2.1 Introduction
Many different forms of commercial conduct by companies may be harmful to competition. However, independent harmful conduct is not covered by Art. 101, as the provision only regulates different types of cooperation: agreements, decisions by associations, or concerted practices.(1) TFEU art. 101 (1) covers: "all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market." The objective of the provision is thus to prevent collusive outcome between competitors, a distinction which has proven to be challenging. Chapter 2 aims to uncover under which circumstances interactions between competing carriers, as well as unilateral conduct on the liner shipping market, may constitute “agreements” or “concerted practices.” The liner shipping industry has traditionally been characterised by multiple links between competitors, which arguably are necessary to ensure safe and efficient maritime transport. Regardless, such links result in many potential cases of “cooperation” falling under the scope of Art. 101.
EU competition law operates with a wide concept of an “agreement.” The fundamental condition was specified in the case Bayer as a “concurrence of wills between economic operators on the implementation of a policy, the pursuit of an objective, or the adoption of a given line of conduct on the market.”(2) Case T-41/96 Bayer AG v Commission para.173. The decisive is not the form of the agreement, but rather its content, illustrated by cases where oral agreements,(3) Case 28/77 Tepea BV v Commission para.41. and “gentleman’s agreements”(4) Case T‑53/03 BPB plc v Commission para.82. are covered.
However, many forms of cooperation are not captured by the concept of an agreement, and undertakings may easily circumvent it.(5) Albors-Llorens (2006) p.840. Thus, to further widen the scope of Art. 101, the concept of “concerted practice” aims at prohibiting
“a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition.”(6) Case 48-69 Imperial Chemical Industries v Commission (ICI) para.64.
The criterion of “knowingly substituting” practical cooperation excludes mere “accidental” coordination, where competing carriers independently pursue similar conduct on the market. It requires reciprocal cooperation, a meeting of minds, or a joint intention by the undertakings to conduct themselves in a specific way.(7) Dunne et al. (2019) p.177. Moreover, the condition requires causation between the contact in question and the parties’ conduct, and the Court has taken the stance that undertakings are presumed to take account of the information exchanged with their competitors.(8) Case C-8/08 T-Mobile Netherlands BV and Others v Raad van bestuur (T-Mobile) paras.52-53.
With complex forms of cooperation developing, the lines between agreements and concerted practices are blurred. This may hold especially true for information exchanged in increasingly concentrated markets, such as the liner shipping market. Although the alternative nature of the condition may imply that regulators must place the relevant cooperation within a “box”, the CJEU has rejected such an approach. The case Anic concerned a practice of regular meetings between competing producers of polypropylene. The Court confirmed that “a single and complex infringement, corresponding partly to an agreement and partly to a concerted practice”(9) Case C-49/92 P Commission v Anic Partecipazioni para.114. falls under the scope of Art. 101 (1). The decisive question is therefore not whether the information exchange constitutes an “agreement” or “concerted practice”, but rather whether the lower threshold of “concerted practices” is reached. Thus, it is an “unimportant” classification to define the exact point at which an agreement ends, and concerted practice begins.(10) Opinion of AG Reischl in Case C-209/78 Van Landewyck v Commission p.3310.
Put simply, one can distinguish between “pure” information exchanges, where the main economic function lies in the exchange itself,(11) Camesasca and Schmidt (2011) pp.227-228. and “ancillary” information exchanges, where the information is but a part of a wider arrangement such as an agreement.(12) Bennett & Collins (2010) p.328. The former should be analysed concretely, taking into account all its characteristics to determine whether it constitutes a concerted practice. The latter should be analysed in the context of its “channel”, for instance a vessel-sharing agreement.(13) Communication 2011/C11/01 para.56.
Having in mind the legal concepts of agreements and concerted practices, Section 2.2 introduces different forms of cooperation relevant to liner shipping, before moving on to when information exchanges can constitute concerted practices in Section 2.3.