MARITIME ALLIANCES AND EU COMPETITION LAW

99 DOMINANT POSITION AND ABUSE INDICATORS IN LINER SHIPPING shares of independents (in the liner shipping sector) have gradually increased since the introduction of containers at roughly the same time as the UNCTAD Code was adopted. From 10 per cent in 1979 (when the Regulation 4056/86 was being debated), the independent market share had reached 22-40 per cent by 1983; 101 exceptionally, independents enjoyed market shares reaching 70 per cent in Cana- dian trades. 102 Hypothetically, an independent which controlled 20 percent of the market would not be adhering to its traditional role. Based on this evidence, one can assume that a liner outside a consortium would find it difficult to survive un- less it completely changed its organisational structure and shareholders’ profiles. On the contrary, belonging to a consortium is in a large liner company’s interests, should the principals wish to maintain their market position and minimise market erosion. Progressively, in EC competition law, the market share held by independents has evolved to be a criterion (though not an important one) in determining the dominance of the bigger service providers. In various cases, the EU Commission has emphasised the factor of market share dominance and, for ancillary reasons, has relied on the share of independents per se . For instance, in CEWAL decision, whereby the dominant position of Cewal Trade between the northern European ports (from Scandinavia to Antwerp-Zeebrugge) and Zaire has been in principle reserved exclusively for Cewal since the 1985. The Cewal and Ogefrem (Zairian Maritime Freight Administration) agreement granted the conference an exclusive right to transport all cargoes, unless a derogation was granted with the consent of both co-signatories. In reality and despite Cewal’s protests, Ogefrem has reported to have granted an initial quota of two per cent of cargoes to the joint independ- ent service offered by the Italian and Belgian shipowners Grimaldi and Cobelfret (G&C). Moreover, Cewal maintained that this quota is frequently exceeded, which G&C admitting to a certain extent. Though this number was reasonable, the Com- mission decided to put forward the argument that market share difference between that of the independents and that of the conference was enormous. 103 Likewise, in TAA , where the five most important independent shipowners held around twenty percent of the market, the decisive factor behind the decision was the extent of col- lusive agreements between the conference members. Evergreen Marine Corp, the 101. Select Committee on the European Communities, Competition Policy: Shipping: Proposed Council Regulation Applying Articles 85 and 86 of the Treaty to Maritime Transport (third report) (HL 1985-86], paras 18-19. 102. Gunnar K. Sletmo and Susanne Holste, “Shipping and the Competitive Advantage of Na- tions: The Role of International Ship Registers” (1993) 20(3) Maritime Policy & Manage- ment 245-246. 103.  CEWAL (1992) op. cit. n. 64 paras 56-59.