9.2.2012   

EN

Official Journal of the European Union

C 35/26

A.

The present notice is issued pursuant to the rules of the Agreement on the European Economic Area (hereafter the ‘EEA Agreement’) and the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (hereafter the ‘Surveillance and Court Agreement’).

B.

The European Commission (hereafter the ‘Commission’) has issued ‘Guidelines on the application of Article 81 of the EC Treaty to maritime transport services’ (1). That non-binding act sets out the principles that the Commission will follow when defining markets and assessing cooperation agreements in those maritime transport services directly affected by the changes brought about by Council Regulation (EC) No 1419/2006 of 25 September 2006, i.e. liner shipping services, cabotage and international tramp services (2).

C.

The EFTA Surveillance Authority considers the abovementioned act to be EEA relevant. In order to maintain equal conditions of competition and to ensure a uniform application of the EEA competition rules throughout the European Economic Area, the EFTA Surveillance Authority adopts the present notice under the power conferred upon it by Article 5(2)(b) of the Surveillance and Court Agreement. The Authority intends to follow the principles and rules laid down in this notice when applying the relevant EEA rules to a particular case (3).

D.

In particular, the purpose of this notice is to provide guidance on how the EFTA Surveillance Authority will apply Article 53 when defining markets and assessing cooperation agreements in liner shipping services, cabotage and international tramp services.

E.

The present notice applies to cases where the Authority is the competent surveillance authority under Article 56 of the EEA Agreement.

1.

These Guidelines set out the principles that the EFTA Surveillance Authority will follow when defining markets and assessing cooperation agreements in those maritime transport services directly affected by the changes brought about by the incorporation into the EEA Agreement of Council Regulation (EC) No 1419/2006, i.e. liner shipping services, cabotage and international tramp services (4).

2.

These Guidelines are intended to help undertakings and associations of undertakings operating those services, mainly if operated to and/or from a port or ports in the European Economic Area, to assess whether their agreements (5) are compatible with Article 53 of the EEA Agreement. The Guidelines do not apply to other sectors.

3.

Council Regulation (EC) No 1419/2006 extended the scope of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty (6) and Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (7) to include cabotage and tramp vessel services. The incorporation into the EEA Agreement of Council Regulation (EC) No 1419/2006 thus amended the relevant EEA rules accordingly. Consequently, as of 9 December 2006, all maritime transport services sectors are subject to the generally applicable procedural framework.

4.

Council Regulation (EC) No 1419/2006 also repealed Council Regulation (EEC) No 4056/86 of 22 December 1986 on the application of Articles 85 and 86 (now 81 and 82) of the EC Treaty to maritime transport (8) containing the liner conference block exemption which allowed shipping lines meeting in liner conferences to fix rates and other conditions of carriage, as the conference system no longer fulfils the criteria of Article 81(3) of the EC Treaty (now Article 101(3) of the TFEU). The incorporation into the EEA Agreement of Council Regulation (EC) No 1419/2006 thus results in the conference system no longer being block exempted from the prohibition set out in Article 53(1) of the EEA Agreement as of 18 October 2008. Thereafter, liner carriers operating services to and/or from one or more ports in the European Economic Area must cease all liner conference activity contrary to Article 53 of the EEA Agreement. This is the case regardless of whether other jurisdictions allow, explicitly or tacitly, rate fixing by liner conferences or discussion agreements. Moreover, conference members should ensure that any agreement taken under the conference system complies with Article 53 of the EEA Agreement as of 18 October 2008.

5.

These Guidelines complement the guidance already issued by the Authority in other notices. As maritime transport services are characterised by extensive cooperation agreements between competing carriers, the Guidelines on the applicability of Article 53 of the EEA Agreement to horizontal cooperation agreements (9) and the Guidelines on the application of Article 53(3) of the EEA Agreement (10) are particularly relevant.

6.

Horizontal cooperation agreements in liner shipping regarding the provision of joint services are covered by Commission Regulation (EC) No 823/2000 of 19 April 2000 on the application of Article 81(3) of the EC Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia) as implemented into the EEA Agreement (11). Commission Regulation (EC) No 823/2000 will be replaced by Commission Regulation (EC) No 906/2009 of 28 September 2009 on 26 April 2010 (12). These Regulations, as implemented into the EEA Agreement, set out the conditions, pursuant to Article 53(3) of the EEA Agreement, under which the prohibition in Article 53(1) of the EEA Agreement does not apply to agreements between two or more vessel operating carriers (consortia).

7.

These Guidelines are without prejudice to the interpretation of Article 53 of the EEA Agreement which may be given by the EFTA Court, the Court of Justice or the General Court of the European Communities. The principles in the Guidelines are to be applied in the light of the circumstances specific to each case.

8.

The Authority will apply these Guidelines for a period of five years.

9.

Liner shipping services, cabotage and tramp services are the maritime transport sectors directly affected by the changes brought about by the incorporation into the EEA Agreement of Council Regulation (EC) No 1419/2006.

10.

Liner shipping involves the transport of cargo, chiefly by container, on a regular basis to ports of a particular geographic route, generally known as a trade. Other general characteristics of liner shipping are that timetables and sailing dates are advertised in advance and services are available to any transport user.

11.

Article 1(3)(a) of Council Regulation (EEC) No 4056/86, as incorporated into Chapter G point 11 of Annex XIV to the EEA Agreement (13), defined tramp vessel services as the transport of goods in bulk or in break bulk in a vessel chartered wholly or partly to one or more shippers on the basis of a voyage or time charter or any other form of contract for non-regularly scheduled or non-advertised sailings where the freight rates are freely negotiated case by case in accordance with the conditions of supply and demand. It is mostly the unscheduled transport of one single commodity which fills a vessel (14).

12.

Cabotage involves the provision of maritime transport services including tramp and liner shipping, linking two or more ports in the same EEA State (15). Although these Guidelines do not specifically address cabotage services they nevertheless apply to these services, insofar as they are provided either as liner or tramp shipping services.

13.

Article 53 of the EEA Agreement applies to all agreements which may appreciably affect trade between EEA States. In order for there to be an effect on trade it must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or fact that the agreement or conduct may have an influence, direct or indirect, actual or potential, on the pattern of trade between EEA States (16). The Authority has issued guidance on how it will apply the concept of affectation of trade in its Guidelines on the effect of trade concept contained in Articles 53 and 54 of the EEA Agreement (17).

14.

Transport services offered by liner shipping and tramp operators are often international in nature linking EEA ports with third countries and/or involving exports and imports between two or more EEA States (i.e. intra-EEA trade) (18). In most cases they are likely to affect trade between EEA States inter alia on account of the impact they have on the markets for the provision of transport and intermediary services (19).

15.

Effect on trade between EEA States is of particular relevance to maritime cabotage services since it determines the scope of application of Article 53 of the EEA Agreement and its interaction with national competition law under Article 3 of Chapter II of Protocol 4 to the Surveillance and Court Agreement on the implementation of the rules on competition laid down in Articles 53 and 54 of the EEA Agreement. The extent to which such services may affect trade between EEA States must be evaluated on a case-by-case basis (20).

16.

In order to assess the effects on competition of an agreement for the purposes of Article 53 of the EEA Agreement, it is necessary to define the relevant product and geographic market(s). The main purpose of market definition is to identify in a systematic way the competitive constraints faced by an undertaking. Guidance on this issue can be found in the Authority Notice on the definition of the relevant market for the purposes of competition law within the EEA (21). This guidance is also relevant to market definition as regards maritime transport services.

17.

The relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products’ characteristics, their prices and their intended use. The relevant geographic market comprises the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because the conditions of competition are appreciably different in those areas (22). A carrier (or carriers) cannot have a significant impact on the prevailing conditions of the market if customers are in a position to switch easily to other service providers (23).

18.

Containerised liner shipping services have been identified as the relevant product market for liner shipping in several Commission decisions and judgments of the European Court of Justice (24). Those decisions and judgments related to maritime transport in deep sea trades. Other modes of transport have not been included in the same service market even though in some cases these services may be, to a marginal extent, interchangeable. This was because only an insufficient proportion of the goods carried by container can easily be switched to other modes of transport, such as air transport services (25).

19.

It may be appropriate under certain circumstances to define a narrower product market limited to a particular type of product transported by sea. For example, the transport of perishable goods could be limited to reefer containers or include transport in conventional reefer vessels. While it is possible in exceptional circumstances for some substitution to take place between break bulk and container transport (26), there appears to be no lasting change over from container towards bulk. For the vast majority of categories of goods and users of containerised goods, break bulk does not offer a reasonable alternative to containerised liner shipping (27). Once cargo becomes regularly containerised, it is unlikely ever to be transported again as non-containerised cargo (28). To date containerised liner shipping is therefore mainly subject to one way substitutability (29).

20.

The relevant geographic market consists of the area where the services are marketed, generally a range of ports at each end of the service, determined by ports’ overlapping catchment areas. As far as the European end of the service is concerned, to date the geographical market in liner cases has been identified as a range of ports in northern Europe or in the Mediterranean. As liner shipping services from the Mediterranean are only marginally substitutable for those from northern European ports, these have been identified as separate markets (30).

21.

The Authority has not yet applied Article 53 of the EEA Agreement to tramp shipping. Undertakings may consider the following elements in their assessment inasmuch as they are relevant to the tramp shipping services they provide.

22.

The ‘main terms’ of an individual transport request are a starting point for defining relevant service markets in tramp shipping since they generally identify the essential elements (31) of the transport requirement at issue. Depending on the transport users’ specific needs, they will be made up of negotiable and non-negotiable elements. Once identified, a negotiable element of the main terms, for example the vessel type or size, may indicate, for instance, that the relevant market with respect to this specific element is wider than laid down in the initial transport requirement.

23.

The nature of the service in tramp shipping may differ and there is a variety of transport contracts. It may be necessary, therefore, to ascertain whether the demand side considers the services provided under time charter contracts, voyage charter contracts and contracts of affreightment to be substitutable. Should this be the case they may belong to the same relevant market.

24.

Vessel types are usually subdivided into a number of standard industrial sizes (32). Due to considerable economies of scale, a service with a significant mismatch between cargo volume and vessel size may not be able to offer a competitive freight rate. Therefore, the substitutability of different vessel sizes needs to be assessed case by case so as to ascertain whether each vessel size constitutes a separate relevant market.

25.

The physical and technical conditions of the cargo to be carried and the vessel type provide the first indications as to the relevant market from the supply side (33). If vessels can be adjusted to transport a particular cargo at negligible cost and in a short time-frame (34), different tramp shipping service providers are able to compete for the transport of this cargo. In such circumstances, the relevant market from the supply side will comprise more than one type of vessel.

26.

However, there are a number of vessel types that are technically adapted and/or specially built to provide specialised transport services. Although specialised vessels may also carry other types of cargo, they may be at a competitive disadvantage. The ability of specialised service providers to compete for the transport of other cargo may, therefore, be limited.

27.

In tramp shipping, port calls are made in response to individual demand. Mobility of vessels may however be limited by terminal and draught restrictions or environmental standards for particular vessel types in certain ports or regions.

28.

The existence of chains of substitution between vessel sizes in tramp shipping should also be considered. In certain tramp shipping markets, vessel sizes at the extreme of the market are not directly substitutable. Chain substitution effects may nevertheless constrain pricing at the extremes and lead to their inclusion in a broader market definition.

29.

In certain tramp shipping markets, consideration must be given to whether vessels can be considered as captive capacity and should not be taken into account when assessing the relevant market on a case-by-case basis.

30.

Additional factors such as the reliability of the service provider, security, safety and regulatory requirements may influence supply and demand-side substitutability, for example the double hull requirement for tankers in EEA waters (35).

31.

Transport requirements usually contain geographic elements such as the loading and discharging ports or regions. These ports provide the first orientation for the definition of the relevant geographic market from the demand-side, without prejudice to the final definition of the relevant geographic market.

32.

Certain geographic markets may be defined on a directional basis or may occur only temporarily for instance when climatic conditions or harvest periods periodically affect the demand for transport of particular cargos. In this context, repositioning of vessels, ballast voyages and trade imbalances should be considered for the delineation of relevant geographic markets.

33.

Market shares provide useful first indications of the market structure and of the competitive importance of the parties and their competitors. The Authority and the Commission interprets market shares in the light of the market conditions on a case-by-case basis. In liner shipping, volume and/or capacity data have been identified as the basis for calculating market shares in several Commission decisions and judgments of the European Court of Justice (36).

34.

In tramp shipping markets, service providers compete for the award of transport contracts, that is to say, they sell voyages or transport capacity. Depending on the specific services in question, various data may allow operators to calculate their annual market shares (37), for instance:

35.

Cooperation agreements are a common feature of maritime transport markets. Considering that these agreements may be entered into by actual or potential competitors and may adversely affect the parameters of competition, undertakings must take special care to ensure that they comply with the competition rules. In service markets, such as maritime transport, the following elements are particularly relevant for the assessment of the effect an agreement may have in the relevant market: prices, costs, quality, frequency and differentiation of the service provided, innovation, marketing and commercialisation of the service.

36.

Three issues are of particular relevance to the services covered by these Guidelines: technical agreements, exchanges of information and pools.

37.

Certain types of technical agreements may not fall under the prohibition set out in Article 53 of the EEA Agreement on the ground that they do not restrict competition. This is the case, for instance, of horizontal agreements the sole object and effect of which is to implement technical improvements or to achieve technical cooperation. Agreements relating to the implementation of environmental standards can also be considered to fall into this category. Agreements between competitors relating to price, capacity or other parameters of competition will, in principle, not fall into this category (38).

38.

An information exchange system entails an arrangement on the basis of which undertakings exchange information amongst themselves or supply it to a common agency responsible for centralising, compiling and processing it before returning it to the participants in the form and at the frequency agreed.

39.

It is common practice in many industries for aggregate statistics and general market information to be gathered, exchanged and published. This published market information is a good means to increase market transparency and customer knowledge, and thus may produce efficiencies. However, the exchange of commercially sensitive and individualised market data can, under certain circumstances, breach Article 53 of the EEA Agreement. These Guidelines are intended to assist providers of liner shipping services in assessing when such exchanges breach the competition rules.

40.

In the liner shipping sector, exchanges of information between shipping lines taking part in liner consortia which otherwise would fall under Article 53(1) of the EEA Agreement are permitted to the extent that they are ancillary to and necessary for the joint operation of liner transport services and the other forms of cooperation covered by the block exemption in Regulation (EC) No 823/2000 as incorporated into the EEA Agreement (39). The present Guidelines do not deal with these information exchanges.

41.

In assessing information exchange systems under EEA competition law, the following distinctions must be made.

42.

The exchange of information may be a facilitating mechanism for the implementation of an anti-competitive practice, such as monitoring compliance with a cartel; where an exchange of information is ancillary to such an anti-competitive practice its assessment must be carried out in combination with an assessment of that practice. An exchange of information may even have in itself the object of restricting competition (40). These Guidelines do not address such exchanges of information.

43.

However, an exchange of information, in its own right, might constitute an infringement of Article 53 of the EEA Agreement by reason of its effect. This situation arises when the information exchange reduces or removes the degree of uncertainty as to the operation of the market in question with the result that competition between undertakings is restricted (41). Every economic operator must determine autonomously the policy which it intends to pursue on the market. The European Court of Justice further considered that undertakings are, therefore, precluded from direct or indirect contacts with other operators which influence the conduct of a competitor or reveal their own (intended) conduct if the object or effect of those contacts is to restrict competition, i.e. to give rise to conditions of competition which do not correspond to the normal conditions of the market in question, taking into account the nature of the products or the services provided, the size and number of the undertakings and the volume of the market (42). By contrast, in the wood pulp market, the European Court of Justice has found that unilateral quarterly price announcements made independently by producers to users constitute in themselves market behaviour which does not lessen each undertaking’s uncertainty as to the future attitude of its competitors and hence, in the absence of any preliminary concerted practice between producers, do not constitute in themselves an infringement of Article 81(1) of the EC (now Article 102(1) of the TFEU) (43).

44.

The case law of the European Community courts provides some general guidance in examining the likely effects of an information exchange. The European Court of Justice has found that where there is a truly competitive market, transparency is likely to lead to intensification of competition between suppliers (44). However, on a highly concentrated oligopolistic market, on which competition is already greatly reduced, exchanges of precise information on individual sales at short intervals between the main competitors, to the exclusion of other suppliers and of consumers, are likely to impair substantially the competition that exists between suppliers. In such circumstances, the sharing, on a regular and frequent basis, of information concerning the operation of the market has the effect of periodically revealing to all competitors the market positions and strategies of the various individual competitors (45). The European Court of Justice has also found that an information exchange system may constitute a breach of the competition rules even when the market is not highly concentrated, but there is a reduction of the undertakings’ decision-making autonomy resulting from pressure during subsequent discussions with competitors (46).

45.

It follows that the actual or potential effects of an information exchange must be considered on a case-by-case basis as the results of the assessment depend on a combination of factors, each specific to an individual case. The structure of the market where the exchange takes place and the characteristics of the information exchange are two key elements that the Authority examines when assessing an information exchange. The assessment must consider the actual or potential effects of the information exchange compared to the competitive situation that would result in the absence of the information exchange agreement (47). To be caught by Article 53(1) of the EEA Agreement, the exchange must have an appreciable adverse impact on the parameters of competition (48).

46.

The guidance below mainly relates to the analysis of a restriction of competition under Article 53(1) of the EEA Agreement. Guidance on the application of Article 53(3) of the EEA Agreement is to be found in paragraph 58 below and in the general notice on the subject (49).

47.

The level of concentration and the structure of supply and demand on a given market are key issues in considering whether an exchange falls within the scope of Article 53(1) of the EEA Agreement (50).

48.

The level of concentration is particularly relevant since, on highly concentrated oligopolistic markets, restrictive effects are more likely to occur and are more likely to be sustainable than in less concentrated markets. Greater transparency in a concentrated market may strengthen the interdependence of firms and reduce the intensity of competition.

49.

The structure of supply and demand is also important, notably the number of competing operators and the symmetry and stability of their market shares and the existence of any structural links between competitors (51). The Authority may also analyse other factors such as the homogeneity of services and the overall transparency in the market.

50.

The exchange of commercially sensitive data relating to the parameters of competition, such as price, capacity or costs, between competitors, is more likely to be caught by Article 53(1) of the EEA Agreement than other exchanges of information. The commercial sensitivity of information should be assessed taking into account the criteria set out below.

51.

The exchange of information already in the public domain does not in principle constitute an infringement of Article 53(1) of the EEA Agreement (52). However, it is important to establish the level of transparency of the market and whether the exchange enhances information by making it more accessible and/or combines publicly available information with other information. The resulting information may become commercially sensitive and its exchange potentially restrictive of competition.

52.

Information may be individual or aggregated. Individual data relates to a designated or identifiable undertaking. Aggregate data combines the data from a sufficient number of independent undertakings so that the recognition of individual data is impossible. The exchange of individual information between competitors is more likely to be caught by Article 53(1) of the EEA Agreement (53) than the exchange of aggregated information which, in principle, does not fall within Article 53(1) of the EEA Agreement. The Authority will pay particular attention to the level of aggregation. It should be such that the information cannot be disaggregated so as to allow undertakings directly or indirectly to identify the competitive strategies of their competitors.

53.

However, in liner shipping caution should be used when assessing exchanges of capacity forecasts even in aggregate form, especially when they take place in concentrated markets. In liner markets, capacity data is the key parameter to coordinate competitive conduct and it has a direct effect on prices. Exchanges of aggregated capacity forecasts indicating in which trades capacity will be deployed may be anticompetitive to the extent that they may lead to the adoption of a common policy by several or all carriers and result in the provision of services at above competitive prices. Additionally, there is a risk of disaggregation of the data as it can be combined with individual announcements by liner carriers. This would enable undertakings to identify the market positions and strategies of competitors.

54.

The age of the data and the period to which it relates are also important factors. Data can be historic, recent or future. Exchange of historic information is generally not regarded as falling within Article 53(1) of the EEA Agreement because it cannot have any real impact on the undertakings’ future behaviour. In past cases, the Commission has considered information which was more than one year old as historic (54) whereas information less than one year old has been viewed as recent (55). The historic or recent nature of the information should be assessed with some flexibility taking into account the extent to which data becomes obsolete in the relevant market. The time when the data becomes historic is likely to be shorter if the data is aggregated rather than individual. Exchanges of recent data on volume and capacity are similarly unlikely to be restrictive of competition if the data is aggregated to an appropriate level such that individual shippers’ or carriers’ transactions cannot be identified either directly or indirectly. Future data relates to an undertaking’s view of how the market will develop or to the strategy it intends to follow in that market. The exchange of future data is particularly likely to be problematic, especially when it relates to prices or output. It may reveal the commercial strategy an undertaking intends to adopt in the market. In so doing, it may appreciably reduce rivalry between the parties to the exchange and is thus potentially restrictive of competition.

55.

The frequency of the exchange should also be considered. The more frequently the data is exchanged, the more swiftly competitors can react. This facilitates retaliation and ultimately lowers the incentives to initiate competitive actions on the market. So-called hidden competition could be restricted.

56.

How data is released should also be looked into to assess the effect(s) it may have on the market(s). The more the information is shared with customers, the less likely it is to be problematic. Conversely, if market transparency is improved for the benefit of suppliers only, it may deprive customers of the possibility of getting the advantage of increased ‘hidden competition’.

57.

In liner shipping, price indexes are used to show average price movements for the transport of a sea container. A price index based on appropriately aggregated price data is unlikely to infringe Article 53(1) of the EEA Agreement, provided that the level of aggregation is such that the information cannot be disaggregated so as to allow undertakings directly or indirectly to identify the competitive strategies of their competitors. If a price index reduces or removes the degree of uncertainty as to the operation of the market with the result that competition between undertakings is restricted, it would violate Article 53(1) of the EEA Agreement. In assessing the likely effect of such a price index on a given relevant market, account should be given to the level of aggregation of the data and its historical or recent nature and the frequency at which the index is published. In general, it is important to assess all individual elements of any information exchange scheme together, in order to take account of potential interactions, for example between exchange of capacity and volume data on the one hand and of a price index on the other.

58.

An exchange of information between carriers that restricts competition may nonetheless create efficiencies, such as better planning of investments and more efficient use of capacity. Such efficiencies will have to be substantiated and passed on to customers and weighed against the anti-competitive effects of the information exchange in the framework of Article 53(3) of the EEA Agreement. In this context, it is important to note that one of the conditions of Article 53(3) of the EEA Agreement is that consumers should receive a fair share of the benefits generated by the restrictive agreement. If all four cumulative conditions set out in Article 53(3) of the EEA Agreement are fulfilled, the prohibition of Article 53(1) of the EEA Agreement does not apply (56).

59.

In liner shipping, as in any other sector, discussions and exchanges of information can take place in a trade association provided the association is not used as (a) a forum for cartel meetings (57), (b) a structure that issues anti-competitive decisions or recommendations to its members (58) or (c) a means of exchanging information that reduces or removes the degree of uncertainty as to the operation of the market with the result that competition between undertakings is restricted while not fulfilling the Article 53(3) conditions (59). This should be distinguished from the discussions that are legitimately conducted within trade associations, for example on technical and environmental standards.

60.

The most recurrent form of horizontal cooperation in the tramp shipping sector is the shipping pool. There is no universal model for a pool. Some features do, however, appear to be common to most pools in the different market segments as set out below.

61.

A standard shipping pool brings together a number of similar vessels (60) under different ownership and operated under a single administration. A pool manager is normally responsible for the commercial management (for example, joint marketing (61), negotiation of freight rates and centralisation of incomes and voyage costs) (62) and the commercial operation (planning vessel movements and instructing vessels, nominating agents in ports, keeping customers updated, issuing freight invoices, ordering bunkers, collecting the vessels’ earnings and distributing them under a pre-arranged weighting system etc.). The pool manager often acts under the supervision of a general executive committee representing the vessel owners. The technical operation of vessels is usually the responsibility of each owner (safety, crew, repairs, maintenance etc.). Although they market their services jointly, the pool members often perform the services individually.

62.

It follows from this description that the key feature of standard shipping pools is joint selling, coupled with some features of joint production. The guidance on both joint selling, as a variant of a joint commercialisation agreement, and joint production in the Authority Guidelines on the applicability of Article 53 of the EEA Agreement to horizontal cooperation agreements (63) is therefore relevant. Given the variation in pools’ characteristics, each pool must be analysed on a case-by-case basis to determine, by reference to its centre of gravity (64), whether it is caught by Article 53(1) of the EEA Agreement and, in the affirmative, if it fulfils the four cumulative conditions of Article 53(3) of the EEA Agreement.

63.

Pools that fall within the scope of Council Regulation (EC) No 139/2004 (65) because they are created as a joint venture performing on a lasting basis all the functions of an autonomous economic entity (so-called full-function joint ventures, see Article 3(4) of Council Regulation (EC) No 139/2004) are not directly affected by the changes brought about by Council Regulation (EC) No 1419/2006 and are not dealt with in these Guidelines. Guidance on full-functionality can be found, inter alia, in the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (66). Insofar as such pools have as their object or effect the coordination of the competitive behaviour of their parents, the coordination shall be appraised in accordance with the criteria of Article 53(1) and (3) of the EEA Agreement with a view to establishing whether or not the operation is compatible with the functioning of the EEA Agreement (67).

64.

Pool agreements do not fall under the prohibition of Article 53(1) of the EEA Agreement if the participants to the pool are not actual or potential competitors. This would be the case, for instance, when two or more ship-owners set up a shipping pool for the purpose of tendering for and performing contracts of affreightment for which as individual operators they could not bid successfully or which they could not carry out on their own. This conclusion is not invalidated in cases where such pools occasionally carry other cargo representing a small part of the overall volume.

65.

Pools whose activity does not influence the relevant parameters of competition because they are of minor importance and/or do not appreciably affect trade between EEA States (68) are not caught by Article 53(1) of the EEA Agreement. A pool does not however come within the scope of the Authority Notice on agreements of minor importance if it involves price-fixing, including joint selling.

66.

Pool agreements between competitors limited to joint selling have as a rule the object and effect of coordinating the pricing policy of these competitors (69).

67.

If the pool does not have as its object a restriction of competition, an analysis of its effects in the market concerned is necessary. An agreement is caught by Article 53(1) of the EEA Agreement when it is likely to have an appreciable adverse impact on the parameters of competition on the market such as prices, costs, service differentiation, service quality, and innovation. Agreements can have this effect by appreciably reducing rivalry between the parties to the agreement or between them and third parties (70).

68.

Some tramp shipping pools do not involve joint selling but nevertheless entail some degree of coordination on the parameters of competition (e.g. joint scheduling or joint purchasing). Such cases are only subject to Article 53(1) of the EEA Agreement if the parties to the agreement have some degree of market power (71).

69.

The pool’s ability to cause appreciable negative market effects depends on the economic context, taking into account the parties’ combined market power and the nature of the agreement together with other structural factors in the relevant market. It must also be considered whether the pool agreement affects the behaviour of the parties in neighbouring markets closely related to the market directly affected by the cooperation (72). This may be the case for example where the pool’s market is that for the transport of forest products in specialised box shaped vessels (market A) and the pool’s members also operate ships in the dry bulk market (market B).

70.

Concerning the structural factors in the relevant market, if the pool has a low market share, it is unlikely to produce restrictive effects. Market concentration, the position and number of competitors, the stability of market shares over time, multi-membership in pools, market entry barriers and the likelihood of entry, market transparency, countervailing buying power of transport users and the nature of the services (for example, homogenous versus differentiated services) should be taken into account as additional factors in assessing the impact of a given pool on the relevant market.

71.

With regard to the nature of the agreement, consideration should be given to clauses affecting the pool or its members’ competitive behaviour in the market such as clauses prohibiting members from being active in the same market outside the pool (non-compete clauses), lock-in periods and notice periods (exit clauses) and exchanges of commercially sensitive information. Any links between pools, whether in terms of management or members as well as cost and revenue sharing, should also be considered.

72.

Where pools are caught by Article 53(1) of the EEA Agreement, the undertakings involved need to ensure that they fulfil the four cumulative conditions of Article 53(3) of the EEA Agreement (73). Article 53(3) of the EEA Agreement does not exclude a priori certain types of agreements from its scope. As a matter of principle all restrictive agreements that fulfil the four conditions of Article 53(3) of the EEA Agreement are covered by the exception rule. This analysis incorporates a sliding scale. The greater the restriction of competition found under Article 53(1) of the EEA Agreement, the greater the efficiencies and the pass-on to consumers must be.

73.

It is up to the undertakings involved to demonstrate that the pool improves the transport services or promotes technical or economic progress in the form of efficiency gains. The efficiencies generated cannot be cost savings that are an inherent part of the reduction of competition but must result from the integration of economic activities.

74.

Efficiency gains of pools may for instance result from obtaining better utilisation rates and economies of scale. Tramp shipping pools typically jointly plan vessel movements in order to spread their fleets geographically. Spreading vessels may reduce the number of ballast voyages which may increase the overall capacity utilisation of the pool and eventually lead to economies of scale.

75.

Consumers must receive a fair share of the efficiencies generated. Under Article 53(3) of the EEA Agreement, it is the beneficial effects on all consumers in the relevant market that must be taken into consideration, not the effect on each individual consumer (74). The pass-on of benefits must at least compensate consumers for any actual or potential negative impact caused to them by the restriction of competition under Article 53(1) of the EEA Agreement (75). To assess the likelihood of a pass-on, the structure of tramp shipping markets and the elasticity of demand should also be considered in this context.

76.

A pool must not impose restrictions that are not indispensable to the attainment of the efficiencies. In this respect, it is necessary to examine whether the parties could have achieved the efficiencies on their own. In making this assessment it is relevant to consider, inter alia, what is the minimum efficient scale to provide various types of services in tramp shipping. In addition, each restrictive clause contained in a pool agreement must be reasonably necessary to attain the claimed efficiencies. Restrictive clauses may be justified for a longer period or the whole life of the pool or for a transitional period only.

77.

Lastly, the pool must not afford the parties the possibility of eliminating competition in respect of a substantial part of the services in question.