September 28 - The European Commission has adopted a new Block Exemption Regulation revising the current exemption for liner shipping consortia from the EC Treaty's ban on restrictive business practices (Article 81).
The current consortia block exemption Regulation 823/2000, which expires in April 2010, allows shipping lines to enter into cooperation for the purpose of providing a joint service in transporting cargo (so-called "consortia").
The new Regulation extends the current exemption for such co-operation for five more years, until April 2015, within a new legislative and economic environment. Changes notably include a reduction of the market share threshold above which companies do not qualify for automatic exemption under the Regulation and an extension of the scope of the exemption to all cargo liner shipping services.
Competition Commissioner Neelie Kroes said: "Since 1995 liner carriers have been granted conditional exemption from the competition rules when operating joint services. As markets change, this exemption has to be reviewed. After careful examination the Commission has decided to amend and prolong the consortia Block Exemption Regulation for five more years. I am confident that this Regulation strikes the right balance between the interests of the liner carriers and those of transport users."
Under both the new and the current Commission Block Exemption Regulation, all consortia agreements (except notably those on price-fixing) whose objective is the joint operation of liner shipping services are exempted from the EC Treaty's ban on restrictive business practices (Article 81) provided they fulfil the conditions and obligations set out in the Regulation.
The new Regulation incorporates amendments made necessary by the repeal of the liner conference Block Exemption Regulation in 2006 (see IP/06/1249 ). It also aims at better reflecting current market practices and bringing the consortia block exemption in line with other block exemption regulations for horizontal cooperation between companies. The scope of application of the new Regulation has been extended to all liner shipping cargo services, whether containerised or not. The list of exempted activities has been revised in order to better reflect current market practices. The market share threshold has been reduced from 35% to 30% and the method of its calculation clarified. Finally, the exit-clauses and lock-in periods, in case a member wants to withdraw from the consortium, have been prolonged to better reflect current market practice but still safeguard the carriers' flexibility.
The Commission's market investigation revealed the existence of a pattern of links between consortia and/or their members. The new Regulation clarifies that the Commission may withdraw the benefit of the block exemption, where such links have a negative effect on competition.
If a consortium does not fulfil the conditions of the Regulation, for example due to the market shares of its members exceeding the threshold, this does not mean that such cooperation is automatically unlawful, but that the parties have to assess its compatibility with the competition rules on an individual basis.
The review of the consortia Block Exemption Regulation began in 2007 with a thorough market investigation. The Commission consulted interested third parties on a preliminary draft Regulation in autumn 2008 (see IP/08/1566 ).
The new Regulation will come into force once the current Block Exemption Regulation expires on 25 April 2010, giving the liner shipping industry sufficient time to adapt their arrangements to the revised rules.
