Australia competition commission clears Australia/Europe conference
The Australian Competition and Consumer Commission (ACCC) has cleared former members of the Australia to Europe Shipping Conference (AELA) of an alleged breach of Part X (Section 10.41) of the Australian Trade Practices Act.
The ACCC’s investigation was in response to a complaint in August 2005 from the Australian Peak Shippers Association (APSA) that the AELA had contravened negotiation obligations in relation to introducing increased origin terminal handling charges. APSA stated that AELA members had declined in the course of negotiations to allow it to see current and previous stevedoring contracts between AELA and its stevedores.
An ACCC draft report in December said the AELA had contravened one of the negotiation provisions in Part X, but following the receipt of further information said: “Grounds do not exist for (Warren Truss, the Minister for Transport and Regional Services) to be satisfied that the members of the AELA contravened the negotiation provisions of Part X in relation to the increase in the charges.”
The final report backtracked on the issue of confidentiality saying that the conference’s refusal to allow APSA to see the contracts did not contravene Part X, as the ACCC had declared in the draft report. “Another key consideration in reaching the final view was that APSA’s request to sight the contracts was a request to sight the contracts in their entirety and remained such throughout the negotiations. The ACCC considers that, in these particular circumstances, seeing the contracts in their entirety would have provided APSA with access to other information in the contracts that was not relevant to the purpose of the negotiations,” the ACCC said.
“The investigation of this issue has demonstrated that one of the challenges for the shipping industry is to find ways of addressing broad claims of confidentiality. The ACCC agrees with comments from the Department of Transport and Regional Services to the effect that, if the statutory framework for negotiations is to operate effectively, both parties to the negotiations must be prepared to negotiate in good faith to arrive at a solution that meets their respective needs, and that this may require the parties, if necessary, to move from their original positions,” the ACCC said.
The AELA disbanded in March following the withdrawal of a number of its members after recent takeover activity. When talks about the charges were held between the AELA and APSA, the conference members were: P&O Nedlloyd (now owned by A.P. Moller-Maersk), CMA CGM, Compagnie Maritime Marfret, Consortium Hispania Lines, Contship Container Lines (now owned by Hapag-Lloyd), Hamburg Sud and Hapag Lloyd.