Judgments nº T-86/95 of Court of First Instance of the European Communities, February 28, 2002

• Resolution Date: February 28, 2002
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-86/95

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

28 February 2002 (1) (Competition - Liner conferences - Intermodal transport - Regulation (EEC) No 4056/86 - Scope - Block exemption - Regulation No 1017/68 - Individual exemption - Fine)

In Case T-86/95,

Compagnie Générale Maritime, established in Suresnes (France),

Hapag-Lloyd Aktiengesellschaft, established in Hamburg (Germany),

Kawasaki Kisen Kaisha Limited, established in Tokyo (Japan),

Lloyd Triestino di Navigazione SpA, established in Trieste (Italy),

AP Møller-Mærsk Line, established in Copenhagen (Denmark),

Malaysian International Shipping Corporation Berhad, established in Kuala Lumpur (Malaysia),

Mitsui OSK Lines Ltd, established in Tokyo,

Nedlloyd Lijnen BV, established in Rotterdam (the Netherlands),

Neptune Orient Lines Ltd , established in Singapore (Singapore),

Nippon Yusen Kabushiki Kaisha, established in Tokyo,

Orient Overseas Container Line, established in Hong Kong (China),

P & O Containers Ltd, established in London (United Kingdom),

Wilh. Wilhemsen Ltd A/S, established in Oslo (Norway),

represented by P. Ruttley, Solicitor, J. Pheasant and A. Mariott, lawyers, with an address for service in Luxembourg,

applicants,

supported by

The European Community Shipowners' Associations, having their registered office in Brussels (Belgium), represented by D. Waelbroeck, lawyer, with an address for service in Luxembourg,

and

The Japanese Shipowners' Association, having its registered office in Tokyo, represented by F. Randolph, Barrister, and F. Murphy, Solicitor, with an address for service in Luxembourg,

interveners,

v

Commission of the European Communities, represented by B. Langeheine and R. Lyal, acting as Agents, with an address for service in Luxembourg ,

defendant,

supported by

The European Council of Transport Users ASBL, having its registered office in Brussels, including The European Shippers' Council, represented by M. Clough, Barrister, with an address for service in Luxembourg,

intervener,

APPLICATION for annulment of Commission Decision 94/985/EC of 21 December 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/33.218 - Far Eastern Freight Conference) (OJ 1994 L 378, p. 17),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: K. Lenaerts, President, J. Azizi and M. Jaeger, Judges,

Registrar: Y. Mottard, Legal Secretary,

having regard to the written procedure and further to the hearing on 7 June 2000,

gives the following

Judgment (2)

Legal background

1.

Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4) provides for block exemption for liner conferences. The eighth recital of the preamble to that regulation is worded as follows:

... provision should be made for block exemption of liner conferences: ... liner conferences have a stabilising effect, assuring shippers of reliable services: ... they contribute generally to providing adequate efficient scheduled maritime transport services and give fair consideration to the interests of users; ... such results cannot be obtained without the cooperation that shipping companies promote within conferences in relation to rates and, where appropriate, availability of capacity or allocation of cargo for shipment, and income: ... in most cases conferences continue to be subject to effective competition from both non-conference scheduled services and, in certain circumstances, from tramp services and from other modes of transport; ... the mobility of fleets, which is a characteristic feature of the structure of availability in the shipping field, subjects conferences to constant competition which they are unable as a rule to eliminate as far as a substantial proportion of the shipping services in question is concerned’.

2.

Pursuant to Article 1(2) of Regulation No 4056/86, that regulation only applies to international maritime transport services from or to one or more Community ports, other than tramp vessel services, that is the transport of goods in bulk in vessels chartered on request. Article 1(3)(b) of Regulation No 4056/86 defines a ‘liner conference’ in the following terms:

‘... a group of two or more vessel-operating carriers which provides international liner services for the carriage of cargo on a particular route or routes within specified geographical limits and which has an agreement or arrangement, whatever its nature, within the framework of which they operate under uniform or common freight rates and any other agreed conditions with respect to the provision of liner services’.

3.

Article 3 of Regulation No 4056/86 exempts from the prohibition laid down in Article 85(1) of the EC Treaty (now Article 81(1) EC) agreements which have as their objective the fixing of rates and conditions for the provision of scheduled maritime transport services. The exemption extends to agreements having one or more of the following objectives:

‘(a) the coordination of shipping timetables, sailing dates or dates of call;

(b) the determination of the frequency of sailings or calls;

(c) the coordination or allocation of sailings or calls among members of the conference;

(d) the regulation of the carrying capacity offered by each member;

(e) the allocation of cargo or revenue among members.’

4.

Under Article 23(1) of Regulation No 4056/86, the Commission is required, before taking a decision, to give the undertakings or associations of undertakings concerned an opportunity of being heard on the matters to which objection has been taken against them. Commission Regulation No 4260/88 of 16 December 1988 on the communications, complaints and applications and the hearings provided for in Council Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1988 L 376, p. 1), in force at the time of the facts, lays down the procedural requirements to be complied with at the hearing.

5.

Article 1 of Council Regulation No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302) provides:

‘The provisions of this Regulation shall, in the field of transport by rail, road and inland waterway, apply both to all agreements, decisions and concerted practices which have as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport, the sharing of transport markets, the application of technical improvements or technical co-operation, or the joint financing or acquisition of transport equipment or supplies where such operations are directly related to the provision of transport services and are necessary for the joint operation of services by a grouping within the meaning of Article 4 of road or inland waterway transport undertakings, and to the abuse of a dominant position on the transport market. These provisions shall apply also to operations of providers of services ancillary to transport which have any of the objects or effects listed above.’

6.

Article 2(a) of Regulation No 1017/68 provides:

‘Subject to the provisions of Articles 3 to 6, the following shall be prohibited as incompatible with the common market, no prior decision to that effect being required: all agreements between undertakings, decisions by associations of undertakings and concerted practices liable to affect trade between Member States which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which:

(a) directly or indirectly fix transport rates and conditions or any other trading conditions;

...’ .

7.

Article 5 of Regulation No 1017/68 provides as follows:

‘The prohibition in Article 2 may be declared inapplicable with retroactive effect to:

- any agreement or category of agreement between undertakings,

- any decision or category of decision of an association of undertakings, or

- any concerted practice or category of concerted practice which contributes towards:

- improving the quality of transport services; or

- promoting greater continuity and stability in the satisfaction of transport needs on markets where supply and demand are subject to considerable temporal fluctuation; or

- increasing the productivity of undertakings; or

- furthering technical or economic progress;

and at the same time takes fair account of the interests of transport users and neither:

(a) imposes on the transport undertakings concerned any restriction not essential to the attainment of the above objectives; nor

(b) makes it possible for such undertakings to eliminate competition in respect of a substantial part of the transport market concerned.’

8.

Under Article 11(4) of Regulation No 1017/68: ‘If the Commission, whether acting on a complaint received or on its own initiative, concludes that an agreement, decision or concerted practice satisfies the provisions both of Article 2 and of Article 5, it shall issue a decision applying Article 5. Such decision shall indicate the date from which it is to take effect. This date may be prior to that of the decision.’

9.

Pursuant to Article 22(2) of Regulation No 1017/68, the Commission may impose fines on undertakings or associations of undertakings where either intentionally or negligently they infringe, inter alia, Article 2 of that regulation.

10.

Article 26(1) of Regulation No 1017/68 provides that before taking a decision the Commission must give the undertakings or associations of undertakings concerned the opportunity of being heard on the matters to which objection has been taken. Commission Regulation No 1630/69 of 8 August 1969 on the hearings provided for in Article 26(1) and (2) of Council Regulation...