On the 14th September 2007 the European Commission issues long-promised (Draft) guidelines on the application of Article 81 of the EC Treaty to maritime transport services. The Guidelines were proposed (and asked for by some shipping industry participants) in light of the changes in the EU competition regulation of shipping sector. First, the liner conference block exemption has been removed as a result of these changes. Second, tramp (non-scheduled) shipping was made subject to EU competition rules (more on competition rules in maritime transport you can read, e.g., at Commission’s website: http://ec.europa.eu/comm/competition/antitrust/legislation/maritime/)
The Guidelines are intended to help undertakings and associations of undertakings operating shipping services to and/or from a port or ports in the EU to assess whether their agreements are compatible with Article 81 EC. Presently, the Commission expects comments on the draft. The Draft covers the following topics:
– definitions of “liner shipping” and “tramp shipping”;
– effect on trade between Member States;
– the relevant market definition;
– horizontal agreements in the maritime transport sector (technical agreements, information exchanges between competitors in liner shipping; pool agreements in tramp shipping).
Although crucial topics are covered by the Guidelines, they are not detailed (it is hard to say whether they are intended to be like that or not, given that they are only a draft). In addition, they are designed to complement other Guidelines issued by the Commission earlier (see Guidelines on Horizontal Cooperation Agreements, Guidelines on application of Article 81(3) of the Treaty).
Will these Guidelines be really useful for the industry and for the promotion of competition in shipping markets or will they only increase uncertainty as to the application of Articles 81 and 82 in this sector? Should national courts rely on the principles in these (and other Commission’s) guidelines? Do they provide any useful source of argument at all? These questions will only be clarified by the subsequent practice of the competition authorities and the courts. The author has certain doubts concerning the reliability of these Guidelines in their present shape.