## Facts

- Several shipping undertakings (including CMB, CMBT, and Dafra) were members of a liner conference (Cewal) providing regular maritime services between North Sea ports and ports in Zaire and Angola.
- The Commission found the conference members held a joint dominant position on the relevant trade route, with a combined market share above 90% and one principal independent competitor.
- The Commission concluded the conference pursued an exclusionary strategy to eliminate that competitor through multiple practices, including:
  - Participating in and pressing for strict implementation of a cooperation arrangement with a Zairean cargo-allocation agency (Ogefrem).
  - Using “fighting ships”: scheduling vessels on or near the competitor’s sailings and selectively cutting freight rates on those sailings while maintaining higher tariff rates elsewhere.
  - Offering loyalty rebates and concluding exclusivity or quasi-exclusivity arrangements with certain shippers to divert cargo away from the independent competitor.
- The Commission adopted a decision finding infringements of Article 85(1) EEC (restrictive agreements, including non-competition and market-sharing) and Article 86 EEC (abuse of collective dominance), and imposed fines.
- The Court of First Instance largely upheld the decision (with limited annulment/modification), and the undertakings appealed to the Court of Justice.

## Issues

1. Whether Articles 85 and 86 EEC could be applied simultaneously to the same undertakings and overall conduct.
2. What conditions justify finding a collective (joint) dominant position among legally independent undertakings in a liner conference.
3. Whether selective price-cutting (“fighting ships”) could constitute abuse of dominance even where prices were not shown to be below average total cost, given the market context and exclusionary aim.
4. Whether maritime transport rules and exemptions under Regulation (EEC) No 4056/86 constrained the application of Article 86 to liner conference conduct.
5. Whether procedural guarantees (including rights of defence) and the assessment of fines were lawfully respected.

## Decision

- The Court of Justice dismissed the appeals and upheld the judgment largely sustaining the Commission’s decision.
- The Court held Articles 85 and 86 may be applied concurrently when the legal conditions for each provision are satisfied.
- The Court confirmed that Cewal members could be treated as a collective entity holding a joint dominant position on the relevant market.
- The Court upheld the finding of abuse, including enforcement efforts tied to the Ogefrem arrangement, “fighting ships,” and loyalty rebates/exclusivity, treated as part of a single exclusionary strategy.
- The Court rejected the argument that Regulation 4056/86 insulated the conduct from Article 86 scrutiny.
- The Court found no demonstrated breach of rights of defence and no basis to disturb the fine assessment beyond the limited modifications already made at first instance.

## Legal Principles

- Articles 85 (restrictive agreements) and 86 (abuse of dominance) are not mutually exclusive and may be applied simultaneously where each provision’s elements are met.
- A collective dominant position may exist where legally independent undertakings, due to market structure and economic links (including conference rules and coordinated market behavior), act on the market as a collective entity.
- Exclusionary abuse can be established by a pattern of conduct aimed at eliminating a competitor, including targeted selective pricing and loyalty-inducing measures that foreclose access to customers.
- Selective price-cutting may be abusive in special circumstances, including where a very strong dominant position and market conditions support a finding that the conduct is designed to exclude a rival rather than compete on the merits.
- A block exemption or exemption regime under Article 85(3) for certain sector arrangements does not immunize dominant undertakings from liability under Article 86 for abusive conduct.
- In reviewing fines, relevant considerations include gravity and duration of the infringement, market power, and deterrence, subject to procedural fairness and adequate reasoning.

## Conclusion

The Court confirmed that liner conference members could be jointly dominant and liable for exclusionary abuse, that cartel and dominance rules may be enforced in parallel, and that sector-specific exemptions for conference coordination do not bar enforcement against abusive strategies such as “fighting ships” and loyalty-based foreclosure.


Compagnie Maritime Belge Transps. SA v. Comm’n of the Eur. Cmtys., Joined Cases C-395/96 P & C-396/96 P, 2000 E.C.R. I-1365 (C.J. 2000)