Case T-395/94
Atlantic Container Line AB and Others
v
Commission of the European Communities
(Competition — Liner conferences — Regulation (EEC) N o 4056/86 —
Scope — Block exemption — Regulation (EEC) N o 1017/68 —
Individual exemption)
Judgment of the Court of First Instance (Third Chamber), 28 February 2002 II - 885
Summary of the Judgment
1. Competition — Maritime transport — Agreements, decisions and concerted practices — Agreement between shipping lines on the scheduled transport between
Northern Europe and the United States and the inland carriage of containers —
Relevant market — Restrictions of competition within the common market —
Certain member lines established outside the Community — No effect
(EC Treaty, Art. 85 (now Art. 81 EC))
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SUMMARY — CASE T-395/94
2. Competition — Agreements, decisions and concerted practices — Effect on trade
between Member States — Criteria
(EC Treaty, Art. 85(1) (now Art. 81(1) EC))
3. Competition — Maritime transport — Agreements, decisions and concerted practices — Effect on trade between Member States •—• Agreement between shipping lines
relating to the conditions for the sale of maritime and inland transport services —
Effect on trade in port and auxiliary services linked to the carriage of goods
(EC Treaty, Art. 85(1) (now Art. 81(1) EC))
4. Competition — Maritime transport — Regulation No 4056/86 — Block
tion —· Scope
(Council Regulation No 4056/86, Art. 3)
exemp-
5. Competition — Maritime transport — Regulation No 4056/86 — Block exemption — Strict interpretation — Exemption for liner conference agreements — Scope
(EC Treaty, Art. 85(1) and (3) (now Art. 81(1) and (3) EC); Council Regulation
No 4056/86, Art. 3)
6. Community law — Definitions — Interpretation — Definition taken from an international convention — Interpretation with regard to that convention
7. Competition — Maritime transport — Liner conferences — Definition — Block
exemption of liner conference agreements — Conditions — Setting uniform freight
rates for all conference members — Tariff rates varying between members —
Whether unlawful
(Council Regulation No 4056/86, Art. 3)
8. Competition — Maritime transport — Regulation No 4056/86 — Block exemption
of liner conference agreements — Justification — Stabilising effect of uniform freight
rates for all conference members — Independent action on the part of one conference
member — Whether lawful
(Council Regulation No 4056/86, Art. 3)
II - 876
ATLANTIC CONTAINER LINU AND OTHERS v COMMISSION
9. Actions for annulment — Commission decision refusing to grant individual exemption — Complex economic appraisal — judicial review — Limits
(EC Treaty, Art. 85(3) (now Art. 81(3) EC), and Art. 173 (now, after amendment.
Art. 230 EC))
10.Competition — Maritime transport — Agreements, decisions and concerted practices — Prohibition — Exemption — Conditions — Discretion of the Commission
(EC Treaty, Art. 85(3) (now Art. 81(3) EC); Council Regulation No 4056/86)
11. Competition — Agreements, decisions and concerted practices — Prohibition —
Exemption — Conditions — Cumulative nature
(EC Treaty, Art. 85(3) (now Art. 81(3) EC))
12.Competition — Maritime transport — Agreements, decisions and concerted practices — Prohibition — Exemption — Relevant market — Delimitation — Criteria — Agreement between shipping lines relating to the scheduled transport of
containers between Northern Europe and the United States
13.Competition — Agreements, decisions and concerted practices — Prohibition —
Exemption — Conditions — Possibility of eliminating competition in respect of a
substantial part of the relevant services — Must be assessed as a whole
(EC Treaty, Art. 85(3) (now Art. 81(3) EC))
14. Competition — Maritime transport — Agreements, decisions and concerted practices — Prohibition — Exemption — Conditions — Possibility of eliminating competition in respect of a substantial part of the relevant services — Assessment
criteria — Agreement between shipping lines fixing maritime transport rates
(EC Treaty, Art. 85(3) (now Art. 81(3) EC); Council Regulation No 4056/86, Art. 11)
15. Procedure — Intervention — Plea in law not raised by the applicant — Whether
inadmissible
(EC Statute of the Court of justice, Art. 37, fourth para.; Rules of Procedure of the
Court of First Instance, Art. 116(3))
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SUMMARY — CASE T-395/94
16. Competition — Administrative procedure — Decision finding that there has been an
infringement •— Order compelling the undertakings
concerned to inform
their
customers that they may renegotiate or rescind the contracts — Decision departing
from the Commission's usual practice •—• Failure to state that fact in the statement of
objections — Infringement of the obligation to state reasons
(EC Treaty, Art. 85(1) (now Art. 81(1) EC); Council Regulations No 1017/68,
Art. 11, and No 4056/86, Art. 11)
1.
In the case of an agreement between
shipping lines on the scheduled transport of containers across the Atlantic
between N o r t h e r n Europe and the
United States and on the inland carriage of the containers, the relevant
markets directly affected are those in
transport services and not that in the
export of goods to the United States.
The restrictions of competition occur
within the common market because it
is there that the members of the agreement, including several shipping companies established in the Community,
are in competition to sell their services
to clients, namely shippers, established
in the Community. The fact that certain members of the agreement are not
established in the Community does not
cast doubt on that conclusion.
between Member States, it must be
possible to foresee with a sufficient
degree of probability and on the basis
of objective factors of law or fact that it
may have an influence, direct or indirect, actual or potential, on the pattern
of trade between Member States, such
as might prejudice the realisation of the
aim of a single market between States.
In particular, it is not necessary that the
conduct in question should in fact have
substantially affected trade between
Member States. It is sufficient to establish that the conduct is capable of
having such an effect.
(see paras 79, 90)
(see para. 72)
2.
For an agreement between undertakings to be capable of affecting trade
II - 878
3.
An agreement between shipping companies, including a number established
in the Community, which related to the
conditions for the sale of maritime and
inland transport services to shippers
established in various Member States
of the Community is capable of affecting trade between Member States for
the purposes of Article 85(1) of the
Treaty (now Article 81(1) EC).
ATLANTIC CONTAINER LINE AND OTHERS v COMMISSION
Furthermore, such an agreement is
capable of modifying the pattern of
trade in goods transiting through the
ports served by the shipping companies
which are members of an agreement.
As a result, that agreement must be
regarded as having affected trade
between Member States, over and
above the trade consisting of only
maritime transport services, since port
and auxiliary services linked to the
carriage of goods were also affected.
The existence of a liner conference
within the meaning of Regulation
No 4056/86 depends on the charging
of 'uniform or common freight rates'
by its members.
(sec paras 140, 143)
Finally, although more indirectly, the
relevant agreement has, or at the very
least is capable of having, an effect on
the trade in goods between Member
States, in so far as the transport prices
fixed by the agreement represent a
proportion of the end selling price of
the goods transported.
(see paras 80-82)
4. An agreement can qualify for the
exemption provided for in Article 3 of
Regulation No 4056/86 laying clown
detailed rules for the application of
Articles 85 and 86 of the Treaty to
maritime transport only if it is a liner
conference agreement.
5. Having regard to the general principle
of the prohibition of agreements
restricting competition in Article 85(1)
of the Treaty (now Article 81(1) EC),
provisions derogating therefrom in an
exempting regulation must, by their
nature, be strictly interpreted. This
conclusion applies, a fortiori, to the
provisions of Regulation No 4056/86
relating to maritime transport by virtue
of its unlimited duration and the
exceptional nature of the restrictions
on competition authorised (horizontal
agreement having as its object the
fixing of prices). It follows that the
block exemption provided for by
Article 3 of Regulation No 4056/86
cannot be interpreted broadly and
progressively so as to cover all the
agreements which shipping companies
deem it useful, or even necessary, to
adopt in order to adapt to market
conditions. The exemption can relate
only to the types of agreement which
the Council, when Regulation
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SUMMARY — CASE T-395/94
No 4056/86 was adopted, regarded, in
the light of experience, as satisfying the
conditions of Article 85(3) of the
Treaty. Apart from the power enjoyed
by the Council, if the need arose, to
amend Regulation No 4056/86, the
undertakings concerned also always
have the option to apply for an individual exemption to offset any disadvantages of the limitations inherent
in the block exemption.
(see para. 146)
6. The definition of 'liner conference' in
A r t i c l e 1 ( 3 ) ( b ) of R e g u l a t i o n
No 4056/86 was taken word for word
from the United Nations Convention
on a Code of Conduct for Liner Conferences. That code thus constitutes an
important point of reference for the
interpretation of the concept of liner
conference referred to in Regulation
No 4056/86.
which presents itself as such on the
market vis-à-vis both users and competitors.
The conference puts itself forward as
an entity on the market since it fixes
uniform freight rates for all its
members, in the sense that the same
price will be charged for the carriage of
the same cargo from point A to point
B, regardless of which shipowning
member of the conference is responsible for carriage.
By contrast, an agreement between
carriers providing for a scheme of
tariffs which vary according to the
members cannot be regarded as a liner
conference under Regulation
No 4056/86.
(see paras 157, 167)
(see para. 147)
7. By its very nature and in the light of its
objectives, a liner conference, as
defined by the Council for the purposes
of qualification for block exemption
under Regulation No 4056/86, can be
characterised as a collective entity
II - 880
8. Liner conferences qualify for a block
exemption because of their stabilising
effect. That stability is best ensured if
all the members of the conference
adopt uniform freight rates rather than
if there are several rates according to
the members concerned. A uniform
level of freight rates within the conference also allows users, account of
ATLANTIC CONTAINER LINE AND OTHERS v COMMISSION
whose interests is also a requirement
for the exemption, to be assured of
being able to obtain the transport
service at the same price, whichever
conference member it approaches. That
interest of the shippers in having access
to a reference rate in respect of a
particular commodity is appreciably
reduced if the members of the conference do not charge one rate, but
two or more, in respect of the same
product.
Furthermore, the possibility of fixing
different levels of prices makes it possible to attract into the group shipping
lines which, without that flexibility,
would remain independent and this
situation is likely to lead to the elimination of external competition; by
contrast, the obligation to fix uniform
freight rates for all conference
members is not such as to encourage
all operators to join the conference,
which guarantees the existence of
external competition.
(see paras 158-159, 162)
That interpretation of the concept of
liner conference is not inconsistent
with the possibility for a conference
member to take independent action.
That action is fundamentally different
from the system of differentiated
prices. The taking of independent
action, which enables a conference
member, subject to notice, to offer,
for a specific product, a lower freight
rate than that in the conference tariff,
does not create another level of prices
which may be generally charged, since
that action concerns only a single ad
hoc transaction. The stabilising effect
of the existence of uniform or common
freight rates for all conference
members therefore continues in the
event of independent action, whereas
it is undermined where the conference
tariff, which lists all the freight rates
applicable, is replaced by a system of
rates which vary according to the
members.
9. In the context of an action for annulment pursuant to Article 173 of the
Treaty (now, after amendment,
Article 230 EC), the review undertaken
by the Court of the complex economic
appraisals made by the Commission
when it exercises the discretion conferred on it by Article 85(3) of the
Treaty (now Article 81(3) EC), with
regard to each of the four conditions
laid down in that provision, is necessarily limited to verifying whether the
rules on procedure and on the giving of
reasons have been complied with,
whether the facts have been accurately
stated and whether there has been any
manifest error of assessment or a
misuse of powers.
(see para. 257)
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SUMMARY — CASE T-395/94
10. Although stability in the maritime
transport sector, to the extent that it
contributes to assuring shippers of
reliable services, may be an advantage
for the purposes of the first condition
of Article 85(3) of the Treaty (now
Article 81(3) EC), the Commission
cannot be obliged to grant individual
exemption to every agreement between
shipping lines which, in the opinion of
the parties, may contribute to such
stability. Within the limits imposed by
Regulation No 4056/86, the Commission retains its discretion in applying
Article 85(3) of the Treaty.
(see para. 262)
11. The four conditions for granting an
exemption under Article 85(3) of the
Treaty (now Article 81(3) EC) are
cumulative and therefore non-fulfilment of only one of those conditions
will render it necessary to refuse the
exemption.
(see para. 264)
12. In assessing an agreement with a view
to granting an exemption under
Article 85(3) of the Treaty (now
II - 882
Article 81(3) EC), the market to be
taken into consideration comprises the
totality of the products which, with
respect to their characteristics, are
particularly suitable for satisfying constant needs and are only to a limited
extent interchangeable with other
products.
In the case of an agreement between
shipping lines for the scheduled transport of containers across the Atlantic
between Northern Europe and the
United States the relevant market is
that for containerised liner shipping.
The fact that other modes of transport,
whether maritime or air, may engage in
marginal competition on the market in
containerised liner shipping services in
respect of a limited number of products, does not mean that, for that
reason, they can be regarded as forming part of the same market.
(see paras 272-273)
13. The possibility of eliminating competition in respect of a substantial part of
the services in question within the
meaning of Article 85(3) of the Treaty
(now Article 81(3) EC), must be
assessed as a whole, taking into
account in particular the specific characteristics of the relevant market, the
restrictions of competition brought
ATLANTIC: CONTAINER LINE AND OTHERS v COMMISSION
about by the agreement, the market
shares of the parties to that agreement
and the extent and intensity of external
competition, both actual and potential.
In the context of this comprehensive
approach, those different elements are
closely interlinked or may balance each
other out. Thus, the greater the restrictions of internal competition between
the parties, the more necessary it is for
external competition to be keen and
substantial if the agreement is to qualify for exemption. Similarly, the larger
the market shares of the parties to the
agreement, the stronger the potential
competition must be.
(see para. 300)
14. In order to determine whether an
agreement affords its signatory parties
the possibility, in respect of a substantial part of the products in question, of
eliminating competition within the
meaning of Article 85(3)(b) of the
Treaty (now Article 81(3)(b) EC), the
Commission cannot, in principle, rely
merely on the fact that the agreement
in question eliminates competition
between those parties and that they
account for a substantial part of the
relevant market. First, the prohibition
on eliminating competition is a narrower concept than that of the existence or acquisition of a dominant
position, so that an agreement could
be regarded as not eliminating compe-
t i t i o n within the m e a n i n g of
Article 85(3)(b) of the Treaty, and
therefore qualify for exemption, even
if it established a dominant position for
the benefit of its members. Second,
potential competition must be taken
into consideration before concluding
that an agreement eliminates competition for the purposes of Article 85(3)
of the Treaty.
Taking into account and analysing
external competition, both actual and
potential, is all the more necessary
where it is a question of examining
whether an agreement between shipping companies fixing maritime transport rates qualifies for individual
exemption under Article 12 of Regulation No 4056/86.
(see paras 330-331 )
15. Interveners must, under Article 116(3)
of the Rules of Procedure of the Court
of First Instance, accept the case as they
find it at the time of their intervention
and their submissions in an application
to intervene are, under the fourth
paragraph of Article 37 of the Statute
of the Court of Justice, limited to
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SUMMARY — CASE T-395/94
supporting the submissions of one of
the main parties, an intervener is not
entitled to raise a plea in law that was
not raised by the applicant.
(see para. 382)
16. In a decision finding that the provisions
of an agreement between shipping lines
fixing the rates and conditions of maritime transport infringe the Treaty's
competition rules, an order compelling
the undertakings concerned to inform
customers with whom they have concluded service contracts and other
contractual relations in the context of
that agreement 'that such customers
are entitled, if they so wish, to renegotiate the terms of those contracts or
to terminate them forthwith', which
was not obviously necessary and does
not correspond to an established line of
Commission decisions, requires that
institution expressly to set out its
reasoning.
II - 884
Even if that order may be regarded as
necessary for re-establishing compliance with the law and as coming
within the limits of the Commission's
power to order the undertakings concerned, in accordance with Article 11
of Regulations No 1017/68 and
No 4056/86, 'to bring such infringement to an end', the statement of
objections should in any event have
set out, even briefly, but in sufficiently
clear terms, the measures which the
Commission intended to take in order
to bring an end to the infringements
and should have given the applicants
all the information necessary in order
to enable them properly to defend
themselves before the Commission
adopted a final decision on that point.
That conclusion is all the more necessary where the individual service
contracts account for a substantial part
of the turnover of the undertakings
concerned and the obligation to renegotiate with customers could thus have
significant consequences for those
undertakings, and could even amount
to a penalty more serious than a fine.
(see paras 411, 415, 418)