Brussels, 15 th January 2010
Antitrust: Commission opens formal investigation into the "Baltic Max Feeder" scheme for European feeder vessel owners
The European Commission has opened a formal antitrust investigation concerning the "Baltic Max Feeder" scheme over a potential breach of EU rules on restrictive business practices (Article 101 of the Treaty on the Functioning of the European Union - TFEU). The Commission is in particular concerned that the scheme, whereby European ship owners collectively agree to cover the costs of removing feeder vessels from service, may be aimed at reducing capacity and therefore at pushing up charter rates for such vessels. Typically, feeder vessels collect shipping containers from different ports and transport them to central container terminals where they are loaded onto bigger vessels.
Opening antitrust proceedings does not mean that the Commission has conclusive proof of an infringement. It only signifies that the Commission will conduct an in-depth investigation of the case as a matter of priority.
There is no strict deadline to complete antitrust inquiries. Their duration depends on a number of factors, including the complexity of the case, the extent to which the undertakings concerned cooperate with the Commission and the exercise of the rights of defense.
Why has the Commission decided to initiate proceedings?
The Commission's investigation concerns the "Baltic Max Feeder" scheme, whereby European owners of feeder vessels plan to collectively cover the costs of taking vessels out of service, also known as "laying vessels up". The Commission will in particular examine whether this has the explicit aim of reducing the available capacity of feeder vessels in Europe, which in turn could increase the rates of chartering feeder vessels.
Feeder vessels are smaller container ships for short-sea transport and are in general the first and last link in the maritime transport chain. They transport or "feed" containers arriving at or departing from central container terminal ports (such as Hamburg or Rotterdam) served by large deep-sea container vessels, to smaller ports in the region. Feeder vessel operators either own the vessels they operate or charter them from the vessel owners.
The "Baltic Max Feeder" scheme has been elaborated and promoted by Anchor Steuerberatungsgesellschaft mbH, a German tax advisor, as a response to the current overcapacity of feeder container vessels, which has brought charter rates down.
What is the legal base for the decision?
The legal base of this procedural step is Article 11(6) of Council Regulation No 1/2003 and Article 2(1) of Commission Regulation No 773/2004.
Article 11(6) of Regulation No 1/2003 provides that the initiation of proceedings relieves the competition authorities of the Member States of their authority to apply the competition rules laid down in Articles 101 and 102 of the TFEU. Article 16(1) of the same Regulation provides that national courts must avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings that it has initiated.
Article 2 of Regulation No 773/2004 provides that the Commission can initiate proceedings with a view to adopting at a later stage a decision on substance according to Articles 7-10 of Regulation No 1/2003 at any point in time, but at the latest when issuing a statement of objections or a preliminary assessment notice in a settlement procedure.