Lawyers say EU trust busters' case against carriers lacks proof of collusion

SOME 18 months after EU competition authorities raided the offices of major shipping lines suspected of collusion in rate setting, they have come up with no charges they are prepared to release.

Finding no actionable evidence of collusion, there is now reliance placed on the fact carriers have been found doing what they always do - that is, publish announcements of rate increases.

If this is done in concert with other lines. it can be called "rate signalling" and constitute an offence in EU competition law, noted Lloyd's List.

The "relatively novel" focus of the commission's investigation suggested that their dawn raids did not uncover evidence of more direct collusion, said Ian Giles, partner at London's Norton Rose Fulbright in London.

"Brussels now faces an evidential challenge to make out its case, notwithstanding the apparent harm to customers that price-matching by lines could cause," he said because investigators require precedent to make a case at the European Court of Justice.

"If the commission does not have direct evidence of collusion, the lines can argue that advance notice of rate changes helps customers plan, and is invaluable to spot market traders," said Mr Giles.

Holman Fenwick Willan partner Anthony Woolich says the EU has little case law on price signalling and needs to show there was an agreement or understanding that other carriers would make similar announcements.

The EU court dismissed charges of "price-parallelism", saying this could only breach the rules if collusion was the only plausible explanation for parallel pricing behaviour in a 1993 wood pulp case. 

Clyde & Co partner John Milligan said while a private exchange of future pricing plans would be unlawful, "the allegation of public exchange of such information on a website is a new development and much less clear, there being, among other things, potential benefits to customers in comparing prices, with many companies in different sectors doing this".

Despite doubts about the EU case, container lines still face a long wait before hearing whether they are in trouble, given the process set in train by the commission's November decision to open proceedings against them.

"Just because DG Comp has been silent does not mean nothing is happening," Hubert de Broca, head of the competition directorate's antitrust, transport and post unit, told London's Containerisation International.