93/82/EEC: Commission Decision of 23 December 1992 relating to a proceeding pursuant to Articles 85 (IV/32.448 and IV/32.450: Cewal, Cowac and Ukwal) and 86 (IV/32.448 and IV/32.450: Cewal) of the EEC Treaty (Only the German, English, Danish, French, Italian, Dutch and Portuguese texts are authentic)

• Published date: 10 February 1993
• Subject Matter: posizione dominante,Intese,concorrenza,posición dominante,Prácticas colusorias,competencia,position dominante,Ententes,concurrence
• Official Gazette Publication: Gazzetta ufficiale delle Comunità europee, L 34, 10 febbraio 1993,Diario Oficial de las Comunidades Europeas, L 34, 10 de febrero de 1993,Journal officiel des Communautés européennes, L 34, 10 février 1993

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93/82/EEC: Commission Decision of 23 December 1992 relating to a proceeding pursuant to Articles 85 (IV/32.448 and IV/32.450: Cewal, Cowac and Ukwal) and 86 (IV/32.448 and IV/32.450: Cewal) of the EEC Treaty (Only the German, English, Danish, French, Italian, Dutch and Portuguese texts are authentic)

Official Journal L 034 , 10/02/1993 P. 0020 - 0043

COMMISSION DECISION of 23 December 1992 relating to a proceeding pursuant to Articles 85 (IV/32.448 and IV/32.450: Cewal, Cowac and Ukwal) and 86 (IV/32.448 and IV/32.450: Cewal) of the EEC Treaty (Only the Danish, Dutch, English, French, German, Italian and Portuguese texts are authentic)

(93/82/EEC)THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community,

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 (1), and in particular Articles 11 (1) and 19 (2) thereof,

Having regard to the applications lodged on 10 and 20 July 1987, for a finding of an infringement pursuant to Article 10 of Regulation (EEC) No 4056/86,

Having regard to the Commission decision to initiate proceedings in these cases,

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 23 (1) of Regulation (EEC) No 4056/86,

Having consulted the Advisory Committee on Restrictive Practices and Dominant Positions in the field of maritime transport,

Whereas:

I. THE FACTS Introduction (1) Associated Central West Africa Lines (Cewal) is a shipping conference whose secretariat in Europe is situated at 1 Meir, B-2000 Antwerpen.

Cewal is one of the shipping conferences operating between Europe and west and central Africa, the other conferences being Cowac (Continent West Africa Conference), Ukwal (United Kingdom West Africa Lines Joint Service) and Mewac (Mediterranean West Africa Conference).

Cewal is made up of shipping companies operating a regular liner service between the ports of Zaire and Angola and those of the North Sea (except the United Kingdom). Specific agreements with the southern section of the Cowac shipping conference govern the trade between Zaire and Angola on the one hand and the ports on the western coast of France on the other. Cewal also, 'by delegation from Cowac', transports wood from Pointe-Noire to ports on the European Atlantic coast.

Continent West Africa Conference (Cowac) is a shipping conference comprising two sections: Cowac northern section and Cowac southern section.

Cowac northern section is made up of shipping companies operating a regular liner service between ports situated between the North Cape and Belgium on the one hand and ports in west Africa (from Mauritania to the Republic of the Congo) on the other.

Cowac southern section is comprised of shipping companies operating a regular liner service between ports in France (from Dunkirk to Bayonne) and Africa (from Nouadhibou to Angola).

Ukwal is a conference made up of shipping companies operating a regular liner service between ports situated in the United Kingdom and Ireland on the one hand and in west Africa (from Nouadhibou to Mocamedes) on the other.

Members of the Cewal, Cowac and Ukwal conferences are listed in Annex I.

Mewac is a conference comprising shipping companies operating a regular liner service between Spain, the French Mediterranean coast, Italy and the former Yugoslavia on the one hand and the west African coast (from the northern border of Mauritania to the southern border of Angola) on the other.

(2) Aiwasi (Association of Independent West African Shipping Interests) is an informal association representing independent shipping interests in the Community. Its members include the following shipping companies: Grimaldi (Italy), Cobelfret (Belgium), and OT Africa Line Ltd (United Kingdom). The Association has its head office in London.

The Danish Shipowners' Association (Danmarks Rederiforening), with its head office in Copenhagen, represents the interests of the main Danish shipping companies, one of which (Maersk Line) operates a regular liner service between Europe and west Africa.

(3) On 10 July 1987 the Commission received a complaint from the Danish Shipowners' Association pursuant to Article 10 of Regulation (EEC) No 4056/86. The purpose of the complaint is to obtain:

- the abolition of the various systems of arbitrary allocation of cargoes claimed to be applied in trade between west Africa and the Community, and

- a guarantee of free access to the trade of non-conference shipping companies.

(4) On 20 July 1987 the Commission received a complaint from the Danish Government pursuant to the Article 10 of Regulation (EEC) No 4056/86 in support of the complaint lodged by the Danish Shipowners' Association.

(5) On 7 September 1987 the Commission received a complaint from Aiwasi pursuant to Article 10 of Regulation (EEC) No 4056/86 referring in general terms to 'restrictive practices and agreements applied or planned between the liner conferences operating in the shipping trade with west Africa'. It was claimed that the practices in question were intended to impose the sharing-out of all cargoes carried on shipping routes between Europe and west and central Africa according to a 40: 40: 20 apportionment rule (40 % for the domestic companies of each of the two countries at either end of the route and 20 % for the shipping companies of third countries, be they conference members or independent). In particular, it was alleged that such practices obstructed the freedom of non-conference companies (outsiders) to compete with the conferences.

(6) In response to these complaints received primarily from non-conference companies, the Commission opened an inquiry into the practices of the various shipping conferences involved in the trade in question. The Commission carried out on-the-spot checks at the head offices of the conferences operating shipping services between Europe and west Africa, i.e. Cewal, Cowac, Mewac and Ukwal, and at the secretariat of the shipowners' committees (Secrétama).

On 19 December 1990 the Commission adopted Decision 91/55/EEC (2) in which it imposed a fine of ECU 5 000 on Secrétama for having supplied incorrect information in response to a request.

On 1 April 1992 the Commission adopted a second Decision 92/262/EEC (3) in which it found that the shipowners' committees set up in respect of shipping trade between France and 11 west and central African States constituted agreements which contravened

Article 85

of the EEC Treaty and that their practices infringed Article 86. It imposed fines on the member shipping companies totalling ECU 15,3 million. The deadlines for appealing against that Decision have now expired.

On 6 April 1992 the Commission adopted a further Decision 92/237/EEC (4) in which a fine was imposed on the Ukwal conference, which had not submitted to an investigation ordered by a decision.

(7) This Decision is in answer to these complaints, which were directed generally against all the activities of the Euro-African shipping conferences.

A. The market 1. Liner transport services

(8) This Decision concerns practices observed on the market for services supplied by liner vessels for the transport of general cargo principally between the ports of northern Europe and those of Zaire.

(9) Trade between the Community countries of northern Europe (including those with a North Sea coastline) and Zaire (see the figures in Annex II) can be effected by the following means of transport:

(i) air transport: this mode concerns only limited quantities of perishable or high value-added goods. In terms of tonnage this share of trade may be regarded as insignificant;

(ii) tramp vessels: specially chartered to shippers for the bulk transport of specific categories of goods for which the vessels are specially designed (oils, minerals, cereals, etc.);

(iii) liner services: regular services carrying general cargo; on the Euro-Africa routes, the companies operate container vessels and also 'break bulk' or conventional ships capable of carrying certain goods (log carriers, banana boats) or mixed vessels capable of carrying both containers and bulk goods.

(10) Liner services constitute a separate market from that of tramp services. The gap has widened in recent years with the increase in container services: this new mode of transport produces such gains in productivity compared with traditional modes (according to some studies, the productivity gain is one to three times greater, and one to seven times greater in port operations which can be carried out much more quickly, thus speeding up vessel turn-around times) (5) that bulk transport by chartered vessels of containerizable goods is no longer economically justifiable. In addition, charters are only viable (for non-containerizable goods) provided the shipper has a sufficiently large cargo, or is able to combine with other shippers for each trip.

(11) As regards comparable trade between France and the majority of French-speaking countries of the west African coast, Secrétama has produced, at the request of the Commission, an estimate of liner traffic between France and Togo, Benin, Gabon, Congo and Niger (6). On the basis of the trade balance produced by French customs for 99 items, Secrétama considered that the following products were transported in bulk (chiefly by chartered vessels and, to a lesser extent, by liner vessels equipped to carry bulk):

'cereals', 'steel', 'sugar', 'mineral oils and fuels' and 'malt'; a non-conference shipowner operating in the trade between Europe and west Africa suggested that the list should include 'iron ores' and 'salt, sulphur'...