Judgments nº T-213/00 of Court of First Instance of the European Communities, March 19, 2003

• Resolution Date: March 19, 2003
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-213/00

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

19 March 2003 (1) (Competition - Agreement between members of a liner conference and independent shipping companies - Charges and surcharges - Legal basis - Regulation (EEC) No 4056/86 - Regulation (EEC) No 1017/68 - Relevant market - Proof of infringement - Limitation period - Fine)

In Case T-213/00,

CMA CGM, established in Marseilles (France),

Cho Yang Shipping Co. Ltd, established in Seoul (South Korea),

Evergreen Marine Corp. Ltd, established in Taipei (Taiwan),

Hanjin Shipping Co. Ltd, established in Taipei,

Hapag-Lloyd Container Linie GmbH, established in Seoul,

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

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

Mitsui OSK Lines Ltd, established in Tokyo,

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

Nippon Yusen Kaisha, established in Tokyo,

Orient Overseas Container Line Ltd, established in Wanchai (Hong Kong),

P & O Nedlloyd Container Line Ltd, established in London,

Senator Lines GmbH, successor in title to DSR-Senator Lines GmbH, established in Bremen (Germany),

Yangming Marine Transport Corp., established in Taipei,

represented initially by J. Pheasant, C. Barlen, M. Levitt, D. Waelbroeck and U. Zinsmeister, and subsequently by J. Pheasant, M. Levitt, D. Waelbroeck and U. Zinsmeister, lawyers, with an address for service in Luxembourg,

applicants,

v

Commission of the European Communities, represented initially by P. Oliver and E. Gippini Fournier, and subsequently by P. Oliver, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for the annulment of Commission Decision 2000/627/EC of 16 May 2000 relating to a proceeding pursuant to Article 81 of the EC Treaty (IV/34.018 - Far East Trade Tariff Charges and Surcharges Agreement (FETTCSA)) (OJ 2000 L 268, p. 1),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

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

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 2 May 2002,

gives the following

Judgment

Legal background

1.

Council Regulation No 17 of 6 February 1962 - First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87) initially applied to all activities covered by the EEC Treaty. However, given that in the context of the common transport policy, and in view of the distinctive features of that sector, it proved necessary to lay down rules governing competition different from those laid down for other sectors of the economy, the Council adopted Regulation No 141/62 of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291).

1. Regulation No 1017/68

2.

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

3.

Article 1 of Council Regulation No 1017/68 provides that the regulation applies, in the field of transport by rail, road and inland waterway, to 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.’ Pursuant to the same provision, Regulation No 1017/68 also applies ‘to operations of providers of services ancillary to transport which have any of the objects or effects listed above.’

4.

Article 2 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;

...’.

5.

Article 3(1) of Regulation No 1017/68, however, provides that:

‘The prohibition laid down in Article 2 shall not apply to agreements, decisions or concerted practices the object and effect of which is to apply technical improvements or to achieve technical co-operation by means of:

...

(c) the organisation and execution of successive, complementary, substitute or combined transport operations, and the fixing and application of inclusive rates and conditions for such operations, including special competitive rates;

...

(g) the establishment of uniform rules as to the structure of tariffs and their conditions of application, provided such rules do not lay down transport rates and conditions.’

6.

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.’

7.

Regulation No 1017/68 also lays down detailed rules for applying the substantive rules referred to above. In particular, it permits undertakings to enter into and to apply agreements without notifying them to the Commission, at the risk of their being declared inapplicable with retroactive effect by the Commission, whether acting on a complaint received or on its own initiative, but without prejudice to the possibility that those agreements may be declared lawful with retroactive effect (Article 11(4) of Regulation No 1017/68). Under Article 12 of Regulation No 1017/68, undertakings which seek application of Article 5 may, however, submit an application to that effect to the Commission.

2. Regulation No 4056/86

8.

On 22 December 1986, the Council adopted Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles [81] and [82] of the Treaty to maritime transport (OJ 1986 L 378, p. 4).

9.

Article 1(2) of Regulation No 4056/86 states that the regulation ‘shall apply only to international maritime transport services from or to one or more Community ports ...’.

10.

Article 2(1) provides, however, that:

‘The prohibition laid down in Article [81](1) of the Treaty shall not apply to agreements, decisions and concerted practices whose sole object and effect is to achieve technical improvements or cooperation by means of:

...

(c) the organisation and execution of successive or supplementary maritime transport operations and the establishment or application of inclusive rates and conditions for such operations;

...

(f) the establishment or application of uniform rules concerning the structure and the conditions governing the application of transport tariffs’.

11.

In the seventh recital in the preamble to Regulation No 4056/86, the Council states that technical agreements, decisions and concerted practices may be excluded from the prohibition on restrictive practices ‘on the ground that they do not, as a general rule, restrict competition’.

12.

Article 3 of Regulation No 4056/86 provides, moreover, for exemption for ‘agreements, decisions and concerted practices of all or part of the members of one or more liner conferences ... when they have as their objective the fixing of rates and conditions of carriage’. Pursuant to Article 1(3)(b) of Regulation No 4056/86, ‘liner conference’ means ‘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’.

13.

Regulation No 4056/86 allows undertakings to enter into and to apply agreements without having to notify them to the Commission, at the risk of their being declared inapplicable with retroactive effect by the Commission, whether acting on a complaint received or on its own initiative, but without prejudice to the possibility that those agreements may be declared lawful with retroactive effect (Article 11(4) of Regulation No 4056/68). Under Article 12 of Regulation No 4056/86, undertakings which seek application of Article 81(3) of the Treaty may, however, submit an application to the Commission to that effect.

Facts

14.

The applicants...