The European Commission published in the Official Journal of the European Union of October 21st, 2008, the invitation to a public consultation for all interested parties to send their comments concerning the draft Commission Regulation (EC) on the application of Article 81.3 of the EC Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies, the so called “consortia”.

The Commission has made use of this power by adopting Commission Regulation (EC) Nº 823/2000 of April 19th, 2000 on the application of Article 81.3 of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies, the so called “consortia”.

On the basis of the Commission's experience to date, and given that this Regulation will expire on April 25th, 2010, it can be concluded that the justifications for a block exemption for liner consortia are still valid as it has been found to function well for the benefit of carriers and transport users.

There is a great variety of different consortia agreements operating in the market. The Regulation shall apply to consortia only in so far as they provide international liner transport services from or to one or more Community ports.

For the purposes of the Regulation, “consortium” will apply to an agreement or a set of interrelated agreements between two or more vessel-operating carriers which provide international liner shipping services exclusively for the carriage of cargo, chiefly by container, relating to one or more trades, and the object of which is to bring about cooperation in the joint operation of a maritime transport service, and which improves the service that would be offered individually by each of its members in the absence of the consortium, in order to rationalise their operations by means of technical, operational and/or commercial arrangements.

Maritime Consortia activities which will not be subject to Article 81.3 of the Treaty

• Joint operation of liner shipping transport services which includes any of the following activities:

1. Coordination and/or joint fixing of sailing timetables and the determination of ports of call;
2. Exchange, sale or cross-chartering of space or slots on vessels;
3. Pooling of vessels and/or port installations;
4. Use of one or more joint operations offices;
5. Provision of containers, chassis and other equipment and/or the rental, leasing or purchase contracts for such equipment;
6. Use of a computerised data exchange system and/or joint documentation system;

• Capacity adjustments in response to fluctuations in supply and demand.
• Joint operation or use of port terminals and related services (such as lighterage or stevedoring services).
• Any other activity ancillary to those referred to in points 1 to 3, which is necessary for their implementation. The following clauses will in particular be considered ancillary activities within the meaning of paragraph 2(d):

1. An obligation on members of the consortium to use on the trade or trades in question vessels allocated to the consortium and to refrain from chartering space on vessels belonging to third parties.
2. An obligation on members of the consortium not to assign or charter space to other vessel-operating carriers on the trade or trades in question except with the prior consent of the other members of the consortium.

Consortia, as defined in this Regulation, generally help to improve the productivity and quality of available liner shipping services by reason of the rationalisation they bring to the activities of member companies and through the economies of scale they allow in the operation of vessels and utilisation of port facilities.

They also help to promote technical and economic progress by facilitating and encouraging greater utilisation of containers and more efficient use of vessel capacity. For the purpose of establishing and running a joint service, an essential feature inherent in consortia is the ability to make capacity adjustments in response to fluctuations in supply and demand.

By contrast, unjustified output limitation as well as the joint fixing of freight rates or market andcustomer allocation are unlikely to bring any efficiency. Therefore, consortia agreements that involve such activities should be excluded from the benefit of this Regulation, irrespective of the market power of the parties. The excluded agreements will be those which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have as their object:

• The fixing of prices when selling liner services to third parties.
• The limitation of capacity or sales except for the capacity adjustments referred to in Article 3.2 b) of this Regulation.
• The allocation of markets or customers.

The Regulation will enter into force on April 26th, 2010, and will apply until April 25th, 2015.

This consultation completes the reform of competing rules applying to maritime transport services, which was initiated by the adoption by the Commission of a set of Guidelines on the application of competition rules to maritime transport services.

Comments (reference HT.1065) to this consultation should be sent within one month of the date of publication of the notice (October 21st), to:

European Commission
Directorate-General for Competition
Reference HT.1065
Unit COMP/F1, Office J70 2/55
B-1049 Brussels
Fax (32-2) 295 01 28
E-mail: COMP-GREFFE-ANTITRUST@ec.europa.eu