1.4 Further discussion and delimitations
This thesis examines complex legal issues being subject to comprehensive debate and uncertainty. Its objective is to review the existing materials on information exchanges in different sectors and apply them to liner shipping. It contributes to the academic debate by uncovering that many forms of cooperation and information sharing in liner shipping arguably restrict competition by object, requiring a regulatory review to ensure real competition in the industry and legal predictability in application.
Several relatable issues will not be discussed. Firstly, Art. 101’s conditions that the legal person is an “undertaking” and that the conduct must “affect trade between Member States” are normally unproblematic in liner shipping and are thus presumed to be fulfilled. Secondly, neither the comprehensive ‘by effect’-assessment nor the conditions of the exemption rule in Art. 101 (3) are problematised. Lastly, parallel conduct in concentrated markets such as liner shipping may raise issues of collective dominance, regulated by Article 102. Although information exchanges can be subject to both Articles 101 and 102, only the first will be addressed.
The thesis is structured as follows. Chapter 2 analyses the condition of cooperation, examining when information exchanges constitute “agreements, decisions by associations or concerted practices.” It commences by introducing the condition, before presenting different forms of cooperation in liner shipping. Because much of the cooperation is based on formal agreements, Section 2.3 discusses when information exchanges constitute “concerted practices.”
Chapter 3 analyses when cooperation in liner shipping may restrict competition “by object.” After introducing the alternative conditions and dichotomy of Art. 101, the ‘object’-alternative is examined. After providing the legal starting points, Section 3.2 delves into the literature and presents different methodical approaches to the assessment. Presuming the existence of a concerted practice, Section 3.3 addresses when concerted practices in liner shipping restrict competition by object. Pure information exchanges and their characteristics are addressed first, before another layer is added when examining the exchanges within agreements in Section 3.4. Finally, Chapter 4 summarises the findings of the thesis and provides answer to the research question.