The International Chamber of Shipping defends the role of the shipowning consortia for the stability of the markets



Answering to the consultation that will conclude next the 27 July on the future guiding lines on the application of the rules of the competition to the marine transports, that they are adopted on July 1°, 2008 by the EU commission ( on 1° July 2008) and that we publish below, the shipowning organization world-wide International Chamber of Shipping (ICS), specifying that own position in merit is aligned with those expressing from the European Community Shipowners' Associations (ECSA) and from the World Shipping Council, has emphasized not to have some objection regarding the expiration beginning from september 2013 of the lines guides specific antitrusts for the marine section that regard the exchange of information between concurrent companies that operate in the field of the line transport. "However - it has specified the ICS - such affirmation does not have to be considered as an indication of the future position of ICS regarding the maintenance in vigor after the 2015 of the regulations of exemption for category for the consortia of marine transport of line, being current position of the ICS - it has emphasized in charge of the external relations of the shipowning organization, Simon Bennett - that which this specific exemption for category would have to be renewed".

"Even if they constitute a form very more flexible than cooperation regarding conference - the International Chamber of Shipping has explained - the consortia they offer stability to the markets contributing to guarantee the maintenance of the line services towards the remoter destinations and allowing efficiencies as that of the sharing of slot on the portacontainer".

Moreover international the shipowning organization has found that "if, moreover, the EU commission had to decide not to extend the guiding lines on the application of the rules of the competition to the marine transports after september 2013, ICS also considers that it would be useful if the Commission could maintain the guidelines on the marine competition relative to the agreements of pool in the field of the marine transport tramp, since these offer lines guide for operators very useful marine to the aim to second realize a autovalutazione of the pool agreements the general norms on the competition of the EU". "In case the EU commission had to decide not to extend these lines guides for the line field after september 2013 - it has specified Simon Bennett - does not afford to suggest that paragraphs 62 and 63 of these lines guide are maintained in the context of the guiding lines general antitrusts, even through attached or a note, as suggested from the ECSA". The ICS has remembered that the guiding lines in transport matter tramp, that is not of line, are not adopted in order to manage the transition from a specific regime for the field to the full application of the general norms on the competition of the EU, as has been the case for the transport of line in 2008 when the conference shipowning they are prohibited; rather - it has observed the ICS - they are adopted in order to offer a guide to the operators of the transport tramp to the aim to carry out a autovalutazione of the agreements of necessary pool because of the lack of any jurisprudence or some other line guides for the field tramp".

The ICS therefore has restated that, online general, it does not support the unilateral decision of the EU to prohibit conference marine the effectiveness in 2008, than therefore continues to encourage the partner commercial of the EU to maintain to the status quo regarding the exemptions antitrust that they can continue to authorize regarding among other things, conference marine and the agreements of argument, and that it supports also the lines it in June guides of the APEC (Asia pacific economic cooperation) relative to the transport of line adopted 2011, that they regard the application of the rules on the competition to the agreements that do not preview agreed installments of hire.

The ICS has concluded evidencing that also the recent Maritime study of the American Federal Commission (FMC), published in January 2012, has rimarcato that the abrogation of the regulations EU on the exemptions for category has not evidently determined some relative decrease of the hires for the goods of the European Union regarding those for the exchanges To make the East-USA. In other words - he has found the ICS - the shippers that takes care of European traffics seem not to be benefitted from the new regime of the EU regarding the shippers who operate in the Extreme market the East-USA in which the prohibition of the EU is not applied. American FMC - she has still observed the ICS - has found moreover that she seems to be itself verified an increase of the volatility of the relative hires to the European traffics regarding those To make the East-USA and that the relative activities to the argument agreements that is still allowed in the non-EU traffics could have had an attenuation effect respect wing volatility of the hires.


Guiding lines on the application of article 81 of the ec treaty to the services of marine transport

(Important Text to the aims of the SEE)

(2008/C 245/02)

1. INTRODUCTION

1. You anticipate guiding lines fix the principles to which the Commission of the European Communities it will join in the definition of the markets and the appraisal of the agreements of cooperation in the within of the services of marine transport directly interested from the changes introduced from the regulations (EC) n. 1419/2006 of the Council, on September 25, 2006, ovverosia of the marine services of line, the services of cabotage and the services of transport with not regular cargo ships ^[1].

2. The scope of the guiding lines is to help the enterprises and the associations of enterprises that offer such services, above all towards and/or from a port or ports of the European Union, to estimate if the agreements that sign ^[2] are compatible with article 81 of the treaty that institutes the European Communities (in nearby, the treaty). The guiding lines are not applied to other fields.

3. The regulations (EC) n. 1419/2006 have extended to the cabotage and the international services of transport with not regular cargo ships the field of application of the regulations (EC) n. 1/2003 of the Council, on December 16, 2002, concerning the application of the rules of competition of which to article 81 and 82 of ec treaty ^[3] and the regulations (EC) n. 773/2004 of the Commission, on April 7, 2004 relative to the procedures of the Commission in application of article 81 and 82 of the ec treaty ^[4]. Therefore, from on October 18, 2006, all the services of marine transport are subject to general the procedural dispositions.

4. The regulations (EC) n. 1419/2006 have moreover repealed regulations (the EEC) n. 4056/86 of the Council, on December 22, 1986, on how of application of article 85 and 86 (current article 81 and 82) of the containing treaty to ⁵ marine transports ^[] the exemption of category in favor of the conferences of marine companies of line that afforded to the marine companies of line, reunited in conferences, to fix prices and other conditions of transport, as the system of the conferences is not more in compliance with the criteria than which to article 81, paragraph 3, of the treaty. The abrogation of the exemption for category has effect beginning from on October 18, 2008. After such date, the marine companies of line that operate towards or from a port or ports of the European Union must suspend all the relative activities to the contrary marine conferences to article 81 of the treaty, independently from the fact that other jurisdictions afford, explicitly or tacitly, than, in the picture of marine conferences or agreements of argument, the prices come fixed. Moreover, the members of the conferences must guarantee that all the eventual agreements concluded in the within of the system of the conferences are in compliance with article 81 beginning from on October 18, 2008.

5. You anticipate guiding lines integrate the guidelines that the Commission has already published in other communications. Since the marine services of transport are characterized by wide agreements of cooperation between concurrent operators, the guiding lines on the applicabilità of article 81 of the treaty to the agreements of horizontal cooperation (in nearby, the guiding lines on the horizontal cooperation) ^[6] and the guiding lines on the application of article 81, paragraph 3, of the treaty ^[7] assume detail importance.

6. The agreements of horizontal cooperation between companies of relative marine transport of line to the supply of common services re-enter in the field of application of the regulations (EC) n. 823/2000 of the Commission, on April 19, 2000 relative to the application of article 81, paragraph 3, of the treaty to some categories of agreements, decisions and practical agreed between companies of marine transport of line (consortia) ^[8], that it establishes the conditions, according to article 81, paragraph 3, of the treaty, satisfied which the prohibition of which to article 81, paragraph 1, of the treaty do not apply to the agreements between two or more carriers shopkeepers a ship (consortia). The regulations will be modified to light of the changes introduced from the regulations (EC) n. 1419/2006 ^[9].

7. You anticipate guiding lines do not prejudice the interpretation of article 81 of the treaty by the Law court or of the Inferior court of the European Communities. The principles enunciated in you anticipate guiding lines must be applied taking into consideration the characteristic circumstances of every single case.

8. The Commission will apply anticipates guiding lines for a period five-year-old.

2. SERVICES OF MARINE TRANSPORT

2.1. Field of application

9. The marine services of line, the services of cabotage and the services of transport with not regular cargo ships are the fields of the marine transport directly interested from the changes introduced with the regulations (EC) n. 1419/2006.

10. The marine transports of line involve the regular transport of goods, typically contained in container, towards the ports of geographic broken determining (trade). In general terms, the marine transports of line moreover are characterized by the fact that the timetables and the dates of departure are published in advance and that the service is opened to all the users.

11. Article 1, paragraph 3, letter a), of regulations (the EEC) n. 4056/86 helter-skelter define the services of transport with not regular cargo ships (tramps) as services of transport of goods or “break-bulk”, by means of a ship totally or partially rented to or more loaders on the base of a voyage charter or to time or of any other type of contract, on lines not regular or not published when the hire rates freely are negotiated case by chance in compliance with the conditions of the offer and the question. Typically, draft of the not regular transport of single goods that occupy all the ship ^[10].

12. The cabotage consists in the supply of a service of marine transport, comprised the services of line and the services with not regular cargo ships, that it connects two or more ports of the same Member States ^[11]. Although you anticipate guiding lines do not regard the cabotage services specifically, they apply themselves to such services in so far as they are supplied as transport of line or with not regular cargo ships.

2.2. Incidence on the exchanges between the Member States

13. Article 81 of the treaty applies to all the agreements that can have an important incidence on the exchanges between Member States. So that the relative condition to the effects on the exchanges is satisfied, it must be possible to preview, with a sufficient margin of probability and on the base of a series of objective factors or by right to all purposes and effects, than the agreement or the conduct can have direct or indirect, effective or potential an incidence, on the configuration of the exchanges between Member States ^[12]. In its guiding lines on the notion of prejudice to the commerce between Member States of which to article 81 and 82 of the treaty ^[13], the Commission has published indications on the way in which it will apply the incidence concept on the exchanges.

14. The offered services of transport from the companies of line and the operators of not regular cargo ships often have international character, as they connect communitarian ports with third-country and/or they preview operations of export or import between two or more It are Member States intracomunitari (that is exchanges) ^[14]. In the majority of the cases, it is probable that they affect the exchanges between Member States, among other things because of the impact exercised on the markets of the supply of intermediation and transport services ^[15].

15. The effects on the exchanges between Member States for services cover a particular importance of cabotage in so far as they according to determine the field of application of article 81 of the treaty and its interaction with the national legislations in matter of competition of article 3 of the regulations (EC) n. 1/2003 concerning the application of the rules of competition of which to article 81 and 82 of the treaty. The measure in which such services they can have an incidence on the exchanges between Member States must be estimated case by chance ^[16].

2.3. The important market

16. In order to according to estimate the incidence on the competition of an agreement of article 81 of the treaty, it is necessary to define produced important and the geographic markets. Main scope of the definition of the market is to characterize in systematic way the competitive constraints to which the enterprises are subject. Indications in matter are reperibili in the communication of the Commission on the definition of the important market to the aims of the application of the communitarian right in competition matter ^[17]. Such indications are important also for the definition of the market relatively to the services of marine transport.

17. The market of the important produced one comprises all produced and/or the services that are considered interchanging or sostituibili by the consumer, in reason of the characteristics of the produced ones, their prices and the use to which they are destined. The important geographic market comprises the area in which the enterprises in cause supply or ask produced or the services of which be, in which the competition conditions are sufficiently homogenous and that estate distinguished from the contiguous geographic zones can be because in these last conditions of competition they are considerably various ^[18]. The conveyor or the conveyors cannot exercise a meaningful incidence on the prevailing conditions of the market if the customers are able to pass to new ¹⁹ easy suppliers ^[].

2.3.1. Marine transport of line

18. Numerous decisions of the Commission and sentences of the Court have characterized in the services of marine transport of line with container the produced market of important ^{[the 20]}. Such decisions and sentences refer to marine transports along routes of high sea (deep sea trades). Other modalities of transport are not inserted in the same market of the services, even if, in some cases and marginal measure, such services can be interchanging. This has depended on the fact that only an insufficient percentage of the goods transported in container can be easy conveyed towards other means of transport, for example the aerial transport ^[21].

19. Under certain circumstances, it can turn out appropriate to define a market of the produced ones more narrow, limited to a particular transported producing type of by sea. For example, the transport of perishable goods could be limited to the container refrigerators or be comprised the transport through traditional frigorifere ships. Although it is possible, in exceptional circumstances, that substitutions between transport in container and conventional transport can happen (break bulk) ^[22], are not emerged a durable tendency to the passage by first to the second. For the great majority of categories of goods and containerized users of goods, the conventional transport (break bulk) does not represent a valid alternative to the transport of line in container ^[23]. If the goods comes regularly containerized, it is improbable that they come never more transported without container ^[24]. Currently, the marine transport of line with container above all turns out therefore subject to a sostituibilità one-way ^[25].

20. The important market geographic is constituted by the area in which the services are commercialized, typically represented from a series of ports to the extremities of the service, delimited from the overlap of the basins of user of the ports. Regarding the European part of the service, the current geographic market is composed, regarding the transports of line, of a series of ports in Europe of the North and/or the Mediterranean. Since the services of transport of line of the Mediterranean are only marginally sostituibili with those offered from Europe of the North, the two areas constitute two distinguished markets ^[26].

2.3.2. Services of transport with not regular cargo ships

21. Up to now, the Commission has not applied article 81 of the treaty to the transport with not regular cargo ships. The enterprises are invited to take into consideration the following elements in phase of appraisal, in so far as they are relevant to the services of transport with not regular cargo ships that they supply.

Elements of which considering in the determination of the market of produced important from the point of view of the question (the substitution by the question)

22. The conditions (main terms) of the single demand for transport represent a starting point in order to define the markets of important services for the transport with not regular cargo ships since they generally bring back the essential elements ^[27] of the demand for transport in question. On the base of it must user specific of the transport service, they will comprise negotiable and not negotiable elements. Once characterized, a negotiable element of the essential conditions - the type or the largeness of the ship - it can indicate, as an example, that the important market regarding such specific element is wider than previewed from the demand for initial transport.

23. The nature of the service of transport with not regular cargo ships can vary and exists various types of transport contracts. For this reason, it can turn out necessary to verify if the users consider that the services supplied in the contract picture of time charter (Time charter contracts), of contract or voyage charter contracts (voyage charter contracts) of marine transport (contracts of affreightment) are sostituibili. In case affirmative, they could take part of the same important market.

24. The ships typically subdivide in a series of categories characterized from industrial largenesses standard ^[28]. Because of the important role of the service, economies of scale characterized from a remarkable imbalance between the volume of the cargo and the largeness can not be offered to an installment of competitive hire. Therefore, the sostituibilità between the various largenesses of ships is necessary to estimate case by chance, so as to establish if every largeness constitutes a distinguished important market.

Elements of which considering in the determination of the market of produced important from the point of view of the offer (the substitution by the offer)

25. The characteristics physical and technical of the goods to transport and the type of ship represent the first relative indications at the market important from the point of view of the offer ^[29]. If the ships can be adapted to the transport of a particular type of goods to negligible costs and in the short term ^[30], various suppliers of services of transport with not regular cargo ships can compete for the transport of such goods. In such cases, the important market from the part of the offer will comprise more than a type than ship.

26. However, they exist ships of various types that are modified by the technical point of view and/or purposely are constructed in order to supply specialistic services of transport. Although the special ships can transport also other types of goods, they in general terms make it to disadvantageous conditions from the point of view of the competition. The ability to the suppliers of specialistic services to compete for the transport of goods various turns out some therefore limited.

27. In the within of the transports with not regular ships, the ports of call are carried out on the base of the single demands. Mobility of the ships can however be limited from the presence of restrictions tied to the type of terminal, the draught or the environmental norms that are applied to determined categories of ships in some ports or regions.

Ulterior elements of which considering in the determination of the market of the produced ones important

28. It is moreover opportune to verify the existence of chains of substitution between largenesses of ships in the field of the transport with not regular cargo ships. In some markets of the field, the largenesses situated to the extremities of the market directly do not turn out sostituibili. The substitutions to chain can however exercise a pressure on the prices practiced to the extremities of the market and carry to their insertion in a definition wider than market.

29. In some markets of the field of the transports with not regular cargo ships, it is necessary to establish case by chance if the ships can be considered bound ability and if therefore it does not have any to be considered in the important market rating.

30. Other factors, which the reliability of the supplier of the service, safety and the regulatory provisions - for example, the obligation of double hull for the oil tankers in communitarian waters - can influence the sostituibilità at the level of offer and of question ^[31].

Geographic dimension

31. The demands for transport usually contain geographic elements, which the ports or the regions of cargo and drainage. Such ports supply a first guideline for the definition of important geographic market at the level of question, remaining arrest warrant the fact that the final definition of such market can be various.

32. Some geographic markets can be defined based on the direction or can be periodicals, for example in the cases in which the climatic conditions or the periods of collection they condition the question of particular cargo transport. In such context, in order to delimit the important geographic markets, it is opportune to take into consideration the repositioning of the ships, the travels in ballast and the commercial imbalances.

2.4. Market shares

33. The market shares offer to a first useful indication on the structure of the market and the competitive importance a lot of the parts that of the respective competitors. The Commission interprets case by chance the market shares to light of the market conditions. Regarding the line transports, numerous decisions of the Commission and sentences of the Court have used the relative data to the volume and/or the ability as a basis to the calculation of the market shares ^[32].

34. In the markets of the transport with not regular cargo ships, the suppliers of services make competition in order to obtain transport contracts, in other words they sell crossings or ability to transport. Based on the specific services in question, the various data can afford to the operators to calculate the market shares anniversaries ^[33], for example:
Guiding lines on the application of article 81 of the ec treaty to the services of marine transport

(Important Text to the aims of the SEE)

(2008/C 245/02)

1. INTRODUCTION

1. You anticipate guiding lines fix the principles to which the Commission of the European Communities it will join in the definition of the markets and the appraisal of the agreements of cooperation in the within of the services of marine transport directly interested from the changes introduced from the regulations (EC) n. 1419/2006 of the Council, on September 25, 2006, ovverosia of the marine services of line, the services of cabotage and the services of transport with not regular cargo ships ^[1].

2. The scope of the guiding lines is to help the enterprises and the associations of enterprises that offer such services, above all towards and/or from a port or ports of the European Union, to estimate if the agreements that sign ^[2] are compatible with article 81 of the treaty that institutes the European Communities (in nearby, the treaty). The guiding lines are not applied to other fields.

3. The regulations (EC) n. 1419/2006 have extended to the cabotage and the international services of transport with not regular cargo ships the field of application of the regulations (EC) n. 1/2003 of the Council, on December 16, 2002, concerning the application of the rules of competition of which to article 81 and 82 of ec treaty ^[3] and the regulations (EC) n. 773/2004 of the Commission, on April 7, 2004 relative to the procedures of the Commission in application of article 81 and 82 of the ec treaty ^[4]. Therefore, from on October 18, 2006, all the services of marine transport are subject to general the procedural dispositions.

4. The regulations (EC) n. 1419/2006 have moreover repealed regulations (the EEC) n. 4056/86 of the Council, on December 22, 1986, on how of application of article 85 and 86 (current article 81 and 82) of the containing treaty to ⁵ marine transports ^[] the exemption of category in favor of the conferences of marine companies of line that afforded to the marine companies of line, reunited in conferences, to fix prices and other conditions of transport, as the system of the conferences is not more in compliance with the criteria than which to article 81, paragraph 3, of the treaty. The abrogation of the exemption for category has effect beginning from on October 18, 2008. After such date, the marine companies of line that operate towards or from a port or ports of the European Union must suspend all the relative activities to the contrary marine conferences to article 81 of the treaty, independently from the fact that other jurisdictions afford, explicitly or tacitly, than, in the picture of marine conferences or agreements of argument, the prices come fixed. Moreover, the members of the conferences must guarantee that all the eventual agreements concluded in the within of the system of the conferences are in compliance with article 81 beginning from on October 18, 2008.

5. You anticipate guiding lines integrate the guidelines that the Commission has already published in other communications. Since the marine services of transport are characterized by wide agreements of cooperation between concurrent operators, the guiding lines on the applicabilità of article 81 of the treaty to the agreements of horizontal cooperation (in nearby, the guiding lines on the horizontal cooperation) ^[6] and the guiding lines on the application of article 81, paragraph 3, of the treaty ^[7] assume detail importance.

6. The agreements of horizontal cooperation between companies of relative marine transport of line to the supply of common services re-enter in the field of application of the regulations (EC) n. 823/2000 of the Commission, on April 19, 2000 relative to the application of article 81, paragraph 3, of the treaty to some categories of agreements, decisions and practical agreed between companies of marine transport of line (consortia) ^[8], that it establishes the conditions, according to article 81, paragraph 3, of the treaty, satisfied which the prohibition of which to article 81, paragraph 1, of the treaty do not apply to the agreements between two or more carriers shopkeepers a ship (consortia). The regulations will be modified to light of the changes introduced from the regulations (EC) n. 1419/2006 ^[9].

7. You anticipate guiding lines do not prejudice the interpretation of article 81 of the treaty by the Law court or of the Inferior court of the European Communities. The principles enunciated in you anticipate guiding lines must be applied taking into consideration the characteristic circumstances of every single case.

8. The Commission will apply anticipates guiding lines for a period five-year-old.

2. SERVICES OF MARINE TRANSPORT

2.1. Field of application
2. SERVICES OF MARINE TRANSPORT

2.1. Field of application

9. The marine services of line, the services of cabotage and the services of transport with not regular cargo ships are the fields of the marine transport directly interested from the changes introduced with the regulations (EC) n. 1419/2006.

10. The marine transports of line involve the regular transport of goods, typically contained in container, towards the ports of geographic broken determining (trade). In general terms, the marine transports of line moreover are characterized by the fact that the timetables and the dates of departure are published in advance and that the service is opened to all the users.

11. Article 1, paragraph 3, letter a), of regulations (the EEC) n. 4056/86 helter-skelter define the services of transport with not regular cargo ships (tramps) as services of transport of goods or “break-bulk”, by means of a ship totally or partially rented to or more loaders on the base of a voyage charter or to time or of any other type of contract, on lines not regular or not published when the hire rates freely are negotiated case by chance in compliance with the conditions of the offer and the question. Typically, draft of the not regular transport of single goods that occupy all the ship ^[10].

12. The cabotage consists in the supply of a service of marine transport, comprised the services of line and the services with not regular cargo ships, that it connects two or more ports of the same Member States ^[11]. Although you anticipate guiding lines do not regard the cabotage services specifically, they apply themselves to such services in so far as they are supplied as transport of line or with not regular cargo ships.
2.2. Incidence on the exchanges between the Member States
2.2. Incidence on the exchanges between the Member States

13. Article 81 of the treaty applies to all the agreements that can have an important incidence on the exchanges between Member States. So that the relative condition to the effects on the exchanges is satisfied, it must be possible to preview, with a sufficient margin of probability and on the base of a series of objective factors or by right to all purposes and effects, than the agreement or the conduct can have direct or indirect, effective or potential an incidence, on the configuration of the exchanges between Member States ^[12]. In its guiding lines on the notion of prejudice to the commerce between Member States of which to article 81 and 82 of the treaty ^[13], the Commission has published indications on the way in which it will apply the incidence concept on the exchanges.

14. The offered services of transport from the companies of line and the operators of not regular cargo ships often have international character, as they connect communitarian ports with third-country and/or they preview operations of export or import between two or more It are Member States intracomunitari (that is exchanges) ^[14]. In the majority of the cases, it is probable that they affect the exchanges between Member States, among other things because of the impact exercised on the markets of the supply of intermediation and transport services ^[15].

15. The effects on the exchanges between Member States for services cover a particular importance of cabotage in so far as they according to determine the field of application of article 81 of the treaty and its interaction with the national legislations in matter of competition of article 3 of the regulations (EC) n. 1/2003 concerning the application of the rules of competition of which to article 81 and 82 of the treaty. The measure in which such services they can have an incidence on the exchanges between Member States must be estimated case by chance ^[16].
2.3. The important market
2.3. The important market

16. In order to according to estimate the incidence on the competition of an agreement of article 81 of the treaty, it is necessary to define produced important and the geographic markets. Main scope of the definition of the market is to characterize in systematic way the competitive constraints to which the enterprises are subject. Indications in matter are reperibili in the communication of the Commission on the definition of the important market to the aims of the application of the communitarian right in competition matter ^[17]. Such indications are important also for the definition of the market relatively to the services of marine transport.

17. The market of the important produced one comprises all produced and/or the services that are considered interchanging or sostituibili by the consumer, in reason of the characteristics of the produced ones, their prices and the use to which they are destined. The important geographic market comprises the area in which the enterprises in cause supply or ask produced or the services of which be, in which the competition conditions are sufficiently homogenous and that estate distinguished from the contiguous geographic zones can be because in these last conditions of competition they are considerably various ^[18]. The conveyor or the conveyors cannot exercise a meaningful incidence on the prevailing conditions of the market if the customers are able to pass to new ¹⁹ easy suppliers ^[].

2.3.1. Marine transport of line

18. Numerous decisions of the Commission and sentences of the Court have characterized in the services of marine transport of line with container the produced market of important ^{[the 20]}. Such decisions and sentences refer to marine transports along routes of high sea (deep sea trades). Other modalities of transport are not inserted in the same market of the services, even if, in some cases and marginal measure, such services can be interchanging. This has depended on the fact that only an insufficient percentage of the goods transported in container can be easy conveyed towards other means of transport, for example the aerial transport ^[21].

19. Under certain circumstances, it can turn out appropriate to define a market of the produced ones more narrow, limited to a particular transported producing type of by sea. For example, the transport of perishable goods could be limited to the container refrigerators or be comprised the transport through traditional frigorifere ships. Although it is possible, in exceptional circumstances, that substitutions between transport in container and conventional transport can happen (break bulk) ^[22], are not emerged a durable tendency to the passage by first to the second. For the great majority of categories of goods and containerized users of goods, the conventional transport (break bulk) does not represent a valid alternative to the transport of line in container ^[23]. If the goods comes regularly containerized, it is improbable that they come never more transported without container ^[24]. Currently, the marine transport of line with container above all turns out therefore subject to a sostituibilità one-way ^[25].

20. The important market geographic is constituted by the area in which the services are commercialized, typically represented from a series of ports to the extremities of the service, delimited from the overlap of the basins of user of the ports. Regarding the European part of the service, the current geographic market is composed, regarding the transports of line, of a series of ports in Europe of the North and/or the Mediterranean. Since the services of transport of line of the Mediterranean are only marginally sostituibili with those offered from Europe of the North, the two areas constitute two distinguished markets ^[26].

2.3.2. Services of transport with not regular cargo ships

21. Up to now, the Commission has not applied article 81 of the treaty to the transport with not regular cargo ships. The enterprises are invited to take into consideration the following elements in phase of appraisal, in so far as they are relevant to the services of transport with not regular cargo ships that they supply.

Elements of which considering in the determination of the market of produced important from the point of view of the question (the substitution by the question)

22. The conditions (main terms) of the single demand for transport represent a starting point in order to define the markets of important services for the transport with not regular cargo ships since they generally bring back the essential elements ^[27] of the demand for transport in question. On the base of it must user specific of the transport service, they will comprise negotiable and not negotiable elements. Once characterized, a negotiable element of the essential conditions - the type or the largeness of the ship - it can indicate, as an example, that the important market regarding such specific element is wider than previewed from the demand for initial transport.

23. The nature of the service of transport with not regular cargo ships can vary and exists various types of transport contracts. For this reason, it can turn out necessary to verify if the users consider that the services supplied in the contract picture of time charter (Time charter contracts), of contract or voyage charter contracts (voyage charter contracts) of marine transport (contracts of affreightment) are sostituibili. In case affirmative, they could take part of the same important market.

24. The ships typically subdivide in a series of categories characterized from industrial largenesses standard ^[28]. Because of the important role of the service, economies of scale characterized from a remarkable imbalance between the volume of the cargo and the largeness can not be offered to an installment of competitive hire. Therefore, the sostituibilità between the various largenesses of ships is necessary to estimate case by chance, so as to establish if every largeness constitutes a distinguished important market.

Elements of which considering in the determination of the market of produced important from the point of view of the offer (the substitution by the offer)

25. The characteristics physical and technical of the goods to transport and the type of ship represent the first relative indications at the market important from the point of view of the offer ^[29]. If the ships can be adapted to the transport of a particular type of goods to negligible costs and in the short term ^[30], various suppliers of services of transport with not regular cargo ships can compete for the transport of such goods. In such cases, the important market from the part of the offer will comprise more than a type than ship.

26. However, they exist ships of various types that are modified by the technical point of view and/or purposely are constructed in order to supply specialistic services of transport. Although the special ships can transport also other types of goods, they in general terms make it to disadvantageous conditions from the point of view of the competition. The ability to the suppliers of specialistic services to compete for the transport of goods various turns out some therefore limited.

27. In the within of the transports with not regular ships, the ports of call are carried out on the base of the single demands. Mobility of the ships can however be limited from the presence of restrictions tied to the type of terminal, the draught or the environmental norms that are applied to determined categories of ships in some ports or regions.

Ulterior elements of which considering in the determination of the market of the produced ones important

28. It is moreover opportune to verify the existence of chains of substitution between largenesses of ships in the field of the transport with not regular cargo ships. In some markets of the field, the largenesses situated to the extremities of the market directly do not turn out sostituibili. The substitutions to chain can however exercise a pressure on the prices practiced to the extremities of the market and carry to their insertion in a definition wider than market.

29. In some markets of the field of the transports with not regular cargo ships, it is necessary to establish case by chance if the ships can be considered bound ability and if therefore it does not have any to be considered in the important market rating.

30. Other factors, which the reliability of the supplier of the service, safety and the regulatory provisions - for example, the obligation of double hull for the oil tankers in communitarian waters - can influence the sostituibilità at the level of offer and of question ^[31].

Geographic dimension

31. The demands for transport usually contain geographic elements, which the ports or the regions of cargo and drainage. Such ports supply a first guideline for the definition of important geographic market at the level of question, remaining arrest warrant the fact that the final definition of such market can be various.

32. Some geographic markets can be defined based on the direction or can be periodicals, for example in the cases in which the climatic conditions or the periods of collection they condition the question of particular cargo transport. In such context, in order to delimit the important geographic markets, it is opportune to take into consideration the repositioning of the ships, the travels in ballast and the commercial imbalances.
2.4. Market shares
2.4. Market shares

33. The market shares offer to a first useful indication on the structure of the market and the competitive importance a lot of the parts that of the respective competitors. The Commission interprets case by chance the market shares to light of the market conditions. Regarding the line transports, numerous decisions of the Commission and sentences of the Court have used the relative data to the volume and/or the ability as a basis to the calculation of the market shares ^[32].

34. In the markets of the transport with not regular cargo ships, the suppliers of services make competition in order to obtain transport contracts, in other words they sell crossings or ability to transport. Based on the specific services in question, the various data can afford to the operators to calculate the market shares anniversaries ^[33], for example:

the number of crossings;

the quota volume or value stopped from the parts regarding the total transports of specific goods (between two or more ports);

the market share stopped from the parts on the market of time charter contracts;

the quotas stopped from the parts at the level of ability in the fleet in question (for type and largeness of the ships).


3. HORIZONTAL AGREEMENTS IN THE FIELD OF THE MARINE TRANSPORTS
3. HORIZONTAL AGREEMENTS IN THE FIELD OF THE MARINE TRANSPORTS

35. The cooperation agreements are a common characteristic of the markets of the marine transports. Considering that such agreements can be sign from competitors potential effectives or and that they can negatively affect the parameters of the competition, the enterprises they must proceed with particular caution and guarantee that they are consistent to the competition rules. In the markets of the services, which the marine transports, the following elements are particularly important in order to estimate the incidence that an agreement can have on the important market: it mark, costs, quality, frequency and differentiation of the lend service, innovation and commercialization of the service.

36. For services to which they are destined you anticipate guiding lines, the particularly important elements are three: the technical agreements, the exchanges of information and the pools.
3.1. Technical agreements
3.1. Technical agreements

37. Some types of technical agreements can not re-enter in the prohibition of which to article 81 of the treaty as they do not limit the competition, as in the case, for example, of the horizontal agreements whose only objective and effect are to apply technical improvements or to realize a technical cooperation. To this category one considers that the relative agreements belong also to the application of the environmental norms. The agreements between relative competitors to prices, ability or other parameters of the competition do not re-enter, in principle, in this category ^[34].
3.2. Exchanges of information between competitors in the marine transport of line
3.2. Exchanges of information between competitors in the marine transport of line

38. A system of exchange of information presupposes an agreement based on which the enterprises exchange information or supply information to a common agency which charged to centralize them, to order them and to elaborate them before to rebroadcast them to the participants in the form and with the agreed frequency.

39. In numerous fields, it is practical municipality to collect, to exchange and to publish statistics aggregated and general information on the market. The publication of such information represents an effective instrument in order to increase to the transparency of the market and the acquaintances on hand of the users and can therefore generate efficiencies. However, the sensitive commercial individual data and exchange of information can, in sure circumstances, to violate article 81 of the treaty. You anticipate guiding lines are destined to help the suppliers of services of marine transports of line to estimate in which cases such exchanges violate the rules of the competition.

40. In the field of the marine transport of line, the exchanges of information between the line companies that belong to a consortium, than otherwise would re-enter in the field of application of article 81, paragraph 1, of the treaty, are authorized in so far as they are subordinate and necessary to the common management of the services of transport of line and other forms of cooperation that re-enter in the field of application of the regulations of exemption for category (EC) n. 823/2000 ^[35]. You anticipate guiding lines do not regard such exchanges of information.

3.2.1. In general terms

41. For the appraisal of the systems of exchange of information to light of the communitarian right of the competition, it is necessary to proceed to the following distinctions.

42. The exchange of information can constitute an instrument that facilitates the performance of anti-competitive practices, for example the control of the respect of a trust; if the exchange of information is functional to an anti-competitive practice, its appraisal must be carried out jointly to the appraisal of such practical one. The exchange of information can also be finalized to the restriction of the competition ^[36]. You anticipate guiding lines do not regard such exchanges of information.

43. However, an exchange of information can, as such, constitute a violation of article 81 of the treaty by virtue of the effects that it produces. Such situation verification if the exchange of information reduces or eliminates the relative margin of uncertainty to the operation of the market in question, with consequent restriction of the competition between enterprises ^[37]. Every economic operator must determine in autonomy the strategies that intend to adopt on the market. The Court has moreover concluded that the enterprises cannot have with other operating direct or indirect contacts that influence on the behavior of a competitor or reveal own behavior (programmed) if the objective or the effect of such contacts is to limit the competition, that is to produce conditions of competition that do not correspond to the normal conditions of the market in question, taking into consideration the nature of the produced ones or of the supplied services, the dimensions and the number of the enterprises and the volume of the market ^[38]. On the contrary, regarding the market of the wood pasta, the Court has concluded that the system of quarterly unilateral announcements of price carried out independently from the producers the consumers constitutes as such an action on the market that is not apt to reduce the uncertainties of each enterprise about the future attitude of its competitors and that therefore, in absence of practical agreed preliminarily between producers, does not constitute a violation of article 81, paragraph 1, of the treaty ^[39].

44. The communitarian jurisprudence supplies general guidelines for the examination of the probable effects of an exchange of information. The Court has concluded that in a truly competitive market, the transparency between operators generally produces to the intensification of the competition between suppliers ^[40]. However, in a market strongly concentrated and oligopolistico in which the competition it already remarkablly turns out reduced, the exchanges of information detailed relative to the individual sales that happen to breviums space out between competitors and that they exclude the other suppliers and the consumers they can verosimilmente alter considerably the competition that sussiste between suppliers. In such circumstances, the regular and frequent sharing of relative information to the operation of the market has the effect periodically to reveal to all the competitors the positions on the market and the strategies of the single competitors ^[41]. The Court has moreover concluded that a system of exchanges of information can constitute a violation of the competition rules even if the market strongly is not concentrated, but is a restriction of the decisional autonomy of the enterprises for effect of the pressure generated in the course of a series of arguments with the competitors ^[42].

45. It achieves some that the existing effects or potential of an exchange of information they must be estimated on an individual basis, since the results of the appraisal depend on a combination of characteristic factors of the case in object. Two key elements that the Commission examines in the appraisal of an exchange of information are the structure of the market in which it happens the exchange and the characteristics of the exchanged information. In the appraisal it must be considered also of the concrete or potential effects of the exchange of information regarding the competitive situation that would be come to create in absence of the agreement of exchange of information ^[43]. In order to re-enter in the field of application of article 81, paragraph 1, of the treaty, the exchange must exercise an effect sensitive negative on the parameters of the competition ^[44].

46. The guidelines that follow apply above all to the analysis of a restriction of the competition according to article 81, paragraph 1, of the treaty. The relative guidelines to the application of article 81, paragraph 3, of the treaty find to the paragraph 58 and in the general communication in matter ^[45].

3.2.2. Structure of the market

47. The level of concentration and the structure of the offer and the question in a data market is elements essential in order to estimate if an exchange re-enters in the field of application of article 81, paragraph 1, of the treaty ^[46].

48. The level of concentration is particularly important since in the markets strongly concentrated and oligopolistici the restrictive effects they stretch to manifest itself mainly and to having a greater duration, regarding the concentrated markets less. A greater transparency in a concentrated market can consolidate the interdependence of the enterprises and reduce the intensity of the competition.

49. Also the structure of the question and the offer is important, in particular the structural number of concurrent operators and the symmetry and the stability of the respective market shares, let alone ties that exist between competitors ^[47]. The Commission can moreover take into consideration other factors, which the homogeneity of the services and the general transparency on the market.

3.2.3. Characteristics of the exchanged information

50. The exchange between competitors of relative sensitive commercial data to the parameters of the competition, which the price, the ability or the costs, re-enters more easy in the field of application of article 81, paragraph 1, of the treaty regarding the exchange of information of other type. The commercial sensibility of the information goes estimated taking into consideration the criteria exposed in anticipates guiding lines.

51. The exchange of information that is already of public domain in principle does not constitute a violation of article 81, paragraph 1, of the treaty ^[48]. It is however important to determine the level of transparency of the market and the measure in which the exchange it improves the information returning them more accessible and/or arranges the information available to the public with other information. The information object of the exchange could become commercially sensitive and their potentially restrictive exchange of the competition.

52. The information can be individual or aggregated. The individual data regard a named or identifiable enterprise explicitly. The data aggregates join the coming data from a number of independent enterprises sufficiently high to return the acknowledgment of the individual data impossible. The individual exchange of information between competitors mainly risks to re-enter in the field of application of article 81, paragraph 1, of the treaty ^[49] regarding the exchange of information aggregated, than, in principle, it does not re-enter to you. The Commission will estimate with particular attention the level of the aggregation. It must in fact be such that the information cannot be disaggregated, affording to the enterprises to identify, directly or indirectly, the competitive strategies of the competitors.

53. However, regarding the line transports, it is opportune to use caution in the appraisal of the relative exchanges to the forecasts in ability matter, above all if the exchanges happen in concentrated markets. In the markets of the line transports, the data on the ability represent the parameter more important in order to coordinate the behavior from the point of view of the competition and have an effect directed on the prices. The exchange of forecasts on the ability in aggregated form that they indicate on which routes (trades) will be used the ability can turn out anti-competitive in so far as can lead to the adoption of a common strategy by numerous or of all the conveyors and to a supply of services to advanced prices to the competitive prices. Moreover, a risk of disaggregazione of the data exists, as these can be arranged with the news supplied from the line companies. This would afford to the enterprises to characterize the positions on the market and the strategies of the competitors.

54. Also the present time of the information and the period to which they refer represents important factors. The information can be dated, recent or to regard the future. Generally it is considered that the dated exchange of information does not re-enter in the field of application of article 81, paragraph 1, of the treaty, as it cannot have some effective incidence on the future behavior of the enterprises. In cases already dealt, the Commission has considered dated the information that they had more than a year ^[50], while the information less than a year are considered ^[51] recent. The character dated or recent of the information would have to be estimated with a sure flexibility, taking into consideration the measure in which, in the important market, the information become obsolete. The amount of time beginning from which the data become obsolete is probably shorter if the data are individual aggregates rather than. Analogous, also the exchanges of recent data on the volume and the ability do not risk to being restrictive of the competition if the data are aggregates to a level such that the transactions of the single loaders or conveyors cannot be identified neither directly neither indirectly. The future data refer to the opinion of an enterprise with respect to the way in which the market will be evolven or to the strategy that it intends to adopt on such market. The exchanges of relative data to the future risk to being particularly problematic, above all if the data refer to the prices or to the production, and can therefore reveal the business strategy that an enterprise intends to adopt on the market. This can reduce considerably the rivalry between the operators who participate to the exchange and turn out therefore potentially restrictive of the competition.

55. Also the frequency of the exchanges goes taken in consideration. More frequently the data are exchanged, so much more quickly the competitors can react. This facilitates retaliations and ultimately it reduces the incentives to undertake competitive actions on the market and limits moreover the so-called hidden competition.

56. Also the modalities of spread of the data go taken in consideration in order to estimate the effects on the markets. More they are the information shared with the customers, less they risk than to place problems. On the contrary, if the transparency of the market increases to exclusive advantage of the suppliers, the customers can see themselves private of the possibility to benefit of the increase of the so-called hidden competition.

57. In the marine transport of line, the medium price trend relative to the transport of a container for marine use is indicated through a price index. It is improbable that a price index based on data on the prices opportunely aggregates can violate article 81, paragraph 1, of the treaty, on condition that the level of aggregation are such that the information cannot be disaggregated, affording to the enterprises to identify, directly or indirectly, the competitive strategies of their competitors. If the price index reduces or eliminates the relative margin of uncertainty to the operation of the market, with consequent reduction of the competition between enterprises, is violation of article 81, paragraph 1, of the treaty. In estimating the probable effect of such a price index on a data important market, would have to be held account of the level of aggregation of the data, their historical or recent nature and of the frequency of publication of the index. In general terms, it is important to estimate with all the single elements of the systems of exchange of the information to the aim to hold account of the potential interactions, for example between the exchange of data on the ability and the volume from a part and of the price index from the other.

58. An exchange of information between carriers that has restrictive effects on the competition can however generate efficiencies, as for example a better planning of the investments and a more efficient employment of the ability. Such efficiencies will have to be realized and transferred on the customers and will have to according to compensate the anti-competitive effects of the exchange of information of article 81, paragraph 3, of the treaty. In such context, it goes remembered that one of the conditions of article 81, paragraph 3, is that the consumers participate fairly to the benefits generated from the restrictive agreement. If all the four cumulative conditions are satisfied of which to article 81, paragraph 3, the prohibition previewed from article 81, paragraph 1, does not apply ^[52].

3.2.4. Trade associations

59. In the field of the marine transports of line, as in any other field, the arguments and the exchanges can happen in breast to a trade association on condition that this is not used as a) place of trust reunions ^[53]; b) structure that adopts destined decisions or anti-competitive recommendations to own members ^[54]; that is c) a medium of exchange of information that the relative margin of uncertainty to the operation of the market reduces or eliminates in question, with consequent restriction of the competition between enterprises, than does not satisfy the conditions of which to article 81, paragraph 3 ^[55]. Various they are the arguments that are carried out legitimately in the within of the trade associations, for example the relative arguments to the technical and environmental norms.
3.3. Agreements of pool in the field of the transport with not regular cargo ships
3.3. Agreements of pool in the field of the transport with not regular cargo ships

60. The diffused form more than horizontal cooperation in the field of the transport with not regular cargo ships is the pool of marine transports. An only model of pool does not exist, but some characteristics seem to be common to the majority of the present pools in the various segments of market.

61. A typical pool of marine transports reunites a sure number of similar ships ^[56] pertaining to various owners, but managed from a single administration. The manager of the pool is usually in charge of the business management [and he takes care, for example, of commercialization in municipality ^[57], negotiation of the installments of hire and centralization of the entrances and the costs of crossings ^[58]] and of the operation of the pool (planning of the movements of the ships and communication of the instructions to the ships, nomination of agents in the ports, information to the customers, release of cargo invoices, fuel order, collection of the entrances of the ships and redistribution second a predefined weighting, etc). The manager of the pool often acts under the supervision of an executive committee in which the owners of the ships are represented. The technical functionality of the ships is usually of competence of the owners (safety, crew, repairs, maintenance, etc). Although they commercialize the services in municipality, the members of the pool carry out services individually the services.

62. Such description evidences that the fundamental aspect of the pools of marine transport standard is the sale in associated municipality to elements of production in municipality. The guidelines in matter of sale in municipality, as varying of an agreement of commercialization in municipality, and production in municipality, of which to the guiding lines on the applicabilità of article 81 of the treaty to the agreements of horizontal cooperation ^[59], they turn out therefore relevant. Seen the variety of the characteristics of the pools, in order to determine, making reference to its centre of gravity ^[60], if it re-enters in the field of application of article 81, paragraph 1, and, in case affirmative, if it satisfies the four conditions cumulative of which to article 81, paragraph 3, every pool must be examined individually.

63. The pools that re-enter in the field of application of the regulations (EC) n. 139/2004 of the Council ^[61] as constituted as common enterprises that the functions of an independent economic entity exercise all stablily [the so-called common enterprises rightfully, cfr. article 3, paragraph 4, of the regulations (EC) n. 139/2004] directly they are not interested by the modifications introduced from the regulations (EC) n. 1419/2006 and are not dealt in this center. Indications in matter can be found also in the communication consolidated on the criteria of jurisdictional competence of the Commission on the regulations (EC) n. 139/2004 relative to the control of the concentrations between enterprises ^[62]. In so far as such pools have as objective or effect the coordination of the competitive behavior of the enterprises that compose them, such coordination will be estimated to light of the criteria of which to article 81, paragraphs 1 and 3, of the treaty, to a aim to establish if the operation is compatible with the common market or not ^[63].

3.3.1. Pools that do not re-enter in the field of application of article 81, paragraph 1, of the treaty

64. The pool agreements do not re-enter in the field of application of article 81, paragraph 1, of the treaty if the participants to the pool are not concurrent potential effectives or. This for example happens if two or more owners than ships they create a pool of marine transports in order to obtain and to execute contracts of chartering of ships that could not obtain or execute as single operators. Such conclusion is not refutation from the cases in which such pools they transport other goods occasionally that represent a limited portion of the total volume.

65. The pools whose activities do not affect the relevant parameters of the competition as are of importance smaller and/or they do not have sensitive repercussions on the exchanges between Member States ^[64] do not re-enter in the field of application of article 81, paragraph 1, of the treaty.

3.3.2. Pools that generally re-enter in the field of application of article 81, paragraph 1, of the treaty

66. The agreements of pool between competitors who regard only the sale in municipality have typically as object and effect the coordination of the policies of the prices adopted from the competitors in question ^[65].

3.3.3. Pools that generally re-enter in the field of application of article 81, paragraph 1, of the treaty

67. If the pool does not set as objective the restriction of the competition, it is necessary to proceed to an analysis of its incidence on the interested market. The agreements re-enter in the field of application of article 81, paragraph 1, of the treaty when they can verosimilmente exercise an sensitive negative incidence on the parameters of the competition in the market, which prices, cost, differentiation of the services, quality of the services, and innovation. The agreements can produce such effects when they considerably reduce the rivalry between the parts of the agreement or these and third party ^[66].

68. Some pools of transport with not regular cargo ships do not carry out activity of common sale, but they for example imply a sure level of relative coordination to the parameters of the competition (, common programming or purchases in municipality). Such cases re-enter in article 81, paragraph 1, of the treaty exclusively if the parts that have undersigned the agreement stop a sure degree of being able of market ^[67].

69. The ability to the pool to produce to sensitive effects negatives on the market depends on the economic context, taken into consideration the power of market arranged of the parts and the nature of the agreement, united to other structural factors that characterize the important market. It is moreover necessary to estimate if the pool agreement closely has repercussions on the behavior of the parts in the near markets legacies at the market that it directly endures the consequences of the cooperation ^[68]. This can for example happen if the market in which work the pool is the market of the transport of producing forest on special ships in the shape of parallelepipedo (market A) and the members of the pool manage also ships that operate in the market of the solid bulk transport (market B).

70. Regarding the structural factors of the important market, if the pool stops a market share lowland, it is improbable that it produces restrictive effects. Also the concentration of the market, the position and the number of the competitors, the stability in the time of the market shares, the belongings more pool, the presence of barriers to the income of the market and the probabilities of other incomes, the transparency of the market, the power of dealing of the users of the transport services and the nature of the services (for example, homogenous or differentiated services) goes taken in consideration as ulterior elements useful to estimate the incidence of a determined pool on the important market.

71. Regarding the nature of the agreement, it is opportune to take into consideration the clauses that have an incidence on the competitive behavior of the pool or its members, for example the clauses that they prohibit to the members to operate on the same market to out of the pool (clauses not competition), the periods of block and the terms of warning (the sensitive commercial exchange of information and escape clauses). Moreover, it goes taken into consideration all the possible existing ties between the pools, at the level of management or of members, let alone of sharing of costs and entrances.

3.3.4. Applicabilità of article 81, paragraph 3, of the treaty

72. If the pools re-enter in the field of application of article 81, paragraph 1, of the treaty, the involved enterprises must make sure to satisfy the four conditions cumulative of which to article 81, paragraph 3 ^[69]. Article 81, paragraph 3, a priori do not exclude sure types of agreements from its field of application. In principle, all the restrictive agreements that satisfy the four conditions of which to article 81, paragraph 3, they can benefit of the exception. Such analysis is based on a sliding scale: greater it is the restriction of the found competition according to article 81, paragraph 1, it put up must be the increments of efficiency and the transfer to the users.

73. It is up to the involved enterprises to demonstrate that the pool improves the transport services or promotes the technical or economic progress through efficiency increments. The efficiency increments cannot consist in the saving on the costs that are part integrating of the reduction of the competition, but must turn out from integration of economic activities.

74. The increments of efficiency returned possible from the pools can for example derive from the improvement of the rates use and the economies of scale. The pools of transport with not regular cargo ships usually preview the planning in municipality of the movements of the ships, in order to share the fleets geographically. Such division can reduce the number of the travels in ballast, with possible improvement of it I use of the total ability by the pool and consequent economies of scale.

75. To the users a consistent part of the efficiencies must be classified that derive some. According to article 81, paragraph 3, of the treaty, is the necessary to take in consideration the favorable character of the effects on with of the consumers in the important markets, and not impact on every member of such category of consumers ^[70]. The transfer of the benefits must at least compensate the users of the effects negatives, possible effectives or, determined in theirs confronts according to from the restriction of the stated competition of article 81, paragraph 1 ^[71]. In order to estimate the probability of the transfer, it is necessary to take in consideration in this context also the structure of the market of the transports with not regular cargo ships and the elasticity of the question.

76. The pool does not have to impose not indispensable restrictions to the attainment of the efficiencies. For verification purposes, it is necessary to examine if the parts could obtained the efficiency increments alone. In carrying out such appraisal, is important to consider, among other things, the efficient minimal dimension in order to supply several types of services in the field of the transport with not regular cargo ships. Moreover, every inserted restrictive clause in a pool agreement must reasonably turn out necessary to obtain the presumed increments of efficiency. The restrictive clauses can be answered for a period of long duration, for the entire duration of life of the pool or for a transient period.

77. At last, the agreement does not have to give to the interested parts the possibility to eliminate the competition for a substantial part of the produced ones or the services of which be a matter yourself.

^[1]	Regulations (EC) n. 1419/2006 of the Council, on September 25, 2006, that it repeals regulations (the EEC) n. 4056/86, that it determines the modalities of application of article 85 and 86 (current article 81 and 82) of the treaty to the marine transports, and that modification the regulations (EC) n. 1/2003 extending of the field of application to the cabotage and the international services of transport with not regular cargo ships (GU L 269 of the 28.9.2006, p. 1).
^[2]	The term “agreement” is used for the agreements, the decisions of associations of agreed enterprises and the practical ones.
^[3]	GU L 1 of the 4.1.2003, p. 1.
^[4]	GU L 123 of the 27.4.2004, p. 18.
^[5]	GU L 378 of the 31.12.1986, p. 4.
^[6]	GU C 3 of the 6.1.2001, p. 2.
^[7]	GU C 101 of the 27.4.2004, p. 97.
^[8]	GU L 100 of the 20.4.2000, p. 24.
^[9]	Considering 3 of the regulations (EC) n. 611/2005 of the Commission, cited to note 8.
^[10]	The Commission has characterized a specific series of characteristics of the specialistic transport that distinguishes it from the services of line and the services on not regular ships. Such characteristics comprise the supply of regular services for a determined type of goods. The supply of the service re-enters typically in the picture of a contract of chartering of ship (contract of affreightment) and previews the employment of specific special ships modified technically or constructed in order to transport goods. Decision 94/980/CE of the Commission, on October 19, 1994 relative to cause IV/34.446 - Ocean-going liner Agreement (GU L 376 of the 31.12.1994, p. 1) (in nearby, decision TAA), points from 47 to 49.
^[11]	Article 1 of regulations (the EEC) n. 3577/92 of the Council, on December 7, 1992, concerning the application of the principle of the free performance of the services to the marine transports between Member States (marine cabotage) (GU L 364 of the 12.12.1992, p. 7).
^[12]	Cause 42/84, Remia BV and others/Commission, Racc. 1985, p. 2545, point 22. Cause 319/82 Ciments ET Bétons de the East/Kerpen & Kerpen, Racc. 1983, p. 4173, paragraph 9.
^[13]	GU C 101 of the 27.4.2004, p. 81.
^[14]	The fact that the service is carried out towards or by a port not EU does not prevent that they turn out interested the exchanges between Member States. In order to establish if the effects on the customers and the other communitarian operators who make use of such services re-enter in the communitarian jurisdiction it is necessary to proceed to a careful analysis. To such fine, cfr. the guiding lines on the notion of prejudice to the commerce of which to article 81 and 82 of the treaty, cited to note 13.
^[15]	Decision 93/82/CEE of the Commission, on December 23, 1992 (causes IV/32.448 and IV/32.450, Cewal) (GU L 34 of the 10.2.1993, p. 1), point 90, confirmed from the Inferior court in the causes reunited from T-24/93 to T-26/93 and T-28/93, Maritime Companies Belge and others/Commission of the European Communities, Racc. 1996, p. II-1201, point 205; decision TAA, of which to note 10, points from 288 to 296, confirmed from the judgment of the Inferior court, on February 28, 2002, in the cause T-395/94, Atlantic Container Linens and others/Commission (in nearby, sentence TAA), points from 72 to 74; decision 1999/243/CE of the Commission, on September 16, 1998 (IV/35.134 - Ocean-going liner Conference Agreement) (in nearby, decision TACA) (GU L 95 of the 9.4.1999, p. 1), points from 386 to 396 decision 2003/68/CE of the Commission, on November 14, 2002 (case COMP/35.134 - TACA see again) (in nearby, see again decision TACA) (GU L 26 of the 31.1.2003, p. 53), point 73.
^[16]	For a guideline on the application of the incidence on the exchanges, cfr. the guiding lines of the Commission of which to note 13.
^[17]	GU C 372 of the 9.12.1997, p. 5.
^[18]	Communication on the definition of the market, of which to note 17, point 8.
^[19]	Communication on the definition of the market, of which to note 17, point 13.
^[20]	Decision 1999/485/CE of the Commission, on April 30, 1999 (cause IV/34.250 - Europe Asia Trade Agreement) (GU L 193 of the 26.7.1999, p. 23); decision TAA, of which to 10 note and decision TACA, of which to note 15, points from 60 to 84. The definition of market of which to decision TACA it is confirmed by the Inferior court in the judgment on the reunited causes T-191/98 and from T-212/98 to T-214/98, Atlantic Container Line AB and others/Commission, Racc. 2003, p. II-3275 (in nearby, sentence TACA), points from 781 to 883.
^[21]	Paragraph 62 of the decision TACA, of which to note 15, and the points from 783 to 789 of the sentence TACA, of which to note 20.
^[22]	Decision TACA, of which to note 15, point 71.
^[23]	Sentence TAA, of which to note 15, 273 point and sentence TACA, of which to note 20, point 809.
^[24]	Sentence TAA, of which to note 15, point 281. Decision of the relative Commission to case COMP/M.3829 - MAERSK/PONL, on July 29, 2005, point 13.
^[25]	Decision TACA, of which to note 15, points from 62 to 75; sentence TACA, of which to note 21, point 795, and decision of the Commission if MAERSK/PONL, of which to note 23, points 13 and from 112 to 117.
^[26]	Decision TACA, of which to the note 15, points from 76 to 83, and see again decision TACA, of which to note 15, point 39.
^[27]	For the voyage charter (voyage charter), for example, the essential elements of a demand for transport are the goods to transport, the volume, the cargo ports and drainage, the technical days in which the ship it remains moored or the date within which the goods they must arrive and relative details to the demanded ship.
^[28]	From the point of view of the industry, the largenesses of the ships correspond to distinguished markets. It prints specialized and the Baltic Exchange publishes price indices for every dimension standard of the ships and the relations of the advisers divide the market based on the largeness of the ships.
^[29]	For example, a loaded liquid helter-skelter cannot be transported on a ship used after the solid bulk transport, while a cooled cargo cannot be transported on a ship used after the transport of automobiles. Many oil tankers can transport produced oil black (dirty) and whites (clean), but they cannot transport produced white after to have transported produced quickly black.
^[30]	For a ship used after the solid bulk transport, to pass from the transport of coal to the granaglie transport can demand a process of cleansing of the duration of a single day, that it can be carried out during a travel in ballast. In other markets of the transports of this type, the operation can demand more time.
^[31]	Regulations (EC) n. 417/2002 of the European Parliament and the Council, on February 18, 2002, on the accelerated introduction of the norms in matter of double hull or technology equivalent for the oil tankers monohull and that EC repeals the regulations () n. 2978/94 of Council (GU L 64 of the 7.3.2002).
^[32]	Decision TACA, of which to note 15, point 85; see again decision TACA, of which to note 15, points 85 and 86, and sentence TACA, of which to note 20, points 924, 925 and 927.
^[33]	Based on the peculiarities of the important markets of transport with not regular cargo ships periods can be previewed more breviums, for example in the markets in which contracts of chartering of ships they last less than a year.
^[34]	Decision 2000/627/CE of the Commission, on May 16, 2000 [case IV/34.108 - To make East Trade Tariff Charges and Surcharges Agreement (FETTCSA)] (GU L 268 of the 20.10.2000, p. 1), point 153. Sentence of the Inferior court, on October 21, 1997, in the cause T-229/94, Deutsche Bahn AG/Commissione, Racc. 1997, p. II-1689, point 37.
^[35]	The regulations (EC) n. 823/2000 of which to note 8 it is applied to the international services of marine transport of line in departure from or to destination of or more ports of the Community for the sun transport goods, mainly in container - cfr. article 1, 2 and 3, paragraph 2, letter g).
^[36]	Sentence of the Inferior court in the cause C-49/92 P, Commission/Anic Participation, Racc. 1999, p. I-4125, points from 121 to 126.
^[37]	Sentence of the cause, Law court C-7/95 P, John Deere /Commissione, Racc. 1998, p. I-3111, point 90, and sentence of the cause, Law court C-194/99 P, Thyssen Stahl/Commission, Racc. 2003, p. I-10821, point 81.
^[38]	Sentence of, Law court, on November 23, 2006 C-238/05 the cause, Asnef-Equifax/Asociación de Usuarios de Servicios Bancarios (Ausbanc), Racc. 2006, p. I-11125, point 52, and sentence of the cause, Law court C-49/92 P, Commission/Anic Participation, of which to note 36, points 116 and 117.
^[39]	Sentence of the Law court, reunited causes C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and from C-125/85 to C-129/85. Ahlström Osakeyhtiö and others/Commission, Racc. 1993, p. I-01307, points from 59 to 65.
^[40]	Relative sentence to the cause John Deere /Commissione, C-7/95 P, of which to note 37, point 88.
^[41]	Sentence of the Inferior court, cause T-35/92 John Deere Ltd /Commissione, Racc. 1994, p. II-957, point 51, confirmed in from the judgment relative appeal to the cause John Deere Ltd /Commissione, cause C-7/95 P, of which to note 37, point 89, and more recently, relative sentence to the Asnef-Equifax/Ausbanc cause, of which to note 38.
^[42]	Sentence of the Inferior court, T-141/94 cause, Thyssen Stahl AG/Commissione, Racc. 1999, p. II-347, points 402 and 403.
^[43]	Relative sentence to the cause John Deere Ltd /Commissione, C-7/95 P, of which to note 37, points from 75 to 77.
^[44]	Guiding lines on the application of article 81, paragraph 3, of which to note 7, paragraph 16.
^[45]	Guiding lines on the application of article 81, paragraph 3, of which to note 7.
^[46]	Guiding lines on the application of article 81, paragraph 3, of which to note 7, paragraph 25.
^[47]	In transport marine of line operating and/or structural ties between competitors exist, for example the adhesion to agreements of consortia that afford to the marine companies to exchange information in order to supply a common service. In the appraisal of the incidence on the market in question of a new exchange of information, it will have to be taken in consideration, case by chance, the existence of such a tie.
^[48]	Sentence TACA, of which to note 20, point 1154.
^[49]	Decision 78/252/CEE of the Commission, on December 23, 1977, cause IV/34.983 - Vegetable parchment (GU L 70 of the 13.3.1978, p. 54).
^[50]	Decision 92/157/CEE of the Commission, on February 17, 1992, cause IV/31.370 - UK Agricultural Tractor Registration Exchange (GU L 68 of the 13.3.1992, p. 19), point 50.
^[51]	Decision 98/4/CECA of the Commission, on November 26, 1997, cause IV/36.069 - Wirtschaftsvereiningung Stahl (GU L 1 of the 3.1.1998, p. 10), point 17.
^[52]	Guiding lines on the application of article 81, paragraph 3, of which to note 7.
^[53]	Decision 2004/421/CECA of the Commission, on December 16, 2003, cause COMP/36.240 - Industrial tubes (GU L 125 of the 28.4.2004, p. 50).
^[54]	Decision 82/896/CEE of the Commission, on December 15, 1982 - IV/29.883 - AROW/BNIC (GU L 379 of the 31.12.1982, p. 1); decision 96/438/CE of the Commission, on June 5, 1996, cause IV/34.983 - Fenex (GU L 181 of the 20.7.1996, p. 28).
^[55]	Decision 92/157/CEE (UK Agricultural Tractor Registration Exchange), of which to note 50.
^[56]	In this way, the pool succeeds to adjudicate large contracts of chartering, to arrange various contracts of this type and to reduce the number of travels in ballast graces to an accurate programming.
^[57]	For example, the ships of the pool are commercialized in the picture of a single commercial entity that independently offers solutions of transport from the ship that will assure crossing.
^[58]	For example, the entrances of the pool are collections from the central administration and the gain is distributed to the participants on the base of a complex system of weighting.
^[59]	Respective to section 5 and 3 of the guiding lines, cited to note 6.
^[60]	Guiding lines on the agreements of horizontal cooperation, of which to note 6, point 12.
^[61]	Regulations (EC) n. 139/2004 of the relative Council to the control of the concentrations between enterprises (the communitarian regulations on concentrations) (GU L 24 of the 29.1.2004, p. 1).
^[62]	GU C 95 of the 16.4.2008, p. 1.
^[63]	Article 2, paragraph 4, of the regulations (EC) n. 139/2004 of the Council.
^[64]	Communication of the relative Commission to the smaller agreements of importance that according to do not determine sensitive restrictions of the competition of article 81, paragraph 1, of treaty (GU C 368 of the 22.12.2001, p. 13) and guiding lines on the notion of prejudice to the commerce, of which to note 13.
^[65]	Guiding lines on the agreements of horizontal cooperation, of which to note 6, point 5. The activities of independent the shipping agents who “arrange a ship” do not re-enter in this category.
^[66]	Guiding lines on the application of article 81, paragraph 3, of which to note 7.
^[67]	Guiding lines on the agreements of horizontal cooperation, of which to note 6, point 149.
^[68]	Guiding lines on the agreements of horizontal cooperation, of which to note 6, point 142.
^[69]	Guiding lines on the application of article 81, paragraph 3, of which to note 7.
^[70]	Relative sentence to the Asnef-Equifax/Ausbanc cause, of which to note 38, point 70.
^[71]	Guiding lines on the application of article 81, paragraph 3, of which to note 7, paragraph 24.