1999/243/EC: Commission Decision of 16 September 1998 relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty (Case No IV/35.134 - Trans-Atlantic Conference Agreement) (notified under document number C(1998)2617) (Text with EEA relevance)

• Published date: 09 April 1999
• Subject Matter: Intese,concorrenza,Prácticas colusorias,competencia,Ententes,concurrence
• Official Gazette Publication: Gazzetta ufficiale delle Comunità europee, L 95, 09 aprile 1999,Diario Oficial de las Comunidades Europeas, L 95, 09 de abril de 1999,Journal officiel des Communautés européennes, L 95, 09 avril 1999

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1999/243/EC: Commission Decision of 16 September 1998 relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty (Case No IV/35.134 - Trans-Atlantic Conference Agreement) (notified under document number C(1998)2617) (Text with EEA relevance)

Official Journal L 095 , 09/04/1999 P. 0001 - 0112

COMMISSION DECISION

of 16 September 1998

relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty

(Case No IV/35.134 - Trans-Atlantic Conference Agreement)

(notified under document number C(1998)2617)

(Only the Danish, German, English and Swedish texts are authentic)

(Text with EEA relevance)

(1999/243/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to the Agreement establishing the European Economic Area,

Having regard to Council Regulation No 17 of 6 February 1962, first Regulation implementing Articles 85 and 86 of the Treaty(1), as last amended by the Act of Accession of Austria, Finland and Sweden, and in particular Articles 3 and 15 thereof,

Having regard to Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway(2), as last amended by the Act of Accession of Austria, Finland and Sweden, in particular Articles 11 and 22 thereof,

Having regard to 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(3), as last amended by the Act of Accession of Austria, Finland and Sweden, and in particular Articles 11 and 19 thereof,

Having regard to the Commission Decision of 24 May 1996 to initiate proceedings in this case,

Having given the undertakings concerned the opportunity to make known their views on the objections raised by the Commission and to present any other comments in accordance with Article 19 of Regulation No 17, Article 26 of Regulation No (EEC) 1017/68 and Article 23 of Regulation (EEC) No 4056/86, read in conjunction with Commission Regulations No 99/63/EEC(4), (EEC) No 1630/69(5) and (EEC) No 4260/88(6),

After consulting the Advisory Committee on Restrictive Practices and Dominant Positions, the Advisory Committee on Restrictive Practices and Dominant Positions in the Transport Industry and the Advisory Committee on Restrictive Practices and Dominant Positions in Maritime Transport,

Whereas:

THE FACTS

I. THE APPLICATION

(1) On 5 July 1994, the parties listed below ("the TACA parties", further details of which are set out in Annex I) submitted an application to the Commission pursuant to Article 12(1) of Regulation (EEC) No 4056/86 seeking an exemption under Article 85(3) of the EC Treaty and Article 53(3) of the EEA Agreement in respect of the Trans-atlantic Conference Agreement (TACA):

A.P. Møller-Maersk Line (Maersk)

Atlantic Container Line AB (ACL)

Hapag-Lloyd AG (Hapag Lloyd)

Nedlloyd Lijnen BV (Nedlloyd)

P& O Containers Limited (P& O)

Sea-Land Service, Inc. (Sea-Land)

Mediterranean Shipping Co. (MSC)

Orient Overseas Container Line (UK) Ltd (OOCL)

Polish Ocean Lines (POL)

DSR/Senator Lines (DSR/Senator)

Cho Yang Shipping Co., Ltd (Cho Yang)

Neptune Orient Lines Ltd (NOL)

Nippon Yusen Kaisha (NYK)

Transportación Maritíma Mexicana SA de CV (TMM)

Tecomar SA de CV (Tecomar) .

(2) Tecomar has been a subsidiary of TMM since January 1994. In 1997, Nedlloyd Lijnen BV and P& O Containers Limited merged to form P& O Nedlloyd. Also in 1997, Hapag Lloyd AG transferred its containerised liner shipping activities to Hapag Lloyd Container Linie GmbH and Hanjin Shipping Company Limited (Hanjin) acquired control of DSR/Senator.

(3) Pursuant to Article 4(8) of Regulation (EEC) No 4260/88, the TACA parties were informed and invited to comment on the fact that the Commission also intended to examine the application for individual exemption made under Regulation No 17 and Regulation (EEC) No 1017/68, for the reason that some of the notified activities fell outside the scope of application of Regulation (EEC) 4056/86.

(4) The TACA replaced the Trans-atlantic Agreement (TAA), an agreement originally notified to the Commission on 28 August 1992. The Commission adopted Decision 94/980/EC(7) on 19 October 1994 prohibiting the TAA (The TAA Decision). The TAA Decision prohibited the parties to whom it was addressed from engaging in, inter alia, price-fixing activities which have the same or a similar object or effect to those contained in the TAA.

(5) The parties formerly party to the TAA are all party to the TACA. Hanjin became a party to the TAA on 26 August 1994 and a party to the TACA on 31 August 1994. Hyundai Merchant Marine Co. Ltd (Hyundai) became a party to the TACA on 31 August 1995.

(6) On 15 December 1994, the Deputy Director-General of the Directorate-General for Competition of the Commission wrote to the TACA parties informing them of the preliminary assessment that certain provisions of the TACA did not appear to fulfil the conditions of Article 85(3), and inviting the observations of the TACA parties on the preliminary assessment.

(7) On 21 June 1995 and 1 March 1996, the Commission adopted a Statement of Objections and a supplementary Statement of Objections addressed to the TACA parties (with the exception of Hyundai, since it had not been a party to the TACA at the time of the adoption of the first Statement of Objections) stating that the Commission was disposed to adopt a decision withdrawing any immunity from the imposition of fines which resulted from the notification of the TACA in respect of the agreement between the parties to the TACA to fix prices for inland transport services supplied within the territory of the Community. A Decision to withdraw any such immunity was adopted on 26 November 1996(8).

(8) On 24 May 1996, the Commission adopted a Statement of Objections(9) addressed to the TACA parties stating, inter alia, that it considered that the TACA falls within the prohibition contained in Article 85(1) of the Treaty and that it contains a number of elements which do not fall within the scope of Article 85(3) of the Treaty. The Statement of Objections stated that the Commission was disposed to adopt a decision finding the TACA parties to be in breach of Article 85(1) and requiring them to bring to an end those practices which fall outside the scope of Article 85(3). The Statement of Objections also stated that the Commission considered that the TACA parties had abused their dominant position, contrary to Article 86 of the Treaty.

(9) A supplementary Statement of Objections was adopted by the Commission on 11 April 1997, in which it was stated that notwithstanding the notification of the TACA hub-and-spoke system (see recital (47)), the Commission remained disposed to adopt a decision finding the TACA parties to be in breach of Article 85(1) and requiring them to bring to an end those practices considered in the Statement of Objections of 24 May 1996 to fall outside the scope of Article 85(3), including the practice of the TACA parties of fixing prices for carrier haulage services supplied within the Community where these fall outside the scope of the TACA hub-and-spoke system.

(10) The TACA parties presented their views at oral hearings held on 6 May 1996 and 25 October 1996. Annex II contains an outline of the main procedural steps relating to the TAA and the TACA.

II. THE NOTIFIED AGREEMENT

(11) In the notification of the TACA to the Commission, the parties argued that it was a liner conference falling within the scope of the group exemption for liner conferences contained in Regulation (EEC) No 4056/86. The parties applied in the alternative for individual exemption. Although the TACA had been notified to the Commission on 5 July 1994, it did not come into effect until 24 October 1994, the earliest date on which it was permitted to do so under American law.

(12) Two weeks before notification of the TACA, Lord Sterling of Plaistow (in his capacity as Chairman of TACA) wrote to Mr Van Miert, Member of the Commission responsible for competition matters, in the following terms:

"It seems to me that the changes we propose are so substantial that they result in a new agreement rather than an amended old one.

This being so, I think the most clear-cut thing we can do is to notify the Commission that the lines are abandoning the old TAA and formally notify the new agreement."

(letter dated 21 June 1994).

(13) The TACA provides for agreement by its members on the rate, charges and other conditions of carriage applicable under its common tariff, including ocean rates, inland portions of through-rates and multimodal rates. The common tariff contains a matrix of prices for the carriage of cargo between defined points: 26 classes of cargo are defined and a rate is specified for each class. The tariff is published by the TACA and is available to all shippers.

(14) The scope of the TACA is eastbound and westbound shipping routes between, on the one hand, ports in Europe situated in latitudes from Bayonne, France to the North Cape of Norway (except non-Baltic ports in Russia, Mediterranean ports and ports in Spain and Portugal), and points in Europe via those ports other than points in Spain and Portugal, and on the other hand, ports in the 48 contiguous States of the United States of America and the District of Columbia and points in the United States via those ports (the Trade).

(15) Apart from the increase in membership from 11 to 17 lines (and down to 16 with the merger of P& O and Nedlloyd), among the more significant differences between the TAA and the TACA are the following:

(a) the TACA parties have abandoned their complex arrangements relating to the non-utilisation of part of their maritime capacities (the Capacity Management Programme);

(b) the TACA parties have formally abandoned the different categories of membership...