Lloyd's Maritime and Commercial Law Quarterly

Liner shipping and antitrust after the repeal of Regulation 4056/86

Francesco Munari *

The repeal of the block exemption for liner conferences and the abolition of any “special EC antitrust regime” for the shipping industry marks an important step in European maritime competition policy. This article examines the origins and the rationale of the EC antitrust immunity granted so far to the shipping industry and explains the causes of this historical change. Moreover, based on the precedents which have appeared so far, a general assessment is offered under this new EC regime on agreements restricting competition in the liner shipping industry, in particular horizontal ones: conference and tariff/freight arrangements will be doomed, whereas the legitimacy of consortia agreements should not be cast in doubt; a case-by-case analysis will be the approach as regards exchange or dissemination of information by shipowners in the market, and the relevant case law which emerges on these matters in other industries will be the criterion for their evaluation. Finally, a few remarks are made in respect of the international dimension of the decision to outlaw liner conferences and hence carve out EU Member States from the UN Code of Conduct regime.

1. Introductory remarks

Since October 2006, many novelties have occurred in the application of competition rules to shipping. Before that date, tramp shipping and cabotage were exempted from the legal regime established to implement EC Treaty, Arts 81 and 82; by virtue of this exemption, EC antitrust rules could be applied to these sectors only with the “provisional instruments” set forth by EC Treaty, Art 84, ie, through a sort of delegation of powers to national antitrust authorities.1 In fact, no case can be recalled regarding the application of this provision in any of these sectors.
For international liner shipping, the picture was more complicated. Since 1974 an antitrust exemption for liner conferences had been established at international level by the UNCTAD Convention on a Code of Conduct for Liner Conferences.2 With the adoption

* Professor of European Union law, University of Genoa. This article is based on a paper delivered at the 5th European Colloquium on Maritime Law Research (ECMLR), held in Athens on 28–29 May 2008.
1. See F Munari, Il diritto comunitario antitrust nel commercio internazionale: Il caso dei trasporti marittimi (1993), 113.
2. The literature on the UNCTAD Code of Conduct is large. See, eg, and for further references, G Athanassiou, Aspects juridiques de la concurrence maritime (1996); W J Bosies jr & W G Green, “The Liner Conference Convention: Launching an International Regulatory Regime” (1974) 6 L & P Int’l Bus 533; M Brignardello, Concorrenza e libera prestazione dei servizi nei traffici marittimi internazionali (2008), 9; S M Carbone, La disciplina giuridica del traffico marittimo internazionale (1982), 111; S M Carbone & F Munari, Regole e organizzazione dei trasporti marittimi internazionali (1990), 31; G Cerruti & M Chirco, La disciplina comunitaria dei traffici marittimi internazionali di linea (1996), 191; P Faust, The UN Convention on a Code of Conduct for Liner Conferences : 11 Discussion Papers of UNCTAD Secretariat (1985); K W Grewlich, “Die UN Konvention uber einen Verhaltenskodex f ¨ ur Linienkonferenzen” (1975) 35 ZaoRV 742; L Juda, ¨ The UNCTAD Liner Code: US Maritime Policy at a Crossroad (1983); P B Larsen & V Vetterick, “The UNCTAD Code of Conduct for Liner Conferences: Reservations, Reactions and U.S. Alternatives” (1981) 13 L & P Int’l Bus 223; R Rodiere, “Le code de conduite des conferences maritimes” 1076 J Dr Int (Clunet) 335; M J Shah, “The Implementation of the UN Convention on a Code of Conduct for Liner Conferences” (1977) 9 JMLC 79; S J Sturmey, Workbook on the Application of the UN Liner Code (1985). But see also the authors’ quotes infra , fnn 4 and 16.



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