On 15 January 2013 the Italian Administrative Court of Lazio Region (which is the relevant Italian judicial authority of first instance in competition-related issues (Court)) nullified a decision of the Italian Competition Authority (ICA) in the marine transport sector and specifically concerning an alleged anticompetitive agreement pursuant to Article 101 TFEU for the price-fixing of the marine agency services executed by the marine agents operating in the port of Genoa[1].
As a factual background, the marine transport of goods is a complex economic sector, within which the importers/exporters of goods and the ships owners usually do not have a direct contact: they operate, indeed, by means of the carriers (acting in the interest of the importer/exporter – demand side) and the marine agents (acting in the interest of the ship owners – offer side). The carriers, based on importer/exporter’s requests, carry out all the activities necessary for the transport of goods; the agreement is executed by the carriers and the marine agents, who provide the carriers with the so called agency services, consisting mainly in the issuance of two types of documents: the bill of lading (for goods to be exported) and the delivery orders (for goods to be imported). For the provision of the abovementioned services, the carriers pay to the agents an agency fee.
After a long and elaborate preliminary investigation, the ICA found that the conducts of both marine agents and carriers (at least from February 2004 to December 2009) constituted a complex and unique anticompetitive conduct, resulting of a horizontal agreement between marine agents for the increasing of the agency fees and a vertical agreement between the respective associations of undertakings (Assagenti for marine agents and Spediporto for carriers) which acknowledged the increasing of the agency fees. The relevant market, according to the ICA’s findings, is represented by the agency services provided within the port of Genoa; such market has been deemed relevant from both EU and national competition law perspective. Therefore, several marine agents, their association of undertakings and the carriers’ association of undertakings have been sanctioned with huge fines (based on the turnover of each company and the duration of the involvement within the anticompetitive practice).
The Court’s findings
The Court found that no anticompetitive agreement has been executed, either between marine agents or between the carriers and marine agents’ associations of undertakings; and that, in any case, the alleged anticompetitive practice would have affected a market irrelevant from both national and EU perspective.
With reference to the horizontal profile of the anticompetitive conduct, the Court stated that the marine agents, by means of several meetings involving some administrative bodies of their association of undertakings, did not execute any anticompetitive agreement or concerted practice, because the decision to raise the agency fees as a result of the meetings did not affect directly the final consumers/users, but merely constituted the basis for the following bargaining with the carriers’ association of undertakings. Hence, the ICA would have misunderstood a simple proposal to raise the amount of the agency fees with an acquired result.
Moreover, the marine agents’ proposal regarded not properly a price-fixing, but simply the maximum amount to be paid by the carriers for the agency services: such evidence is based on the conducts of the marine agents carried out after the execution of the agreement, which brought each of them to fix different agency fees into their agreements with carriers.
Regarding the vertical profile of the anticompetitive conduct, the Court found that the agreement executed between the carriers and marine agents’ association of undertakings did not constitute a mere acquiescence to the proposed increasing of the agency fees. The meetings between the respective associations of undertakings, according to the Court, have shown that the carriers carried out tight negotiations in order to reduce the amount of the agency fees proposed.
Therefore, according to the Court, the case at stake represents merely a lawful vertical agreement between associations of undertakings. The ICA, indeed, did not bring any evidence of the anticompetitive effects of such agreement (i.e., the worsening of the economic conditions of the final consumers/users), which are essential in order to qualify a vertical arrangement as anticompetitive.
Furthermore, the Court had a different approach into the determination of the relevant product market in the case at hand. As said above, the ICA found the relevant market into the provision of the agency services.
Instead, the Court found that the relevant market is constituted by the provision of marine transport’s services by the ships owners for the benefit of the importers/exporters of goods. The marine agents, indeed, act on behalf of the ships owners and are usually included within the same group of companies; in addition, the agency fees represent the minor part of their revenues, which are mainly constituted by the fees paid by the ships owners for the rent of the slots to the carriers and, indirectly, to the importers/exporters. Such wider qualification of the relevant market implies that the amount of the agency fees represent just a negligible part of the product market itself, irrelevant from both national and EU competition law perspective.
In addition, the Court found irrelevant also the geographic component of the relevant market detected by the ICA, i.e. the port of Genoa. According to the Court, indeed, there is suitable evidence that the application of certain agency fees into the port of Genoa is not able to influence the amount of the agency services within other national and Mediterranean ports, because of the peculiarities of each route in any different place. In any case, the ICA would not have been able to proof the national and, as a consequence, EU relevance of the geographic market defined.
There are grounds to argue that the Court’s decision will be appealed by the ICA towards the Italian Supreme Administrative Court (Consiglio di Stato), in particular with reference to the lack of evidence alleged by the Court, as the ICA conducted a long-lasting investigation before its judgment.
[1] Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) Decision of 22 February 2012, n. 23338, I733.
