MARITIME ALLIANCES AND EU COMPETITION LAW

97 DOMINANT POSITION AND ABUSE INDICATORS IN LINER SHIPPING In the main, we are inclined to agree with the established view. We also however, evaluate the importance of correlating the market share in a specific time context. The main metric of the market power of a liner shipping conference is its ability to deviate profitability from marginal cost pricing. Hence, measuring marginal cost level should be the most appropriate base assessing the market power of a given company. 92 At the moment, it is very difficult to effectively measure profit margin in shipping for reasons analysed 93 in combination with the large market share and the capacity to withstand competitive pressure through the maritime cycles (sta- tistical element of duration.) 12.1 Shares among Competing Shipping Companies Relative market shares are just as important as absolute market shares. In the sec- tion above, the market shares of the closest competitors to the consortium in a dominant position would indicate the strength of its dominance compared to the actual market share held by the independents and other transport operators. Relative market shares held by the competitors of the liner conference operators may be affecting the conditions of competition. Independent liner firms or firms that participate in a consortium negotiate their rates with shippers independently. Since CEWAL , 94 “independents” are defined as those that do not belong to a con- sortium (or a conference). This definition should be expanded to include tramp companies, as they successfully contribute to competition. The AIRTOURS case sets interesting criteria, critically assessing the combined transport and tourism services with a focus on effective competition. 95 Between the late 1990s and early 2000s, there were allegations of anti-competitive behav- iour by “Airtours PLC”, a charter airline, selling package holidays to consumers who were only using the air services portion of the deal, thereby allowing the char- ter airline to avoid the more restrictive competition including licensing arrange- ments. This led to a reinvestigation of the different rules applied to the scheduled and charter segments of the UK air transport sector, treating them as different relevant markets in the context of competition law. The consequence of this is that scheduled and charter airlines are treated as non-competitors on shared routes for the purposes of competition law. 96 The CFI) examined, in the anti-competitive 92. Hovenkamp op. cit. n. 49 pp. 80-81; TACA decision, op. cit. n. 35 pp. 920-921. 93. infra section 16.1 Unfair and Excessive High Freight Rates. 94.  CEWAL decision op. cit. n. 64. 95.  AIRTOURS op. cit. n. 10. 96. Steven Truxal, Competition and Regulation in the Airline Industry : Puppets in Chaos [Lon- don & NY, Routledge 2012] 28-29.