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

The Commission has published in the OJEU of September 26th, the Guidelines setting out the principles that it will follow when defining markets and assessing cooperation agreements in liner shipping services, cabotage and international tramp services, maritime transport services directly affected by the changes brought about by Council Regulation (EC) No 1419/2006 of September 25th, 2006.

These Guidelines for the application of Article 81 of the Treaty to maritime transport services, which were adopted by the European Commission on July 2008, are intended to help undertakings and associations of undertakings operating those services, mainly if operated to and/or from a port or ports in the European Union, to assess whether their agreements are compatible the rules set by the Treaty establishing the European Community, which sets the incompatibility of certain agreements between undertakings with the rules of Common Market.

These Guidelines complement the guidance already issued by the Commission in other notices. As maritime transport services are characterised by extensive cooperation agreements between competing carriers,  the Guidelines on Horizontal Cooperation and the Guidelines on the application of Article 81 of the Treaty are particularly relevant.

The Guidelines will apply to maritime transport services affected by Council Regulation (EC) No 1419/2006 of September 25th, 2006, namely linner shipping, tramp vessel services and cabotage.

These Guidelines set the rules to apply when defining the relevant market to assess the effects on competition of an agreement between these type of maritime undertakings, as well as the rules to assess the market shares, which provide useful first indications of the market structure and of the competitive importance of the parties and their competitors.

Cooperation agreements are a common feature of maritime transport markets. Considering that these agreements may be entered into by actual or potential competitors and may adversely affect the parameters of competition, undertakings must take special care to ensure that they comply with the competition rules. In service markets, such as maritime transport, the following elements are particularly relevant for the assessment of the effect an agreement may have in the relevant market: prices, costs, quality, frequency and differentiation of the service provided, innovation, marketing and commercialisation of the service.

Three issues which are addressed in these Guidelines on Horizontal Agreements, are of particular relevance to the services covered by them:

  • Technical agreements: Certain types of technical agreements may not fall under the prohibition set out in Article 81 of the Treaty on the ground that they do not restrict competition. Agreements between competitors relating to price, capacity, or other parameters of competition will, in principle, not fall into this category.
  • Exchanges of information: It is common practice in many industries for aggregate statistics and general market information to be gathered, exchanged and published. This published market information is a good means to increase market transparency and customer knowledge, and thus may produce efficiencies. However, the exchange of commercially sensitive and individualised market data can, under certain circumstances, breach Article 81 of the Treaty. These guidelines are intended to assist providers of liner shipping services in assessing when such exchanges breach the competition rules.
  • Pools: The Guidelines set the rules to consider whether pool agreements fall or not under the prohibition of Article 81 of the Treaty. They will not be affected by the prohibition of the Treaty if the participants to  the pool are not actual or potential competitors, and in the cases of those pools whose activity does not influence the relevant parameters of competition because they are of minor importance and/or do not appreciably affect trade between Member States.

The Commission will apply these Guidelines for a period of five years. The Maritime Guidelines published in the OJEU are an integral part of the Commission's Action Plan to implement the Integrated Maritime Policy.