March 26, 2012
- The sentence of the Antitrust on the presumed trust between shipping agents and genoese shippers - Assagenti and Spediporto accuse - is unjust and excessive punitive
- The associations announce the presentation of resources to the REGIONAL ADMINISTRATIVE COURT Latium and, if necessary, to the Council of State
- Assagenti and Spediporto consider that the Guarantor Authority of the Competition and Market (AGCM) not only unjust having are deliberated that the two associations and 15 marine agencies have place in being a restrictive understanding of the competition according to article 101 of the Treaty on the Operation of the European Union through "the concerted increment - explains the Authority Antitrust in the provision - of the fees of the agenziali services", but that also it has acted cruelly on the associations and the companies deciding in recent days of comminare the maximum rating of the applicable endorsements, fining them therefore for a total of beyond four million euro ( on 16 March 2012).
- The association of the shipping agents and the association of the shippers of Genoa has illustrated today to prints the reasons based on which they consider that the AGCM is completely in error and has announced that they will then introduce request of suspensory of the endorsements let alone rerun near the Regional administrative court of the Latium arriving, if necessary, to appeal to the Council of State.
- The president of Assagenti, Giovanni Cerruti, and the president of Spediporto, Roberta Oliaro, coadiuvati respective from the secretary Massimo Moscatelli and the general manager Giampaolo Botta, has rejected to all the assertions of the Authority Antitrust, beginning from the presumed secrecy of the agreement, that he was centralized on the "fixed rights", that is face to cover the costs for the compilation of useful documents to the terrestrial and marine transport.
- The understanding between the two associations, than was not binding - Cerruti has explained - was in existence from 1950, was agreed in transparency and was famous to all so much so that periodically of it had given news prints. And for a long time it was to acquaintance of the same AGCM: in 1997 and the 2002 - Cerruti and Moscatelli have remembered - Antitrust it had estimated the possibility to start in the merit an investigation being decided successively to record practical having the accepted one the position of the association. Among other things Assagenti had demanded repeatedly (the last time in a 2008) legal opinion on the understanding to the aim of having confirmation of its legitimacy. The agreement is disdettato, therefore, only as a result of the start of the investigation concluded with the heavy endorsements.
- Of the same Spediporto warning: "the agreements on the fixed rights, are genoese, livornesi they, triestine, Venetian etc - the association of the shippers has confirmed - perfectly famous and was known to the Authority until from 1997. This is to mean that they were considered perfectly lawful. And nothing is changed by then. And it could not be various: the fixed rights, above all for the integrated agents of line, could not and they cannot damage the main business of the shipowner to which they answer".
- The agreement - it has emphasized Cerruti - indicated the maximum of the rates, "beyond which the service does not have to cost". Objective - it has specified Roberta Oliaro - "was to defend the interests of the small societies" and consequence of the cessation of the voluntary pact between the two associations has been instead "an important increase of the rates".
- In the judgment the ACGM finds that the genoese understanding had repercussions also in other Italian ports: "numerous documents to the actions of the istruttorio issue - law in the provision - testify that the rates practiced there were apt to influence also the transactions in other ports of the Mediterranean, which for example Gioia Tauro and La Spezia". The understanding - the president of Spediporto has objected - had purely local character and was only worth for the genoese shipment houses.
- In the motivations that have induced the AGCM to carry to term the investigation comminando endorsements, the Antitrust explains to have "considered that the engagements introduced everywhere riferissero to susceptible conducts to integrate a horizontal understanding time to coordinate the business strategies, and in particular the policies of price in the services of marine agency, that is re-entering between the more serious restrictions of the competition, and that therefore, online with the communitarian ordering, they could not be received the proposed engagements and had to be proceeded, instead, to the assessment of the eventual infraction". According to Assagenti and Spediporto, to such care the AGCM "has made a blunder", as - has evidenced - the agreement between the two associations is if not of "the vertical" type and - has found Cerruti - agreed between who invoice and who "horizontal" wage and not, that is defined from a category to the detriment of the customer. In this case - it is noticed - "not there is some victim".
- "The understanding on the fixed rights - it has evidenced Giovanni Cerruti - is of vertical nature, agreed between two trade associations who operate to a different level of the chain distribution. This type of agreement lawful and is considered by the economic theory as an incentive to the efficiency". "The lead economic analyses on the presumed anti-competitive impact of the agreement on the customers and on consumers - Roberta Oliaro has confirmed - have demonstrated to the total irrelevancy of the fixed rights and the so-called reduction in price of loyalization. Infinitesimal percentages on the customer and the consumer. Absence total of a concrete economic interest of the shippers to the increase of the fixed rights and of an attractive economic interest to the loyalization reduction in price. The given colds economic say us that we are very far from anti-competitive scenes. That's why we nourish abashment and bitterness for pronounces it of the Antitrust".
- We consider also - he has added the president of Spediporto - than "the Antitrust has not absolutely estimated the documents that we have produced", the last one of which - he has specified the lawyer of the association, Danilo Guida - it is a memory of 554 pages. "The impression - it has observed Giampaolo Botta - is that the sentence was written already by the beginning". For Assagenti and Spediporto, in fact, the Antitrust has not held in some account the defensive motivations introduced by the associations and the lawyers of the marine agencies between the first formulation of the accusation advanced from the AGCM in the spring/summer of the 2010 and held final audition to Rome last January. More: the Authority Antitrust - lawyer Guida has denounced - does not have intentional to probably accept the position of Spediporto "because it expected that the colpissero shippers the shipping agents".
- The two associations criticize also the entity of the fines: 82 thousand euros about to each of the two associations and beyond 3,9 million euros to the 15 marine agencies, with different amounts established - the AGMC in the provision explains - taking into consideration the turnover and taking "also in debita consideration the effective economic ability to the parts to prejudice, in meaningful way, the competitive game", applying therefore to the amount defined on the base of the turnover "a percentage pairs to 10% in reason of the particular gravity of the infraction" and "the amounts so obtained, multiplied for the number of years of participation to the infraction".
- "In analogous cases - it has found Cerruti - this type of rigor is not applied. Us it seems an unwarrantable fury". According to the Antitrust, instead, if they rerun "numerous factors that the guidelines of the Ec commission for the calculation of the fines demand as necessary in order to place the measure of the endorsement to a high value of the staple from these previewed".
- The consistency of the fines - Cerruti has said - is not even far proportioned to the "minimal weight" of the fixed rights on the entrances of the marine agencies: "it is - it has explained - an accessory voice that less represents of 1% of the cost total of the transport door to door and, according to an investigation of Spediporto, about 0.001% on the end product one to the consumption. Therefore it is able to not to constitute an anti-competitive element in itself".
- "The given colds economic - a note diffused from Spediporto evidences - say us that we are very far, also only at the level of hypothesis, from anti-competitive scenes. Unless one does not consider that a incisività of 0.029% of the fixed right on the cost of the economic operation is of such importance to determine sidetracking of the traffic and gives to the user and or to the consumer! Not it has been therefore some behavior in a position to damaging the competition between Member States (if not it has been tried to guarantee a already minimal competitive ability to the Italian enterprises)".
- Cerruti and Oliaro have confirmed that the endorsements could have an impact on the force job of the agencies, that represents the main economic burden of the societies: “our worry - the president of Spediporto has said - is that the sentence goes to affect the occupation”. They are the very 950 dependent of the 15 companies object of the provision, that is those which have participated through their representatives to the reunions of the Harbour Commission of Assagenti that has taken care among other things to define the agreement with the shippers. “It is opportune to wonder - Cerruti - if it is right that the total decisional freedom of the Authority for competition can, in cases has recriminated as this, to create social and economic damages from the unforeseeable consequences”.
- “The Authority - moreover Cerruti has denounced - has favorite to endorse the single agencies, to the place of trade associations. This to the single scope of being able to comminare a million endorsement four euro, than would not have been possible to apply to trade associations, visa the maximum limit of 10% of the turnover previewed from the norm”.
- An accusation, even if in veiled form, is expressed in confronts “of who - Roberta Oliaro has asserted - the freedom has been taken to denounce the agreement”. That is to say: the Danish group Maersk, that he is world leader of the field of the marine transport of line and that joined to Assagenti through own marine agency Maersk Italy, that has exited from the genoese association at the end last year ( on 17 November 2011). The representatives of the shipping agents and genoese shippers have found the primary role of the Danish group in the investigation, from which she has exited economically undamaged having collaborated with the Antitrust to which she has introduced question of admission to the benefit of forgiveness. Also marine agency Hapag Lloyd Italy has afterwards made request of admission the benefit of forgiveness and - the representatives of the two associations have explained - it has introduced documentation that has induced the AGCM “to widen the sanzionatorio period carrying it from 2007-2009 to 2004-2009”. Thanks to such collaboration the entity of the fine at the expense of Hapag Lloyd Italy is halved.
- Bruno Bellio