliances,62 which were made of 
the nine largest carriers worldwide after South Korean HMM joined THE Alliance as a 

61   A  “unique”  consortium  (or  “deduplicated”  consortium)  corresponds  to  a  consortium  as  defined  in 
Article  2(1)  of  the  CBER  (an  agreement  or  a  set  of  interrelated  agreements  relating  to  one  or  more 
trades). This means that an agreement or a set of interrelated agreements relating to two trades will be 
counted  as  a  unique  consortium.  Defining  one  distinct  consortium  per  relevant  geographic  market 
(“duplicating”  a  multi-trade  consortium)  would  be  at  odds  with  the  provisions  of  the  CBER  on  the 
definition of a consortium (Article 2(1) of the CBER) and the scope of the exemption (Article 3 of the 
CBER  exempts  the  activities  of  a  consortium  on  the  relevant  market  or  markets,  as  referred  to  in 
paragraph 4). 

62   Each  of  the  three  global  alliances,  made  up  of  the  nine  largest  carriers  worldwide  (which  together 
represents  83%  of  the  global  capacity;  the  capacity  dedicated  to  the  alliances  by  those  carriers 
represents 39% of the global capacity), accounts for one consortium, although it is made of a number 
of interrelated cooperation agreements covering a number of joint services and trades. 

18 

 
 
 
full  member  in  2020,  representing  more  than  80%  of  the  global  capacity.63  The  table 
below gives an overview per trade64 of the  approximately  43  unique  consortia active in 
the EU in 2020.65 The fourth column of the table below reflects the condition related to 
market share set out in Article 5 of the CBER. For the sake of clarification, the reference 
to “the relevant market” in Article 5 of the CBER is interpreted as a reference to  “the 
relevant market or markets” as for the other conditions for exemption set out in Article 6 
of the CBER.66 It should be recalled that, in the version of the CBER that expired on 25 

63   The 2019 evaluation report refers to approximately 64 consortia (including the three global alliances) 
operating in the EU, out of which between 9 and 29 had a market share below the 30%  threshold set 
out in the CBER. This estimate relied on the 2018 submission by the World Shipping Council, which 
had  used  a  different  methodology  to  avoid  double  counting  consortia  providing  different  services, 
including agreements between feeder providers on an intra-regional basis while accounting for vessel-
sharing agreements only (and not slot exchange agreements).  

Due  to  the  methodological  issues  for  the  calculation  of  the  market  shares  described  in  the  2019 
evaluation report (see notably p. 10), it had not been possible to more specifically estimate the number 
of consortia below the 30% threshold set out in the CBER, nor to establish their profile, including the 
types of carriers belonging to the consortia (e.g. large carriers active worldwide or smaller carriers) or 
the interlinkages with other consortia active on the trade. 

64   Considering that the CBER applies only to joint liner services to or from an EU port (see Article 1 of 
the  CBER),  only  trades  to  and  from  the  EU  are  taken  into  account.  Non-EU  trades  are  not  relevant 
markets  and  the  market  share  of  a  consortium  on  non-EU  trades  has  no  impact  on  whether  the 
consortium complies with the CBER condition related to market share and may be exempted under the 
CBER. 

65   This table results from the market reconstruction exercise undertaken by the Commission on the basis 
of the fact-finding questionnaires sent in December 2021, as referred to in the Call for Evidence in the 
“data collection and methodology” section, as well as data provided by the external contractor MDS 
Transmodal. The number of consortia and their market shares should be considered as estimates, as it 
has not been possible to fully reconcile the data provided by the different carriers due to, notably, the 
differences  in  defining  the  relevant  geographic  markets,  identifying  the  consortia  to  which  they  are 
members,  listing  the  other  members  of  those  consortia  and  computing  the  market  shares.  Regarding 
the definition of the relevant geographic markets, for the purposes of the evaluation of the CBER, an 
approach  per  trade  has  been  adopted.  This  should  not  be  considered  as  prejudging  the  market 
definition  that  would  be  adopted  when  assessing  a  specific  consortium  under  Article  101  or  102 
TFEU. 

66   This interpretation is illustrated by the Commission’s approach to the (eventually abandoned) alliance 
between Maersk, MSC, and CMA CGM (P3 Network or “P3”) and the alliance between APL, Hapag-
Lloyd,  Hyundai,  MOL,  NYK,  and  OOCL  (G6  Alliance  or  “G6”),  which  were  considered  to  fall 
outside  of  the  CBER  for  exceeding  the  30%  market  share  threshold  on  at  least  one  of  the  relevant 
markets  on  which  they  operated.  In  June  2014,  the  Commission  recalled:  “Members  of  all  shipping 
alliances such as P3 or G6, to the extent that they do not benefit from an exemption, must themselves 
assess the legality of their agreements under EU competition rules” (see press report of 4 June 2014, 
“No  challenge  to  P3  in  Europe”:  https://www.freightwaves.com/news/no-challenge-to-p3-in-europe). 
See also written contribution from the European Union submitted for Item IV of the 59th meeting of the 
OECD Working Party No. 2 on Competition and Regulation on 19 June 2015, “Competition issues in 
liner shipping”, point 35:  “The P3 alliance could not benefit from the safe harbour of the Consortia 
BER because it appeared that the market share of the combined entity would exceed the 30% market 
share  threshold.  The  P3  parties  had,  therefore,  to  conduct  their  own  self-assessment  of  the  planned 
cooperation  to  determine  whether  or  not  it  was  compliant  under  Article  101(1)  TFEU  and  if  not, 
whether  it  creates  efficiencies  and  pass-on  to  customers  (and  the  other  conditions  of  Article  101(3) 
TFEU)” 
(https://ec.europa.eu/competition/international/multilateral/2015_june_liner_shipping_en.pdf).   

19 

 
 
 
April  2010,  the  exemption  of  a  consortium  was  conditioned  upon  the  consortium 
possessing a market share of under 30% or 35% on each market upon which it operates.67 
The  changes  introduced  in  the  CBER  as  adopted  in  2009  were  not  meant  to  alter  the 
requirement that the market share threshold should be respected on each of the  relevant 
markets.68 As explained in  recital (2) of the CBER,  the modifications introduced in  the 
previously  applicable  CBER  were  necessary  to  remove  references  to  the  Liner 
Conference Block Exemption Regulation and ensuring a greater convergence with other 
block exemption regulations for horizontal cooperation.  

Trade 

Number of 
consortia69 

of which no 
member is a top-
five carrier 
(Maersk, MSC, 
CMA CGM, 
COSCO, Hapag-
Lloyd) 

Number of 
consortia with 
market share < 
30% on all trades 
on which they are 
active70 

of which no 
member is part 
of non-exempted 
consortia on the 
same trade 

North Europe - Far East  

Med - Far East 

North Europe - North 
America  

Med - North America  
North Europe - Indian 
Subcontinent 
Med - Indian Subcontinent 

3 

3 

7 

6 

4 

2 

0 

0 

0 

0 

0 

0 

0 

0 

2 

3 

1 

0 

0 

0 

0 

0 

0 

0 

67   See Article 6(1) of Commission Regulation (EC) No 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) (OJ L 100, 20.4.2000, p. 24): “In order to qualify for the exemption 
provided for in Article 3, a consortium must possess on each market upon which it operates a market 
share of under 30 % calculated by reference to the volume of goods carried (freight tonnes or 20-foot 
equivalent  units)  when  it  operates  within  a  conference,  and  under  35 %  when  it  operates  outside  a 
conference.” The same reference to  “each market” was used in the Commission’s preliminary draft 
for  the  CBER  (see  Notice  pursuant  to  Article  4  of  Council  Regulation  (EEC)  No  479/92  on  the 
application  of  Article  81(3)  of  the  EC  Treaty  to  certain  categories  of  agreements,  decisions  and 
concerted practices between liner shipping companies (‘consortia’), OJ C 266, 21.10.2008, p. 1). 

68   See  memo  of  28  September 2009,  “Antitrust:  Commission  adopts  new  Block Exemption  Regulation 
for liner shipping consortia - frequently asked questions”: “The 30% market share threshold provided 
by  the  new  Regulation  already  applied  to  a  large  number  of  consortia  in  the  past,  as  this  was  the 
market  share  threshold  applicable  to  consortia  which  operated  within  the  former  liner  conference 
system” (ec.europa.eu/commission/presscorner/detail/en/MEMO_09_420). 

69   Non-deduplicated.  In  other  terms,  one  consortium  active  on  two  trades  will be  counted as  two.  This 
explains  why  the  total  number  of  consortia  listed  in  this  column  exceeds  the  total  of  43  unique 
consortia active in the EU. 

70   Non-deduplicated.  Out  of  the  14  consortia  listed  in  this  column,  one  is  active  on  two  trades,  which 
explains why the number of unique consortia operating in the EU with a market share below 30% on 
all trades on which they are active is 13 (see section 4.1.1 below). 

20 

 
 
 
North Europe - Middle East 

Med - Middle East 
North Europe - Australasia 
& Oceania 
Med - Australasia & 
Oceania 
North Europe - South 
America West Coast 
Med - South America West 
Coast 
North Europe - South 
America East Coast 
Med - South America East 
Coast 
North Europe - Central 
America & Caribbean 
Med - Central America & 
Caribbean 

North Europe - West Africa 

Med - West Africa 
North Europe - South 
Africa 
Med - South Africa 

North Europe - East Africa / 
Indian Ocean Islands 

Med - East Africa / Indian 
Ocean Islands 
North Europe - Med 

4 

2 

2 

1 

3 

0 

2 

3 

3 

3 

2 

3 

1 

1 

1 

1 

3 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

1 

0 

1 

0 

0 

0 

0 

0 

0 

1 

2 

2 

0 

0 

0 

0 

1 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

2 

0 

0 

0 

0 

0 

0 

The shares of capacity deployed by  consortia per trade  also  illustrate the  prevalence of 
consortia  over  the  evaluation  period.  They  reached  between  40%  on  the  Europe-South 
America West Coast trade and 100% on the Far East-Europe trades in 2020, where the 
available capacity was almost exclusively attributable to the members of the three global 
alliances.71 A number of smaller carriers entered the latter trades in 2021, in order to take 
advantage  of  high  freight  rates.  However,  those  new  entrants  added  only  very  limited 
capacity  to  incumbent  carriers  (less  than  3%)  and  are  now  phasing  out  (e.g.  Allseas, 
China United Lines), overburdened by unsustainable charter rates and a fading demand.  

By contrast with the stability seen in the prevalence of consortia,72 the evaluation period 
has  been  characterised  by  dramatic  changes  in  other  market  circumstances  that, 
according to the 2019 evaluation report, drove the need for cooperation between carriers. 
More  specifically,  the  evaluation  period  has  seen  a  transitory  and  exceptional  phase  of 
excess  demand  over  effective  capacity  (see  Figure  3)  and  of  record  profits  for  carriers 

71   Data submitted by the World Shipping Council. 

72   As indicated, consortia remained prevalent even though large carriers became less reliant on alliances. 

21 

 
 
 
(see Figure 4). This transitory and exceptional phase has temporarily interrupted the trend 
towards oversupply and low profitability in the sector.  

Figure 3 – Global and East-West supply-demand index 2019-2024e 

Note:  A  figure  of  100  represents  equilibrium  between  supply  and  demand;  above  100  demand  exceeds 
supply; below 100 the opposite. 

Source: Drewry Container Forecaster Quarter 2 – June 2023 

Figure 4 – Profitability of container liner shipping industry 2019-2024e 

Source: Drewry Container Forecaster Quarter 2 – June 2023 

In  terms  of  the  level  of  concentration  during  the  evaluation  period,  the  liner  shipping 
sector did not undergo any major operation of horizontal consolidation, as illustrated by 
the  flat  shares  of  global  capacity  controlled  by  the  top-four,  top-10  and  top-20  carriers 
(see  Figure  5).  The  German  carrier  Hapag-Lloyd  nevertheless  acquired  two  small 
shipping lines focussed on Africa (Deutsche Afrika-Linien and NileDutch). 

22 

 
 
 
 
 
 
 
Figure 5 – Shares of global capacity of top-four, top-10 and top-20 carriers 
2011-2022 

Source: UNCTAD, Review of Maritime Transport 2022 

The trend towards vertical integration of carriers continued, with substantial investments 
in  port  and  terminal  operations.  The  four  largest  carriers  are  now  among  the  top  ten 
terminal  operators  worldwide,  with  COSCO  and  Maersk  controlling  respectively  13% 
and  11%  of  the  global  terminal  throughput.73  In  addition,  they  have  expanded  their 
operations  into  logistics,  notably  Maersk  and  CMA  CGM  that  pursue  a  strategy  of 
offering end-to-end supply chain solutions to their customers. 

In  terms  of  freight  rates,  the  evaluation  period  witnessed  an  extreme  example  of  the 
“boom and bust” cycle in the liner shipping industry (see Figure 6).  

73   UNCTAD, Review of Maritime Transport 2022, p. 138, referring to Drewry (2022), Table 4.1: Global 
terminal operators’ throughput league table, 2021 per cent share of world container port throughput in 
TEU. 

23 

 
 
 
 
 
 
 
 
 
 
 
Figure 6 – 10‐Year Alphaliner Charter Rate Index and Freight Rate Indices74 

Source: Alphaliner, Monthly Monitor – May 2023   

At the beginning of 2020, rates remained relatively stable, as carriers, which at the time 
had  historically  low  order  books,  swiftly  removed  capacity  from  trades  affected  by  a 
lowering  of  demand  in  the  aftermath  of  the  COVID-19  outbreak.  Later  in  2020,  with 
economic stimulus  packages and a shift  of household  spending  from  services to  goods, 
demand  for  containerised  transport  increased  on  key  routes,  most  notably  on  Far  East-
North America, while an increasing share of the global shipping capacity was taken out 
of the market due to supply chain blockages in ports and on land. As a result, freight rates 
steeply increased and peaked in January 2022, before collapsing in 2022 when demand 
deteriorated (reaching below 2019 levels in some trades), port congestion started to ease 
and newly ordered ships entered the market.  

In January 2023, the SCFI was just 10% higher than 2019 levels, although the rapid pace 
of decline of the SCFI down to close to pre-COVID levels still concealed heterogeneous 
situations per trade (see Figure 7).  

74   The CCFI (China Containerized Freight Index) and the SCFI (Shanghai Containerized Freight Index) 
are widely used indices. The CCFI is a composite of spot rates and contractual rates which reflects the 
change in freight rates on 12 trade lanes to and from China using the index as of 1 January 1998, as      
1 000 basis points. The SCFI shows, on a weekly basis, the most current freight prices (spot rates) for 
container  transport  from  the  Chinese  main  ports,  including  Shanghai  (Chinese  export).  Other  used 
indices,  such  as  the  Freightos  Baltic  Index  (FBX)  or  Drewry’s  composite  World  Container  Index 
(WCI), would show similar variations. 

24 

 
 
 
 
 
 
 
 
Figure 7 – Freight rates per trade – January 2023 vs 2019 

Source: HSBC, Global Freight Monitor, 4 February 2023, based on Clarkson, Refinitiv Datastream 

The pressure on freight rates is expected to remain in the short- to medium-term due to 
the  easing  of  supply  chain  congestion  and  the  delivery  of  new  containerships  (as  of  1 
June 2023, the orderbook-to-fleet ratio stood at 28%, based on capacity).75 At the end of 
2022, the effective capacity was predicted to rise by 19% in 2023.76 

The  vessel  delays  caused  by  and  worsening  the  port  and  landside  bottlenecks  also 
degraded the quality of liner shipping services during the evaluation period. In terms of 
service  availability,  carriers  adjusted  their  networks  by  allocating  their  vessels  onto 
shorter  services  calling  at  only  two  world  regions  (i.e.  shuttles)  instead  of  services 
serving  multiple  regions.  This  led  to  a  decrease  in  direct  connectivity  (i.e.  number  of 
country  pairs  that  can  be  reached  without  transhipment)77  over  the  evaluation  period 
(2020-2023),  a  phenomenon  that  had  nevertheless  started  before  the  COVID-19  crisis 
(see Figure 8).  

75  Drewry Container Forecaster Quarter 2 – June 2023. 

76   Drewry Container Forecaster Quarter 4 – December 2022. 

77   According to UNCTAD, counting on a direct regular shipping connection has empirically been shown 
to help to reduce trade costs and increase trade volumes. Research shows that the absence of a direct 
connection 
(see: 
https://unctad.org/news/maritime-connectivity-countries-vie-positions). 

associated  with 

bilateral 

exports 

lower 

value 

42% 

of 

is 

a 

25 

 
 
 
 
 
 
 
 
Figure 8 – Changes in the number of direct connections per world region 
(excluding intra-regional services) – Q4 2022 vs Q4 2019 

Note: The number of countries directly connected has declined by approximately 5% in Q4 2022 compared 
to Q4 2019; the capacity lost due to this reduction accounted for some 4% of the total capacity scheduled in 
Q4 2019. 

Source: MDS Transmodal, Container Shipping Market Quarterly Review, Q4 2022 – March 2023 

In terms of service performance, the reliability and consistency of services significantly 
degraded  in  the  second  half  of  2020  until  the  second  half  of  2022.  Despite  gradual 
improvements,  at  the  end  of  2022,  they  were  still  significantly  below  2019  levels  (see 
Figure 9). 

Figure 9 – Global liner shipping service performance – Index Q1 2019 = 100 

Source: MDS Transmodal, Container Shipping Market Quarterly Review, Q4 2022 – March 2023 

26 

 
 
 
 
4.  EVALUATION FINDINGS (ANALYTICAL PART) 

4.1.  To what extent was the intervention successful and why?  

The  question  of  the  success  of  the  CBER  requires  an  assessment  of  whether  it  has  (i) 
brought  legal  certainty  to  carriers  (section  4.1.1);  (ii)  simplified  administrative 
supervision  of  the  sector  (section  4.1.2);  (iii)  remained  coherent  with  EU  and 
international rules (section 4.1.3); and (iv) facilitated the creation and operation of pro-
competitive  consortia  (section  4.1.4).  Conclusion  on  whether,  overall,  the  CBER 
promoted competition is then drawn (section 4.1.5). 

4.1.1.  Legal certainty 

Carriers,  in  particular  large  carriers,78  consider  that  the  findings  in  the  2019  evaluation 
report as to the legal certainty brought by the CBER still hold true. They reiterate that it 
contributes to legal clarity by providing more specific and concrete guidance than general 
instruments of competition law and raises levels of compliance by leaving less space for 
misinterpretation of the rules.  

Nevertheless, those carriers do not substantiate their claim about the alleged insufficiency 
of  the  horizontal  guidance  that  will  still  be  available  to  them  without  the  CBER,  in 
particular  the  Horizontal  Guidelines  on  joint  production  agreements  and  sustainability 
agreements,  the  Specialisation  Block  Exemption  Regulation  and  the  Article  101(3) 
Guidelines.79 

78   The carriers that expressed their views as to the legal certainty brought by the CBER are mainly large 
carriers  belonging  to  the  three  global  alliances.  It  appears  that  smaller  carriers  having  replied  to  the 
targeted  questionnaire  were  not  in  a  position  to  provide  informed  views  as  to  the  legal  certainty 
brought  by  the  CBER.  This  is  because  smaller  carriers  indicated  that  either  they  did  not  assess 
compliance of any of their consortia with EU competition law over the evaluation period, or if they 
did,  they used  the  CBER  for mere  guidance  due  to  non-compliance  with  the 30%  maximum  market 
share condition. 

79   At the time of the consultation activities for the evaluation of the CBER, the Horizontal Guidelines and 
the Specialisation Block Exemption Regulation were under review. The new versions were published 
in the Official Journal on, respectively, 21 July 2023 (OJ C 259/1) and 2 June 2023 (OJ L 243/20) and 
could not, therefore, be used by carriers to maintain or amend their original claims about their lower 
effectiveness compared to the CBER. The  World Shipping Council nevertheless provided arguments 
on  that  matter  using  the  draft  new  versions  used  for  the  public  consultation  (https://competition-
policy.ec.europa.eu/public-consultations/2022-hbers_en). The World Shipping Council notably raised 
the  issue of the applicability of the  Specialisation Block Exemption Regulation to consortia services 
(or more generally to jointly operated services) based on the draft new version. It is noted that the final 
version of the new Specialisation Block Exemption Regulation (as published on 2 June 2023) gives, as 
an example of joint preparation of services,  “cooperation in the creation or operation of a platform 
through which a service will be provided” (recital (6)). The reference to the joint operation of assets 
through which a service is provided indicates that consortia are a form of joint production agreement 
that  may  be  block-exempted  if  they  fulfil  the  conditions  set  out  in  the  revised  Specialisation  Block 
Exemption Regulation.  

In  this  document,  further  references  to  the  Horizontal  Guidelines  and  the  Specialisation  Block 
Exemption Regulation should be understood as encompassing provisions applicable at the time of the 

27 

 
 
 
To the contrary, carriers’ responses to the  fact-finding questionnaires sent in December 
202180 tend to demonstrate an incomplete or inconsistent understanding of the substantive 
provisions of the CBER, in particular of (i) the types of agreements that fall within the 
definition  of  consortia  and  should  be  taken  into  account  in  the  calculation  of  market 
shares;  (ii)  the  market(s)  relevant  for  the  calculation  of  the  market  share(s);  (iii)  the 
application,  to  consortia  serving  more  than  one  trade,  of  the  conditions  for  exemption 
relating to market share; and (iv) the need to be able to demonstrate compliance with the 
conditions set out in the CBER.  

Regarding  point  (i),  while  there  is  consensus  among  carriers  that  highly  integrated 
cooperation arrangements, such as vessel-sharing agreements and alliances, are consortia, 
carriers  voice  uncertainty  as  to  the  correct  treatment  of  more  flexible  cooperation 
arrangements,  such  as  slot  charter  and  slot  exchange  agreements.  For  example,  some 
carriers  consider  stand-alone,  non-reciprocal  slot  charter  agreements  as  consortia 
(although  they  are  not  consortia  within  the  meaning  of  the  CBER)81  whereas  others  do 
not declare their slot exchange agreements with other carriers active on the same market 
as  consortia  (although  they  are  consortia  within  the  meaning  of  the  CBER).82  This 
confusion may be explained by, e.g.: the difficulty in distinguishing between a reciprocal 
and  non-reciprocal  slot  charter,  or  between  a  slot  charter  and  a  slot  exchange  (the  slot 
exchange may be defined as  a form  of remuneration under  the slot  charter agreement); 
the  diverging  definitions  of  the  relevant  geographic  markets  between  carriers;  the 
interrelations  between  the  different  forms  of  cooperation  agreements,  such  as  a  vessel 
sharing  agreement  also  including  slot  charter  agreements  between  the  parties;  or  the 
existence  of  situations  in  which  the  market  share  of  a  slot  charter  should  be  taken  into 
account when establishing the market share of the consortium. 

Regarding point (ii), the differences in the market definitions adopted by carriers relate to 
the  relevant  geographic  market  and  appear  to  fall  within  two  categories:  differences  in 
the  ranges  of  ports  considered  as  substitutable  (e.g.  European  ports  vs.  Northern 

consultation  activities  and  which  remain  substantially  unchanged  in  the  new  versions  published  on, 
respectively, 21 July 2023 and 2 June 2023.       

80   As referred to in the Call for Evidence in the “data collection and methodology” section. 

81   Considering  that  a  slot  charter  agreement  does  not  involve  any  cooperation  between  two  or  more 
vessel-operating carriers in the joint operation of a maritime transport service, it is not a consortium 
within the meaning of Article 2(1) of the CBER.  

82   In  contrast  to  a  slot  charter  agreement,  a  slot  exchange  agreement  involves  the  cooperation  between 
two  or  more  vessel-operating  carriers  in  the  joint  operation  of  a  maritime  transport  service.  It  is 
therefore a consortium within the meaning of Article 2(1) of the CBER.  See also CBER, recital (3): 
“Consortium agreements vary significantly 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.” 

28 

 
 
European  or  Mediterranean  ports);83  and  differences  in  the  approaches  to  ports  of  call 
(intermediary  stops).  On  the  latter,  most  carriers  rely  on  the  Commission’s  decisional 
practice  and  guidance84  and  define  the  relevant  geographic  market  on  the  basis  of  the 
ports  at  each  end  of  the  trade  (excluding  the  ports  of  call),  e.g.  Far  East-North  Europe 
only,  even  though  the  joint  service  serves  ports  of  call  in  other  regions  (e.g.  Indian 
Subcontinent,  Mediterranean).  However,  some  carriers  define  separate  geographic 
markets on the basis of the ports of call included in the joint service, e.g. Far East-North 
Europe, Indian Subcontinent-North Europe and Mediterranean-North Europe.85  

Regarding point (iii), some carriers, including large carriers belonging to global alliances, 
raise the question of the treatment, under the CBER, of consortia active on several trades 
(used, for the purposes of this evaluation  report, as a proxy for the  relevant geographic 
markets86) and the application of the condition relating to market share set out in Article 5 
of  the  CBER  to  multi-trade  consortia.  Specifically,  there  is  uncertainty  among  carriers, 
due  to  the  reference  in  Article  5  of  the  CBER  to  “the  relevant  market”,  as  to  whether 
multi-trade  consortia  may  benefit  from  the  CBER  for  those  relevant  markets  in  which 
their  market  share  is  below  the  30%  threshold,  whereas  they  would  be  subject  to  self-
assessment  for  those  relevant  markets  in  which  their  market  share  exceeds  the  30% 
threshold.  

Regarding point (iv),  as  an example, some large  and small  carriers have indicated that, 
due to lack of data, they do not know the volumes carried by other consortium members 
on a trade, although such information is necessary to ensure compliance with one of the 
conditions set out in the CBER.  

In that context, no carrier has been able to provide robust and comprehensive data on the 
consortia to which it belongs which would be covered by the CBER.  The finding of an 
incomplete  or  inconsistent  understanding  of  the  substantive  provisions  of  the  CBER  is 
valid  for  all  categories  of  carriers  having  responded  to  the  fact-finding  questionnaires 
(large carriers members of global alliances and smaller carriers). In addition, it seems that 

83   See  CBER,  recital  (7).  This  recital  also  recalls  that  account  should  be  taken,  where  appropriate,  of 
other  modes  of  transport  for  the  purpose  of  assessing  the  relevant  market.  However,  no  carrier  has 
raised the issue of substitutability between liner shipping services and other freight services. 

84   See Maritime Guidelines, paragraph 20. 

85   This  is  also  the  approach  adopted  by  the  World  Shipping  Council  in  its  response  to  the  call  for 
evidence.  However,  it  acknowledges  that  this  approach  deviates  from  the  one  applicable  under  the 
CBER  (“some  services  appear  under  multiple  trade  routes.  For  example,  services  operating  on 
Europe / Far East services calling en route in Middle East and South Asia are included in the Middle 
East  and  South  Asia  trade  although  the  service  can  also  cover  Far  East.  Such  a  service  would 
therefore  be  included  in  both  the  Europe  –  Middle East  and  South  Asia and  the  Europe  –  Far  East 
table  in  the  below.  The  geographic  scope  of  the  table  is  hence  relatively  broad  and  may  include 
services that may not compete with each other directly. The tables do not therefore represent relevant 
markets for the purposes of a competition law assessment”, see also footnote 89 below). 

86   See also footnote 65 above. 

29 

 
 
this  situation  derives  from  the  fact  that  the  CBER,  despite  being  a  block  exemption 
regulation, still requires a case-by-case, sometimes detailed, assessment of the nature and 
scope  of  each  cooperation  agreement  entered  into  by  carriers.  As  a  consequence,  the 
issue  of  misunderstanding  of  the  rules  does  not  appear  to  be  solvable  by  further 
clarification efforts by the Commission.  

Furthermore,  carriers  insist  on  the  importance,  for  effective  enforcement  and  industry 
discipline, of the hard-core restrictions set out in the CBER. Yet, they do not explain how 
they  distinguish  between  the  CBER’s  prohibition  of  capacity  limitations  (a  hardcore 
restriction under Article 4(2)) and the right to make capacity adjustments in response to 
fluctuations in supply and demand (as provided for in Article 3(2)). This tension between 
provisions  of  the  CBER  on  capacity  management  has  been  a  regular  cause  of 
disagreement between carriers and transport users during the evaluation period, which is 
illustrative  of  the  diverging  views  as  to  the  terminology  used  in  the  CBER.87  Carriers 
consider  that  the  simplicity  of  the  terms  and  notions  used  in  the  CBER  (e.g.  capacity 
adjustments, operation of terminals, data exchange systems) is a source of legal certainty 
and self-discipline, while freight forwarders and ports consider that it allows carriers to 
adopt  an  overly  wide  interpretation  of  the  exempted  activities  and  deters  enforcement 
actions  under  EU  competition  law.  While  such  uncertainty  as  to  the  boundaries  of  the 
block-exempted activities arguably existed during the previous evaluation period, it was 
not deemed critical for the effectiveness of the CBER in a context of oversupply and low 
prices. The provisional capacity shortage faced by transport users in the aftermath of the 
COVID-19  crisis  reignited  the  debate  about  the  need  to  ensure  that  the  CBER  is 
interpreted restrictively and consistently by all players of the supply chain.  

Importantly, out of the approximately 43 unique consortia serving EU ports in 2020, only 
13  unique  consortia  had  a  market  share88  below  the  30%  threshold  established  by  the 
CBER.89  Out  of  those  13  unique  consortia,  11  involved  a  (large)  carrier  which,  on  the 

87   Similarly,  the  provisions  of  the  CBER  on  capacity  management  may  require  a  case-by-case,  and 
possibly  in-depth,  assessment  by  carriers  of  the  conditions  under  which  adjustments  of  capacity  are 
implemented.  It  appears  difficult  to  address  the  interpretation  issues  that  those  provisions  raise  by 
trying to clarify the CBER.  

88  The market share of a consortium is defined in the CBER as the sum of the individual market shares of 
its  members,  taking  account  of  all  the  volumes  carried  by  the  said  members  (within  or  outside  the 
consortium). 

89   In  its  response  to  the  call  for  evidence,  the  World  Shipping  Council  considers  that  “a  significant 
number of consortia operating on trades to/from the  EU are  likely  to fall below the applicable 30% 
market share threshold specified in the CBER.” However, it appears that, to determine the number of 
consortia  operating  to/from  the  EU,  the  World  Shipping  Council  has  considered  that  each  relevant 
geographic  market  in  which  a  consortium  is  active  should  give  rise  to  the  definition  of  a  distinct 
consortium.  This  approach  does  not  seem  in  line  with  the  definition  of  a  consortium  as  a  single-  or 
multi-trade agreement or set of agreements in Article 2(1) of the CBER (see also footnote 61 above). 
In any case, the statement of the World Shipping Council is based on data that are not market shares of 
consortia within the meaning of the CBER. There are in particular two major methodological issues, 
which  are  acknowledged  in  the  annex  to  the  submission  of  the  World  Shipping  Council:  (i)  the 
geographic  scope  of  a  service,  as  defined  in  the  submission  of  the  World  Shipping  Council,  is 
“relatively broad and may include services that may not compete with each other directly”. Therefore, 

30 

 
 
 
same  trade,  belonged  to  at  least  one  other  consortium  above  the  30%  market  share 
threshold and was, consequently, subject to self-assessment.90 The remaining two block-
exempted  consortia,  active  on  the  same  trade  (North  Europe-West  Africa),  include 
smaller  carriers  that  have  been  acquired  by  a  larger  carrier  since  then.  This  means  that 
large  carriers  have  almost  systematically  to  self-assess  consortia  in  parallel  to  block-
exempted  consortia.  Yet,  no  large  carrier  has  pointed  to  any  specific  provision  of  the 
horizontal  guidance  currently  available  to  facilitate  self-assessment,  which  would  give 
rise to greater uncertainty compared to the CBER.  

In  fact,  the  Horizontal  Guidelines  appear  better  adapted  to  the  objectives  of  the  CBER 
and the competitive structure of the sector than the operative provisions of the CBER. In 
particular, the sector is characterised by the existence, on some trades and at global level, 
of  (i)  parallel  consortia  and  interlinkages  between  consortia,  as  well  as  (ii)  a  trend 
towards the vertical integration of carriers, i.e. carriers expanding in upstream (e.g. port 
or  terminal  operations),  downstream  (e.g.  freight  forwarding  services)  and/or  adjacent 
markets (e.g. door-to-door services)91. Such competitive structure would call for a case-
by-case assessment of the market power of carriers on the relevant markets.92 

this geographic scope may not correspond to the relevant geographic market within the meaning of the 
CBER;  and  (ii)  the  share  of  a  consortium  is  based  on  the  capacity  deployed,  not  on  the  volume  of 
goods carried as required by the CBER.       

90   For  the  avoidance  of  doubt,  a  consortium  active  on  more  than  one  trade  would  be  considered  as 
exceeding the 30% market share threshold if it exceeds the 30% threshold on at least one of the trades 
on  which  it  is  active.  Conversely,  a  consortium  would  be  considered  as  complying  with  the  30% 
market  share  threshold  if  it  does  not  exceed  the  30%  threshold  on  any  of  the  trades  on  which  it  is 
active. This notably means that, since each of the three global alliances has a market share above the 
30% threshold on at least one of the trades it covers, none of them is exempted under the CBER. 

91   For the purpose of this evaluation, the categorisation of upstream, downstream and adjacent services 

should be considered as indicative. 

92   Prior to the adoption of the CBER in 2009, the Commission had initially proposed to take account of 
the existence of interlinkages between consortia in the calculation of the market share of a consortium 
for  the  application  of  the  30%  ceiling.  More  specifically,  under  the  Commission’s  preliminary  draft 
(see Notice pursuant to Article 4 of Council Regulation (EEC) No 479/92 on the application of Article 
81(3) of the EC Treaty to certain categories of agreements, decisions and concerted practices between 
liner shipping companies (‘consortia’), OJ C 266, 21.10.2008, p. 1), the market share of a consortium 
would have been calculated by adding the  individual market shares of its members as well as of the 
other  members  of  other  consortia  involving  at  least  one  of  its  members  on  the  same  trade.  The 
Commission  however  subsequently  replaced  that  initial  proposal  with  a  recital  providing  for  the 
possibility  to  withdraw  the  benefit  of  the  CBER  taking  account  of  the  negative  effects  on  effective 
competition deriving from consortia interlinkages. In 2020, no consortium would have been exempted 
if the Commission had not replaced its initial proposal.  

Example: Three carriers operate on a trade (A, B and C) as part of two consortia (consortium 1, made 
up of A and B; consortium 2, made up of A and C). Under the CBER, the market share of consortium 
1 is calculated by adding the market shares of A and B; the market share of consortium 2 is calculated 
by  adding  the  market  shares  of  A  and  C.  Under  the  proposal  prior  to  the  adoption  of  the  CBER  in 
2009, the market share of each of consortia 1 and 2 would have been calculated by adding the market 
shares of A, B and C.    

31 

 
 
 
With regard to  point (i), the Horizontal  Guidelines  explain why the Commission  views 
the interlinkages between carriers, as referred to in recital (12) of the CBER,  in a more 
negative  light. The  new  Specialisation  Block  Exemption  Regulation  and  the  new 
Horizontal  Guidelines  contain  a  ground  for  withdrawal  referring  to  the  interlinkages 
between  parties  to  joint  production  agreements,93  corresponding  to  the  ground  for 
withdrawal set out in the CBER.    

With  regard  to  point  (ii),  at  the  time  of  the  adoption  of  the  CBER,  it  had  been 
acknowledged  that  the  joint  use  by  consortia  of  production  assets  (e.g.  terminals) 
controlled by one of their members was a potential source of economies of scale, which 
supported the inclusion  of the joint use or operation of such assets  in  the list  of block-
exempted activities. However, it was also noted that notwithstanding those benefits, the 
joint use of a terminal owned by a consortium member with a strong market position in 
the  market  for  container  terminal  services  may  give  rise  to  foreclosure  concerns.94 
Despite  these  concerns,  the  CBER  does  not  contain  any  measure  dependent  on  the 
market position of consortia members on vertically-related markets.  

By  contrast,  the  Horizontal  Guidelines  recall  that  production  agreements  affect  the 
markets directly concerned by the cooperation, namely the markets to which the products 
produced  under  the  agreement  belong,  but  may  also  affect  markets  upstream, 
downstream  or neighbouring the markets  directly concerned by the  cooperation (“spill-
over markets”). Such spill-over markets are likely to be relevant for the assessment if the 
markets  are  interdependent  and  the  parties  have  a  strong  position  on  the  spill-over 
markets.95  Along  those  general  lines,  the  20%  market  share  threshold  set  out  in  the 
Specialisation  Block  Exemption  Regulation  applies  not  only  to  the  market  of  the  joint 
products (e.g. liner shipping services), but also the markets on which such joint products 
are  used  captively  as  inputs  (e.g.  freight  forwarding  services).96  In  addition,  the 
Horizontal  Guidelines  contain  specific  guidance  for  the  exchange  of  information  by 
vertically-integrated  companies, which would helpfully alleviate concerns expressed by 
certain transport users as to the lack of safeguards in the CBER against the risks of anti-
competitive  foreclosure  entailed  by  the  exchange  of  information  between  vertically-
integrated carriers.97 

93   See  new  Specialisation  Block  Exemption  Regulation,  Article  6  and  new  Horizontal  Guidelines, 

paragraphs 213-214. 

94   See Commission services document, Technical paper on the revision of Commission Regulation (EC) 
No  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)  as  last  amended  by 
Commission Regulation (EC) 611/2005 of 20 April 2005, paragraph 27. 

95   See new Horizontal Guidelines, paragraph 183. 

96   See new Horizontal Guidelines, paragraphs 184 and 202. 

97   See new Horizontal Guidelines, paragraph 383. 

32 

 
 
4.1.2.  Administrative supervision 

The CBER aims at simplifying administrative supervision by providing a framework for 
the Commission, national competition authorities and national courts for the assessment 
of  horizontal  cooperation  agreements  between  carriers.  The  lack  of  recent  enforcement 
actions against consortia in the EU or at national level makes it difficult to conclude on 
the extent to which the CBER simplifies supervision by authorities and courts and, if so, 
whether such simplification is not achieved to the detriment of effective enforcement.  

The  views  of  stakeholders  are  mixed.  On  the  one  hand,  representatives  of  freight 
forwarders  and  transport  users  are  concerned  that  the  existence  of  the  CBER  has 
discouraged  the  Commission  and  national  competition  authorities  from  enforcement 
action against practices that allegedly infringe Articles 101 or 102 TFEU. Furthermore, 
the  German  national  competition  authority  considers  that  it  is  time  for  a  systematic 
review  of  whether  the  existing  alliances  and  vessel-sharing  agreements  comply  with 
Article 101 TFEU.  

On  the  other  hand,  carriers  generally  claim  that  the  binding  nature  of  the  CBER 
compared to guidelines provides greater legal certainty. It is noteworthy that carriers do 
not contemplate the possibility for the Commission or a Member State to withdraw the 
benefit  of  the  CBER,  although  the  Commission  had  identified  the  complex  network  of 
cross-membership consortia, about which also the German national competition authority 
raises  serious  concerns,  as  a  ground  for  withdrawal.98  Furthermore,  carriers  seem  to 
acknowledge the lack of clarity as regards determining the scope of the CBER in practice 
(due  e.g.  to  the  difficulty  in  assessing  compliance  with  the  market  share  threshold), 
which further weakens their claim as to the contribution of the CBER to a safe and stable 
legal framework at EU and national levels.     

4.1.3.  Coherence 

Carriers  consider  that,  based  on  the  2019  evaluation,  it  seems  uncontroversial  that  the 
CBER  is  coherent  with  EU  competition  law.  They  nevertheless  note  that  the 
Specialisation  Block  Exemption  Regulation,  subject  to  being  applicable  to  shipping 
services, would apply to fewer consortia due to its lower market share threshold (20%). 
Furthermore,  the  carriers  consider  that,  compared  to  the  Horizontal  Guidelines,  the 
CBER  lays  out  more  clearly  the  activities  that  are  and  are  not  allowed  under  Article 
101(1) TFEU and thus facilitates self-policing. Beyond coherence with EU competition 
law,  carriers  generally  submit  that  the  CBER  is  coherent  with  the  EU  transport  policy, 
notably the Sustainable and Smart Mobility Strategy, and the EU environmental policy, 
through its contribution to the EU Green Deal. 

98   See  CBER,  recital  (12).  In  that  respect,  it  is  worth  noting  that  the  Commission  has,  under  the  EU 
Merger  Regulation  (Council  Regulation  (EC)  No  139/2004  of  20  January  2004  on  the  control  of 
concentrations between undertakings), raised competition concerns where the merged entity would, as 
a  result  of  the  transaction,  belong  to  different  consortia  on  the  same  trade  (see  e.g.  Case  M.8330  – 
Maersk Line/HSDG; Case M.8120 – Hapag-Lloyd/United Arab Shipping Company).  

33 

 
 
Other  stakeholders,  notably  organisations  representing  transport  users  and  consumers, 
take the opposite view. They consider that the CBER is not coherent with Article 101(3) 
TFEU  anymore,  as  it  cannot  be  concluded  with  a  sufficient  degree  of  certainty  that 
currently  consortia  fulfil  the  conditions  on  efficiencies  and  consumer  benefits.  They 
acknowledge that, under previous market conditions, their views as to the compliance of 
consortia with Article 101(3) TFEU may have been different. However, they submit that 
the sector has radically changed with horizontal consolidation and vertical integration of 
supply chain functions. They add that carriers have demonstrated their ability to form and 
operate consortia, even though most of them  fell outside of  the scope of  the CBER.  In 
that respect, they note that similar forms of cooperation exist in other economic sectors 
(such as the aviation sector), without sector-specific rules.99 They also note that the lack 
of  conditionality  for  the  block  exemption  of  certain  activities,  such  as  the  use  of  a 
computerised  data  exchange  system,  is  at  odds  with  the  safeguards  included  in  the 
Horizontal Guidelines regarding information exchanges. 

The feedback received from organisations representing transport users and consumers as 
to  the  coherence  of  the  CBER  with  other  EU  interventions  and  policies  shows  that  the 
assessment  of  that  criterion  largely  overlaps  with  the  assessment  of  the  relevance 
criterion,  specifically  of  the  degree  of  certainty  with  which  it  can  be  concluded  that 
block-exempted consortia complied with the conditions of Article 101(3) TFEU over the 
evaluation period. This  overlap results from the broad definition of the efficiencies and 
consumer  benefits  that  may  be  taken  into  account  under  Article  101(3)  TFEU  (i.e. 
improving  the  production  or  distribution  of  goods  or  promoting  technical  or  economic 
progress while allowing consumers a fair share of the resulting benefit) and which, to a 
large extent, correspond to the potential contributions of block-exempted consortia to the 
broader EU priorities, notably a European Green Deal, a Europe fit for the digital age and 
an economy that works for people. 

The  feedback  received  from  carriers  and  their  representatives  supports  the  common 
assessment  of  the  external  coherence100  and  relevance  of  the  CBER.  As  an  illustration, 
the  World  Shipping  Council  refers  to  prior  findings  by  the  Commission  that  consortia 
can lead to better coverage of ports to  substantiate its opinion about the contribution of 
consortia to trading opportunities and the coherence of the CBER with the EU maritime 
transport policy. It  also  refers to  the environmental efficiencies brought  by consortia  to 

99   Recital  (5)  of  the  Enabling  Regulation  explains  some  of  the  structural  features  of  the  liner  shipping 
sector that justified the adoption of sector-specific rules, notably the fact that liner shipping is a capital 
intensive  industry,  meaning  that  there  is  a  high  proportion  of  fixed  to  variable  costs  (see  also 
Communication by the Commission of 18 June 1990, Report on the possibility of a group exemption 
for consortia agreements in liner shipping, COM(90) 260 final, p. 2.). However, as recalled in recital 
(3) of Council Regulation (EC) No 1419/2006,  liner shipping is not unique  as its cost structure does 
not differ substantially from that of other industries. 

100   Checking the external coherence of the CBER means looking at how the CBER operates to achieve the 
objectives of other (“external”) interventions, notably in relation to EU competition law or other EU 
policies such as the European Green Deal (see Better Regulation  Toolbox dated 25 November 2021, 
Tool #47,  p. 408). 

34 

 
 
substantiate its opinion on the coherence of the CBER with the EU environmental policy 
and  to  the  macroeconomic  benefits  of  consortia  in  relation  to  the  contribution  of  the 
CBER to broad EU objectives such as an economy that works for people and a stronger 
Europe in the world.  

In this context, the question of the external coherence of the CBER, insofar as it relates to 
the  efficiencies  and  benefits  (including  environmental  ones)  attributable  to  exempted 
consortia, will be treated as part of the assessment of the relevance of the CBER. 

4.1.4.  Facilitation of pro-competitive consortia 

Carriers argue that the CBER reduces the time and costs spent on assessing compliance 
of  consortia  with  EU  competition  law,  which  would  be  a  disproportionate  burden  for 
smaller  carriers.  The  robustness  of  that  argument  needs  to  be  nuanced  in  view  of  the 
responses  to  specific  questions  about  the  savings  achieved  through  the  CBER  and  the 
latter’s role in the decision to create or operate a consortium. 

First, due to the global nature of liner shipping and the absence of a harmonised antitrust 
regime,  no  carrier  has  indicated  that  it  assesses  compliance  of  a  consortium  with  EU 
competition  law  only.  Second,  nearly  half  of  the  carriers  were  not  in  a  position  to 
quantify the costs of assessing compliance of their consortia with EU competition law or 
the  savings  entailed  by  the  CBER.  In  that  respect,  a  small  carrier  has  indicated  that  it 
does  not  distinguish  between  consortia  above  or  below  the  30%  market  share  ceiling 
when  self-assessing  their  compatibility  with  Article  101  TFEU.  More  generally,  since 
large carriers generally belong on a given trade to consortia that fall within and outside 
the CBER, they cannot rely solely on the CBER to ensure compliance of their activities 
with  Article  101  TFEU.  They  carry  out  a  self-assessment  for  the  relevant  consortia 
falling  outside  of  the  CBER,  which  they  communicate  to  other  consortia  members 
(including  smaller  carriers,  if  any).  Third,  carriers  generally  consider  that  the  CBER 
enables them to respond with more  agility to business opportunities. For example, they 
indicate that the CBER enables them to test a new service by co-loading limited volumes 
with another carrier, which would be insufficient to justify the time and costs required for 
a self-assessment. However, carriers do not explain why the general principles applicable 
to the self-assessment of horizontal agreements with such specific features (small-volume 
markets and membership of a small undertaking representing an insignificant increment 
to  the  overall  market  share  of  the  parties  to  the  agreement)101  do  not  contribute  to  a 
material  reduction  of  the  time  and  cost  difference  between  a  self-assessment  and  an 
assessment of the compliance with the CBER conditions. Fourth, the yearly compliance 
costs incurred by the carriers that reported on them are marginal. 

The  likely  insignificance  of  the  compliance  costs  compared  to  the  carriers’  operating 
costs may explain why no carrier has identified the CBER, or more generally the scope 
of  the  applicable  antitrust  exemption,  as  a  factor  for  the  decision  to  enter  into  a 

101   As recalled in recital (4) of the CBER. 

35 

 
 
consortium  on  a  trade  or  for  the  allocation  of  capacity  between  independent  and  joint 
services, or between joint services. There is consensus that such decision is guided first 
and  foremost  by  the  commercial  needs  of  large  carriers  and  the  feasibility  of  the 
cooperation  (i.e.  ability  of  other  carriers  to  commit  efficient  and  interoperable  vessels, 
which excludes certain small operators, and the willingness to cooperate), as well as the 
individual  strategies  and  business  models  of  the  carriers,  as  illustrated  by  the  recent 
announcement of the dissolution of the 2M alliance between Maersk and MSC.102 

The above responses of carriers as to their motives for initiating cooperation, which only 
remotely  relate,  for  small  and  medium-sized  carriers,  to  tackling  the  cost  disadvantage 
they face compared to large carriers, shed some light on the reasons why (i) all consortia 
active  in  the  EU  involved  at  least  one  of  the  five  largest  carriers  worldwide  (MSC, 
Maersk, CMA CGM, COSCO and Hapag-Lloyd), and (ii) the share of capacity operated 
by  consortia  on  thin  trades  (e.g.  North-South  trades)  is  lower  than  on  thick  trades  (e.g. 
East-West trades), whereas the need to consolidate demand to achieve economies of scale 
and density would in fact be higher on thin trades than on thick trades.103 

4.1.5.  Conclusion  

For the purposes of the evaluation of the CBER, the first issue to be assessed is the extent 
to  which  the CBER  was  successful over the 2020-2023 period, i.e. the  extent to  which 
the CBER  achieved  its  objectives effectively, efficiently, and in  a  coherent  way during 
that period. 

The effectiveness and efficiency of the CBER rest primarily with the legal certainty that 
it brings to carriers, notably small or medium-sized carriers which may be deterred from 
entering into pro-competitive partnerships due to the costs and risks associated with EU 
antitrust  rules.  While  carriers  generally  perceive  that  the  CBER  brings  legal  certainty, 
their feedback also  demonstrates that it has limited effects  on their ability to  assess the 
lawfulness  of  their  cooperation  agreements.  Furthermore,  certain  transport  users  do  not 
share the carriers’ perception and rather consider that the CBER has less clear boundaries 
than  other  EU  antitrust  rules,  notably  the  Specialisation  Block  Exemption  Regulation, 
despite  having  the  same  purpose  (i.e.  making  it  easier  to  cooperate  in  ways  which  are 
economically  desirable  and  without  adverse  effects  from  the  point  of  view  of 
competition).  

In  addition,  based  on  the  data  collected  from  carriers  and  the  external  contractor,  it 
appears that none of the block-exempted consortia active on trades to or from the EU in 

102  In that respect, Maersk confirmed that the discontinuation of its 2M alliance with MSC  “had nothing 

to do with recent regulatory scrutiny of the container shipping industry” (25 January 2023). 

103   The end of 2M in 2025 may modify that finding in terms of capacity share controlled by consortia on 
the East-West trades. However, it is unlikely that the change from three operators (2M, Ocean Alliance 
and  THE  Alliance)  to  four  operators  (MSC,  Maersk,  Ocean  Alliance  and  THE  Alliance)  will 
significantly change the competitive dynamics on the trades, in particular the ability of smaller carriers 
to operate profitably and gain traction. 

36 

 
 
2020  was  made  of  small  or  medium-sized  carriers  only,  whose  number,  due  to  the 
consolidation  of  the  sector  already  observed  in  the  2019  evaluation  report,  has 
significantly decreased.  In addition,  there were only  two block-exempted consortia  that 
had  no  interlinkage  (i.e.  no  common  member)  on  the  same  trade  with  consortia  falling 
outside  of  the  scope  of  the  CBER  for  exceeding  the  30%  market  share  threshold.  This 
means  that  there  were  only  two  consortia  that  were  not  in  the  situation  which  may  in 
particular, according to the CBER, lead to the withdrawal of its benefit. The acquisition 
of  certain  specialised  carriers  by  carriers  active  globally  over  the  2020-2023  period  is 
even expected to have put an end to this exception. 

Therefore, overall, evidence tends to show that block-exempted consortia have become a 
tool  for  large  carriers,  which  appear  to  have  scale  on  their  own,  to  complement  their 
offerings rather than a tool for smaller carriers to reach scale and remain competitive in 
terms of costs and frequencies. Consequently, over the evaluation period, the CBER does 
not appear to have fulfilled its goal of promoting competition by enabling smaller carriers 
to cooperate between themselves and offer alternative services in competition with larger 
carriers.   

Considering  that  the  coherence  of  the  CBER  depends  on  the  extent  to  which  block-
exempted consortia bring efficiencies and benefits contributing to the achievement of EU 
and international policy objectives, notably the EU Green Deal objectives, the coherence 
of the CBER will be assessed together with its relevance by reference to the conditions of 
Article 101(3) TFEU. 

4.2.  How did the EU intervention make a difference and to whom? 

As rightly pointed out by some stakeholders, notably representing freight forwarders and 
ports, the CBER is  no “EU established policy.”104 The CBER  is  an exceptional  regime, 
the extension of which is  subject  to  the Commission  collecting sufficient evidence  that 
such  sector-specific  rules  are  needed,  appropriate  and  that  the  conditions  of  Article 
101(3) TFEU are still fulfilled.  

Trade unions unanimously call for the expiry of the CBER, pointing to the deterioration 
of  the  quality  of  liner  shipping  services  and  the  trend  towards  the  establishment  of  an 
oligopoly,  which threatens fair competition  in  the logistics supply chain  and negatively 
affects employment and workers. 

Organisations representing freight forwarders and ports consider that the CBER, together 
with favourable tax schemes (e.g. tonnage tax schemes), have granted unfair advantages 

104   There  are  other  jurisdictions  in  which  specific  exemptions  from  competition  law  apply  to  the  liner 
shipping sector. Those exemptions take either the form of exemptions comparable to the CBER and 
applicable  to  horizontal  agreements  between  carriers  (e.g.  Hong  Kong,  Singapore,  Israel,  UK)  or  of 
legislations  setting  the  sector  out  of  the  general  competition  law  regime  (e.g.  US,  China,  Canada, 
Australia, South Korea, Taiwan or Japan). The existence of exemptions in other jurisdictions does not 
call into question the exceptional nature of the CBER. 

37 

 
 
(e.g.  ability  to  generate  higher  profits  over  a  longer  period)  to  the  vertically-integrated 
carriers with which they compete. This opinion echoes the concerns expressed during the 
previous  evaluation  of  the  CBER,  during  which  stakeholders  other  than  carriers  and 
shipowners  had  submitted  that  the  CBER,  while  it  originally  functioned  well,  now 
benefitted  almost  entirely  the  shipping  lines  and  worked  to  the  detriment  of  other 
stakeholders of the logistic chain.105 

Organisations representing freight forwarders and ports thus argue that the expiry of the 
CBER would help to restore trust and a level playing field between the different logistics 
providers. 

In that respect, carriers  warn that a decision  taken by the Commission  not to renew the 
CBER  may  be  interpreted  by  other  jurisdictions  as  a  signal  that  consortia  should  no 
longer be regarded as beneficial to consumer welfare. They claim that this might have a 
chilling  effect  on  cooperation  between  carriers  and  eventually  negatively  impact  EU 
trade. However, in  view of the limited number of carriers actually benefitting from  the 
CBER,  the weight of consortia (alliances) operating outside the scope of the CBER  on 
the  key  East-West  trades106  and  the  marginal  effect  of  antitrust  exemption  on  carriers’ 
decisions to enter into a consortium, the risk identified by carriers that the expiry of the 
CBER  may  have  a  deterrent  effect  on  pro-competitive  cooperation  appears  low.  In 
addition,  as  highlighted  by  certain  other  stakeholders  and  noted  already  in  the  2019 
evaluation  report,  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.107 

Finally, transport users and two responding Member States call for reinforced scrutiny of 
the  container  shipping  sector.  In  doing  so,  they  signal  that,  in  their  view,  the  balance 
between the needs of effective supervision and administrative simplification pursuant to 
Article  103  TFEU  which  originally  supported  the  adoption  of  the  CBER108  has  shifted 
and  that  carriers  should  be  subject  to  the  same  EU  antitrust  rules  as  other  economic 
operators active in the EU. 

In conclusion,  while  carriers  prominently  continue to  support the  existence of  a sector-
specific regime in the EU, evidence gathered during the evaluation shows that the CBER 
did  not  make  any  material  difference  for  its  primary  target  beneficiaries  (small  and 
medium-sized  carriers),  while  fuelling  the  discontent  of  transport  users  during  the 

105   See 2019 evaluation report, p. 47. 

106   Each of the three global alliances active during the evaluation period (2M, Ocean Alliance and THE 
Alliance)  has  exceeded  the  30%  market  share  ceiling  on  at  least  one  of  the  Far  East-Europe  or 
transatlantic trades since their creation.  

107   See 2019 evaluation report, p. 48. 

108   See Enabling Regulation, recital (3). 

38 

 
 
evaluation period. Therefore, the outcome of the consultation activities raises doubt as to 
whether action at EU level through the CBER continues to be justified.  

4.3. 

Is the intervention still relevant? 

The question of the relevance of the CBER requires an assessment of whether (i) it can 
be concluded with a sufficient degree of certainty that block-exempted consortia continue 
to meet the conditions of Article 101(3) TFEU (section 4.3.1); and, from a more macro-
economic  perspective,  (ii)  cooperation  between  carriers  continues  to  contribute  to  the 
improvement  of  the  competitiveness  of  the  EU  liner  shipping  industry  and  the 
development of EU trade (section 4.3.2). 

The  assessment  of  the  benefits  brought  by  block-exempted  consortia  underlying  the 
assessment of the relevance of the CBER is subject to two preliminary comments.  

First, as indicated in section 1.1, in view of the extremely volatile market conditions over 
the evaluation period and the temporary price hikes and service disruptions in 2020-2022, 
there is a need for a  re-examination of the causal links between the existence of block-
exempted  consortia  and  the  benefits  for  the  users  of  their  services,  which  had  been 
presumed in prior reviews of the CBER. For that purpose, interested parties were invited 
to provide qualitative and quantitative evidence to test the consumer welfare-enhancing 
effects of consortia over the evaluation period.109  

Second,  the  assessment  of  the  benefits  brought  by  consortia  relies  primarily  on  an 
analysis of the quantitative evidence submitted by carriers, which have not distinguished 
between consortia within and outside the scope of the CBER. Carriers’ approach may be 
explained  by  the  difficulty  in  identifying  the  specific  effects  of  block-exempted 
consortia,  due  to  the  limited  number  of  such  consortia,  especially  on  thick  East-West 
trades,  and  the  membership  of  large  carriers  in  different  consortia  on  the  same  trade, 
some  of  which  fall  within  and  some  outside  the  CBER.  In  this  context,  although  the 
assessment of the relevance of the CBER should theoretically focus on block-exempted 
consortia,  it  has  been  in  practice  necessary  to  carry  out  an  assessment  of  the  effects  of 
consortia in general.     

4.3.1.  Efficiencies and consumer benefits brought by consortia 

Carriers  submit  that  consortia,  whatever  their  market  shares,  are  industry  tools  that 
function to the benefit of customers and of the fight against climate change. On the one 
hand,  they  create  substantial  economic  gains  for  customers,  both  in  terms  of  reducing 

109  See Call for evidence for the CBER evaluation published on 9 August 2023:  “replies to the targeted 
questionnaires sent to transport users (freight forwarders, shippers and their associations) and ports 
(port  and  terminal  operators  and  their  associations)  will  be  useful,  to  give  the  Commission  a 
comprehensive view of the relevance of the Regulation since 2020. The replies will test the effects of 
consortia on the efficiency of transport operations, the productivity of other logistics operators and the 
ability of consortia to bring consumer benefits, compared to independent operators, in stressed market 
conditions.” 

39 

 
 
costs for them and delivering better service quality, by allowing a wider footprint of ports 
called by carriers and therefore shorter transit times. On the other hand, they contribute to 
reducing CO2 emissions, by allowing the deployment of fewer vessels, of larger size and 
powered  by  more  efficient  technologies  from  an  environmental  standpoint  (e.g.  LNG, 
methanol). 

For the reasons explained below, the evidence submitted by carriers seems insufficient to 
conclude on whether consortia systematically deliver the consumer benefits claimed by 
carriers to the standard required pursuant to Article 101(3) TFEU. 

Limitations of the econometric assessment 

In support of carriers’ claims, two econometric studies, which are complementary, have 
been submitted by the carriers.  

The  first  study  mainly  attempts  to  demonstrate  that  consortia  were  pro-competitive 
before  2020  and  remain  pro-competitive  now  that  overcapacity  is  looming  again.  It 
nevertheless contains an acknowledgement of the two major methodological limitations 
that  impede  the  demonstration  of  the  causal  link  between  consortia  and  the  claimed 
benefits for transport users.  

First, as a result of the prominence of consortia since the inception of the liner shipping 
industry, it is not possible to compare the conditions for the provision of liner shipping 
services  on  a  trade  with  and  without  consortia  (i.e.  there  is  no  real-life  counterfactual). 
The services operated on a stand-alone basis by a carrier belonging to  a consortium on 
the same trade do not offer a reliable point of comparison, since either the two services 
consist  in  the  same  port  rotations  and  are  not  marketed  separately,  or  they  consist  in 
different  port  rotations  and  serve  different  demands.  Therefore,  the  provision  of  stand-
alone services by carriers seems influenced by those they offer as members of consortia, 
so  that  those  stand-alone  services  do  not  appear  to  properly  reflect  how  carriers  would 
operate absent consortia. 

Second, many factors of the joint production of liner shipping services are interdependent 
and interlocked. Such endogeneity creates problems in the regression model used in the 
study to infer causality  between consortia and the claimed efficiencies.  As an example, 
the  study  observes  that  the  freight  volumes  increased  at  a  port  after  an  alliance  started 
directly calling at the port. At the same time, it is generally expected that the anticipation 
of sufficient freight volume is key for an alliance to decide to establish a direct link to a 
port.  This  conundrum  illustrates  the  difficulty  in  determining  whether  the  increase  in 
volumes observed at the port was caused by the direct link operated by the alliance, or 
whether the operation of a direct link by the alliance was caused by the expected increase 
in volumes shipped to the port.110 

110   The choice of specific ports of call and corresponding increase in port throughput may also be driven 
by  the  expansion  of  carriers  in  the  port  or  terminal  operations,  as  illustrated  during  the  evaluation 

40 

 
 
 
The  second  study  focuses  on  the  2020-2022  period  and  aims  at  demonstrating  that  the 
deterioration in the provision of liner shipping services during the COVID-19 crisis was 
the  result  of  changes  in  exogenous  factors  (increased  bunker  costs,  increased  demand, 
reduced  capacity  relative  to  demand,  increased  number  of  COVID-19  cases)  and  were 
not caused by the presence of consortia which, if anything, helped to alleviate it.  

After  an  assessment  of  the  data  used  in  the  second  study,  it  appears  that  none  of  the 
tested  variables  shows  a  clear  relationship  with  the  evolution  of  freight  rates  over  the 
2020-2022 period, especially the difference in evolution of rates across different trades. 
In any case, the non-stationarity of freight rates over the period covered by the study,111 
i.e.  the  fact  that  rates  show  no  clear  tendency  to  revert  to  a  stable  level,  largely 
invalidates the econometric analysis. 

In  view  of  the  above-described  limitations,  no  econometric  assessment  will  be 
determinative  on  its  own  for  the  purpose  of  deciding  on  whether  consortia,  let  alone 
exempted consortia, continued to  be consumer-welfare enhancing  during the evaluation 
period. 

Preliminary comments on vessel size and capacity utilisation  

The  CBER  is  grounded  on  two  basic  premises:  through  the  pooling  of  volumes  from 
different  carriers,  consortia  bring  efficiencies  by  (i)  enabling  the  use  of  larger  vessels, 
and (ii) improving the utilisation of available capacity. In doing so, it improves the asset 
efficiency and cost competitiveness of carriers, which is key for their viability especially 
during market downturns. 

The demonstration of those two premises, i.e. consortia lead to larger vessels and higher 
utilisation rates, is fraught with difficulty, due to the difficulty in disentangling the causes 
and effects given the various dynamics present in the liner shipping sector.  

First, there are a number of factors that may influence the growth trend in ship size, and 
there  is  no  clear  evidence  that  the  orders  for  larger  vessels  have  been  linked  to  the 
planned or actual membership in consortia. As illustrated below (Figure 10), in the past, 
the main spikes in ship size generally occurred two years after demand exceeded supply, 
which  may  suggest  that  individual  carriers  decided  to  order  new,  larger  vessels  around 
the peak of demand, regardless of whether they operated in consortia or on a stand-alone 
basis.  However,  the  data  show  that  this  rule  no  longer  held  true  at  a  given  point, 
suggesting that there are other factors influencing the trend.112 

period by the new or additional direct services operated by MSC to Pointe Noire or Hapag-Lloyd to 
Wilhelmshaven. 

111   The  study is based on data  covering the  period from January 2017 to September 2022. It,  therefore, 

captures only part of freight rate decrease, which extended until 2023.  

112   “Ongoing challenges to ports: the increasing size of container ships”, Economic Commission for Latin 
2020 

Caribbean 

(CEPAL), 

America 

Bulletin 

FAL 

379, 

and 

the 

41 

 
 
 
Figure 10 – Increases in vessel size in relation to changes in fleet supply and 
demand, 1991–2019 

Source: CEPAL, FAL Bulletin  379, 2020, on the basis of M. Gómez Paz, Clarkson Research, Alphaliner 
and Barry Rogliano Sales 

In that context, it may be argued that the individual carriers’ quest for scale, which led to 
an ever increasing size of vessels, was the driving force behind the consolidation of the 
liner  shipping  industry  (including  through  alliances)  and  the  overall  fleet  expansion, 
often in excess of trade growth. In other terms, while in theory consortia contribute to the 
operation of larger vessels, there are indications that carriers choose to invest individually 
in  larger  vessels  before  partnering  with  other  carriers,  if  necessary  to  make  those 
investments  profitable.  The  example  of  HMM,  the  only  carrier  having  become  a  full 
member of an  alliance during the evaluation  period (THE Alliance, starting April 2020 
following  the  termination  of  a  less  integrated  partnership  with  2M),  is  also  equivocal. 
HMM  had  ordered  12  ultra-large  containerships  of  23  000-TEU  size  in  2018,  before 
joining  THE  Alliance.  Nevertheless, it cannot  be excluded that the new ship  order  was 
linked  to  plans  to  join  an  alliance.  Furthermore,  as  indicated  in  the  2019  evaluation 
report,  such  ultra-large  vessels  are  essentially  used  on  the  Europe-Asia  trades  by  the 
alliances,  which  fall  outside  of  the  scope  of  the  CBER,  so  that  the  link  between  the 
ordering  of  those  vessels  and  the  CBER  cannot  be  established.113  Nevertheless,  this 

(https://repositorio.cepal.org/bitstream/handle/11362/46457/1/S2000485_en.pdf).  It  may  notably  be 
noted that, after the introduction of the Emma Maersk container ship in 2006, the increment in the size 
of new vessels is smaller than it was in the past. This seems consistent with the argument presented 
during  the  consultation  activities,  according  to  which  economies  of  scale  become  exhausted  past  a 
certain vessel size. 

113   See 2019 evaluation report, p. 27. 

42 

 
 
 
conclusion does not have general application since the introduction of larger vessels on a 
trade  may  trigger  fleet  cascading  effects,  with  the  replaced  ships  being  redirected  to 
thinner trades where block-exempted consortia possibly operate.  

In  addition,  while  the  prevailing  opinion  is  that  the  operation  of  larger  vessels  leads  to 
lower unit costs, some studies cast doubts on the continuous achievement of economies 
of  scale,  in  particular  taking  account  of  the  total  cost  of  operations  of  shipping  lines, 
ports, feeder operators and other stakeholders of the supply chain.114 

Second,  carriers  have  not  submitted  evidence  of  the  actual  effects  of  consortia  on  the 
capacity  utilisation  of  their  vessels.  In  fact,  data  from  UNCTAD115  show  that 
containership  fleet  productivity  (i.e.  the  ratio  between  cargo  carried  and  fleet  capacity) 
has fallen since 2005 as growth in fleet capacity exceeded demand. Market consolidation 
in the 2010s reduced oversupply, which led to a relative stabilisation of productivity (see 
Figure 11). With containership capacity expected to grow by 7.9% in 2023, productivity 
is expected to resume its declining trend.116 

Figure 11 – Operational productivity of the world containership fleet, cargo 
carried per fleet capacity (ton/dwt) 

Source: UNCTAD, Review of Maritime Transport 2022 

In light of the above shortcomings in the evidence adduced by the consortia in support of 
the alleged efficiencies, the assessment of the relevance of the CBER will hereafter focus 
on  two  other  conditions  of  Article  101(3)  TFEU,  namely  whether  consortia  generate 
consumer benefits and are indispensable to the achievement of their objectives. 

Effect of consortia on freight rates 

The  views  of  carriers  on  the  impact  of  consortia  on  freight  rates  are  mixed.  Certain 
carriers  claim  that  consortia  lead  to  lower  freight  rates  thanks  to  two  mechanisms:  (i) 

114   See e.g. “Mega-Schiffe – Mega-Trugschluss?”, Ulrich Malchow, Internationales Verkehrswesen, May 
2022, submitted in response to the call for evidence. See also “Optimal container ship size: a global 
cost minimization approach”, Feng Lian, Jiaru Jin, Zhongzhen Yang, Maritime Policy & Management, 
Volume  46,  2019  - Issue  7,  containing  a  numerical  analysis  intended  to  show  that  the  optimal  size 
should be smaller than the current biggest container ships in service. 

115   United Nation Conference on Trade and Development. 

116   UNCTAD, Review of Maritime Transport 2022. 

43 

 
 
 
 
 
 
they contribute to lower horizontal differentiation between carriers, which reduces their 
market  power  and  hence  brings  prices  closer  to  costs;  and  (ii)  they  allow  consortia 
members to operate more efficiently larger vessels, leading to lower unit cost which can 
be passed on to transport  users in the form of lower prices. Others recall that consortia 
are  pure  operational  arrangements  that  have  a  subordinate  role  in  the  determination  of 
freight rates. The latter are rather subject to the commercial behaviour of the individual 
market players (carriers, shippers and freight forwarders). 

The  argument  about  the  deflating  effect  of  consortia  on  freight  rates  requires  evidence 
that  a  fair  share  of  the  cost  savings  obtained  through  consortia  is  passed  on  to  the 
consumers.117  In  the  2019  evaluation  report,  the  pass-on  was  supported  by  the  parallel 
decrease of freight rates and unit costs incurred by carriers. This was notably illustrated 
by  the  parallel  development  of  revenue  per  TEU,  operating  cost  per  TEU  and  bunker 
prices.118  Over  the  current  evaluation  period,  the  trends  of  freight  rates  and  fuel  prices 
were not correlated any more (see Figure 12).  

Figure 12 – Global shipping freight rates compared to cost trend of bunker 
and very low sulphur fuel oils (VLSFO) 

Source: pwc, Transport and Logistics Barometer, 2022 full-year analysis 

Data  published  by  Maersk  and  Hapag-Lloyd119  further  illustrate  that  the  evolution  of 
freight  costs  and  rates  did  not  follow  parallel  paths  during  the  evaluation  period.  In 
particular, Maersk indicates that in 2022, when prices peaked and sharply dropped, liner 

117   In  this  section,  it  is  assumed  –  as  is  commonly  accepted,  at  least  up  to  a  certain  vessel  size  –  that, 
everything  else  equal,  larger  vessels  are  associated  with  lower  unit  costs.  For  the  purpose  of  the 
present evaluation, the assessment of whether consortia lead to consumer benefits therefore focuses on 
whether it can be concluded with sufficient degree of certainty that those lower unit costs translate into 
lower freight rates. 

118   See 2019 evaluation report, Chart 7, p. 29. 

119   Those  two carriers have been  chosen due to the  financial transparency obligations to which they are 
subject. Their data is considered illustrative of the operating cost structure of container shipping lines. 

44 

 
 
 
shipping  operating  costs  were  essentially  flat  as  lower  container  handling  costs  were 
offset by higher bunker costs (see Figure 13). 

Figure 13 – Maersk – Operating cost of liner shipping – 2019-2022  

* Fixed bunker price of 450 USD/FFE 

Source: Maersk - Full year and Q4 2022 results – Investor presentation – 8 February 2023 

Hapag-Lloyd  notes  that,  in  Q1  2023,  the  average  freight  rates  fell  further  amid  lower 
demand and rapidly declining spot market rates, while bunker prices remained elevated 
(see Figure 14). 

Figure 14 – Hapag-Loyd – Freight rate vs. bunker price – Q1 2021-Q1 2023  

Source: Hapag-Lloyd – Q1 2023 results – Investor presentation – 11 May 2023 

In fact, empirical evidence suggests that the changes in freight rates over the evaluation 
period were due to  COVID-related demand  and supply  shocks  followed by the gradual 
return to overcapacity, rather than to how carriers organised their shipping services (i.e. 
provision  of  stand-alone  or  joint  services).  More  specifically,  the  price  hikes  in  2020-
2022  appeared  driven  by  the  combination  of  a  surge  in  demand  and  a  shortage  in 

45 

 
 
 
effective  capacity  due  to  port  and  hinterland  congestion.  There  is  no  strong  indication, 
based on data submitted by carriers, that consortia had a softening effect on freight rates 
during  that  period.  In  2022-2023,  prices  fell  rapidly  when  demand  slowed  down  and 
congestion  unwound.  There  is  no  strong  indication  that  consortia  accelerated  the  trend 
towards the return of freight rates to pre-COVID levels or, conversely, enabled carriers to 
stabilise freight rates. 

More generally, it appears difficult to identify with clarity the effect, if any, of consortia 
on freight rates during the evaluation period, be it during exceptionally stressed market 
conditions  (2020-2022)  or  more  usual  supply-demand  fundamentals  (2022-2023). 
Furthermore,  the  evaluation  period  has  confirmed  both  the  inelasticity  of  demand  for 
liner shipping services and the limited elasticity of supply, which are factors to be taken 
into account when assessing the extent to which cost efficiencies are likely to be passed 
on to consumers.120 

Effect of consortia on availability of services 

Carriers  submit  that  consortia  allow  their  members  to  share  bigger  and  more  cost-
efficient vessels, so that carriers are able to jointly offer more services and a better port 
coverage than on a stand-alone basis. They note in particular that on low volume trades 
(e.g. North-South trades), consortia allow more frequent services than independent lines. 
Transport  users  had  in  the  past  recognised  that  efficiencies  achieved  by  consortia  were 
passed on to them in the form of global coverage of the services offered.    

To illustrate that consortia contributed to higher port coverage over the evaluation period, 
the  World  Shipping  Council  relies  on  the  evolution  of  UNCTAD’s  Liner  Shipping 
Connectivity Index (“LSCI”)121 for six EU countries (Belgium, France, Germany, Italy, 
the Netherlands and Spain), which would show that the integration of European countries 
in  international  shipping  networks  continues  to  improve  over  time,  implying  that 
consortia,  which  remain  prevalent,  contribute  to  such  improvement.  Yet,  the  data  from 
the UNCTAD show a more nuanced picture, especially comparing EU connectivity with 
China  or  US  connectivity.  The  connectivity  in  the  most  connected  EU  countries  (the 
Netherlands, Spain and Belgium) came under pressure during the evaluation period (see 
Figure  15),  as  carriers,  including  those  active  in  consortia,  redeployed  vessels  to  the 
China-USA trade to the detriment of EU trades, with the exception of Spain.122  

120   See Guidelines on the application of Article 81(3) of the Treaty (OJ C 101, 27.4.2004, p. 97), point 96. 

121   The  LSCI  is  computed  based  on  of  six  components,  relating  to  (i)  the  number  of  ship calls;  (ii)  the 
capacity deployed; (iii) the number of regular services; (iv) the number of carriers offering services in 
the country; (v) the size of the largest vessel calling at a port of the country; and (vi) the number of 
different countries directly connected to the relevant country. This index is set to 100 for the maximum 
score obtained in Q1 2006, namely that of China. 

122   Although Spain increased capacity, it lost operators resulting in a decline in overall connectivity. 

46 

 
 
 
Figure 15 – Liner shipping connectivity index, top 6-10 economies, Q1 2006-
Q2 2022 

Source: UNCTAD, Review of Maritime Transport 2022 

The same shift affected France (see Figure 16). 

Figure 16 – Deployed capacity of container ships, selected economies, Q1 2006-
Q2 2022 

Source: UNCTAD, Review of Maritime Transport 2022 

More generally, the trend noted in the 2019 evaluation report towards a decrease in the 
number of services offered by carriers continued over the evaluation period. This overall 
decline  is  mainly  attributable,  during  the  evaluation  period,  to  the  loss  of  shipping 

47 

 
 
 
 
 
 
 
services  in  thinly  connected  country  pairs,  while  shipping  services  have  been 
strengthened for core trading country pairs.123  

According to the UNCTAD, the overall decrease in the number of liner shipping services 
is  partly  attributable  to  the  consolidation  of  liner  shipping  companies  and  the  use  of 
larger container ships.124 Such a finding raises the question of whether consortia lead to a 
higher  number  of  services  and  a  denser  network  of  port  pairs.  The  progressive 
consolidation  of  the  liner  shipping  industry,  which  had  already  been  noted  in  the  2019 
evaluation report, has led to the emergence of leading EU carriers which have sufficient 
scale on their own, as illustrated by the statement by Maersk’s representative at the time 
of announcement of the dissolution of the 2M alliance with MSC.125 Beyond the specific 
case  of  the  2M  alliance,  the  evaluation  period  has  been  characterised  by  the 
implementation,  by certain  carriers, of strategies  of deployment  of capacity  on a stand-
alone basis, not limited to times of surging demand.126 Those strategies include, but are 
not limited to, the replacement of consortia services by standalone services by a carrier 
which already provided most of the capacity.127 Finally, not only large carriers, but also 
smaller carriers, call into question the continued necessity of consortia, to the extent that 
the latter refer to the possibility of less integrated forms of cooperation, in particular slot 
charter  agreements,  to  improve  their  port  coverage  in  response  to  customers’  specific 
requirements.  Overall,  anecdotal  evidence  on  the  operational  choices  made  by  carriers 
over  2020-2023  casts  doubts  about  the  systematic  indispensability  of  consortia  to  the 
achievement of the objectives of the CBER. 

123   UNCTAD, Review of Maritime Transport 2022. 

124   UNCTAD, Review of Maritime Transport 2022. 

125   “Maersk  expects  to  be  able  to  deliver  ocean  shipping  at  the  same  scale  when  the  partnership  with 
MSC ends without rising the cost of moving each container at sea, [Maersk's head of ocean shipping 
Johan] Sigsgaard said” (Reuters, “Top container shippers Maersk, MSC to end alliance from 2025”, 
25 January 2023).  

126   See  “Changing  lanes:  Growing  independence  as  alliances  evolve”,  MDS  Transmodal,  4  May  2023 

(https://www.mdst.co.uk/changing-lanes-growing-independence-as-alliances-evolve).     

127   See for example “HMM takes over transpacific loop abandoned by THE Alliance”, The Loadstar, 12 
April  2023  (https://theloadstar.com/hmm-takes-over-transpacific-loop-abandoned-by-the-alliance/), 
which  may  give  some  insight  as  to  the  underlying  economic  reasons  for  the  start  of  standalone 
services. According to this article, “HMM is looking to gain global market share  – evidenced by its 
8% increase in liftings in the final quarter of 2022, while its peers reported declining volumes during 
the  period.  The  eighth-ranked  carrier  also  has  a  significant  orderbook,  equivalent  to  a  third  of  its 
current fleet capacity of some 810,000 teu, so, notwithstanding its THEA partnership, HMM could be 
looking at further slot charter agreements with other carriers, or more standalone services in order to 
utilise this capacity.” 

48 

 
 
 
 
 
Effect of consortia on quality of services 

The  prevalent  view  among  carriers128  is  that  the  key  consumer  benefits  of  consortia 
generally include the ability to guarantee fixed days of sailings over a fixed period and to 
provide more frequent and reliable services, resulting in improvements in the quality of 
the supply chain from the manufacturer to the ultimate consumer in today’s “just in time” 
environment. 

During  the  COVID-19  crisis,  port  and  hinterland  congestion  emerged  in  major  ports 
around the world and impacted the productivity of carriers, causing delays which in turn 
contributed  to  the  worsening  and  spreading  of  supply  chain  disruptions  globally, 
including in the EU. Although the situation is improving, global schedule reliability and 
delays have not stabilised yet. It remains thus difficult to assess the effect of consortia on 
the quality of services over the evaluation period. 

Nevertheless, qualitative responses from carriers and freight forwarders tend to indicate 
that  the  reliability  of  services  depends  more  on  the  specific  market  conditions  and  the 
choices  of  capacity  deployment  made  by  carriers  (e.g.  blanked  sailings,  arbitrage 
between skipped port calls and delays) than on the shipping system adopted by them. In 
particular,  they  point  towards  the  adoption  of  comparable  strategies  by  carriers, 
regardless  of  whether  they  operate  within  or  out  of  a  consortium,  to  cope  with 
fluctuations  in  demand  (capacity  adjustments  through  notably  blanked  sailings  or  slow 
steaming)  and  to  restore  schedules  impacted  by  unforeseen  circumstances  (e.g.  geo-
political issues, weather events,  strikes). By exception, carriers operating independently 
(including  members  of  consortia  deploying  capacity  outside  of  the  consortia  on  given 
trades)  appear  more  likely  to  introduce  shuttle  services  or  services  with  a  faster  transit 
time  serving  a  limited  number  of  ports  (e.g.  pairs  of  hub  ports),  which  face  lower 
reliability  risks.  Nevertheless,  the  specific  features  of  such  services,  including  the 
relatively  low  available  capacity,  call  into  question  their  comparability  with  services 
offered by consortia.  

As  an  illustration  of  the  difficulty  to  conclude  on  the  effect  of  consortia  on  service 
quality, a comparison of the schedule reliability of the global alliances with the average 
industry  performance  over  the  2015-2021  period  does  not  show  any  robust  trend,  by 
which  one  or  several  alliances  would  consistently  outperform  their  peers  (see  Figure 
17).129  

128   Carriers  that  define  themselves  as  independent  (not  relying  on  consortia  to  any  significant  extent) 

consider that consortia have no positive effect on the quality of services. 

129   It may be noted that the performance of niche carriers on intercontinental trades (e.g. ICL or Marfret) 
tends  to  be  better  than  the  performance  of  alliances.  Nevertheless,  the  much  smaller  number  of 
services and port calls offered by niche carriers renders their performance more volatile and may call 
into question the robustness of such a comparison. 

49 

 
 
 
Figure 17 – Alliance schedule reliability 

Source: Sea-Intelligence, Global Liner Performance report – 2021 Full Year 

Environmental impact of consortia 

Carriers generally130 submit that consortia bring environmental efficiencies in the form of 
reduced greenhouse gas  emissions since (i) they  enable the  use of larger  vessels which 
use  less  fuel  per  available  unit  (translating  into  lower  emissions  of  CO2,  SO2  and  NOx 
than smaller vessels per available unit), and (ii) they improve the likelihood of filling up 
those large vessels, thus translating into lower emissions per carried unit. 

As a preliminary comment, it appears that there is no clear consensus as to the correlation 
between  vessel  size  and  fuel  efficiency  and  lower  emissions  of  the  whole  maritime 
supply chain. A study submitted in response to the call for evidence notably aims to show 
that the effect  is  reversed above a certain  vessel  size, i.e. above  a certain size, fuel  use 
(and thus emissions) per available unit increases again.131 This would be due to the longer 
berth times of large vessels, which would need to be compensated by increasing speed at 
sea leading to increased fuel consumption and CO2 emissions at sea. It is notable that the 
study does not include any assumptions covering the possible effects of large vessels on 
the consolidation of volumes amongst few hub ports or on the increased  usage of other 
(more  polluting)  transport  modes,  such  as  road  and  short-sea,  due  to  volumes  being 
loaded or unloaded further away from their point of origin or destination.  

In  any  case,  considering  that  the  four  conditions  of  Article  101(3)  TFEU  (efficiency 
gains,  pass-on  to  consumers,  indispensability  of  the  restrictions,  and  no  elimination  of 
competition) are cumulative, it appears unnecessary to  further assess the environmental 
efficiencies brought  by  consortia  (first  condition)  and more  appropriate to focus on the 

130   A specialist carrier expresses a diverging view, stating that it  has not seen any tangible difference in 
the  environmental  impact  or  energy  efficiency  between  independent  carriers  and  consortia  members 
during the evaluation period. According to this carrier, various individual carriers have taken steps to 
address those matters but no pattern has emerged.   

131   “Mega-Schiffe – Mega-Trugschluss?”, Ulrich Malchow, Internationales Verkehrswesen, May 2022. 

50 

 
 
 
third condition (indispensability) and, to a lesser extent, the second condition (pass-on to 
consumers).132  

Regarding  the  condition  of  Article  101(3)  TFEU  on  indispensability,  carriers  have  not 
submitted evidence of the causal link between consortia and investment in fuel efficient 
or green vessels. On the contrary, they generally submit that their investments are guided 
by  environmental  regulations  and  economic  considerations,  without  taking  account  of 
their  partners’  decarbonisation  strategies  or  technological  choices.  In  terms  of 
regulations, carriers specifically refer to the EU Green Deal, which  sets  an objective of 
climate neutrality by 2050 and reduction of net greenhouse gas emissions by at least 55% 
by  2030,  compared  to  1990  levels.  To  achieve  this  target,  carriers  note  the  mandatory 
measures  under  two  key  EU  initiatives,  i.e.  FuelEU  Maritime,133  which  sets  maximum 
limits  on  the  yearly  greenhouse  gas  intensity  of  the  energy  used  by  a  ship  and  the  EU 
ETS,134  which  puts  a  price  on  CO2 and  lowers  the  permitted  level  of  emissions  every 
year. Carriers also refer to initiatives at international level by the International Maritime 
Organisation  (“IMO”),  which,  in  its  initial  2018  strategy,  had  set  a  target  of  reducing 
carbon intensity135 of international shipping by at least 40% by 2030 compared to 2008, 
pursuing  a  70%  reduction  by  2050  and  reducing  the  total  annual  greenhouse  gas 
emissions by at least 50% by 2050 compared to 2008. To reach this goal, the IMO has 
adopted  the  Energy  Efficiency  Existing  Ship  Index  (“EEXI”),  a  framework  for 
determining  the  efficiency  of  the  design  of  large  in-service  vessels,  and  the  Carbon 
Intensity  Indicator  (“CII”),  an  operational  measure  of  how  efficiently  a  ship  transports 
goods  or  passengers  measured,  in  essence,  in  grams  of  CO2  emitted  by  cargo-carrying 
capacity and nautical mile. On 7 July 2023, the IMO reached an agreement to revise its 
2018  strategy  on  reducing  greenhouse  gas  emissions  from  ships. The  revised  2023 
strategy sets a goal of net zero emissions from ships “by or around, i.e. close to, 2050”, 
compared  to  a  50%  reduction  in  the  same  time  horizon  according  to  the  initial  2018 
strategy. 

In  that  respect,  the  World  Shipping  Council  stated  at  the  time  of  the  preliminary 
agreement between the European Parliament, Council and Commission on the maritime 
elements  of  the  EU  ETS,  that  it  hoped  that  “the  EU  ETS  for  maritime  will  help  drive 
investment  in  renewable  energy  as  well  as  in  the  supply  networks  needed  for  the 
alternative  maritime  fuels  necessary  to  make  the  transition.”  The  World  Shipping 
Council  added  that  “[g]lobal  regulation  –  an  international  price  on  carbon  emissions 

132   See paragraphs 38 and 39 of the Article 101(3) Guidelines. 

133   See press release of 23 March 2023, “European Green Deal: Agreement reached on cutting maritime 
shipping” 

transport 
(https://ec.europa.eu/commission/presscorner/detail/en/ip_23_1813).  

sustainable 

promoting 

emissions 

fuels 

for 

by 

134   See footnote 60 above. 

135   Carbon  intensity links  the  greenhouse  gas  emissions  to  the  amount  of  cargo  carried  over  distance 

travelled. 

51 

 
 
from shipping together with other measures to drive the supply of green energy and fuels 
– is the fastest and most efficient route to decarbonising shipping as a whole.”136 

In addition, the choice of operational parameters that have an impact on fuel efficiency of 
liner  shipping  services,  notably  sailing  speed,137  appears  primarily  driven  by  short-term 
market  conditions,  such  as  the  demand-supply  balance  (see  Figure  18a  on  the  market 
update provided by ZIM in May 2023), the freight rates or the bunker costs (see Figures 
18b, 18c and 18d), rather than consortia membership or even vessel size.  

Figure 18a – Market update – Supply/Demand Balance – 2014-2024e 

Source:  ZIM  –  Q1  2023  results  –  Investor  presentation  –  22  May  2023,  based  on  Alphaliner  Monthly 
Monitor, April 2023 

136   “Liner  shipping  is  ready  for  the  EU  ETS  Maritime”,  World  Shipping  Council,  30  November  2022 

(https://www.worldshipping.org/news/liner-shipping-is-ready-for-the-eu-ets-maritime).  

137   See  e.g.  “Ships  get  older  and  slower  as  emissions  rules  bite”,  Reuters,  12  July  2022 
(https://www.reuters.com/business/sustainable-business/ships-get-older-slower-emissions-rules-bite-
2022-07-11/): “While older ships can be retrofitted with devices to lower emissions, analysts say the 
quickest  fix  is  just  to  go  slower,  with  a  10%  drop  in  cruising  speeds  slashing  fuel  usage  by  almost 
30%,  according to marine sector lender Danish Ship Finance. At the moment, only about 5% of the 
world’s fleet can run on less-polluting alternatives to fuel oil, even though more than 40% of new ship 
orders will have that option, according to data from shipping analytics firm Clarksons Research.” 

52 

 
 
 
 
 
 
 
Figure 18b – Global Containership Fleet – Average speed vs. Freight rates – 
2020-2023 

Source: Alphaliner, Monthly Monitor – May 2023   

Figure 18c –Average speed vs. 
Bunker price – 2020-2023 

Figure 18d –Average speed vs. 
Ship size – 2020-2023 

Source: Alphaliner, Monthly Monitor – May 2023   

Setting  aside  the  question  of  the  robustness  of  the  evidence  submitted  by  carriers,  the 
latter’s  environmental  efficiency  claims  raise  the  question  of  their  compliance  with  the 
conditions set out in Article 101(3) TFEU. The World Shipping Council claims that, to 
the  extent  the  CBER  acknowledges  the  efficiencies  underlying  the  environmental 
benefits (i.e. consortia contribute to the more efficient use of larger vessels), it would be 
an undue burden to require carriers (i) to substantiate in objective, concrete and verifiable 
terms, the environmental efficiencies associated with consortia; or (ii) to demonstrate that 
there  are  no  other  economically  practicable  and  less  restrictive  means  of  achieving  the 
benefits associated with consortia. 

It should be recalled that, in the context of the evaluation of the CBER, the Commission 
should be able to conclude with a sufficient degree of certainty as to the compliance of 
the  claimed  environmental  efficiencies  with  all  the  conditions  of  Article  101(3)  TFEU. 
The evidence collected appears insufficient to reach that conclusion. 

53 

 
 
 
 
 
 
 
 
In  particular,  as  generally  acknowledged  by  carriers,  they  are  or  will  be  subject  to  a 
number  of  mandatory  measures  to  accelerate  decarbonisation  and  reduce  pollution, 
notably the emission’s reduction measures enacted by the IMO as well as the EU ETS. In 
addition, carriers do not provide evidence that consortia are indispensable to decarbonise 
the  sector  or  reduce  pollution  in  a  more  cost  efficient  way.138  Some  of  them  (e.g. 
members of THE Alliance) claim that the initiatives taken at EU and international levels 
constitute  strong  regulatory  hurdles  for  the  lines,  which  their  alliance  (not  a  block-
exempted  consortium)  helps  to  alleviate.  Such  a  generic  claim  is  insufficient  to 
demonstrate  that  consortia  are  indispensable  to  achieve  the  goals  pursued  by  measures 
made binding on carriers through EU and international rules.139 

Finally,  regarding  the  condition  of  Article  101(3)  TFEU  on  pass-on  to  consumers,  the 
claimed  environmental  benefits  are  collective  benefits  that  would  only  be  taken  into 
account as consumer benefits for the purposes of Article 101(3) TFEU if they accrue, for 
a  substantial  part,  to  transport  users  (EU  shippers  and  freight  forwarders).140  In  the 
absence  of  information  provided  by  carriers,141  it  is  difficult  to  conclude  as  to  whether 
this condition is fulfilled. 

Conclusion on efficiencies and consumer benefits brought by consortia 

In light of the above, it appears that the  body of evidence collected for the purposes of 
the  evaluation  of  the  CBER  is  insufficient  to  conclude  as  to  whether  consortia  brought 
consumer benefits over the 2020-2023 period. The studies presented to the Commission 
show that establishing a causal link between consortia and different variables capturing 
their potential benefits is very difficult in practice because of the continuous presence of 
consortia over time and across trades. Moreover, the factors determining freight rates or 
service  reliability  are  numerous  and  interlocked,  so  that  it  has  proved  impossible  to 
establish  robust  causal  links  between  their  changes  over  the  evaluation  period  and 
consortia.   

138   Prior  to  the  announcement  of  the  dissolution  of  2M  in  2025,  Maersk  had  for  example  already 

announced a standalone surcharge to cover the costs of compliance with the EU ETS. 

139   See new Horizontal Guidelines, paragraph 564. 

140   Section  9.4.3.3  of  the  new  Horizontal  Guidelines  explains  the  conditions  under  which  collective 
benefits would be taken into account under Article 101(3) TFEU (notably where the consumers in the 
relevant market substantially overlap with the beneficiaries or form part of them) and provides specific 
examples.  It  notably  spells  out  that,  in  cases  where  collective  benefits  are  dispersed  among  a  large 
section of society, it is less likely that the overlap with the consumers in the relevant market will be 
substantial (footnote 409).  

141   The  World  Shipping  Council  argues  that  the  guidance  on  the  condition  related  to  the  pass-on  to 
consumers  in  the  chapter  on sustainability  agreements  in  the  draft  new  Horizontal  Guidelines  seems 
ill-suited  to  consortia  as  it  focuses  primarily  on  business-to-consumer  sales.  The  argument  seems  to 
reflect a disagreement by the World Shipping Council on the principles defined in the guidance rather 
than a problem of applicability of the guidance to consortia.  

54 

 
 
4.3.2.  Consortia’s contribution to EU competitiveness and trade 

During the evaluation period, the liner shipping sector witnessed an extreme example of 
up-cycle  followed  by  a  down-cycle,  while  the  degree  of  concentration  and  horizontal 
cooperation between carriers remained relatively stable. The previous section focuses on 
whether,  in  those  circumstances,  there  are  sufficiently  strong  indications  that  consortia 
brought consumer benefits during both cycles, notably by mitigating the challenges faced 
by  transport  users  during  the  2020-2022  period.  This  section  draws  on  those 
circumstances  to  assess  the  broader  role  of  consortia  in  the  productivity  and 
competitiveness of liner shipping services, the functioning of the maritime supply chain, 
as well as the overall efficiency and resilience of the global logistics system. 

First, at the time of its adoption, the justification for the CBER was underpinned by the 
specific  features  of  the  liner  shipping  sector,  notably  structural  oversupply  and  poor 
financial returns. Cooperation of carriers in consortia facilitated by the CBER was meant 
to  contribute  to  reducing  the  imbalance  between  supply  and  demand  and  improve  the 
predictability  of  freight  rates,  so  as  to  encourage  investments  in  more  efficient  vessels 
(including  recently  in  the  greening  of  the  worldwide  fleet).  The  evolution  of  the 
fundamentals  of  the  sector  until  mid-2020  appeared  to  validate  this  approach.  As  an 
example,  the  listing  particulars142  published  by  CMA  CGM  in  October  2020  stated  the 
following:  “The  structural  industry  changes  of  consolidation  and  alliances  have 
contributed,  we  believe,  to  its  ability  to  respond  effectively  to  cyclical  supply-demand 
changes by implementing measures such as idling and blank sailing, as well as nominal 
capacity adjustments  through the variable use of charters.  The historically low level  of 
the  industry’s  order  book  as  compared  to  the  current  fleet  size  also  augurs  well  for 
continued positive supply to demand balance. The better management of this balance has 
been reflected by declining freight rate volatility in recent years and, most recently and 
significantly,  by  the  43%  year-on-year  increase  in  the  Shanghai  180  Containerized 
Freight  Index  (“SCFI”)  monthly  average  between  August  2019  and  August  2020, 
notwithstanding the COVID-19 pandemic’s depressing effect on demand.”143 

However, despite the more consolidated state of the industry compared to the last down-
cycle  in  2015-2016  and  the  prominence  of  consortia  on  the  main  East-West  trades, 
carriers  seem  to  have  failed  to  rationalise  supply  and  stabilise  freight  rates  after  they 
reached a peak in early 2022. As during the prior cycle of the industry, a small number of 
large individual carriers continues to strive for scale and cost efficiencies, contributing to 
the return of overcapacity and lumpiness in profitability. 

This forces mid-sized carriers to either merge or retreat in niches to maintain sustainable 
independent  operations  (see  Figure  19).  Such  strategies  in  turn  raise  the  question  of 
whether cooperation promoted by the CBER, which was expected to lower the barriers to 

142   Listing particulars contain detailed information about the securities and the issuing company.  

143   See https://www.luxse.com/security/XS2242188261/313784, p. 3.  

55 

 
 
entry  on  thick  trades  (e.g.  East-West  trades)  for  smaller  carriers  and  facilitate  the 
geographic diversification of their operations, does not ultimately act against the interests 
of those carriers.144  

Figure 19 – Average operating-profit margin of selected carriers 

Exhibit from “How container shipping could reinvent itself for the digital age”, October 2017, 
McKinsey & Company, www.mckinsey.com. Copyright (c) 2023 McKinsey & Company. All rights 
reserved. Reprinted by permission. 

to 

the  scope  for  differentiation  and  contribute 

Second,  consortia  reduce 
the 
commoditisation of liner shipping services. This appears to have prevented carriers from 
investing  in  innovative  operating  models  and  possibly  higher-priced  (or  premium) 
services with shorter transit times on a given trade, door-to-door integrated offerings or 
digital  solutions  adapted  to  customer  needs.  This  may  also  have  increased  the 
vulnerability of  certain categories of EU shippers and  aggravated trade imbalances.  An 
example is the shift of capacity in 2021 from Far East-Europe or Europe-North America 
to Far East-North America when the unit earnings on the latter trade skyrocketed, which 
may  have  pushed  freight  rates  up  on  the  two  EU  trades.145  This  affected  not  only  EU 
importers,  which  faced  increased  freight  rates,  but  also  EU  exporters.  As  an  example, 
during  the  consultation  activities,  shippers  have  provided  evidence  of  the  difficulty  to 
find available capacity on the backhaul leg of the Far East-Europe trades. On that leg, on 

144  In that respect, one carrier has specified that: “There is no question that the vessel economies of scale 
possible with a consortium will dwarf that on an individual line, but the benefits to the customer are 
short-term only during market downturns.  (…). During a rate war in a down market,  the better cost 
efficiencies of larger ships will enable them to outlast the smaller operator, but that only leads to less 
competition and fewer choices for the shipper.” 

145   See  e.g. “Trans-Atlantic braces for rate  hikes as capacity shifts elsewhere”, Journal of Commerce, 2 

March 2021. 

56 

 
 
 
 
which  structurally  demand  is  far  lower  than  supply146,  freight  rates  remained  relatively 
stable  throughout  the  evaluation  period  while  rates  on  the  headhaul  leg  soared,  so  that 
carriers found it commercially and financially rational to send empty containers back to 
Asia rather than to lose time marketing them in the EU.  

Third, although it is difficult to measure the actual contribution of consortia, particularly 
block-exempted  consortia,  to  the  increasing  size  of  vessels,  the  CBER  is  based  on  the 
premise that it will encourage the  adoption of larger, more efficient vessels by carriers. 
Therefore,  stakeholders  generally  perceive  the  CBER  as  one  of  the  factors  for  the 
emergence  of  ultra-large  vessels,  which,  according  to  port  authorities,  may  have  put  a 
strain  on  port,  terminal  and  hinterland  operations  and  had  negative  external  effects. 
While  European  hub  ports  appear  to  have  invested  in  the  infrastructure  and  equipment 
needed  to  accommodate  the  needs  of  the  global  alliances  and  a  system  of  substitutable 
ports, such investments have not been carried out in other parts of the world, notably in 
the  US.  The  2021-2022  period  has  shown  that  the  frailty  of  regional  port  and  inland 
transport  systems  outside  of  the  EU  can  have  disruptive  spill-over  effects  on  the  EU 
supply chain and render the efforts of carriers to adjust liner shipping capacity to demand 
void.  More  generally,  the  functioning  of  the  sector  during  the  evaluation  period  has 
revealed that the overall benefits of consortia may be limited by capacity constraints of 
complementary port and inland services. In that context, only a comprehensive regulatory 
and  enforcement  approach  to  the  productivity  of  the  maritime  ecosystem  as  a  whole, 
striking  a  balance  between  the  needs  for  cooperation  and  competition  between 
stakeholders along the supply chain, appears capable of delivering the benefits expected 
from the CBER.   

In light of the above, it appears that the needs of EU shippers and carriers have shifted 
away  from  the  pursuit  of  scale  and  cost  efficiency,  which  calls  into  question  the 
relevance  of  the  CBER  for  the  development  of  the  EU  liner  shipping  industry  and  EU 
trade. 

5.  WHAT ARE THE CONCLUSIONS AND LESSONS LEARNED? 

5.1.  Conclusions 

The competitive structure of the liner shipping industry has changed significantly since 
the  CBER  was  first  adopted  in  2009.  It  has  shifted  from  a  fragmented  sector  with 
numerous  regional  carriers  and  players  along  the  supply  chain  to  a  more  consolidated 
sector  shaped  by  a  few  global,  integrated  players  which  cooperated  in  alliances  during 
the evaluation period. 

146   The capacity deployed on a trade is determined by the demand on its headhaul (or dominant) leg, i.e. 

from Far East to Europe on the Far East-Europe trades. 

57 

 
 
 
Those structural changes have not only reduced the number of small and medium-sized 
carriers  that  could  benefit  from  the  CBER  but  also  called  into  question  the 
appropriateness  of  a  dedicated  block  exemption  for  the  sector.  While  those  changes 
certainly  pre-dated  the  evaluation  period,  their  full  impact  on  the  functioning  of  the 
global supply chain could only be measured over the last three years, when the stressed 
market conditions triggered chain reactions and exposed the weaknesses of the EU trade 
system. 

Those weaknesses cannot and should not be attributed to block-exempted consortia. This, 
however,  should  neither  detract  from  the  opposition  to  the  CBER  expressed  by  the 
transport  users  and  port  operators,  nor  hamper  an  objective,  comprehensive  and 
evidence-based evaluation of the CBER. 

The evidence collected from carriers points towards the – at best limited – effectiveness 
and efficiency of the CBER during the evaluation period. Indeed, both the small number 
of unique consortia falling within the scope of the CBER in 2020 (13 out of 43) and the 
profile of these consortia (always involving one of the top-five carriers which was also a 
member of a non-exempted consortium on the same trade) tend to show that the CBER 
brought  limited  compliance  cost  savings  to  carriers  and  was  no  longer  serving  its 
objective.  This  objective was  to  facilitate  the creation and operation of pro-competitive 
consortia,  in  particular  between  small-  and  medium-sized  carriers.  In  addition,  carriers 
submit  that  the  key  terms  of  the  CBER  are  clear,  unambiguous  and  accessible  to  all 
carriers,  in  particular  small  ones.  However,  their  feedback  tends  to  show  diverging 
interpretations of the CBER, even among large carriers with proven antitrust experience 
and  compliance  resources.  Finally,  carriers  confirm  that  the  decision  to  enter  into  a 
consortium  is  guided  by  commercial  needs  and  that  antitrust  rules  play  –  at  most  –  a 
subordinate role. 

In addition, stakeholders other than carriers generally call for strengthened supervision of 
the sector rather than administrative simplification, which  calls into question  the added 
value of a dedicated block exemption regulation at EU level. Furthermore, putting an end 
to  sector-specific  rules  and  bringing  the  liner  shipping  sector  under  the  general  Article 
101  regime  would  allow  stakeholders  to  benefit  from  the  Commission’s  efforts  of 
clarification  put  into  both  the  new  Specialisation  Block  Exemption  Regulation  and  the 
new Guidelines on horizontal cooperation agreements. 

The question of the relevance of the CBER requires an assessment of whether (i) it can 
still  be  concluded  with  a  sufficient  degree  of  certainty  that  consortia  which  meet  the 
conditions of the CBER generally fulfil the conditions of Article 101(3) TFEU; and (ii) 
cooperation  between  carriers  continues  to  help  both  to  improve  the  competitiveness  of 
the EU liner shipping industry and to develop EU trade, as expected under the Enabling 
Regulation.  

With  regard  to  the  first  part  of  the  assessment,  the  evidence  submitted  by  carriers  to 
support the claimed efficiencies is inconclusive, due in particular to the impossibility of 
overcoming  certain  methodological  limitations.  These  limitations  make  it  difficult  to 

58 

 
establish causal links between consortia and  consumer benefits. The limitations include 
an  absence  of  counterfactuals,  the  interdependence  of  the  possible  causes  of  benefits 
under examination, and the volatility of freight rates. Market developments in the sector 
during  the  evaluation  period  tend  to  confirm  both  the  inelasticity  of  demand  for  liner 
shipping services and the limited elasticity of supply. In combination, these two factors 
reduce the likelihood that any cost efficiencies achieved by carriers would be passed on 
to  transport  users.  Moreover,  it  is  difficult  to  consider  that  consortia  are  indispensable 
within the meaning of Article 101(3) TFEU to achieve environmental efficiencies, since 
the  sector  is  subject  to  binding  international  and  EU  measures  to  reduce  greenhouse 
emissions and pollution.  

With regard to the second  part of the assessment, the disruptions faced by the different 
players in  the EU supply chain  and shippers during  the COVID-19 pandemic show the 
limits  of  an  antitrust  tool.  This  is  because  the  CBER  has  helped  to  commoditise  liner 
shipping services, while the ability of shippers to reap the benefits of carriers’ increasing 
scale and  reach is  limited by the capacity constraints of the other  players in the supply 
chain  (e.g.,  port  and  land  operators).  More  structurally,  while  transport  users 
acknowledge  that  consortia  have  enabled  and  supported  the  required  investment  to 
operate  intercontinental  services  at  a  lower  unit  cost  and  faster  transit  time,  they  warn 
that consortia now appear to contribute to a market where the cost of entry has become 
prohibitive and where service differentiation has disappeared at the expense of shippers. 
In  addition,  the  decline  in  direct  connectivity  (i.e.  number  of  country  pairs  that  can  be 
reached  without  transhipment)  that  had  started  before  the  COVID-19  crisis  continued 
over  the  evaluation  period,  whereas  it  has  been  empirically  shown  that  direct  regular 
shipping connections help to reduce trade costs and increase trade volumes. 

Overall, the CBER does not appear to be fit for its purpose any more, as it does not fulfil 
the criteria of effectiveness, efficiency and EU added value. This conclusion is based on 
both: (i) the information  submitted by stakeholders  in  respect  of the 2020-2023 period; 
and  (ii)  other  evidence  collected  in  the  course  of  the  evaluation  in  relation  to  the 
functioning  of  the  container  shipping  sector  and  the  contribution  of  consortia  to  the 
competitiveness  of  this  sector.  The  evidence  collected  during  the  evaluation  process  is 
inconclusive as to the continued relevance and coherence of the CBER.  

5.2.  Lessons learned 

The COVID-19 pandemic experience has shown the need to enhance the resilience of EU 
supply chains. In markets  that are heavily intertwined,  responding to  this  need requires 
common shared actions on the sea side and the land side.147 Maintaining an exceptional 
antitrust regime for shipping lines at EU level appears to have given rise to rifts between 

147   See  e.g.  speech  delivered  by  Commission  Dalli  on  behalf  of  Commissioner  Vălean  at  the  plenary 
debate  of  the  European  Parliament  on  international  ports’  congestions  and  increased  transport  costs 
affecting the EU, 25 November 2021. 

59 

 
 
the different categories of stakeholders, to the detriment of arrangements and structures 
which would better accommodate the interests of all.  

On the one hand, carriers have generally claimed that the expiry of the CBER would send 
the  signal  that  alliances  do  not  bring  consumer  benefits  anymore,  while  those  alliances 
have  contributed  to  maintaining  international  trade  flows  throughout  the  COVID-19 
pandemic. 

On the other hand, certain shippers have, at the height of the COVID-19 crisis, called for 
the immediate repeal of the CBER. The CBER has also been a source of dissatisfaction 
on  the  part  of  the  other  players  of  the  value  chain,  notably  freight  forwarders  and  port 
operators,  which  compete  directly  with  vertically-integrated  carriers.  The  CBER  has 
notably created the impression that they were treated unfairly and that there was no real 
level playing field in the maritime sector.  

Overall, it appears that the restoration of trust between stakeholders necessary to build a 
resilient,  integrated  and  efficient  supply  chain  requires  ensuring  that  the  liner  shipping 
sector  is  not  perceived  as  being  subject  to  looser  scrutiny  from  antitrust  enforcers  than 
other industries. 

60 

 
 
 
ANNEX I:   PROCEDURAL INFORMATION 

1.  Lead DG, Decide reference 

Commission  Directorate-General  for  Competition  (DG  Competition),  Decide 
reference: PLAN/2022/1127. 

2.  Organisation and timing 

In  July  2022,  the  Commission  services  launched  the  evaluation  of  the  Consortia 
Block Exemption Regulation (“CBER”). Its purpose is to assess how the CBER, due 
to expire on 25 April 2024, has functioned since it was last extended in 2020. 

The Inter-Service Steering Group (ISSG) was set up. It first met on 20 July 2022 with 
representatives  from  the  Commission’s  Secretariat  General,  Legal  Service  and 
following  Directorates-General:  MOVE,  CLIMA,  GROW,  MARE,  TRADE,  and 
DEFIS. During its first meeting, the ISSG was consulted on the consultation strategy. 

The second ISSG meeting was held on 16 December 2022 with representatives from 
the  Commission’s  Secretariat  General,  Legal  Service  and  following  Directorates-
General:  MOVE,  CLIMA,  ENV,  GROW  and  TRADE.  It  discussed  the  feedback 
received  during  the  consultation  activities,  as  well  as  the  report  from  a  firm  of 
transport  economists  on  the  functioning  of  consortia  in  the  period  2020-2022, 
commissioned by DG Competition. 

The  third  ISSG  meeting  was  held  on  15  March  2023  with  representatives  from  the 
Commission’s  Secretariat  General,  Legal  Service  and  following  Directorates-
General:  MOVE,  CLIMA,  ENV,  GROW,  TRADE  and  MARE.  It  discussed  a  draft 
version of an outline of the preliminary findings from the evaluation of the CBER. 

A Call for Evidence  was open from 9 August 2022 to 3 October 2022 on the Have 
your  say  portal.148  DG  Competition  also  sent  targeted  consultations  in  the  form  of 
online  questionnaires  (eQuestionnaires)  addressed  to  the  main  stakeholders  to 
complement information gathered from responses to the call for evidence and obtain, 
in particular, specific quantitative evidence. 

Agenda planning – timing 

Date 
July 2022 
20 July 2022 

Description 
Publication of initiation and planning 
1st ISSG meeting 

148 

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13519-EU-competition-law-

evaluation-of-the-Consortia-Block-Exemption-Regulation_en 

61 

 
 
 
9 August 2022 

16 December 2022 
15 March 2023 
2022 – 2023  

Call for evidence  
Targeted questionnaires  
2nd ISSG meeting 
3rd ISSG meeting 
Meetings with various stakeholders 

3.  Exceptions to the Better Regulation Guidelines 

No  exceptions  were  made  to  the  Better  Regulation  Guidelines149  during  this 
Evaluation.  

4.  Consultation of the RSB (if applicable) 

N/A. 

5.  Evidence, sources and quality  

The primary source of evidence was the data and information gathered from citizens, 
businesses,  public  authorities  and  other  relevant  stakeholders  who  submitted 
feedback  to  the  call  for  evidence,  as  well  as  the  responses  from  carriers,  transport 
users (shippers and freight forwarders) and port or terminal operators to the targeted 
questionnaires.  

Several  meetings  were  held  between  the  Commission  services  and  various 
stakeholders:  the  national  competition  authorities  of  EU/EEA  States;  the  relevant 
ministries and authorities in EU/EEA States; BEUC (Bureau européen des unions des 
consommateurs),  the  umbrella  organisation  for  EU  consumer  groups;  the  World 
Shipping  Council  and  four  of  the  carriers  it  represents;  a  public  body  representing 
French agricultural exporters. 

Other  data  were  obtained  through  the  general  sectoral  monitoring  activities  of  the 
Commission  services,  regular  exchanges  with  market  participants  as  well  as 
competition and regulatory authorities in Europe, the US and other jurisdictions. The 
Commission services further asked a firm of transport economists to collect data and 
draw  up  a  report  on  the  functioning  of  consortia  during  the  2020-2022  period.  The 
Commission services also used several publicly available reports and databases, such 
as from UNCTAD, OECD, HSBC and industry-journals. 

149   https://commission.europa.eu/law/law-making-process/planning-and-proposing-law/better-

regulation/better-regulation-guidelines-and-toolbox_en  

62 

 
 
 
 
 
ANNEX II. METHODOLOGY AND ANALYTICAL MODELS USED 

The  evaluation  is  based  on  a  wide  range  of  data  sources  and  inputs  and  involved  both 
internal analyses by the Commission services as well as a report and a data analysis by an 
external provider. As regards their own analysis, the Commission services used also their 
sector knowledge and the experience gathered from the previous CBER evaluations and 
their  continuous  monitoring  of  the  sector,  in  addition  to  the  results  of  the  consultation 
activities (call for evidence, targeted questionnaires and meetings). 

1. Data sources  

1.1. Consultation activities  

1.1.1. Initiation of the evaluation process  

The  evaluation  process  of  the  CBER  was  initiated  and  its  planning  published  on  the 
Commission’s central webpage Have your say150 in July 2022.  

1.1.2. The call for evidence  

The call for evidence on the evaluation of the CBER was open for feedback between 9 
August  2022  and  3  October  2022.  Its  objective  was  to  obtain  the  views  of  citizens, 
businesses,  public  authorities  and  other  relevant  stakeholders  on  the  effectiveness, 
efficiency,  coherence,  relevance  and  EU  added  value  of  the  CBER.  Participants  were 
able  to  reply  in  any  of  the  EU’s  official  languages.  The  call  for  evidence  was  also 
promoted through a press release and DG Competition’s website on competition policy.  

1.1.3. The targeted questionnaires 

From  9  August  2022  to  2  December  2022,  stakeholders  submitted  their  views  on  the 
performance  of  the  CBER  since  2020  in  response  to  targeted  questionnaires  sent  to 
carriers, transport users (shippers and freight forwarders) and port or terminal operators. 
Carriers  and  their  representatives  also  submitted  two  econometric  studies  in  support  of 
their claims.  

The factual summary of the answers is available in Annex V.  

1.1.4. Meetings  

Various bilateral meetings were held with stakeholders: Three meetings were  organised 
with respectively the national competition authorities of the EU/EEA States, the relevant 
ministries in the EU/EEA States, and BEUC, the umbrella organisation for EU consumer 
groups.  Two  meetings  were  organised,  upon  their  request,  with  the  World  Shipping 

150 

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13519-EU-competition-law-

evaluation-of-the-Consortia-Block-Exemption-Regulation_en 

63 

 
 
Council and four of the carriers it represents as well as with a public body representing 
French agricultural exporters.  

1.2. Other data sources  

The  feedback  collected  by  the  Commission  services  through  the  call  for  evidence,  the 
targeted questionnaires and the meetings complements the evidence they have collected 
as  part  of  their  general  sectoral  monitoring  activities.  Since  the  last  extension  of  the 
CBER  in  2020,  the  Commission  services  have  had  regular  exchanges  with  market 
participants, such as shippers, freight forwarders and carriers, as well as with competition 
and  regulatory  authorities  in  Europe,  the  US  and  other  jurisdictions  on  the  challenges 
faced  by  the  shipping  sector.  In  December  2021,  as  part  of  their  sectoral  monitoring 
activities,  the  Commission  services  also  started  a  fact-finding  exercise  by  sending 
questionnaires  to  carriers  active  on  trades  to  and  from  the  EU  to  collect  market 
information, in particular on the effects of the coronavirus pandemic on their operations 
and on the maritime supply chain. 

The  Commission  services  have  used  several  other  publicly  available  reports  and 
databases as well, such as from UNCTAD, OECD, HSBC and industry-journals.  

Finally,  the  Commission  services  have  asked  a  firm  of  transport  economists  (MDS 
Transmodal) to collect data on the functioning of consortia during the 2020-2022 period 
and to draw up a report for feeding the analysis by the Commission services of the state 
of the market.  

2. Limitations and challenges of the evaluation 

2.1. Level of participation  

Overall, the level of participation of stakeholders in the consultation activities and their 
representativeness  is  satisfactory.  The  Commission  services  received  53  submissions 
from 55 stakeholders in response to the call for evidence and 32 responses to the targeted 
questionnaires.  The  feedback  received  from  stakeholders  in  the  evaluation  gives  a  fair 
representation  of  the  opinions  of  carriers,  their  customers,  and  other  players  of  the 
maritime supply chain. However, only two national competition authorities took position, 
which  is  nevertheless  not  surprising  considering  the  geographic  scope  of  maritime 
services, the long-lasting existence of antitrust exemptions and, consequently, the limited 
enforcement  experience  of  Member  States.  Similarly,  only  ministries  of  two  Member 
States provided feedback. 

2.2. Quality of contributions  

While the overall quality of contributions to the evaluation is satisfactory, the following 
has to be noted regarding the quality of responses to the targeted questionnaire:  

- 

carriers  have  not  been  able  to  provide  robust  and  comprehensive  data  on  the 
consortia to which they belong that would be covered by the CBER;  

64 

 
-  no  carrier  has  indicated  that  it  assesses  compliance  of  a  consortium  with  EU 

competition law only;  

-  carriers as well as transport users have not distinguished between consortia within 
and  outside  the  scope  of  the  CBER  for  the  assessment  of  consumer  benefits. 
Therefore,  although  the  assessment  should  focus  on  block-exempted  consortia 
only, it has been in practice necessary to carry out an assessment of the effects of 
consortia in general. 

The  Commission  services  also  received  two  econometric  studies  to  support  carriers’ 
claims  about  the  efficiencies  brought  by  consortia  and  the  exogenous  causes  for  the 
deterioration  of  the  liner  shipping  services  during  COVID  times.  However,  these 
econometric studies have methodological limitations, in particular where it comes to the 
assessment  of  causality  between  consortia  and  the  claimed  benefits  for  transport  users 
and the environment.  

In  addition,  the  evaluation  period  has  been  characterised  by  volatile  market  conditions, 
notably sudden price hikes and drops, swings in demand, port and landside disruptions, 
etc.  This  volatility  has  added  to  the  difficulty,  already  identified  in  the  last  evaluation 
report  of  the  CBER,  in  designing  a  robust  methodology  identifying  the  benefits 
attributable to block-exempted consortia.  

The  above-mentioned  limitations  call  into  question  the  probative  value  of  the 
contributions  received  for  the  purposes  of  evaluating,  notably,  the  relevance  of  the 
CBER.  More  generally,  it  has  proved  impossible  to  define  a  methodological  approach 
that isolates the effects of the CBER from the general factors affecting the liner shipping 
industry.  

2.3. The method of the evaluation  

An evaluation needs an appropriate point of comparison to be able to assess the change 
that  the  EU  action  has  brought  over  time.  In  general,  the  main  baseline  (or 
counterfactual) is a situation in the absence of EU intervention. However, consortia have 
been  existing  in  the  container  liner  shipping  industry  for  a  very  long  time.  Also,  EU 
legislation  block  exempting  consortia  has  been  in  force  for  decades.  It  is  therefore  not 
possible  to  compare  the  CBER  with  a  situation  in  the  absence  of  the  CBER  or  of 
consortia in general.  

The assessment of the effectiveness of the CBER has required an extensive exercise of 
collection of data from carriers. To fill the gaps, overcome inconsistencies and check the 
overall reliability of the data submitted by carriers, the Commission services have used 
data provided by MDS Transmodal, as well as the World Shipping Council. 

Regarding the econometric studies, the Commission services have collected the raw data, 
requested  clarification  of  the  underlying  assumptions  and  re-run  the  models  to  test  the 
robustness of the results. 

The evaluation questions and criteria are presented in Annex III below. 

65 

 
 
ANNEX III. EVALUATION MATRIX  

Evaluation criteria 

Evaluation questions 

Data sources 

Points of comparison 

Indicators 

Effectiveness  

1.  What is the share of consortia covered by 
the CBER amongst consortia serving EU 
ports and what is their profile?  

2.  To what extent has the CBER facilitated 

the creation and operation of consortia 
between small- and medium-sized 
carriers?  

a.  Has the CBER made any material 
difference for the target group of 
carriers (small and medium-sized 
carriers)?  

b.  Has the CBER allowed smaller carriers 
to cooperate between themselves to 
reach scale and to remain competitive 
with larger carriers in terms of costs and 
frequencies and thereby positively 
contribute to the promotion of 
competition? 

Fact-finding exercise, 
responses to targeted 
questionnaires, MDS 
Transmodal report, meetings 
with stakeholders, publicly 
available reports and databases 

Assessment of the extent to which 
the CBER has fulfilled its two 
specific objectives, i.e. (i) to 
provide legal certainty to carriers, 
in particular small and medium-
sized ones, as to the forms of 
cooperation that can be 
considered as compliant with 
Article 101 TFEU, and (ii) to 
simplify administrative 
supervision by providing a 
common framework for the 
Commission, national competition 
authorities and national courts.  

Efficiency  

1.  To what extent has the CBER brought 

legal certainty (see also question 2 under 
Effectiveness)? 

2.  To what extent has the CBER brought 
compliance cost savings (see also 
question 2 under Effectiveness)?  

Fact-finding exercise, 
responses to targeted 
questionnaires, feedback from 
call for evidence, meetings 
with stakeholders 

Assessment of the extent to which 
the CBER has fulfilled its two 
specific objectives, i.e. (i) to 
provide legal certainty to carriers, 
in particular small and medium-
sized ones, as to the forms of 

66 

Quantitative: 
-  Number  of  consortia  facilitated 

by the CBER 

-  Number  of  consortia  made  of 
small- and medium-sized carriers 
-  Level  of  concentration  on  trades 

to and from the EU 

Qualitative: 
-  Share  of  carriers,  notably  small- 
and  medium-sized  carriers,  using 
the 
self-assess 
compliance  with  EU  competition 
law 

CBER 

to 

-  Share  of  carriers,  notably  small- 
and  medium-sized 
carriers, 
stating  that  the  CBER  had  a  role 
in their decision to cooperate with 
other carriers 

Quantitative: 
-  Compliance  costs 

incurred  by 
carriers 
falling 
for  consortia 
within  and  outside  the  scope  of 
self-
the  CBER 
assessment) 

(costs  of 

 
 
 
 
 
 
Qualitative: 
-  Specific  provisions  of  the  CBER 
for which carriers, notably  small- 
carriers, 
and  medium-sized 
legal 
there 
that 
declare 
uncertainty 

is 

-  General 

provisions 

on 
cooperation  between  competitors 
for  which  of  carriers,  notably 
small- and medium-sized carriers, 
declare 
legal 
uncertainty 

there 

that 

is 

3.  To what extent has the CBER simplified 
administrative supervision of the 
container liner shipping sector (see also 
question 2 under Effectiveness)?  

cooperation that can be 
considered as compliant with 
Article 101 TFEU, and (ii) to 
simplify administrative 
supervision by providing a 
common framework for the 
Commission, national competition 
authorities and national courts.  

67 

 
Coherence  

1. 
2. 

3. 

4. 

5. 

Is the CBER internally coherent? 
Is the CBER coherent with the EU 
competition law?  
Is the CBER coherent with the EU 
transport policy? 
Is the CBER coherent with the EU 
environmental policy? 
Is the CBER coherent with other EU and 
international policies? 

Fact-finding exercise, 
responses to targeted 
questionnaires, feedback from 
call for evidence, meetings 
with stakeholders 

EU added value 

1.  To what extent has the CBER, as a 

Relevance  

1. 

sector-specific EU regulation, brought 
added value?  

a.  Has the CBER made a difference and to 

whom? 

b.  Has the CBER had unintended effects? 

Can it be concluded with a sufficient 
degree of certainty that consortia 
covered by the CBER continued to fulfil 
the conditions of Article 101(3) TFEU?  

a.  Have consortia covered by the CBER 
continued to bring efficiencies? 
b.  Have consortia covered by the CBER 
continued to bring consumer benefits? 
c.  Have consortia covered by the CBER 
continued to bring environmental 
benefits? 

d.  Is it possible to demonstrate the 

causality between consortia covered by 
the CBER on the one hand and 
efficiencies and consumer benefits on 

Fact-finding exercise, 
responses to targeted 
questionnaires, feedback from 
call for evidence, meetings 
with stakeholders 

Fact-finding exercise, 
responses to targeted 
questionnaires, feedback from 
call for evidence, MDS 
Transmodal report, meetings 
with stakeholders, publicly 
available reports and databases 

68 

Assessment  of  changes  resulting 
from the review of the other rules 
and  guidance  for  carriers  to  self-
assess  compliance  of  consortia 
with Article 101 TFEU 

Assessment  of  changes  in  other 
applicable  EU  and  international 
rules,  most  notably  the  initiatives 
aimed at decarbonising the sector  

achieved 

Assessment of whether the CBER 
its  operational 
has 
legal 
objective  of  creating  a 
framework 
the 
supporting 
competitiveness  of  small  and 
medium-sized  carriers  active  on 
EU trades 

Original  needs  and  objectives 
behind 
to 
the  CBER, 
contribute  to  the  improvement  of 
the  competitiveness  of  the  EU 
liner  shipping  industry  and  the 
development of EU trade 

i.e. 

changes 

New  needs  arising  from,  notably, 
the 
the  market 
in 
structure as well as the economic, 
environmental  and  technological 
challenges faced by the sector 

Qualitative: 
-  Provisions of EU competition law 
for  which  stakeholders  identify 
inconsistencies 

-  Provisions  of  other  EU  and 
international  rules,  in  particular 
EU  environmental  and  transport 
policy,  for  which  stakeholders 
identify inconsistencies 

Qualitative: 
-  Benefits of the CBER identified 
by stakeholders, notably small- 
and medium-sized carriers 

Quantitative and qualitative: 
-  Efficiencies  brought  by  consortia 

covered by the CBER  

-  Consumer  benefits  brought  by 
consortia covered by the CBER 

to 

the 

of 
consortia 
of 

-  Contribution 
exempted 
improvement 
competitiveness  of  EU 
shipping industry  
of 
consortia 

-  Contribution 
exempted 
development of EU trade 

the 

block-
the 
the 
liner 

block-
the 

to 

 
 
 
 
 
 
 
the other hand?  

e.  Are consortia covered by the CBER 
indispensable within the meaning of 
Article 101(3) TFEU?  

2.  Have consortia covered by the CBER 
continued to contribute to the 
improvement of the competitiveness of 
the EU liner shipping industry and the 
development of EU trade?  

69 

 
ANNEX IV. OVERVIEW OF BENEFITS AND COSTS 

Table 1. Overview of costs and benefits identified in the evaluation   151    

Citizens/Consumers  

Businesses 

Administrations 

Others 

Quantitative  

Comment 

Quantitative  

Comment 

Quantitative 

Comment  

Quantitative 

Comment 

The evaluation 
has not 
identified 
direct 
compliance 
costs, 
enforcement 
costs or 
indirect costs 
of the CBER 
for citizens / 
consumers. 

Recurrent 

- 

The evaluation 
has not 
identified direct 
compliance 
costs, 
enforcement 
costs or indirect 
costs of the 
CBER for 
businesses. 

Costs: 

Direct compliance costs 
(adjustment costs, administrative costs, 
regulatory charges) 
Enforcement costs (costs 
associated with activities linked to the 
implementation of an initiative such as 
monitoring, inspections and 
adjudication/litigation) 
Indirect costs (indirect compliance 
costs or other indirect costs such as 
transaction costs)  

N/A 

N/A 

Enforcement 
experience has 
been limited 
due to the long-
lasting 
existence of the 
CBER and of 
preceding 
antitrust 
exemptions. 

The 
evaluation 
has not 
identified 
direct 
compliance 
costs, 
enforcement 
costs or 
indirect costs 
of the CBER 
for 
administratio
ns. 

Carriers do not 
specifically 
assess only 
compliance of 
their consortia 
with the CBER 
but with EU 
competition law 
as a whole and 
with other 
international 
laws. Moreover, 
carriers assess 
their compliance 
with in-house 
resources, 
making it 
difficult to assess 
the costs 
incurred. 

70 

 
 
 
 
 
                        
 
 
 
The evaluation 
has not 
identified 
direct or 
indirect 
benefits of the 
CBER for 
citizens / 
consumers. 

- 

The evaluation 
has not 
identified direct 
or indirect 
benefits of the 
CBER for 
businesses.  

Benefits: 

Direct benefits (such as improved 
well being: changes  in pollution levels, 
safety, health, employment; market 
efficiency) 
Indirect benefits (such as wider 
economic benefits, macroeconomic 
benefits, social impacts, environmental 
impacts) 

Recurrent 

N/A 

N/A 

The 
evaluation 
has not 
identified 
direct or 
indirect 
benefits of 
the CBER for 
administratio
ns. 

Enforcement 
experience has 
been limited 
due to the long-
lasting 
existence of the 
CBER and of 
preceding 
antitrust 
exemptions. 

As to direct 
benefits, some 
carriers have 
indicated that 
without the 
CBER their 
actual compliance 
costs (which 
anyway comprise 
not only CBER-
related costs but 
costs for 
complying with 
all applicable 
international 
laws) would be 
higher. They have 
however not 
given a more 
precise 
quantification of 
such savings.  

71 

 
 
 
 
 
 
ANNEX V. STAKEHOLDERS CONSULTATION - SYNOPSIS REPORT  

1. 

Introduction 

To  evaluate  the  performance  of  the  CBER  since  2020,  the  Commission  services  have 
collected  evidence  and  views  from  numerous  stakeholders  on  the  effectiveness, 
efficiency, coherence, EU added value and relevance of the CBER. 

2.  Stakeholder groups covered by the consultation activities 

Before the start of the evaluation process, as part of their sectoral monitoring activities, 
the Commission services performed a fact-finding exercise by sending in December 2021 
questions  to  carriers  active  on  trades  to  and  from  the  EU.  The  purpose  was  to  collect 
market information on changes in market circumstances in 2020-2021, in particular since 
the start of the COVID-19 pandemic. 

The Commission  services  identified the following  three  main groups  of stakeholders  to 
be covered by the consultation activities: 

a.  Carriers and their representative associations; 
b.  Shippers and freight forwarders (as the customers of liner shipping services) and 

their representative associations; 

c.  Port authorities and terminal operators, and their representative associations. 

The Commission services also consulted the national competition authorities in EU/EEA 
States  through  the  European  Competition  Network.  Meetings  were  also  organised  with 
other national bodies in EU/EEA States countries and BEUC, the umbrella organisation 
for EU consumer groups. 

The general public was consulted through the 8-week call for evidence published on the 
Commission’s central webpage Have your say. The Commission services also welcomed 
position  papers  from  industry  analysts,  academics,  and  law  firms  specialising  in 
competition law and the maritime sector, which constituted valuable inputs.  

3.  Call for evidence 

From 9 August 2022 to 3 October 2022, the Commission services carried out a call for 
evidence.  The  feedback  to  the  call  for  evidence  for  the  evaluation  of  the  CBER  is 
available  on  the  Have  your  say  portal152.  The  launch  of  the  call  for  evidence  was 
accompanied  by  a  press  release153.  The  consultation  was  published  in  all  official 

152 

https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13519-EU-competition-law-

evaluation-of-the-Consortia-Block-Exemption-Regulation/feedback_en?p_id=31369245  

153  https://ec.europa.eu/commission/presscorner/detail/en/ip_22_4864  

72 

 
 
 
languages  of  the  EU  and  replies  could  be  submitted  in  any  of  the  24  official  EU 
languages.   

a.  Carriers 

One association representing carriers responded. It took the view that the CBER should 
be extended without any amendments since consortia continued to bring environmental, 
macroeconomic and consumer benefits over the evaluation period.  

b.  Shippers and freight forwarders 

A total of 33 responding transport users submitted their feedback to the call for evidence. 
Out  of  the  33  respondents,  4  respondents  were  EU  citizens,  and  29  respondents  were 
companies or associations representing the interests of shippers and freight forwarders. 

Out of the 33 respondents, 24 stated that they were against the extension of CBER. They 
considered  the  CBER  to  be  no  longer  fit-for-purpose,  nor  effective,  efficient,  coherent, 
relevant  or  bringing  any  EU  added  value.  The  respondents  argued  that,  in  a  context  of 
concentration  in  the  market  of  maritime  services,  the  decision  of  the  Commission  in 
March 2020 to extend the CBER until 2024 contributed to a degradation of the quality of 
services, a sharp increase in freight costs and a distortion of competition between players 
of the global supply chain.  

The  remaining  9  respondents,  which  included  3  EU  citizens,  and  1  consumer 
organisation (BEUC), supported the extension of CBER subject to certain changes. These 
respondents  recognised  the  overall  economic  benefits  of  CBER.  However,  they  added 
that the renewal of the CBER should be made conditional upon the improvement of the 
quality  of  services  offered  by  consortia  and  the  pass-on  of  the  cost  efficiencies  to 
consumers in the form of lower freight rates.  

c.  Port and terminal operators 

There was a total of 2 respondents, one representing port and terminal operators and one 
representing an organisation of seaports. The first respondent did not take a position on 
the  expiry  of  the  CBER.  The  second  respondent  supported  the  extension  of  CBER  but 
requested modifications to have clearer guidance and increased monitoring.  

d.  National competition authorities 

The  Commission  services  received  two  contributions  from  national  competition 
authorities.  The  German  national  competition  authority  opposes  the  extension  of  the 
CBER  due  to  lack  of  evidence  of  compliance  with  the  conditions  of  Article  101(3) 
TFEU, whereas the Bulgarian national competition authority supports its extension. 

e.  Other stakeholders 

The  following  other  stakeholders  responded  to  the  call  for  evidence:  7  trade  unions,  2 
NGOs and 4 shipowners’ associations. 

73 

 
i. 

Trade Unions 

All  of  the  7  trade  unions  indicated  that  they  were  against  the  extension  of  the  CBER 
because of the deterioration of service quality and the creation of oligopolies which have 
created market distortions and pressure for all the workers along the supply chain.  

ii.  NGOs 

The  2  NGOs  also  expressed  their  concerns  that  the  CBER  is  not  adapted  to  the  new 
market  circumstances  and  contributes  to  unfair  benefits  enjoyed  exclusively  by  the 
shipping lines. One of the NGOs took position against the extension of CBER, while the 
other  one  called  on  the  Commission  to  evaluate  the  effect  of  CBER  and  reconsider  its 
extension.  

iii. 

Shipowners’ associations 

In addition to the association representing carriers, 4 shipowners’ associations responded 
to the call for evidence. Out of the 4 respondents, 3 support the extension of the CBER 
unchanged,  while  1  supported  an  extension  of  the  CBER  accompanied  by  clearer 
guidance from the Commission.  

The 3 associations arguing in  favour of the unchanged extension  pointed to  the overall 
economic and environmental benefits of the CBER and  considered it to  be an effective 
tool to alleviate compliance burdens for carriers.  

4.  Targeted questionnaires 

In  August  2022,  the  Commission  services  sent  targeted  questionnaires  to  several 
stakeholders. 

The  consultation  consisted  of  three  separate  questionnaires  targeting  the  following 
groups  of  stakeholders:  carriers,  customers  (shippers  and  freight-forwarders),  and  port 
and terminal operators. 

To assure a broad outreach and representative sample of the stakeholders concerned, the 
Commission  services  sent  the  targeted  questionnaires  also  to  associations  representing 
the  main  groups  of  stakeholders:  European  Community  Shipowners’  Associations 
(ECSA), World Shipping Council (WSC), CLECAT, International Federation of Freight 
Forwarders Associations (FIATA), Baltic Ports Organization (BPO), European Maritime 
Pilots' Association (EMPA), European Tugowners Association (ETA), and FEPORT.  

The  Commission  services  sent  69  questionnaires  in  total  (24  to  carriers  and  their 
associations, 24 to shippers and freight forwarders and their associations, and 21 to port 
and  terminal  operators  and  their  associations).  The  Commission  services  received  13 
responses  from  carriers,  10  responses  from  shippers  and  freight  forwarders  (including 
associations), and 9 from port and terminal operators (including associations).  

74 

 
 
a.  Carriers  

Relevance of the CBER 

The  questions  on  relevance  were  meant  to  determine  whether  in  2020,  2021  and  2022, 
consortia continued to generate efficiency gains, a fair share of which was be passed on 
to consumers.  

Out of the 13 responding carriers, 8 declared that they belonged to one of the three global 
alliances, 2 declared that they operated in other consortia and 3 that they only provided 
services  independently.  The  latter  3  respondents  therefore  indicated  not  to  be  in  a 
position to assess whether in 2020, 2021 and 2022 consortia generated efficiency gains 
partly passed on to consumers.  

All 10 respondents members of consortia considered that the increase in freight rates and 
deterioration in service quality in 2020-2022 were the result of exceptional circumstances 
during the COVID-19  pandemic  and of systemic supply chain issues on  which carriers 
have  no  control.  According  to  them,  the  2020-2022  period  is  not  representative  of  the 
normal functioning of the maritime supply chain and cannot provide useful information 
for  the  assessment  of  the  impact  of  consortia  and  the  relevance  of  the  CBER.  They 
therefore submit that it is impossible to quantify efficiencies stemming from consortia in 
2020,  2021  and  2022  and  that  the  assessment  of  potential  efficiency  gains  of  consortia 
should not be assessed over the 2020-2022 period but at a later point in time when all the 
market and competition  parameters have normalised, i.e. port congestion has eased and 
sufficient capacity has become available to transport users. 

Effectiveness, efficiency and EU added value of the CBER 

The  questions  on  effectiveness  were  meant  to  determine  whether  the  CBER  in  2020, 
2021, and 2022 facilitated economically efficient cooperation between carriers that also 
benefitted consumers. The questions on efficiency were meant to determine whether the 
CBER reduced  compliance costs for carriers. The questions on EU  added value invited 
carriers  to  compare  the  assessment  of  the  compatibility  of  consortia  with  Article  101 
TFEU using the CBER and in a theoretical situation absent the CBER.  

Out  of  the  10  respondents  members  of  a  consortium  in  2020,  2021  and  2022,154  8 
indicated that they assessed, in 2020, 2021 or 2022, compliance of one or several of the 
consortia they belonged to with EU competition law.  

For the 8 carriers having indicated that they assessed, in 2020, 2021 or 2022, compliance 
of one or several of their consortia with EU competition law, 7 mentioned the CBER as 
one of sets of EU rules that they relied on. However, 4 respondents were not in a position 

154   See above under “Relevance” – 3 of the in total 13 respondents provide services independently and not 

as member of any consortium and thus did not answer the question. 

75 

 
 
to  quantify,  or  even  give  a  broad  estimation  of,  the  costs  of  assessing  compliance  of 
consortia they belonged to with EU competition law. 

Coherence of the CBER with EU policies 

The  questions  on  coherence  aimed  to  determine  whether  the  CBER  was  coherent  with 
other  EU  policies,  especially  whether  consortia  contributed  to  the  objectives  of  the 
European Green Deal.  

Out of the 10 respondents that were member of a consortium in 2020, 2021 and 2022155 
all  stated  that  in  2020,  2021  and  2022  consortia  contributed  to  the  achievement  of  the 
objectives of the European Green Deal (e.g., reduction of greenhouse gas emissions and 
energy  efficiency).  However,  none  of  these  10  carriers  provided  evidence  (with 
substantiated examples) of a possible difference in the environmental impact and energy 
efficiency of container liner shipping services provided as an independent carrier and as a 
member of a consortium in 2020, 2021 or 2022.  

One  independent  carrier  stated  to  have  not  seen  any  tangible  difference  in  the 
environmental  impact  or  energy  efficiency  between  independent  carriers  and  consortia 
members in 2020, 2021 and 2022. 

b.  Shippers and freight forwarders 

As a preliminary comment, in the following overview of responses, each association of 
shippers  and  freight  forwarders  accounts  for  one  respondent,  although  it  represents  a 
much  larger  base  of  individual  undertakings.  For  example,  CLECAT,  the  European 
Association  for  Forwarding,  Transport,  Logistics  and  Customs  Services  represents  24 
national  freight  forwarder  and  logistics  associations,  including  large  but  also  small  and 
medium-sized  enterprises,  and  in  total  more  than  19  000  companies.  The  International 
Federation  of  Freight  Forwarders  Associations  (FIATA)  represents  freight  forwarding 
and logistics industry with 113 association members and over 5 000 individual members, 
together  representing  more  than  40  000  freight  forwarding  companies  of  all  sizes  from 
155  territories.  The  European  Shippers’  Council  (ESC)  represents  shippers  and  reaches 
out  to  100  000  companies  all  over  the  EU.  All  those  associations  submitted  that  the 
CBER does no longer fulfil the conditions for being prolonged and therefore should be 
left to expire or give rise to a new regulatory framework.  

Relevance of the CBER 

Respondents  indicated  that  the  functioning  of  the  maritime  supply  chain  in  2020,  2021 
and 2022 provides useful information for the assessment of the relevance of the CBER (7 
out of all 10 respondents). According to respondents, information on the functioning of 

155   See above under “Relevance” – 3 of the in total 13 respondents provide services independently and not 

as member of any consortium. 

76 

 
 
the  maritime  supply  chain  during  times  of  crisis  or  disruptions  should  be  taken  into 
account.  

More specifically, 5 out  of 10 respondents indicated that the CBER did neither prevent 
the price increases nor the deterioration of services during the COVID-19 pandemic, and 
customers did not enjoy benefits from consortia. One respondent submitted that consortia 
and alliances facilitated capacity redeployment in response to changing demand patterns. 
Another  respondent  submitted  that  the  broader  industry  trends,  including  consolidation 
between  carriers,  their  vertical  integration  and  cross-membership  between  consortia, 
should also be taken into account in the evaluation of the CBER since 2020.  

Regarding the impact of consortia on freight rates, 4 respondents outlined that there are 
very few independent carriers providing services on trades to/from the EU. Where there 
were  both  services  by  independent  carriers  and  by  consortia,  one  respondent  indicated 
that freight rates were generally the same, and three others that there was an increase in 
rates overall. One respondent also indicated that on one leg of a trade (Asia-EU), in 2021 
and 2022, freight rates for services provided by independent carriers were lower than the 
ones  from  consortia,  and  that  independent  carriers  tried  to  differentiate  through  better 
service  quality.  Another  respondent  indicated  that  services  provided  by  a  carrier  on  a 
given trade on a stand-alone basis or as part of a consortium are not always differently 
priced, until they have materially different features (e.g. transit times).  

Two  respondents  indicated  that  availability  of  services  from  independent  carriers  were 
characterised  as  lower  in  comparison  to  those  provided  by  consortia,  because  there  are 
very few independent carriers.  

Respondents  were  split  as  to  rate  of  port  calls  achieved  by  independent  carriers  as 
compared to the one achieved by consortia on a given leg of trade to or from the EU over 
the 2020-2022 period. One respondent for example considered that the rate of port calls 
achieved  by  independent  carriers  was  higher  on  all  legs  of  trade  through  the  whole 
period; another considered that they were the same, and a third one considered that the 
rates of port calls achieved varied across different quarterly periods and different legs of 
trade.  

Respondents  had  mixed  views  on  delays  affecting  services  of  independent  carriers  as 
compared  to  consortia.  One  respondent  for  example  submitted  that  delays  from 
independent  carriers  were  lower  as  compared  to  consortia  and  another  one  considered 
that in most instances they were higher (only 2 respondents on this point). 

Respondents  had  also  diverging  opinions  on  the  reliability  of  services  of  independent 
carriers  as  compared  to  consortia.  One  respondent  for  example  submitted  that  the 
reliability  of  services  operated  by  independent  carriers  was  higher  or  the  same  as 
compared to consortia and another one considered that in most instances reliability was 
lower.  Two  other  respondents  submitted  that  reliability  of  services  had  in  general 
severely decreased since 2020 to reach a low historic.  

77 

 
Five  out  of  the  9  respondents  having  expressed  an  opinion  on  vertical  integration 
considered that consortia contributed to the ability and/or incentive of carriers to invest in 
activities upstream, downstream or adjacent to container shipping (e.g. logistics, port or 
terminal  operations).  Five  respondents  submitted  that  the  CBER  and  consortia  have 
created the appropriate circumstances for excessive profits of carriers during the COVID-
19  pandemic,  which  enabled  carriers  to  make  acquisitions  along  the  supply  chain  by 
acquiring  port  terminals,  forwarders  and  freight  airlines,  thus  becoming  vertically-
integrated providers of door-to-door logistics solutions.  

c.  Port and terminal operators 

It  should be noted that  each of  ESPO, the association representing port administrations 
and port authorities of the coastal EU member states and Norway,  as  well as observers 
from  Albania,  Iceland,  Israel,  Montenegro,  Ukraine  and  the  UK),  and  FEPORT,  which  
represents the interests of large variety of terminal operators and stevedoring companies 
performing cargo handling operations and logistics related activities in the seaports of the 
European Union (1225 companies which employ more than 390 000 port workers), were 
of  the  opinion  that  the  CBER  is  neither  relevant  nor  effective  any  longer.  Each 
association accounts for one respondent in the following overview of responses.  

Relevance of the CBER 

Six  out  of 9 respondents indicated that the functioning  of the maritime supply  chain  in 
2020, 2021 and 2022 provides useful information for the assessment of the relevance of 
the CBER.  

Five respondents indicated that they had to make high investments in port infrastructure 
in  order  to  accommodate  the  ultra-large  containerships  increasingly  used  by  carriers. 
They also mentioned the increased market power of the global alliances which ports need 
to  accommodate.  Four  respondents  highlighted  the  risks  associated  with  those 
investments,  which  are  in  most  cases  long-term  (30-50  years),  highly  dependent  on 
choices made by the carriers and with a volatile time before delivering positive returns. 

Four  out  of  7  respondents  further  indicated  that  consortia  hamper  port  efficiencies. 
Increased  pressure  on  the  entire  supply  chain  from  bigger  vessels,  worsened  schedule 
reliability  of  carriers,  cancellations  of  port  calls,  decline  in  direct  liner  connectivity, 
shifting  capacities  between  ports,  were  among  the  reasons  mentioned  for  the  negative 
externalities of consortia. 

Respondents were divided as to whether consortia purchase port services jointly or not. 

Four  out  of  7  respondents  considered  that  consortia  contributed  to  the  ability  and/or 
incentive  of  carriers  to  invest  in  port  or  terminal  operations  in  2020-2022,  because 
consortia  enabled  achieving  high  profits  over  the  period,  which  helped  carriers  to 
diversify investments and acquire assets along the logistics chain.  

78 

 
Finally on relevance, 5 from out of 7 respondents indicated that, given the developments 
in the industry in 2020-2022, consortia cannot be considered any longer an economically 
efficient  means  of  cooperation  that  benefits  consumers.  They  added  that  a  number  of 
features  of  the  shipping  industry  (the  powerful  negotiating  power  of  consortia,  the 
vertical integration of carriers, the negative impact of big vessels on port efficiency, the 
restriction  of  capacity  by  consortia  observed  during  the  COVID-19  pandemic  and  the 
high  prices  during  the  period)  should  be  taken  into  account,  and  that  it  is  time  to  the 
reconsider  the  effects  of  consortia  on  service  quality  and  reliability  as  well  as  on  the 
sustainability of the whole freight chain.  

Effectiveness of the CBER 

As to the question of whether the CBER was effective in 2020-2022 and facilitated the 
creation and operation of consortia, 3 out of 4 respondents indicated that the CBER was 
not effective during the period. They submitted that no new consortia had been founded 
since  2020,  while  the  market  power  of  the  existing  consortia  increased  and  extended 
beyond liner shipping due to the vertical integration of carriers. 

5.  Other consultation activities 

The  Commission  services  held  several  meetings  with  stakeholders  during  which  the 
evaluation of the CBER was mentioned. Those organised specifically in the framework 
of the consultation activities for the evaluation of the CBER are described below.  

On  21  September  2022,  the  Commission  services  held  a  virtual  meeting  with  BEUC. 
BEUC asked the Commission not to rely on a presumption of efficiencies but, in view of 
the  2020-2022  price  hikes,  to  require  strong  evidence  of  consumer  benefits  brought  by 
consortia.  

On  22  September  2022,  the  Commission  services  had  a  virtual  meeting  with  national 
competition authorities of the EU/EEA States. Regarding the relevance of the CBER, one 
participant stated that the effects  of the COVID-19  crisis  and of consortia could  not  be 
fully  disentangled  and  that  there  is  no  evidence  that  consortia  bring  about  efficiencies. 
Furthermore,  efficiencies  could  be  achieved  through  lower  forms  of  cooperation.  The 
CBER should therefore be phased out or, in case of prolongation, substantially amended.  

On 28 September 2022, the Commission services had a virtual meeting with authorities 
from  the  relevant  ministries  of  the  EU/EEA  Member  States.  During  the  meeting,  one 
participant  expressed  the  views  that  (i)  the  CBER  worked  well,  (ii)  the  COVID-19 
circumstances are exceptional and not informative of the performance of the CBER, and 
(iii)  the  CBER  brings  legal  certainty  and  should  be  prolonged.  Following  the  meeting, 
two participants sent contributions to the Commission services.  

In  addition, two meetings were organised, upon their request,  with  the World  Shipping 
Council (and four of the carriers it represents) as well as with  a body grouping  French 
agricultural exporters. 

79 

 
Finally, the Commission services liaised with other jurisdictions outside of the EU/EEA 
to  exchange  views  on  the  functioning  of  the  container  liner  shipping  sector  and  the 
antitrust regime applicable to it. 

6.  Evidence submitted outside of consultation activities 

As  indicated  above,  the  Commission  services  organised  consultation  activities  for  the 
CBER  evaluation  until  December  2022.  However,  after  that  date,  the  Commission 
services  continued  to  meet  with  stakeholders  upon  their  request  and  to  assess  any 
additional  or  complementary  evidence  submitted  in  particular  by  carriers,  the  World 
Shipping Council, as well as organisations representing freight forwarders or ports.   

7.  How input gathered during consultation activities has been considered  

The input gathered in the context of the consultation work has been fully considered in 
the evaluation of the CBER. It has very usefully complemented the evidence collected by 
the  Commission  services  as  part  of  their  general  sectoral  monitoring  activities.  In 
particular, it has helped the Commission services to identify the market dynamics during 
the  evaluation  period  and  to  better  understand  the  extent  to  which  the  CBER  was  still 
adapted to the needs and challenges of the sector. 

In  addition,  the  quality  and  relevance  of  the  contributions  received  from  stakeholders 
explain why all views were entirely considered, regardless of the degree of support they 
received from other participants in the consultation activities, and no responses to the call 
for evidence were discarded.  

80