MARITIME ALLIANCES AND EU COMPETITION LAW

100 MARITIME ALLIANCES AND EU COMPETITION LAW main competitor, held a noticeable market share – but was deemed incapable of exerting pressure on the conference. 104 In P&O Nedlloyd (1996) though the share of the conference had a thirty to forty per cent, none of the independents’ share exceeded five percent. 105 In TACA Decision (1998), despite the large market share of the independents that was around thirty percent, the conference was found to hold a dominant position in the market. 106 Finally in FETTCSA , though the inde- pendent liner companies did not disclose their exact market share (it is estimated that together they make up some twenty percent of the market), the Commission overcame the lack of evidence and reached a decision without them. Here, the major criterion of market dominance has been the merger of the FEFC and EATA conferences into a greater association, the FETTCSA. 107 Until their abolition, conferences could impose direct or indirect control over the trades. They had access to capital with good terms (low interest rates) and intro- duced new and better vessels. 108 In practice, every shipowner secures access to capital by providing creditors with a charterparty. Better finance brought better ships; better ships brought better quality and longer COAs. The rule with the es- tablished consortia, however, is that they enjoy better access to capital compared to independents and this works as a barrier to entry. In contrast, independents and new entrants settle for the confined part of the market that is allowed to them by these conferences, affecting their capacity to raise capital. This works as a re- sidual barrier to entry for any smaller competitor. It is an aggravating factor for a dominant consortium that combines this with practices and intent to eliminate competition. Historically, the independents’ market share was minimal, in both collective and individual terms. This, however, has changed recently, as independ- ent companies establish themselves in certain trades. The absence of balance between consortia and independents becomes even more skewed when market entrants arrive in the market in question and increase the cargo carrying capacity. 104.  Trans-Atlantic Agreemen t (IV/34.446) Commission Decision (TAA Decision) 94/980/EC [1994] OJ 376/1 paras 146,148 and 427. 105.  P&O Nedlloyd decision op. cit. 68 paras 68-69 and 73. 106.  TACA decision op. cit. n. 35 paras 244-266. 107.  FETTCSA decision op. cit. n. 79. 108. The argument of quality, as expressed by the European Liner Affairs Association (ELAA) is supportive of the argument that the liner shipping market is not homogeneous. The ELAA contests the view that liner shipping services are all the same. The level of quality of service varies. Shippers have described as their most critical performance factors network and de- livery, followed by price.