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Peter Appel and Bitten Thorgaard Sørensen of Gorrissen Federspiel Kierkegaard, Copenhagen
Due to the recent competition law reforms, the shipping indus-try is today faced with the obligation of complying with European Community competition rules, namely, Article 81 of the EC Treaty containing a prohibition against anti-competitive agreements, and Article 82 of the EC Treaty containing a prohibition against abuse of a domi-nant position.
Competition rules are relevant for pool managers and other participants of a tramp pool given that the pool arrangements imply (horizontal) cooperation between the pool members. Furthermore, for the pool managers, it is important to note that competition assessments will have to be conducted by the pool managers themselves and their advisers. Companies can no longer rely on an “ex-ante” clearance by the European Commission. This is due to the 2004 abolition of the system of notification and approval by the European Commission.
Competition concerns may be raised towards a pool (or its members) individually or towards its relations with other pools. This article provides a brief in-troduction to the legal framework relevant to pool managers.
The Community competition rules were applicable to tramp shipping even before the recent amendments, however they were not enforceable by the European Commission at that time because they where excluded from the applicable procedural rules. This situation changed in 2006 when the Council adopted the European Commission’s proposal to include tramp-vessel services and cabotage under the procedural rules. Under this new regime, tramp pools risk falling into investigations and sanctions by the European Commission and national competition authori-ties. Thus, the European Com-mission has all of its normal en-forcement powers and may in-vestigate and impose fines on shipowners and/or pool manag-ers.
3.1 The relevant market
For a competition assessment the markets in which the pool operates must be defined. How the market is defined (from a competition law point of view) is crucial to determine the pool’s market power and its competi-tors. Thus, pool managers should be familiar with competition law market definitions.
3.2 Anticompetitive agreements
Under Article 81 of the EC Treaty conduct such as price fixing, output limitation, and sharing of markets is considered anti-competitive. Agreements be-tween competitors involving price fixing will always be pre-sumed anticompetitive and be subject to a competition assess-ment irrespective of the parties’ market power.
Pools are less likely to be consid-ered anti-competitive if: i) pool members are not actual or po-tential competitors; ii) they are competitors but do not have any other means of providing the service object of the agreement; iii) the pool does not influence competition because they are of minor importance (for this crite-rion to apply, the pool cannot have provisions regarding joint price fixing and joint marketing) and/or do not have an apprecia-ble effect on trade between Member States.
Pools do not have as their object to restrict competition, however, even so, pools could neverthe-less be seen to generate anti-competitive effects. Thus, the ef-fects of the pool will be analyzed in its economic context taking into account the nature of the agreement and the parties’ com-bined market power, together with structural factors of the relevant market. Such considera-tions include the possibility of af-fecting neighbouring markets; inclusion of clauses prohibiting members from being active in the same market outside the pool; exchange of commercially sensitive information; stability of market shares over time; struc-tural links between pools; mar-ket entry barriers; and market transparency.
Even if a pool raises competition concerns, the question is never-theless whether it has an appre-ciable effect on competition and if so whether it has positive ef-fects on the market despite the apparent reduction in competi-tion (e.g. benefits consumers). The European Commission has suggested that while horizontal cooperation may produce anti-competitive effects in the mar-ket, in many cases cooperation may lead to substantial pro-competitive benefits. Given the fact that pools have different characteristics a case by case analysis will be required.
Thus, in the event a pool is found to fall within the scope of Article 81(1) of the EC Treaty it could still benefit from an individual exemption (under Article 81(3) of the EC Treaty) provided cer-tain conditions are met, which ultimately translate in the agreement producing benefits that outweigh its anti-competitive effects.
3.3 Abuse of a dominant position
A company will be regarded as having a dominant position if it is economically strong enough to act independently on the market, i.e. independently of its competi-tors, suppliers, and customers. Numerous factors are used to determine whether a company has a dominant position. However, market share is often the most important.
The term abuse has been given a wide interpretation by the Com-mission and includes inter alia excessive pricing, predatory pric-ing, price discrimination, fidelity rebates, refusal to supply and abuse in the form of bun-dling/tying.
Cooperation between different pools will almost always raise competition concerns. In this re-spect, the exchange of informa-tion between competing pools can constitute an infringement of competition rules. Here, a distinction should be made between cases where it forms part of a broader infringement; or a separate infringement under Article 81(1).
It is difficult to establish general rules to distinguish between in-formation exchanges that are neutral or even pro-competitive from those that are restrictive of competition. The European Commission has adopted a case by case approach. However, the nature of the information, fre-quency with which it is dissemi-nated, and the persons to whom it is disclosed, are elements which will be taken into consid-eration by competition authori-ties. Pools are less likely to raise concerns if they only provide ag-gregated, historical, publicly available and general data to all market participants, while indi-vidual data is only accessible to the owner of such data.
Accordingly, pool managers should be careful not to exchange sensitive commercial information with managers of competing pools. This may lead competition authorities to believe that there is “collusion” or “coordinated behavior” between competitors. This is especially relevant when pools have the same owners, members or managers. There must be a clear separation in administration and a system built to prevent the spill-over of information from one pool to the other (e.g. “Chinese walls”). The main purpose should be to guarantee the independence of different pools.
The Commission will soon issue draft guidelines that will help clarify the application of competi-tion rules to tramp shipping and maritime transport in general. For further information on appli-cable laws and future guidelines, please refer to the Commission’s website at ec.europa.eu/comm/competi-tion/antitrust/legislation/maritime/