COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE EVALUATION 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)
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) 671 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE EVALUATION  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(2023) 670 final}  
 
 
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. In 2020, about 70% 
of  the  value  of  international  trade  was  carried  by  maritime  transport,  of  which  about  two 
thirds was carried by containers. 

For  the  provision  of  liner  shipping  services  carriers  often  cooperate  in  consortia,  defined  as 
joint  service  agreements  between  carriers  designed  to  rationalise  their  operations.  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. 

In 2009, the Commission adopted Commission Regulation (EC) No 906/20091 (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  the  Commission’s  ‘better  regulation2’  commitment, 
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. 

2.  What was the expected outcome of the intervention? 

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.  

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.  This general  objective draws 
from findings, at the time of the adoption of the CBER in 2009, about both: (i) the efficiency 
gains  and consumer benefits  brought  by consortia between small  and medium-sized carriers 
(such  as  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. 

The CBER has two specific objectives. Firstly, 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. Secondly, 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. 

3.  How has the situation evolved over the evaluation period? 

Over the 2020-2023 evaluation  period,  consortia remained a prevalent  feature of the sector, 
even though large carriers became less reliant on alliances.   

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

2   Commission Staff Working Document, Better Regulation Guidelines, 3.11.2021, SWD(2021) 305 final. 

1 

 
 
 
By  contrast  with  the  stability  seen  in  the  prevalence  of  consortia,  the  evaluation  period  has 
been  characterised  by  dramatic  changes  in  other  market  circumstances  that  had  previously 
been  identified  as  driving  the  need  for  cooperation  between  carriers.  More  specifically,  the 
evaluation period has seen a transitory and exceptional phase of excess demand over effective 
capacity  and  of  record  profits  for  carriers.  This  transitory  and  exceptional  phase  has 
temporarily interrupted the trend towards oversupply and low profitability in the sector.  

In terms of the level of concentration during the evaluation period, the liner shipping sector 
did not undergo any major operation of horizontal consolidation. The trend towards vertical 
integration of carriers continued, with  substantial  investments  in  port, terminal  and logistics 
operations. 

4.  Evaluation findings 

To what extent was the intervention successful and why?  

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 unique3 consortia falling within the scope of the CBER in 
2020 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  fulfilling  its 
goal of promoting competition by enabling smaller carriers to cooperate between themselves 
and offer alternative services in competition with larger carriers.  

In  addition,  carriers  have  said  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  an 
incomplete  or  inconsistent  understanding  of  the  substantive  provisions  of  the  CBER,  even 
among  large  carriers  with  proven  antitrust  experience  and  compliance  resources.  This 
incomplete  or  inconsistent  understanding  relates  in  particular  to  (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. 

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. As an illustration, 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 consortium or for the allocation of capacity between 
independent  and  joint  services,  or  between  joint  services.  The  subordinate  role  played  by 

3   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.  

2 

 
 
 
antitrust rules may be explained by the insignificance of the compliance costs compared to the 
carriers’ operating costs. 

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

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 
Regulation4 and the new Guidelines on horizontal cooperation agreements5. 

Is the intervention still relevant? 

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.  

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 establish causal links 
between  consortia  and  consumer  benefits.  The 
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.  

limitations 

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 (such as port and 

4   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. 

5   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. 

3 

 
 
 
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. 

5.  What are the conclusions and lessons learned? 

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.  

4