Judgments nº T-18/97 of Court of First Instance of the European Communities, Thursday February 28, 2002

• Resolution Date: Thursday February 28, 2002
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-18/97

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

28 February 2002 (1) (Competition - Liner conferences - Agreement fixing the price of inland transport in the context of intermodal transport - Regulation No 1017/68 - Notification - Immunity - Admissibility)

In Case T-18/97,

Atlantic Container Line AB, established in Göteborg (Sweden),

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

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

Hanjin Shipping Co. Ltd, established in Seoul,

Neptune Orient Lines Ltd, established in Singapore,

Nippon Yusen Kaisha (NYK Line), established in Tokyo (Japan),

Orient Overseas Container Line (UK) Ltd, established in Levington (United Kingdom),

P & O Nedlloyd BV, established in Rotterdam (Netherlands),

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

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

A.P. Møller-Mærsk Line, established in Copenhagen (Denmark),

Mediterranean Shipping Company SA, established in Geneva (Switzerland),

POL-Atlantic, established in Gdynia (Poland),

Sea-Land Service Inc., established in Charlotte (United States of America),

Tecomar SA de CV, established in Mexico City (Mexico),

Transportación Marítima Mexicana SA de CV, established in Mexico City,

represented by J. Pheasant and N. Bromfield, Solicitors, with an address for service in Luxembourg,

applicants,

v

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

defendant,

supported by

French Republic, represented by K. Rispal-Bellanger and R. Loosli-Surrans, acting as Agents, with an address for service in Luxembourg,

intervener,

APPLICATION for annulment of Commission Decision C(96) 3414 final of 26 November 1996 relating to a proceeding under Article 85 of the EC Treaty (Case No IV/35.134 - Trans-Atlantic Conference Agreement),

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 8 June 2000,

gives the following

Judgment

Relevant legislation and facts

1.

Council Regulation No 17 of 6 February 1962 - First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87) initially applied to all activities covered by the EEC Treaty. However, given the common transport policy, and in view of the distinctive features of the transport sector, it proved necessary to lay down rules governing competition different from those laid down for other sectors of the economy, and the Council therefore adopted on 26 November 1962 Regulation No 141 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291).

2.

The detailed rules for the application of Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) to inland transport are defined in Council Regulation (EEC) 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). Articles 2, 5 and 8 of Regulation No 1017/68 transpose Articles 85(1), 85(3) and 86 of the Treaty respectively.

3.

On 22 December 1986 the Council adopted Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4). Article 1(2) of that regulation provides that ‘[i]t shall apply only to international maritime transport services from or to one or more Community ports, other than tramp vessel services [meaning the transport of goods in bulk by means of vessels chartered on demand].’

4.

As regards air transport, the Council adopted Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1).

5.

Under Article 4(1) of Regulation No 17, agreements of the kind described in Article 85(1) of the Treaty and in respect of which the parties seek application of Article 85(3) of the Treaty must be notified to the Commission. Until they are notified, no decision in application of Article 85(3) may be taken. Article 6 of Regulation No 17 provides that the date from which the decision takes effect shall not be earlier than the date of notification.

6.

Article 12 of Regulations Nos 1017/68 and 4056/86 and Article 5 of Regulation No 3975/87 lay down a procedure for objections in connection with the application of Article 85(3) of the Treaty. Under those provisions, undertakings which seek application of Article 85(3) of the Treaty in respect of agreements, decisions and concerted practices falling within Article 85(1) to which they are parties must submit an application to the Commission. Unless the Commission notifies applicants, within 90 days of publishing the application in the Official Journal of the European Communities, that there are serious doubts as to the applicability of Article 85(3) of the Treaty, or Article 5 of Regulation No 1017/68, the agreement, decision or concerted practice is deemed exempt, in so far as it conforms to the description given in the application, for a maximum of six years under Article 12(3) of Regulation No 4056/86 and Article 5(3) of Regulation No 3975/87, or for a maximum of three years under Article 12(3) of Regulation No 1017/68. If the Commission finds, after expiry of the 90-day time-limit, but before expiry of the three-year or six-year period, that the conditions for applying Article 85(3) of the Treaty or Article 5 of Regulation No 1017/68 are not satisfied, it must issue a decision declaring that the prohibition in Article 85(1) of the Treaty or Article 2 of Regulation No 1017/68 is applicable. Finally, if the Commission finds that the conditions of Articles 85(1) and 85(3) of the Treaty or Articles 2 and 5 of Regulation No 1017/68 are satisfied, it must issue a decision applying Article 85(3) of the Treaty or Article 5 of Regulation No 1017/68. The second subparagraph of Article 12(4) of Regulations Nos 1017/68 and 4056/86 provides that the date from which the decision is to take effect may be prior to that of the application.

7.

Under Article 15(2) of Regulation No 17, Article 19(2) of Regulation No 4056/86 and Article 12(2) of Regulation No 3975/87 the Commission may by decision impose on undertakings fines where either intentionally or negligently they infringe Article 85(1) or Article 86 of the Treaty.

8.

Article 15(5) of Regulation No 17, Article 19(4) of Regulation No 4056/86 and Article 12(5) of Regulation No 3975/87 provide that fines may not be imposed in respect of acts taking place after notification to the Commission and before the Commission's decision allowing or refusing application of Article 85(3) of the Treaty, provided they fall within the limits of the activity described in the notification. That is not the case, however, where the Commission has informed the undertakings concerned that, after preliminary examination, it is of the opinion that Article 85(1) of the Treaty applies and that application of Article 85(3) is not justified (Article 15(6) of Regulation No 17, the third subparagraph of Article 19(4) of Regulation No 4056/86 and the second subparagraph of Article 12(5) of Regulation No 3975/87).

9.

Article 22(2) of Regulation No 1017/68 merely provides that the Commission may by decision impose fines on undertakings where, either intentionally or negligently, they infringe Article 2 or Article 8 of that regulation.

10.

The applicants are all shipping companies and parties to the Trans-Atlantic Agreement (the ‘TAA’), an agreement on scheduled transatlantic container transport between Northern Europe and the United States of America. The TAA was notified to the Commission on 28 August 1992 and entered into force on 31 August 1992. The TAA fixed, inter alia, the tariffs for maritime transport and intermodal transport, which, in addition to maritime transport and port and handling services, includes the inland carriage of containers between Northern European ports served by the companies party to the TAA and inland locations within Europe. The tariffs applicable to intermodal transport thus cover, inter alia, maritime segments and inland segments.

11.

On 19 October 1994 the Commission adopted Decision 94/980/EC relating to a proceeding pursuant to Article 85 of the EC Treaty (Case No IV/34.446 - Trans-Atlantic Agreement) (OJ 1994 L 376, p. 1, ‘the TAA Decision’). In that decision, the Commission found that certain provisions of the TAA, including in particular those fixing the rates for inland transport services within Europe provided as part of an intermodal transport service, infringed Article 85(1) of the Treaty. It also refused to apply to those provisions Article 85(3) of the Treaty and Article 5 of Regulation No 1017/68. In Article 4 of the TAA Decision the Commission required the undertakings to whom it was addressed to refrain in future from any agreement or concerted practice which might have the same or a similar object or effect as the agreements and practices sanctioned in the decision.

12.

On 5 July 1994 the parties to the TAA Agreement had notified the Commission of a new agreement which was to replace the TAA, called the Trans-Atlantic Conference Agreement (‘the TACA’). That notification was made under Article 12(1) of Regulation No 4056/86 with a view to obtaining exemption under Article 85(3) of the Treaty and Article 53(3) of the Agreement on the European Economic Area.

13.

The parties are agreed that the TACA in no way altered the provisions of the TAA concerning the fixing of the inland tariffs for intermodal transport services. The TACA entered into force on 24 October 1994...