On 20 November 2019, the European Commission (EC) published a further consultation on the proposal to extend the Consortia Block Exemption Regulation (BER).

The shipping and motor vehicles’ industries remain the only two sectors to benefit from a sector-specific block exemption. In recent years, the EC has been moving away from sector-specific exemptions. In 2018, the EU Insurance Block Exemption Regulation expired without the EC seeking to extend it.

The EC’s proposal is for an extension of the BER for another four years, although in previous years it has been extended for five years. The EC has indicated that an extension to the BER is justified based on the current market conditions and a number of other factors, including:

  • The BER facilitates the conclusion of consortia agreements by making the competition law assessment easier and providing greater legal certainty, thereby reducing risk.
  • The BER reduces the costs associated with competition compliance; without it, competition rules would become more complex and would involve a more detailed self-assessment.
  • The BER is consistent with other EU policies such as environmental protection (via a reduction in fuel consumption per TEU) and technological developments (via more modern liners), and it contributes to the global competitiveness of the EU’s shipping sector.

There has been one response to the current consultation so far from an anonymous source in China, which suggests that the BER could influence the approach that national competition authorities adopt toward consortia agreements:

“Consortia Block Exemption Regulation (CBER) can not only provide legal certainty for the shipping industry, it may also strongly cause marked changes in many national authorities’ attitudes and policies towards ‘consortia’ agreements. Therefore, the CBER application period should be prolonged.”

The consultation on the proposed regulation and the EC’s road map is currently open for responses.