1.3 Sources and methodology
To conduct a proper analysis, this thesis applies EU legal method.(1) There exists substantial discussion concerning e.g. the scope and impact of internationalisation of legal method, see for instance Arnesen & Stenvik (2015). The topic falls outside the scope of this thesis. The wording of Art. 101 (1) is supplemented by case law of the Court of Justice of the European Union (CJEU), being the main interpretive instrument of the legal text. The case law is comprised by decisions of the General Court (GC), previously the Court of First Instance (CFI), and the European Court of Justice (“CJEU” or “the Court”).(2) Eurofound (2017).
Additionally, the Commission has taken an active role in competition law issues and offers important interpretive assistance. The Commission conducts investigations and resolves cases as “decisions”, “commitment decisions”, and “settlement cases.”(3) See Whish & Bailey (2021) pp.54 and 264-277. Also, it publishes guidelines for the application of Art. 101, such as the Horizontal Guidelines (2011) and New Horizontal Guidelines.(4) See Communication 2011/C11/01 (Horizontal Guidelines) and Communication 2022/C164. The practice and guidelines are not legally binding but illustrate how the Commission interprets the law and assess cases. Finally, the Commission also adopts regulations such the Consortia BER, directly regulating competition law issues.(5) Regulation 936/2009.
Articles 101 and 102 correspond to Article 53 and 54 of the EEA agreement.(6) EEA Agreement art. 53 and 54. These rules are subject to the EFTA Court and EFTA Surveillance Authority (ESA) unless they fall under the EU Courts and Commission.(7) Sejersted et al. (2011) pp.569-570; See also Whish & Bailey (2021) pp.58-59. Thus, Article 53 and 54 shall be interpreted in line with EU law and are relevant to the discussion, although majority of case law stems from the EU. Moreover, the application of Art. 101 by national courts and competition authorities supplements the discussions by illustrating how the law is interpreted in different jurisdictions.
Finally, legal and economic literature contribute to the thesis by taking into account different analyses of Art. 101 and related practice. Literature also systemizes these decisions in light of economic theories, which complement the legal dogmatic method, creating a more holistic understanding of the competition rules. Since the nature of competition law is so heavily linked with economic theories of market structures, the insight provided by literature is decisive when understanding Art. 101. Also the independent opinions of the Court’s Advocate Generals (AG) provide valuable insight to the possible reasoning behind the assessments. The variety of sources will be applied throughout the discussions in chapters 2 and 3, securing broad analyses. However, case law concerning the specific research question is scarce. The analysis thus relies on cases concerning the same fundamental questions, applied on different sectors, which can, challenge the validity of the conclusions.
By artificially increasing transparency between competing carriers, the exchange of commercially sensitive information can facilitate coordination of undertakings’ competitive behaviour also referred to as “collusion.”(8) Kühn (2001) p.173. Potentially resulting in restrictions of competition, information exchanges may enable undertakings to achieve collusive outcome, and to increase the internal stability of collusive outcome already present on the market.(9) Communication 2022/C164 paras.416-418. The sources are applied to examine how these potentially harmful exchanges affect the current liner shipping market.