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Lloyd's Maritime and Commercial Law Quarterly

MULTIMODAL TRANSPORT AND EC COMPETITION LAW

Nick Maltby

1. Introduction

International multimodal transport and, in particular, containerization has transformed the transport industry over the last 20 years. It raises complex questions as far as the application of EC competition law is concerned. One reason for this is the wide range of different forms of association which concern multimodal transport. Shipping companies are involved in liner conferences, consortia, shipping pools, restructuring or stabilization agreements, vessel sharing arrangements, partnerization, joint ventures and mergers. Multimodal transport has also given rise to various forms of vertical relationship, with large shipping companies moving inland to set up their own multimodal transport networks offering through-rates and subcontracting the inland leg to other undertakings. The other reason, however, relates to the unfortunate way in which the competition rules have been applied to multimodal transport, including the absence of formal decisions by the EC Commission and the general uncertainty which surrounds the rules and makes the application of a sound and effective competition policy impossible. The result is that there is little clear guidance concerning the operation of the competition rules and, as no block exemption is available for multimodal transport, individual exemptions have to be sought in almost every case. It is this second problem which this article addresses. It will be argued that the position is far from satisfactory; that the present uncertainty prevents multimodal transport operators planning their businesses effectively; and that it is hoped that this problem will be addressed in the near future by the Commission.
This matter is particularly pressing in view of the increasing number of notifications the Commission is receiving which raise the problem of multimodal transport and the consequences of a breach of the EC competition rules. The Commission has to date received several notifications of agreements involving multimodal transport. These include Gulfway,1 Eurocorde Agreements 2 and Irish Club Rules.3 These agreements involve, inter alia, the discussion of through-rates and inland charges between independent operators, usually a liner conference on the one hand and a “tolerated outsider” on the other with a view to the stabilization of the market. The Commission has indicated to the parties that both Council Regulations 1017/684 and 4056/865 (on competition in transport) apply and, in

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