The high level opinion of the impact of the Consortia Block Exemption Regulation (CBER) on the supply chain of containerized transport expressed in the latest by FEPORT, the federation of European private port terminalists, is oscillated between a sharp rejection of the possibility of prolongation of this European regulation exempting containerised maritime consortia from the EU's general antitrust rules to the disappointment manifested by the federation for the decision taken twenty days ago by the European Commission not to prolong the invigoration of the standard ( of the October 10 2023).

In its latest monthly bulletin, FEPORT explained that it was " not conducive to the repeal of the CBER as explicit prohibitions set in a category exemption regulation are better than a legal vacuum and the absence of any monitoring by the European Commission of the behaviour of alliances. " Referring to the previous negative opinion of the federation of port terminalists about the prolongation of the validity of the regulation, FEPORT recalls, in fact, that it has always warned of the interconnections between consortia and alliances that at notice of the federation had been totally neglected by the European Commission in its previous evaluations ( of the January 17 2020), highlighting that the bargaining power of alliances between containerized shipping companies with respect to customers and service providers has also significantly increased thanks to the 2009 version of the CBER that is currently in force and which will expire on April 25.

According to FEPORT, the current version of the CBER " unfortunately is too little rigorous on some aspects as it does not clearly mention what to do and what not to do. For example, the federation has not expressly stated in the text or the ban on the joint purchase of cargo handling services or port services in order to restore a more balanced situation for the terminals. and for technical-nautical services, as mentioned-precise FEPORT referring to the US shipping law of 2022-in the OSRA 2022, nor the strict restriction, in an accelerated vertical integration context, of exchange of data and any other form of information limited to maritime trafficking ".

" Moreover-the federation of the terminal operators-the CBER of 2009 is no longer expected, as was the case in the previous version, the provision on the lifting of the exemption by category in the event of an ineffectiveness of competition and of insufficient consultations with transport users and service providers. The elimination of the withdrawal clause has practically ruled out the possibility for customers and service providers to question the benefits of the CBER before the five-year deadline, which is for a very long period of time. "

FEPORT recalls that " at its peak the CBER has covered up to 60 consortia. The three main maritime alliances of container shipping, 2M, Ocean Alliance and the Alliance are considered "consortia", as they consist of a matrix of vessel sharing agreements between partners in the alliance and other agreements. And despite the fact that in the last review carried out in 2019 the EU Commission acknowledged that it was unable to assess the interconnections between alliances and consortia and whether the alliances that benefited from CBER hold a market share higher than 30% percent, had decided to renew the exemption by category. "

FEPORT also recalls that, " although the expiry of the current CBER does not make cooperation between the shipping companies illegal, carriers will have to assess the compatibility of their agreements with EU antitrust rules on the basis of the indications provided in the exemption regulation by category relating to horizontal agreements and in the block exemption regulation relating to specialty agreements. It remains to be seen-observes the federation of terminalists-whether the repeal of the CBER will have the same impact on the different carriers depending on their size and the sectors in which they operate. Some observers believe that the large operators have probably already anticipated the end of the CBER and have already begun to regroup individually. " If these big companies "have to make sure they comply with the competition rules," the smaller carriers, however, could be discouraged from operating in European markets due to the extra burden. administrative ".

Concluding, FEPORT highlights that if " the end of the CBER constitutes an important step towards the normalization of the markets of liner shipping, however, the abolition of the specific antitrust standard does not mean the end of the main alliances in the field of container shipping. For a long time, in principle, every time their market shares exceeded 30% percent, they operated outside the legal framework that has now been reformed. " To close what it believes to be the legal vacuum that will exist from April 25 following the expiry of the CBER, FEPORT believes that " the European Commission should now set clear limits on the behaviour on the market for large alliances and strictly enforce existing laws. "This is the condition for the successful normalization of the market in the coming years," the federation said.