Maritime Alliances and EU Competition Law - loannis K. Voudouns [2020, PDF]

Contents

P a r t I establishes the theoretical premises of the monograph that apply to liner
and tramp shipping. In particular, it discusses the way liner shipping consortia
operate and presents the several liner alliances of the last 20 years. It introduces
the reader to the concept of “shipping relevant market” and revisits the service/
product and geographic criteria from the combined perspectives of the maritime
industry and competition law. The section argues that the concepts of “relevant
market”, “dominant position”, and “its abuse” are ambivalent in the context of competition
law in shipping.
P a r t I I presents the nature of the shipping market from the perspective of maritime
economics and correlates it with the traditional concepts of economics and
competition law, such as the relevant market and market power. The analysis includes
elements that are fundamental to shipping, i.e. the cost structure, economies
of scale, and access to capital that are its dynamic characteristics. It also critically
evaluates the effectiveness of using market share as a criterion for dominance and
market power, in comparison to the traditional market share analysis; achieved
either by the increase business volume or by means of synergies.
P a r t I I I discusses liner shipping alliances agreements, per se, under the scope of
Article 101 of the TFEU. It investigates the structure of liner shipping consortia
and assesses special legal issues, by presenting and critically analysing the forms
and types of joint ventures, such as rationalisation agreements, cargo and vessel
sharing agreements and other forms of joint commercial policy.
P a r t I V builds on this discussion on line shipping alliances and joins the theoretical
discourse on market definition, dominance and its abuse in the maritime
sector in general. In the context of EU regulations that apply to conferences and
consortia, the section carries a critical assessment of the traditional definitions of
geographic, product market, and market share, by assessing whether it is possible
to aggregate a consortium's market share across markets in relation to a certain
time period. The main premise is that whereas the ‘abuse of dominance' may be
calculated within certain geographic or product boundaries, such an exercise is
notably difficult for shipping (and especially for tramp shipping) due to the mobility
of the incumbent vessels that are not restricted to geographical zones. To
properly articulate such aggregation however, would require additional resources
from many disciplines. Yet, the study takes into account several factors, including
the temporal element of the market and the inherent volatility of maritime market
cycles, and establishes an alternate approach for the identification of abuses, that
is, to examine a specific market in a specific shorter period and evaluating behaviours
for that period. The element of time is a critical factor for the identification
of the short-but-powerful abuse of dominance.
P a r t V continues the research and examines the issue of market power in tramp
shipping pools. Some findings from the previous chapters are also present here,
especially those that relate to the general particularities of the maritime industry.
We elaborate on the tramp sector’s specific attributes that become relevant to
competition law, evaluating factors that could contribute to actual dominance and
behaviours which would consequently lead to an abuse. Again, we evaluate the
legal tools available for the definition of the relevant market and the critical market
share necessary for establishing dominance of the tramp pool. Whereas the
absence of case law confirms the competitiveness assumption of tramp shipping,
it also produces some natural difficulty in practically assessing the boundaries of
a market along with any anti-competitive behaviour. Since there are no reported
cases of competition breach (either by a single firm or by a pool) in any jurisdiction,
the study expands its theoretical analysis and draws separate conclusions for
tramp shipping.
P a r t V I introduces the concepts of the “systemic market”, “economic biotope”
and notably the “maritime biotope” as alternative theoretical tool for analysing the
particulars of market, dominance and its abuse. These are original concepts used
in an analogy to describe an economic community supported by a foundation of
interacting organisations and individuals - the organisms of the relevant business
system.