Lloyd's Maritime and Commercial Law Quarterly
Liner conferences in the EU and the proposed review of EC Regulation 4056/86
Jason Chuah *
Competition in liner shipping has been the subject of much work in maritime economics. However, its legal context, especially, the approaches and principles developed in recent EU cases, is equally deserving of critical evaluation. The recent Review of EC Regulation 4056/86 by the Commission and the OECD’s anti-liner conferences policy form the backdrop to this examination. This article will, in particular, explore how some of the more problematic provisions of Regulation 4056/86 have been applied in the light of developments in EU competition law and industry practices. It will underscore the lack of consistency in approach and the uncertainties caused by these emerging liner practices
.
The publication of the European Commission’s White Paper on the Review of Reg 4056/861
in the close of 2004 marks an interesting threshold in the ongoing debate on whether the limited antitrust immunity conferred on liner conferences in the EU by the Regulation should be retained and/or changed. The Commission takes the view that there is no justification in competition terms for the retention of the Regulation. It thus makes two important tentative proposals—first, that the Regulation be abolished and, secondly, that alternative forms of co-operation between liners be recommended to take the place of tariff-fixing excused by the Regulation.
It may be recalled that much of the impetus in the EC Commission’s efforts to consult on the review of Reg 4056/86 comes from the publication of the OECD Final Report on Competition Policy in Liner Shipping
in April 2002.2
That Report recommends with little qualification that member countries when ‘‘reviewing the application of competition policy on the liner shipping industry should seriously consider removing the anti-trust exemptions for price-fixing and rate discussions’’.3
It also advocates the curbing of the anti-trust exemptions granted to liner conferences for collective operational or technical arrangements.4
The OECD Report contends that there is poor evidence that there is a
* Reader in Commercial Law, University of Westminster. I am very grateful to Mr Conor Quigley QC for his comments on a draft of this article. I would also wish to thank the delegates at the Maritime Law Section meeting at the Society of Legal Scholars Annual Conference, Oxford, 17 September 2003, for their interest in the paper 1 presented on some of the issues discussed in this article. I am also grateful for the comments made by the referees.
1. Commission Programme 2003/COMP/18 (COM(2004) 675 final); the Review of the Reg was started in spring 2003 with the publication of the Commission’s Consultation Document.
2. Document Ref DST1/DOT (2002) 2 (16 April 2002) (hereafter ‘‘OECD Final Report’’).
3. Ibid
, para 201.
4. Such technical arrangements include the use of a uniform vessel type, standard specifications for equipment, co-ordinated shipping timetables, etc. See too Reg 4056/86, Art 2.
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