Policy & Compliance
Post CBER – raising a complaint with the Competition and Markets Authority
T he Consortia Block Exemption Regulation (CBER), which had been transposed from EU into UK law, lapsed on 25 April 2024. Prior to this, shipping lines were automatically exempted from certain aspects of competition law. The decision not to replace the CBER on expiry, made after a thorough review of shipping line consortia by the Competition and Markets Authority (CMA), means that shipping lines will have to self- assess alliances and vessel sharing arrangements, etc, to ensure that these do not break competition law. This raises the possibility of traders and freight forwarders raising a complaint with the CMA. In many ways the CMA’s decision will impact the structure of the liner trade rather than day-to-day commercial activities. However, it is very clear that, moving forward, competition law will have a greater role to play in the commercial relationships between carriers and their customers. In this article we will examine how to make a complaint to the CMA. BIFA, as part of its submission to the CMA, advocated the establishment of an Ombudsman or use of an existing agency such as the Maritime and Coastguard Agency (MCA) to investigate complaints against shipping lines in the same way as the Civil Aviation Authority (CAA) handles complains against airlines. BIFA also argued that entities acting on behalf of shipping lines, such as ports, should be brought within the scope of the complaints process. These representations were not accepted during the consultation; hence all complaints will need to be submitted to the CMA. The process for reporting a competition issue is remarkably straightforward
Table of key legislation governing Competition Law Notes Legislation/Guidance
Competition Act 1998 (“CA98”)
In particular: 1) Section 2: Agreements etc, preventing, restricting or distorting competition. a. Agreements that prevent, restrict or distort competition are prohibited unless exempt under section 9 of the CA98.
2) Section 9: Exempt agreements a. eg if the agreement improves
production/distribution or promotes technical or economic progress while allowing consumers a fair share of the resulting benefit, an agreement may be exempt from the application of the section 2 prohibition above.
Enterprise Act 2002
This legislation establishes and provides for the functions of the CMA. This should be read in conjunction with the CA98.
CMA Report a competition or market problem
A short guide with contact details setting out how to tell the CMA about competition and consumer issues.
How the CMA handles information and complaints about businesses
The CMA welcomes information about practices in the marketplace but does not respond in detail to individual complaints. Complaints about businesses receive consideration as information of potential value to work that the CMA is currently doing or may in future undertake. However, no guarantee is offered as to whether and how such complaints may be used.
Guidance on the CMA's investigation procedures in Competition Act 1998 cases
See 3.12 – 3.19 in particular (How to make a competition complaint + Pre-complaint discussions).
“ BIFA argued that entities acting on behalf of shipping lines... should be brought within the scope of the complaints process
Making a complaint The complaints process is detailed in a document entitled Report a competition or market problem (scan the QR code to view). The process for reporting a competition issue is remarkably straightforward, probably because many such reports are from the general public regarding consumer matters. Having reviewed the relevant pages, the importance attached to information received from ‘whistle- blowers’ is interesting. The reporting processes for such informants are separate from the general ones with a unique website
and e-mail address. It has to be emphasised that in most cases one complaint is not going to lead to the CMA opening a formal enforcement case. However, should sufficient complaints be submitted an investigation is more likely. The question remains, what potential legislative breaches by a shipping line will lead to an investigation? The key pieces of relevant legislation, against which any potential breaches of competition law will be judged, are included in the table above.
10 | May 2024
www.bifa.org
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