Workshop Good Practices for
Ship Vetting
12 October 2011
Nicole L Maréchal
Senior Legal Counsellor & Governance Officer
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Legal aspects of ship vetting Guidelines
The Guidelines are of voluntary nature, not made
mandatory by law
It is a risk assessment process and risk
prevention system, proposed in application of
Responsible Care
We (lawyers) are also looking into activities
including Guidelines aimed at improving Health
Safety & Environment to prevent (legal) risks
occurrence
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Legal aspects of ship vetting Guidelines
Need to have these Guidelines as any Cefic
activities conforming with competition
compliance to avoid breaching law but also to
have any misunderstanding from competition
authorities
It
is not because you are working within
Responsible Care / Product Stewardship / HSE
that competition law would not apply → you
need to check and to comply
4
EU Competition Law
To ensure competition compliance
how to proceed:
• Look at the prohibition of cartels (basically
Article 101 TFEU)
• Also at the Commission Guidance on Horizontal
Agreements, including standardization
• Apply this to the Guidelines
5
Cartel prohibition – 101 TFEU
Infringement - Sanctions such as:
OK
• Fines (huge)
No
No
Does Art 101 (1) apply ?
Yes
• Agreements void &
unenforceable
• Damages
Are the 4 conditions of 101
(3) met ?
No
• Criminal sanctions
Yes
OK
Any applicable
block exemption Guidelines ?
Yes
OK
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Cartel prohibition
•
May also apply
association
to
activities
of
a
trade
•
In addition to usual cartels (eg decision on
price, sharing clients, limiting output) cartel
prohibition may also apply to systems
organised via HSE guidelines
•
There is a grey zone into which carefulness
about activities management is required
→ pattern your activity on the right way
Need to be looked at this from Cefic view point,
as well as the company one and along the
chain
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Ship vetting Guidelines - compliance
Ship vetting Guidelines – any system alike needs
to fulfil the following characteristics:
 No exclusion of actual or potential competitor
Freedom to develop alternative systems
Transparency
Means to be proportionate to aims
Exchange of information to be limited to the minimum
System to be open and non-discriminatory
8
Ship vetting Guidelines - compliance
The choice of the logistic service provider is
based entirely on the individual decision-making
process of each company, which may or may
not include criteria/procedure/system developed
by the Guidelines
It is certainly NOT a collective decision-making
process organised by Cefic or chemical
companies to collectively de-select logistic
service providers
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Ship vetting Guidelines - compliance
It IS NOT a:
• Certification system to be compared to ISO, or a
standardization system
• A pass/fail system or system to white/black list providers
• An exclusive system replacing any existing or future systems
But it IS a:
• A means that companies would use to help avoidance of
accident based on voluntary participation
• One of the tools that company may use when choosing their
respective logistics provider
• System to be operated in a non-discriminatory and nonexclusionary manner
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Thanks your attention
I wish you the best
for developing and applying your own
Ship Vetting system
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