Liner Shipping and EU Competition Law

Name: Liner Shipping and EU Competition Law
Brand: Kluwer Law International
Price: 216.99 EUR
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Alla Pozdnakova(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 21. Mai 2008

492 Seiten

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Beschreibung

As of October 2008, liner shipping companies lose their privileged status under EU competition law due to withdrawal of the liner conference block exemption, which generously authorized horizontal price-fixing and similar agreements between liner shipping companies. Where the liner consortia block exemption does not apply, all cooperative activity should be carefully and individually assessed under the competition provisions of the EC Treaty.

Alla Pozdnakova has taken this opportunity to research and write an in-depth study of competition law problems in the liner shipping context. Her analysis is not only the first to examine the new European regime, and thus the most up-to-date study of the subject; it is in fact the first major independent study of how Articles 81 and 82 EC are construed and applied to the market conduct of liner shipping companies. In particular, the author addresses the following legal questions:

Does cooperation between liner shipping companies infringe Article 81(1) even if it does not entail hard-core restrictions of
competition?
Can a cooperative arrangement between liner shipping companies claim that the efficiencies they produce outweigh the negative
impact on competition (Article 81(3))?

When do certain market strategies of liner carriers become an abuse of a collective or individual dominant position (Article 82)?

Does parallel pricing behaviour infringe EC Treaty competition rules?

Systematically, the author considers various market strategies of liner shipping companies and tests them as to their compatibility with EC Treaty competition provisions. In doing so, she thoroughly analyses European Commission decisions and judgments of the European courts, applying them authoritatively to the liner shipping sector. In this way, her book provides a well-structured account that clearly identifies the legal issues that liner shipping companies are likely to face once the special treatment traditionally allowed them is withdrawn. A summary of current and prospective developments in EU competition regulation and policy in liner shipping rounds up the analysis.

Liner Shipping and EU Competition Law will be a unique and powerful resource for practitioners and policymakers as liner shipping companies restructure their agreements and market strategies to accommodate loss of the block exemption. It is also sure to become a definitive analysis of the legal identity of the liner shipping market sector under European competition law.

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Inhalt

Cover
Half Title Page
Title Page
Copyright Page
Editorial Board
Dedication
Foreword
Preface
Table of Contents
Abbreviations
Part I Introduction
Chapter 1 Objective and Problem
1.1 INTRODUCTION
1.2 COMPETITION PROBLEMS IN LINER SHIPPING
1.3 DELIMITATION AND TERMINOLOGY
Chapter 2 Sources and Method
Chapter 3 Structure of This Book
Part II Cooperative and Unilateral Market Conduct of Liner Shipping Companies
Chapter 4 Introduction
Chapter 5 Cooperation between Liner Shipping Companies
5.1 INTRODUCTION
5.2 AGREEMENTS AND CONCERTED PRACTICES BETWEEN LINER SHIPPING COMPANIES
5.3 DECISIONS BY ASSOCIATIONS OF LINER SHIPPING COMPANIES
5.4 COMPLEX CARTELS IN LINER SHIPPING
Chapter 6 Tacit Collusion in Liner Shipping
6.1 INTRODUCTION
6.2 INTERDEPENDENCE OF LINER SHIPPING COMPANIES AS AN AGREEMENT OR CONCERTED PRACTICE
6.3 TACIT ACQUIESCENCE AND PRICE LEADERSHIP IN LINER SHIPPING
Part III Liner Shipping Cartels
Chapter 7 Introduction
Chapter 8 Liner Shipping Cartels under Article 81(1) EC
8.1 INTRODUCTION
8.2 PRICE-FIXING AGREEMENTS IN LINER SHIPPING
8.2.1 INTRODUCTION
8.2.2 UNIFORM TARIFF AGREEMENTS
8.2.3 JOINT FIXING OF DISCOUNTS
8.2.4 NON-BINDING AND RECOMMENDED TARIFF RATE LEVELS
8.2.5 DISCRIMINATORY TARIFF RATES
8.3 AGREEMENTS ON CONDITIONS AND JOINT SUPPLY OF SHIPPING SERVICE
8.3.1 INTRODUCTION
8.3.2 COMMON TERMS AND CONDITIONS OF SERVICE
8.3.3 JOINT MARKETING AND SALES OF SHIPPING SERVICE
8.4 RATIONALIZATION AGREEMENTS IN LINER SHIPPING
8.4.1 INTRODUCTION
8.4.2 CAPACITY REGULATION AGREEMENTS
8.4.3 MARKET-SHARING AGREEMENTS IN LINER SHIPPING
8.4.3.1 Overview
8.4.3.2 Geographic Market Sharing
8.4.3.3 Cargo-Sharing (Pooling) Agreements
8.4.4 REVENUE AND LOSS POOLS
8.5 INFORMATION EXCHANGE AGREEMENTS IN LINER SHIPPING
8.6 LOYALTY ARRANGEMENTS WITH SHIPPERS
8.6.1 INTRODUCTION
8.6.2 TYPES AND CONDITIONS OF LOYALTY ARRANGEMENTS
8.6.3 RESTRICTION OF COMPETITION AS OBJECT OR EFFECT OF LOYALTY ARRANGEMENTS
8.7 SERVICE CONTRACTS
8.7.1 INTRODUCTION
8.7.2 INDIVIDUAL SERVICE CONTRACTS
8.7.3 CONFERENCE AND MULTI-CARRIER SERVICE CONTRACTS
8.7.4 REGULATION OF AVAILABILITY AND TERMS OF SERVICE CONTRACTS
8.8 LINER CARTELS WHICH 'AFFECT TRADE BETWEEN MEMBER STATES' AND RESTRICT COMPETITION 'WITHIN THE COMMON MARKET'
8.8.1 INTRODUCTION
8.8.2 EFFECT ON TRADE BETWEEN MEMBER STATES
8.8.3 LINER CARTELS WHICH RESTRICT COMPETITION WITHIN THE COMMON MARKET
8.8.4 CRITERIA FOR APPLICATION OF THE DE MINIMIS RULE TO LINER CARTELS
Chapter 9 Application of Article 81(3) EC to Liner Shipping Cartels
9.1 INTRODUCTION
9.2 APPLICATION OF ARTICLE 81(3) EC TO LINER CONFERENCES IN THE TRANSITIONAL PERIOD
9.2.1 INTRODUCTION
9.2.2 BLOCK EXEMPTION FOR AGREEMENTS IN A LINER CONFERENCE
9.2.2.1 Overview
9.2.2.2 Agreements between 'All or Part of the Members of One or More Liner Conferences'
9.2.2.3 'Uniform or Common' Tariffs
9.2.2.4 Agreements on Maritime Tariff Rates and Charges
9.2.2.5 Rationalization Agreements
9.2.2.6 Membership, Internal Discipline and Exit Regulation
9.2.2.7 Agreements Ancillary to Maritime Transport
9.2.3 BLOCK EXEMPTION FOR AGREEMENTS WITH TRANSPORT USERS
9.2.3.1 Overview
9.2.3.2 Loyalty Arrangements
9.2.3.3 Service Contracts
9.2.4 CONDITIONS AND OBLIGATIONS ATTACHED TO THE CONFERENCE BLOCK EXEMPTION
9.2.4.1 Overview
9.2.4.2 Non-discrimination Condition
9.2.4.3 Consultations with Transport Users
9.2.4.4 Other Obligations of Liner Conference Block Exemptions
9.2.5 EFFECTS INCOMPATIBLE WITH ARTICLES 81(3) AND 82 EC
9.3 INDIVIDUAL APPLICATION OF ARTICLE 81(3) EC TO LINER CARTELS
9.3.1 INTRODUCTION
9.3.2 IMPROVEMENT OF LINER SHIPPING SERVICE AND PROMOTION OF PROGRESS BY LINER CARTELS
9.3.2.1 Overview
9.3.2.2 The Problem of Destructive Competition in Liner Shipping
9.3.2.3 'Crisis Cartels' in Liner Shipping
9.3.2.4 Other Improvements and Progress Brought about by Liner Cartels
9.3.2.5 Technical or Economic Progress Promoted by Liner Cartels
9.3.2.6 Cooperation Maintaining Less Efficient Competitors on the Market
9.3.2.7 Hard-Core Nature of Restrictions in Liner Cartels
9.3.3 FAIR SHARE OF BENEFIT TO CONSUMERS
9.3.4 INDISPENSABILITY OF RESTRICTION
9.3.5 NON-ELIMINATION OF COMPETITION IN A SUBSTANTIAL PART OF A SHIPPING SERVICE
9.3.5.1 Overview
9.3.5.2 Elimination of Internal Competition in a Liner Shipping Cartel
9.3.5.3 Elimination of Effective External Competition by a Liner Cartel
9.3.5.4 Relationship of the 'Non-elimination' Requirement to Article 82 EC
9.3.6 SPECIFIC AGREEMENTS IN LINER CARTELS UNDER ARTICLE 81(3) EC
9.3.6.1 Overview
9.3.6.2 Agreements on Tariff Rates
9.3.6.3 Rationalization Agreements
9.3.6.4 Loyalty Arrangements and Service Contracts
9.3.6.5 Membership and Internal Regulation of Liner Cartels
Part IV Joint Ventures between Liner Shipping Companies
Chapter 10 Introduction
Chapter 11 Liner Carrier Joint Ventures under Article 81(1) EC
11.1 INTRODUCTION
11.2 AGREEMENT TO ESTABLISH AND OPERATE A LINER JOINT VENTURE
11.2.1 INTRODUCTION
11.2.2 RESTRICTION OF INTERNAL COMPETITION IN A LINER JOINT VENTURE
11.2.3 RESTRICTION OF EXTERNAL COMPETITION BY A LINER JOINT VENTURE
11.2.4 ANCILLARY RESTRAINTS IN VESSEL SHARING ARRANGEMENTS
11.3 SPECIFIC AGREEMENTS IMPLEMENTING COOPERATION IN A LINER JOINT VENTURE
11.3.1 INTRODUCTION
11.3.2 AGREEMENTS ON COMMON USE OF FLEET, EQUIPMENT AND OTHER ASSETS
11.3.2.1 Overview
11.3.2.2 Restriction of Competition by Common Use of Fleet
11.3.3 RATIONALIZATION AGREEMENTS IN LINER JOINT VENTURES
11.3.4 JOINT COMMERCIAL POLICY OF LINER JOINT VENTURES
11.3.5 MEMBERSHIP AND NON-COMPETITION RULES OF LINER JOINT VENTURES
11.3.5.1 Overview
11.3.5.2 Membership, Exit and Duration of a Liner Joint Venture
11.3.5.3 Non-competition Obligation vis-à-vis Liner Joint Venture
11.3.6 THIRD-PARTY POLICY AND REFUSALS TO DEAL IN LINER JOINT VENTURES
Chapter 12 Block Exemption of Liner Consortia under Article 81(3) EC
12.1 INTRODUCTION
12.2 BLOCK EXEMPTION FOR AGREEMENTS BETWEEN CARRIERS
12.2.1 INTRODUCTION
12.2.2 SCOPE OF THE CONSORTIA BLOCK EXEMPTION
12.2.3 BLOCK-EXEMPTED AGREEMENTS
12.3 AGREEMENTS WITH TRANSPORT USERS
12.4 CONDITIONS ATTACHED TO THE CONSORTIA BLOCK EXEMPTION
12.4.1 INTRODUCTION
12.4.2 EFFECTIVE COMPETITION
12.4.3 CONDITIONS RELATING TO MARKET SHARE
12.4.4 OTHER CONDITIONS
12.5 OBLIGATIONS OF THE CONSORTIA BLOCK EXEMPTION
12.6 EFFECTS INCOMPATIBLE WITH ARTICLES 81(3) AND 82 EC
Chapter 13 Individual Application of Article 81(3) EC to Joint Ventures in Liner Shipping
13.1 INTRODUCTION
13.2 IMPROVEMENTS OF SHIPPING SERVICE AND PROMOTION OF PROGRESS BY LINER JOINT VENTURES
13.3 FAIR SHARE OF BENEFIT FOR TRANSPORT USERS
13.4 INDISPENSABILITY OF RESTRICTIONS IMPOSED BY LINER CONSORTIA
13.5 NON-ELIMINATION OF COMPETITION IN A SUBSTANTIAL PART OF SHIPPING SERVICES
13.6 SPECIFIC RESTRICTIONS IN LINER JOINT VENTURES UNDER ARTICLE 81(3) EC
13.6.1 INTRODUCTION
13.6.2 AGREEMENTS ON COMMON USE OF FLEETS AND OTHER ASSETS
13.6.3 RATIONALIZATION AGREEMENTS
13.6.4 JOINT COMMERCIAL POLICY OF LINER CONSORTIA
13.6.5 REGULATION OF MEMBERSHIP AND EXTERNAL POLICY BY LINER JOINT VENTURES
Part V Dominant Position of Liner Shipping Companies
Chapter 14 Introduction
Chapter 15 Assessment of Dominant Position of Liner Shipping Companies under Article 82 EC
15.1 INTRODUCTION
15.2 MARKET SHARE SIZE OF LINER SHIPPING COMPANIES AND DOMINANT POSITION
15.3 BARRIERS TO ENTRY AND OTHER FACTORS OF DOMINANCE IN LINER SHIPPING
15.3.1 INTRODUCTION
15.3.2 COMPETITIVE CONSTRAINTS IMPOSED BY ACTUAL COMPETITION
15.3.3 COST STRUCTURE AND ECONOMIES OF SCALE IN LINER SHIPPING
15.3.4 PRICE DISCRIMINATION IN LINER SHIPPING
15.3.5 SHIPPER POWER
15.3.6 OTHER FACTORS
15.4 DOMINANT POSITION HELD BY LINER CARRIERS WITHIN THE COMMON MARKET
Chapter 16 Collective Dominant Position of Liner Shipping Companies
16.1 INTRODUCTION
16.2 COMMON MARKET POLICY OF LINER SHIPPING COMPANIES
16.2.1 INTRODUCTION
16.2.2 INTERNAL COMPETITION AND CONNECTING LINKS IN A GROUP OF LINER CARRIERS
16.2.3 TACIT COLLUSION AND COLLECTIVE DOMINANT POSITION OF LINER CARRIERS
16.2.4 EXTERNAL CONDITIONS IN LINER SHIPPING AND COMMON MARKET POLICY OF CARRIERS
16.2.5 ENFORCEMENT OF COLLECTIVE POSITION IN LINER SHIPPING
16.3 ABILITY TO CONTROL EXTERNAL COMPETITION
Part VI Abuse of Dominant Position in Liner Shipping
Chapter 17 Introduction
Chapter 18 Excessive Tariff Rates and Other Exploitative Conduct
18.1 INTRODUCTION
18.2 EXCESSIVELY HIGH TARIFF RATES
18.2.1 INTRODUCTION
18.2.2 TARIFF RATES EXCESSIVE IN RELATION TO COST OF SUPPLY OF LINER SHIPPING SERVICE
18.2.2.1 Overview
18.2.2.2 Costs of Supply of Liner Shipping Service
18.2.2.3 The Cost Allocation Problem in Liner Shipping
18.2.2.4 Profit Margin of a Dominant Liner Shipping Company
18.2.2.5 Excessive Costs of Dominant Liner Shipping Companies
18.2.2.6 Sources of Profit Information
18.2.3 THE REQUIREMENT THAT TARIFF RATES MUST BE 'FAIR'
18.2.3.1 Overview
18.2.3.2 Other (Non-production) Costs Borne by Liner Carriers
18.2.3.3 Demand Factors and Economic Value of Liner Shipping Service
18.2.3.4 Price Discrimination and Other Conduct
18.2.3.5 Tariff Rates Charged on Other Markets
18.2.3.6 Yardstick Competition
18.2.3.7 Objective Justification of Excessive Tariff Rates
18.3 OTHER EXPLOITATION OF SHIPPERS
18.3.1 INTRODUCTION
18.3.2 LIMITATION OF SHIPPING CAPACITY AND DEVELOPMENT OF LINER SHIPPING
18.3.3 REFUSAL TO SUPPLY SHIPPING SERVICES
18.3.3.1 Overview
18.3.3.2 Refusal to Supply Shipping Service to Transport Users
18.3.3.3 Imposition of Unfair and Unfavourable Terms of Service
18.4 EXPLOITATIVE CONDUCT BY A COLLECTIVELY DOMINANT GROUP OF LINER SHIPPING COMPANIES
18.4.1 INTRODUCTION
18.4.2 JOINT FIXING OF TARIFFS AND OTHER EXPLOITATIVE CONDUCT
18.4.2.1 Overview
18.4.2.2 Imposition of Unfair Rates or Conditions of Service
18.4.2.3 Individual Abuse of Collective Dominant Position
18.4.3 IMPLICATIONS OF ARTICLE 81(3) EC ON APPLICABILITY OF ARTICLE 82 EC TO EXPLOITATIVE CONDUCT OF LINER CARRIERS
18.4.3.1 Overview
18.4.3.2 Individual Applicability of Article 81(3) EC and Abuse
18.4.3.3 Implications of Block Exemption
Chapter 19 Unfairly Low Tariff Rates in Liner Shipping
19.1 INTRODUCTION
19.2 PREDATORY PRICING POLICY BY DOMINANT LINER SHIPPING COMPANIES
19.2.1 INTRODUCTION
19.2.2 TARIFF RATE LEVELS WHICH ARE PER SE PREDATORY
19.2.2.1 Overview
19.2.2.2 Tariff Rates below Average Variable Costs in Liner Shipping
19.2.2.3 Tariff Rates below Average Avoidable Costs in Liner Shipping
19.2.2.4 Other Cost Benchmarks
19.2.3 PREDATORY RATES AND ELIMINATORY INTENT OF CARRIER
19.2.3.1 Overview
19.2.3.2 Tariff Rate below Average Total Cost of Liner Shipping Service
19.2.3.3 Intention to Eliminate Competitors
19.2.4 ANTICOMPETITIVE EFFECTS OF PREDATORY TARIFF POLICY AND RECOUPING OF LOSSES
19.3 UNFAIRLY LOW TARIFF RATES ABOVE COST LEVEL OF DOMINANT CARRIER
19.3.1 INTRODUCTION
19.3.2 THE PRACTICE OF 'FIGHTING SHIPS'
19.3.3 SPECIAL FACTORS LEADING TO A FINDING OF PREDATION
19.3.3.1 Overview
19.3.3.2 Collective and Super-Dominance
19.3.3.3 Excess Capacity and 'Limit Pricing' in Liner Shipping
19.3.3.4 Other Factors
19.4 OBJECTIVE JUSTIFICATION OF TARIFF RATE DECREASES BY DOMINANT CARRIERS
19.4.1 INTRODUCTION
19.4.2 MEETING PRICE COMPETITION FROM OTHER CARRIERS
19.4.3 TARIFF DECREASE IN RESPONSE TO FALL IN DEMAND
19.4.4 PROMOTIONAL TARIFF RATES AND COMPETITION IN A NEW MARKET
Chapter 20 Price Discrimination in Liner Shipping
20.1 INTRODUCTION
20.2 APPLICATION OF DISSIMILAR TARIFF RATES TO EQUIVALENT SHIPPING SERVICES
20.2.1 INTRODUCTION
20.2.2 DISCOUNTS BASED ON CARRIER'S COST SAVINGS
20.2.3 OTHER FACTORS WHICH MAKE SHIPPING SERVICES 'NON-EQUIVALENT'
20.3 DISCRIMINATION IN LINER SHIPPING RESULTING IN COMPETITIVE DISADVANTAGE
20.3.1 INTRODUCTION
20.3.2 'COMPETITIVE DISADVANTAGE' CAUSED BY DISCRIMINATORY TARIFF RATES
20.3.3 LIMITATIONS OF ARTICLE 82(2)(C) IN LINER SHIPPING
20.4 OBJECTIVE JUSTIFICATION OF DISCRIMINATORY TARIFF RATES
20.4.1 INTRODUCTION
20.4.2 EFFICIENT PRICE DISCRIMINATION IN LINER SHIPPING
Chapter 21 Loyalty Arrangements with Shippers
21.1 INTRODUCTION
21.2 LOYALTY CLAUSES AS EXCLUSIVE ARRANGEMENTS
21.3 REBATES CONDITIONAL ON SHIPPER'S LOYALTY
21.4 OBJECTIVE JUSTIFICATION OF LOYALTY ARRANGEMENTS
21.4.1 INTRODUCTION
21.4.2 BENEFITS PRODUCED BY LOYALTY ARRANGEMENTS
Chapter 22 Regulation of Cooperation with Competing Carriers
22.1 INTRODUCTION
22.2 REGULATION OF MEMBERSHIP IN LINER CARTELS AND JOINT VENTURES
22.3 REFUSAL OF ACCESS TO DOMINANT CARRIERS' FACILITIES
22.4 ABUSIVE ALTERATION OF THE COMPETITIVE STRUCTURE OF THE LINER SHIPPING MARKET
Part VII New Competition Regulation of Liner Shipping
List of Sources
Index
Back Cover

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