Atlantic Container Line AB and Others v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 61994TJ0395
• ECLI: ECLI:EU:T:2002:49
• Court: General Court (European Union)
• Date: 28 February 2002
• Docket Number: T-395/94
• Procedure Type: Recurso de anulación - infundado

Avis juridique important

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61994A0395

Judgment of the Court of First Instance (Third Chamber) of 28 February 2002. - Atlantic Container Line AB and Others v Commission of the European Communities. - Competition - Liner conferences - Regulation (EEC) No 4056/86 - Scope - Block exemption - Regulation (EEC) No 1017/68 - Individual exemption. - Case T-395/94.

European Court reports 2002 Page II-00875

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1. Competition - Maritime transport - Agreements, decisions and concerted practices - Agreement between shipping lines on the scheduled transport between Northern Europe and the United States and the inland carriage of containers - Relevant market - Restrictions of competition within the common market - Certain member lines established outside the Community - No effect

(EC Treaty, Art. 85 (now Art. 81 EC))

2. Competition - Agreements, decisions and concerted practices - Effect on trade between Member States - Criteria

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

3. Competition - Maritime transport - Agreements, decisions and concerted practices - Effect on trade between Member States - Agreement between shipping lines relating to the conditions for the sale of maritime and inland transport services - Effect on trade in port and auxiliary services linked to the carriage of goods

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

4. Competition - Maritime transport - Regulation No 4056/86 - Block exemption - Scope

(Council Regulation No 4056/86, Art. 3)

5. Competition - Maritime transport - Regulation No 4056/86 - Block exemption - Strict interpretation - Exemption for liner conference agreements - Scope

(EC Treaty, Art. 85(1) and (3) (now Art. 81(1) and (3) EC); Council Regulation No 4056/86, Art. 3)

6. Community law - Definitions - Interpretation - Definition taken from an international convention - Interpretation with regard to that convention

7. Competition - Maritime transport - Liner conferences - Definition - Block exemption of liner conference agreements - Conditions - Setting uniform freight rates for all conference members - Tariff rates varying between members - Whether unlawful

(Council Regulation No 4056/86, Art. 3)

8. Competition - Maritime transport - Regulation No 4056/86 - Block exemption of liner conference agreements - Justification - Stabilising effect of uniform freight rates for all conference members - Independent action on the part of one conference member - Whether lawful

(Council Regulation No 4056/86, Art. 3)

9. Actions for annulment - Commission decision refusing to grant individual exemption - Complex economic appraisal - Judicial review - Limits

(EC Treaty, Art. 85(3) (now Art. 81(3) EC), and Art. 173 (now, after amendment, Art. 230 EC))

10. Competition - Maritime transport - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Discretion of the Commission

(EC Treaty, Art. 85(3) (now Art. 81(3) EC); Council Regulation No 4056/86)

11. Competition - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Cumulative nature

(EC Treaty, Art. 85(3) (now Art. 81(3) EC))

12. Competition - Maritime transport - Agreements, decisions and concerted practices - Prohibition - Exemption - Relevant market - Delimitation - Criteria - Agreement between shipping lines relating to the scheduled transport of containers between Northern Europe and the United States

13. Competition - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Possibility of eliminating competition in respect of a substantial part of the relevant services - Must be assessed as a whole

(EC Treaty, Art. 85(3) (now Art. 81(3) EC))

14. Competition - Maritime transport - Agreements, decisions and concerted practices - Prohibition - Exemption - Conditions - Possibility of eliminating competition in respect of a substantial part of the relevant services - Assessment criteria - Agreement between shipping lines fixing maritime transport rates

(EC Treaty, Art. 85(3) (now Art. 81(3) EC); Council Regulation No 4056/86, Art. 12)

15. Procedure - Intervention - Plea in law not raised by the applicant - Whether inadmissible

(EC Statute of the Court of Justice, Art. 37, fourth para.; Rules of Procedure of the Court of First Instance, Art. 116(3))

16. Competition - Administrative procedure - Decision finding that there has been an infringement - Order compelling the undertakings concerned to inform their customers that they may renegotiate or rescind the contracts - Decision departing from the Commission's usual practice - Failure to state that fact in the statement of objections - Infringement of the obligation to state reasons

(EC Treaty, Art. 85(1) (now Art. 81(1) EC); Council Regulations No 1017/68, Art. 11, and No 4056/86, Art. 11)

Summary

1. In the case of an agreement between shipping lines on the scheduled transport of containers across the Atlantic between Northern Europe and the United States and on the inland carriage of the containers, the relevant markets directly affected are those in transport services and not that in the export of goods to the United States. The restrictions of competition occur within the common market because it is there that the members of the agreement, including several shipping companies established in the Community, are in competition to sell their services to clients, namely shippers, established in the Community. The fact that certain members of the agreement are not established in the Community does not cast doubt on that conclusion.

( see para. 72 )

2. For an agreement between undertakings to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market between States. In particular, it is not necessary that the conduct in question should in fact have substantially affected trade between Member States. It is sufficient to establish that the conduct is capable of having such an effect.

( see paras 79, 90 )

3. An agreement between shipping companies, including a number established in the Community, which related to the conditions for the sale of maritime and inland transport services to shippers established in various Member States of the Community is capable of affecting trade between Member States for the purposes of Article 85(1) of the Treaty (now Article 81(1) EC).

Furthermore, such an agreement is capable of modifying the pattern of trade in goods transiting through the ports served by the shipping companies which are members of an agreement. As a result, that agreement must be regarded as having affected trade between Member States, over and above the trade consisting of only maritime transport services, since port and auxiliary services linked to the carriage of goods were also affected.

Finally, although more indirectly, the relevant agreement has, or at the very least is capable of having, an effect on the trade in goods between Member States, in so far as the transport prices fixed by the agreement represent a proportion of the end selling price of the goods transported.

( see paras 80-82 )

4. An agreement can qualify for the exemption provided for in Article 3 of Regulation No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport only if it is a liner conference agreement.

The existence of a liner conference within the meaning of Regulation No 4056/86 depends on the charging of uniform or common freight rates by its members.

( see paras 140, 143 )

5. Having regard to the general principle of the prohibition of agreements restricting competition in Article 85(1) of the Treaty (now Article 81(1) EC), provisions derogating therefrom in an exempting regulation must, by their nature, be strictly interpreted. This conclusion applies, a fortiori, to the provisions of Regulation No 4056/86 relating to maritime transport by virtue of its unlimited duration and the exceptional nature of the restrictions on competition authorised (horizontal agreement having as its object the fixing of prices). It follows that the block exemption provided for by Article 3 of Regulation No 4056/86 cannot be interpreted broadly and progressively so as to cover all the agreements which shipping companies deem it useful, or even necessary, to adopt in order to adapt to market conditions. The exemption can relate only to the types of agreement which the Council, when Regulation No 4056/86 was adopted, regarded, in the light of experience, as satisfying the conditions of Article 85(3) of the Treaty. Apart from the power enjoyed by the Council, if the need arose, to amend Regulation No 4056/86, the undertakings concerned also always have the option to apply for an individual exemption to offset any disadvantages of the limitations inherent in the block exemption.

( see para. 146 )

6. The definition of liner conference in Article 1(3)(b) of Regulation No 4056/86 was taken word for word from the United Nations Convention on a Code of Conduct for Liner Conferences. That code thus constitutes an important point of reference for the interpretation of the concept of liner conference referred to in Regulation No 4056/86.

( see para. 147 )

7. By its very nature and in the light of its objectives, a liner conference, as defined by the Council for the purposes of qualification for block exemption under Regulation No 4056/86, can be characterised as a collective entity which presents itself as such on the market vis-à-vis both users and competitors.

The conference puts itself forward as an entity on the market since it fixes uniform freight rates for all its members, in the sense that...