Black Sea Port in Georgia Scrutinised by the Georgian Competition Authority Relying upon EU Case Law as Plans for Expansion Rejected

Black Sea Port in Georgia Scrutinised by the Georgian Competition Authority Relying upon EU Case... Key Points The Georgian Competition Authority has determined that a Danish company’s intended expansion plans at the sea port of Poti, situated by the Black Sea in Georgia, are anticompetitive relying on the practice of the EU and the Member States. The dominant company’s plan to integrate its port services with the terminal services offered through its subsidiary in Poti would result in an abuse of dominance under Georgian Law. I. Setting the scene: seascape On 21 April 2017 the Georgian Competition Authority (the Competition Authority) reached a decision relating to abuse of dominance proceedings brought against the port operating company based in the Georgian port of Poti situated on the Black Sea (the Decision). The Competition Authority determined that the decision of the company operating the port of Poti (PPC)1 to introduce fixed integrated tariffs for disembarking, transportation and the storage of goods would constitute a violation of the Georgian Law on Competition.2 The Competition Authority found that PPC holds a monopoly and has profited for a number of years from exclusive rights for certain services in the port. In its Decision the Competition Authority largely relied on the case law of the EU and Member States.3 Preceded by a brief presentation of the Poti sea port, this article discusses the main issues raised in the Decision as well as their conformity with EU law, where appropriate. II. Poti sea port Poti is the largest Georgian port and is an important gateway for foreign trade in the region. As the only country in the Southern Caucasus with access to the Black Sea, Georgia benefits from a large share of trade passing through the port from the neighbouring landlocked countries of Armenia and Azerbaijan. The trading route from Poti is the quickest trading route between Europe and Asia. In addition, Georgia and the EU signed an Association Agreement (effective as of 1 July 2016) and introduced a free trading area (the so-called DCFTA), which is expected to lead to further trading through the port. As a result of these agreements with the EU, the goods produced in Georgia benefit from free access to the European market. In 2008 the Georgian state sold 51% of its shares in the Poti Sea Port to Ras Al Khaimah Investment Authority (RAKIA), an investment company from the United Arab Emirates. Since 2011 APM Terminals Poti4 (part of the Danish conglomerate A.P. Moeller-Maersk Group) has held a majority shareholding in the port and has operated PPC. APM Terminals has invested over USD 65 million in upgrading and expanding the port, in particular focussing on infrastructure works and service fittings. Most notably APM Terminals’ investment includes the construction of a new customs operation and the improvement of surrounding railway lines.5 Apart from sea port services offered by PPC, sixteen land container terminal companies operate in the vicinity of port of Poti. The service portfolio of these companies includes the storage and safe-keeping of goods. International Container Terminals (ICT), which is a wholly owned subsidiary of PPC, is one of the land container terminal companies providing such services. ICT was incorporated as part of APM Terminals’ port expansion programme and the activities of the port are expected to be expanded following the construction of a new quay, roads and train infrastructure next to ICT.6 In order to start their operations in the port of Poti, the terminal companies are required to obtain approval form the Georgian Revenue Service, which is part of the Georgian Ministry of Finance. In the recent past PPC and its subsidiary ICT already attracted antitrust scrutiny in Georgia. In March 2015 the Competition Authority found that the customs authorities had violated Georgian Law on Competition, through a de facto preference for ICT.7 As a result, the Competition Authority instructed the customs authorities to treat all sea port service providers granted the same rights by means of official authorisations, equally. III. Abuse of dominance proceedings against PPC On 21 June 2016, following complaints from fourteen port terminal and logistics companies, the Competition Authority initiated abuse of a dominant position proceedings against PPC.8 The complaints related to PPC’s decision to introduce new uniform integrated tariffs for disembarking, transportation and the storage of goods from 1 July 2016 (Integration Plan). The Integration Plan was announced to the land terminal companies via e-mails on 31 May 2016. According to the complaints, PPC planned to integrate the sea port quays and the ICT land terminal, which would have resulted in all containers entering Poti being forced to use ICT’s terminal and storage services. The complainants claimed that this would threatened the business of other terminal companies competing with ICT. At the Competition Authority’s request, the Integration Plan was provisionally suspended by the court. On 21 April 2017 the Competition Authority adopted the 148-page Decision – comparable to a sector enquiry – which scrutinised many aspects of the market and the idiosyncrasies of the Georgian port. In its most voluminous decision so far the Competition Authority analysed applicable competition legislation and the legislation relating to port operations in Georgia. In addition, the Competition Authority depicted the Recommended Practices of ICN Unilateral Conduct Working Group in relation to substantial market power analysis. It also described the experience of competition proceedings related to ports and port services in Member States and the European Commission. For this purpose, the Competition Authority presented a Slovenian case from 2009 for abuse of dominance by Luca Koper operating port of Koper in Slovenia9 as well as European Commission abuse of dominance cases in detail (Microsoft cases10 and CBEM v CLT and IPB11). In its analysis the Competition Authority referred to these cases and relied on them in its conclusions. A. Legal basis The legal basis of the Decision is the Georgian Law on Competition. During negotiations of the Association Agreement with the EU, the Georgian parliament approximated Georgian legislation with EU competition law. As a result, Georgian law adopted the wording of Article 102 Treaty of the Functioning of the European Union (TFEU). According to Article 6 (1) of the Georgian Law on Competition any abuse of a dominant position by one or more undertakings is prohibited. Article 6 (2) further lists potential abuses, in accordance with Article 102 TFEU. Under Article 5 of the Georgian Law on Competition, the dominant position of an undertaking is determined on the basis of its share of the relevant market, financial status of competing undertakings, barriers to market entry or to production expansion, buyer market power, availability of raw material sources, degree of vertical integration, network effects and other factors determining market power. For the definition of the relevant market the Competition Authority also relies on the internal Guidelines of Market Analysis (the Market Analysis Guidelines). As regards the port operation rules in Georgia, the Georgian Maritime Transport Agency, a department within the Ministry of the Economy and Sustainable Development, is responsible for the regulation of the marine sector according to the Georgian Maritime Code. The Georgian Maritime Transport Agency has adopted the ‘Sea Port Rules’, which apply to all sea ports in Georgia. According to the rules, a terminal is a distinct part of a port where goods and passenger services are offered. Except for cases specifically provided for in the Act, sea ports may not interfere with the companies rights in the port as well as with their economic activities. B. Analysis of relevant markets in the port of Poti 1. Definition of relevant product markets According to the Market Analysis Guidelines, a relevant product market comprises all those products or services which are regarded as substitutable by reason of the products’ characteristics, their prices and their intended use. Both demand-side and supply-side substitutability have to be taken into account. The Competition Authority determined that the following procedures take place on the basis of the existing infrastructure in the port of Poti: the removal of containers in the port by PPC; the loading of containers onto a container transport vehicle, either owned by an independent car transporter or a land container terminal, and transporting the containers to land container terminals; and the unloading of containers from the container transport vehicle in the land container terminal and storing them in the customs control zone for further processing. The Competition Authority has looked in detail at the services offered in the port. In the sixteen land container terminal companies the following terminal services were offered: the unloading of containers from the container transport vehicle; their transportation into the storage facility; and their storage. Apart from that, the following additional services were offered when required: (i) the opening of containers, (ii) the arrangement of customs documents, (iii) the connection of the containers to a power supply and (iv) the loading of the containers onto a means of transport. The Competition Authority concluded that all of these services were part of the same product market, since the provision of these terminal services by different land container terminal companies would be technically difficult to achieve (for example, it would be inconvenient to transport a container already opened in one terminal to another terminal for storage). The Competition Authority has also considered whether terminal services and port services belong to the same product market. It noted that the service markets in the port of Poti differed from most ports where normally all the services offered in the sea port form a single product market. The reason for this particular feature is that there is no terminal for the initial processing of the containers at the quays in Poti. This has resulted in the formation of ‘off-docks’ land container terminals in the area of the port. By contrast, most sea ports around the world have ocean-going container terminals that allow port and terminal services to be offered in one cycle. As this is not the case at Poti, the Competition Authority considered that the port and terminal services constitute two separate product markets. In order to justify the division of port and terminal services into two separate product markets, the Competition Authority relied on the fact that sixteen companies operating in the port of Poti offered terminal services on an autonomous basis, independently from port services. The Competition Authority based its analysis on the EU case of Microsoft,12 where the fact that there were distributors who developed and supplied streaming media players independently of client PC operating systems served as evidence to demonstrate the existence of separate consumer demand for streaming media players. As a result, the Competition Authority identified the existence of three different service markets in the port: (i) a first market for port services (port handling services) provided for container cargo at PPC, (ii) a second market for the land transport of containers between PPC and the customs terminals and (iii) a third market for terminal services of these containers loaded and unloaded by PPC. The recipients of all three services are shipping lines. According to the Competition Authority, the abovementioned segmentation is appropriate given that the shipping lines normally conclude three different contracts: a contract with PPC, another contract with an operator of container transport vehicles and a third contract with a land container terminal. 2. Definition of relevant geographic markets According to the Market Analysis Guidelines, a relevant geographic market comprises the area in which the buyers are acquiring the product or service or have an economic, technical or other possibility to do so. While determining the geographic borders of the relevant market, the Competition Authority analysed the possibility of considering the port of Poti and the port of Batumi (situated 70 km distance from Poti), as part of a single geographic market. However, since the acquirers of port services for the purpose of the market definition are the owners of the cargo, who have chosen Poti as the desired place of disembarkation, and not the shipping lines, other sea ports were not deemed relevant. Moreover, the Competition Authority ascertained that the types of goods shipped to Batumi and Poti sea ports differ from each other due to different technical characteristics of each port (the share of the so-called ‘dry goods’ is high at Poti, whereas the port of Batumi is focussed on so-called ‘wet goods’ and the share of the dry goods is minimal). Accordingly, the Competition Authority defined the geographic borders for the market of port services (port handling services) provided for container cargo at PPC as the port of Poti. For the markets for the land transport of containers between PPC and the customs terminals, as well as the market for terminal services of these containers loaded and unloaded by PPC, the Competition Authority defined the geographic market as limited to the city of Poti. 3. Market players and the level of concentration The Competition Authority further found that PPC was the only company offering port services (port handling services) for container cargo at the port of Poti and thus that it held a market share of 100%. The Competition Authority noted that even if Batumi port were included in the same geographic market definition, PPC would still have a dominant position on the market for port services for container cargo in the ports of Batumi and Poti. By the beginning of 2016, there were eight transportation companies active on the market for the land transport of containers between PPC and the customs terminals. Based on the HHI index the Competition Authority concluded that this market was moderately concentrated. On the third market for terminal services for containers the Competition Authority identified 16 active companies. According to the HHI index this market was described as unconcentrated. C. Analysis of PPC’s integration plan in terms of abuse of market dominance Given that PPC holds a dominant position in the market for port services, the Competition Authority concluded that PPC would infringe Article 6 of the Georgian Law on Competition (abuse of dominance) with the planned integration of its terminal service provider, ICT. In order to reach this conclusion, the Competition Authority analysed the conformity of the Integration Plan with the competition legislation on the one hand, and evaluated the actual steps taken by PPC, on the other hand. According to the Integration Plan, PPC would unload or load, i.e. provide port services to the containers on the territory of the land container terminal ICT, a subsidiary of PPC. For the combination of the three services, i.e. storage at the facilities of the ICT, transportation to the PPC and port services, PPC would introduce an integrated tariff. The Competition Authority analysed the Integration Plan in relation to the prohibition of abuse of dominant position stipulated in Article 6 of the Georgian Law on Competition. 1. Supplementary obligation In the first instance the Competition authority discussed whether PPC’s actions would constitute a type of abuse as described in Article 6 (2) (d). According to this provision, making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts can constitute abuse. The Competition Authority considered that the only difference between the logistics before and after the implementation of PPC’s Integration Plan would be the place of execution of the contract for PPC’s port services. Thus, the conditions of PPC’s port services contract offered online would, after the introduction of the change, contain a different place of execution, namely the territory of the ICT. The Competition Authority also emphasised that the terms offered by PPC constituted General Terms and Conditions and the contracting parties would not be able to negotiate on them. The only choice the shipping lines would have would be whether to enter the contract for port services or not. For the evaluation of the applicability of Article 6 (2) (d) the Competition Authority explained in detail the necessary legal prerequisites, namely, (i) undertaking holding a dominant position in the market; (ii) bilateral (or multilateral) contract and a subject of the contract; (iii) supplementary obligation as a condition for the conclusion of the contract; (iv) absence of connection between the subject of the contract and the supplementary obligation. The Competition Authority further explained that the change in the place of contract execution would not itself constitute a supplementary obligation. However, this change would actually result in obliging the other party to purchase two more services from PPC or its subsidiary ICT, namely: (i) transportation of the container to the ICT facility and (ii) its storage at ICT’s facilities until collected. According to the observations and analysis of the Competition Authority there was no connection between the subject of the contract on port services concluded between PPC and shipping lines, and the supplementary obligations of concluding a transportation contract with PPC as well as a storage contract with the ICT. The Competition Authority stressed that it shared the approach taken by the European Commission in the Microsoft cases,13 reaching the conclusion that there was an absence of connection between the subject of the contract and the supplementary obligations as the three services purchased constituted different product markets, based on the following reasoning: these markets functioned independently; there were undertakings offering transportation services on the territory of the Poti port to any terminal as well as undertakings providing terminal services (storage or other processing of containers); PPC itself offers terminal services, including services of container storage, separately from port services. Accordingly, the Competition Authority concluded that the Integration Plan contained a condition relating to the conclusion of the contract, namely that the contracting parties would have to accept additional services, which were not related to the subject of the contract (Article 6 (2) (d)). As a consequence, the shipping lines, which use PPC’s port services, would be forced to conclude a contract for terminal services with the ICT as well as a transportation contract with PPC. However, the Competition Authority did not analyse the potential effects of the scenario of actual introduction of the Integration Plan and did not elaborate on how the market for terminal services would be influenced by the fact that the shipping lines would be forced to conclude contracts for terminal services with ICT. 2. Limiting production Secondly, the Competition authority discussed whether PPC’s actions would constitute a type of abused described in Article 6 (2) (b). According to this provision, limiting production, markets or technical development to the prejudice of consumers can constitute abuse. The Competition Authority explained that this provision envisages two possible kinds of limitation: (i) a dominant undertaking limiting its own production in order to cause misbalance of demand and supply, resulting in product deficit and an increase of prices; or (ii) a dominant undertaking limiting the production of competitors. The Competition Authority focussed its analysis on the latter possibility and assessed the effects that PPC’s Integration Plan would have on the markets for terminal services and for the land transport of containers between PPC and the terminals. For this assessment the Competition Authority relied on the essential facilities doctrine and the relevant experience of the competition authorities of European countries. The Competition Authority cited two cases from the European Commission, Port of Rodby14 and Sea Containers Stena Link,15 where the companies operating both ports (DSB and Stena Link), were also providing services on downstream markets and preventing the entry of potential competitors to those markets. In these cases, the European Commission had considered ports as essential facilities and obliged their owners to grant access to the undertakings operating on or wishing to enter the downstream markets. Based on those cases, the Competition Authority developed the following prerequisites for the application of the aforementioned provision (Article 6 (2) (b)): (i) dominant position of the undertaking in the relevant market; (ii) the dominant undertaking having at its disposal an essential facility, access to which is indispensable for operating on the downstream market; (iii) the dominant undertaking preventing other undertakings operating on the downstream markets in some form; and (iv) detriment to customers. The Competition Authority assumed the first two points to be fulfilled and analysed the effects of the Integration Plan on the market for the land transport of containers between PPC and the customs terminals. The Competition Authority came to the conclusion that due to the fact that the primary customs procedures are also offered at the ICT, there would be no need for the shipping lines, i.e. the owner of the container goods to transport the containers unloaded by PPC and stored at the ICT to any other terminals, unless the containers had to undergo other more complicated customs procedures not covered by the primary customs procedures (such as a container needing to be opened up for customs control – which happens for fewer than 40% of all container goods in Poti). According to the Competition Authority, this would lead to a limiting of the market for the land transport of containers between PPC and the customs terminals. In relation to the detriment to consumers, the Competition Authority emphasised the importance of freedom of consumer choice, which the Integration Plan would restrict. Moreover, by introducing an integrated tariff for all three services (port, transport and terminal services) as a result of the Integration Plan, customers would not be able to use services of a terminal or transportation undertaking offering better services or a cheaper price. 3. Objective justification In its Decision the Competition Authority also analysed the possible grounds for objective justification of PPC’s Integration Plan based on the economic paper submitted by RBB Economics. The main arguments in favour of the Integration Plan were the inefficiencies of the whole logistical system in Poti port and security issues. The Competition Authority analysed these grounds of objective justification and rejected the arguments in relation to inefficiencies brought by the economists, relying inter alia on the facts it observed during site visits. As to the security issues, the Authority considered that the implementation of the Integration Plan by PPC would not constitute the unique and proportionate measure to solve them. IV. Helpful but not a sea change In the end, the Competition Authority analysed whether PPC’s Integration Plan was a ‘completed act’ for the purposes of Article 6 of the Georgian Law on Competition (abuse of dominance). The Authority held that a unilateral decision made by an undertaking holding a dominant position constitutes a completed act, however, as long as the decision has not been implemented, the undertaking is not yet able to benefit from the restrictive effect of its decision. This was the case for PPC since its decision which was supposed to be implemented as of 1 July 2016 had been suspended by the court as requested by the Competition Authority. The Competition Authority also emphasised the difference between unilateral conduct and anticompetitive agreements between undertakings. According to the Competition Authority, the legislator emphasised in Article 7 of the Georgian Law on Competition that agreements which have as their object or effect the prevention, restriction or distortion of competition are prohibited; whereas in the case of abuse of dominance there is no such remark in the law. The Competition Authority explained that the difference between the two is that the prohibition of anticompetitive agreements also covers agreements that have no current effect on competition but are intended to have one in the future. According to the Competition Authority, in the case of unilateral anticompetitive conduct the legislator left it open whether the presence of an effect is necessary or whether a mere object of distorting competition suffices. The Competition Authority viewed the distinction between competition restrictions by effect and restrictions by object in a somewhat different way than that common in EU law. Under EU law certain forms of collusion between undertakings can be regarded by their very nature as being injurious to the proper functioning of normal markets. Such collusions are often referred to as restrictions by object, because it is presumed that its effects on the market are restrictive.16 However, this does not necessarily mean that the anticompetitive effects of the restrictions by object are not yet present on the market. Contrary to this, the Georgian Competition Authority suggested that the difference between restrictions by object and restrictions by effect is the moment when a restriction’s anticompetitive effects are realised. Overall, the Competition Authority left the question open as to whether abuse of dominance restricts competition by object or by effect, which aligns with the EU case law17 position, as well as with the position outlined in the European Commission’s Guidance on Article 102 Enforcement Priorities.18 Furthermore, the Competition Authority analysed the term ‘abuse’ and concluded that it meant a completed act, notwithstanding the question in relation to whether to rely on the effects assessment or not. Since PPC’s Integration Plan had never been implemented, the Competition Authority deemed that it could not constitute a completed act, i.e. an act resulting in restriction of any market or imposition of any supplementary obligations. Nonetheless, the Competition Authority observed that the reason why PPC could not complete implementation of its the Integration Plan was the suspension order issued by the court. According to Georgian legislation, the decisions made by PPC including the one introducing the Integration Plan are legally binding for its contracting parties as well as for PPC itself. PPC would not have to take any other steps for its decision to become effective. For the above reasons, the Competition Authority qualified PPC’s conduct as attempted abuse of dominance, for which there are no sanctions prescribed by the legislation of Georgia. Since PPC’s conduct did not constitute a completed act (the decision was not implemented), it could not properly be considered an infringement of Article 6 (2) (b) and (d) by the Competition Authority. However, the Competition Authority warned PPC that the implementation of the Integration Plan in the current form would result in an infringement of Article 6 (2) (b) and (d) of the Georgian Law on Competition, for which Article 33 prescribes fines. V. Summary To summarise, the Competition Authority of Georgia’s Decision in the case of PPC, the company operating the port of Poti, does not have any direct consequences for the undertaking. Even though the introduction of PPC’s Integration Plan would have resulted in an abuse of dominance, no abuse of dominance was found as the Plan has not been implemented, as the legally binding decision introducing the integrated tariffs was suspended by the court upon request of the Competition Authority. Accordingly, the Competition Authority’s Decision only constituted a warning, that if PPC’s new tariffs were implemented in the way intended, PPC’s conduct would be considered an abuse of a dominant position and it would be fined in accordance with Article 33 (1) of Georgian Law on Competition up to 5% of its annual turnover. As there existed prior to the case no such precedent in Georgian competition law practice, the Decision of the Competition Authority provides guidance not only for the port services sector but for future abuse of dominance cases following the EU case law. This clearly demonstrates that the country with a young competition law regime seeks to follow western European values and expertise in this area. The Decision also offers useful information on the market delimitation of port handling services, which can serve as a basis for any future competition proceedings relating to port services. Footnotes 1 The term ‘port of Poti’ will further be used to refer to the geographic area of the sea port. 2 Law of Georgia on Competition dated 8 May 2012 N 6148-IS, last modified on 21 March 2014. An English translation of the Law is available under <https://matsne.gov.ge/ka/document/view/1659450?impose=translateEn> accessed 8 September 2017. 3 After the restoration of its independence and several attempts at introducing competition policy, including liberalised trade policy and abolition of the predecessor competition authority, Georgia first adopted the Law on Competition in May 2012. However, the turning point was April 2014 when, based on recommendations and support from the EU, the Law was amended, founding a competition agency with the functions typical of a modern competition authority. 4 APM Terminals is a leading global service provider for container terminals. It operates a total of 73 ports in 69 countries. Read more at <http://www.apmterminals.com/about-us> accessed 8 September 2017. 5 See more here: <http://www.apmterminals.com/en/operations/africa-middle-east/poti/about-us> accessed 8 September 2017. 6 See more at: <http://www.apmterminals.com/en/operations/africa-middle-east/poti/about-us> accessed 8 September 2017. 7 Decision approved by the Decree of the Head of the Competition Authority N40, dated 30 March 2015. 8 See a summary of the Decision in English here <http://competition.ge/en/page4.php?b = 571> accessed 12 January 2018. 9 See a section relating to the Slovenian case in the OECD paper on competition in ports and port services from 2011, pp. 177–184, available at: http://www.oecd.org/regreform/sectors/48837794.pdf. 10 EC: Case COMP/C-3/39.530 Microsoft (tying). EC: Case COMP/C-3/37.792 Microsoft. 11 ECJ: Case C-311/84 Centre belge d'études de marché – Télémarketing (CBEM) v SA Compagnie luxembourgeoise de télédiffusion (CLT) and Information publicité Benelux (IPB), ECLI:EU:C:1985:394. 12 CFI: Case T-201/04 Microsoft v Commission, EU:T:2007:289, 2007 II-03601, paras 925–927. 13 EC: Case COMP/C-3/37.792 Microsoft. CFI: Case T-201/04 Microsoft v Commission, EU:T:2007:289, 2007 II-03601. 14 EC: 94/119/EC Port of Rodby [1993] OJ 1994 L55/52. 15 EC: 94/19/EC Sea Containers/Stena Sealink [1993] OJ 1994 L15/8. 16 Commission Staff Working Document, Guidance on restrictions of competition ‘by object’ for the purpose of defining which agreements may benefit from the De Minimis Notice, p. 3. 17 See e.g. Michelin II, 30 September 2003, T-203/01, para. 41. 18 Communication from the Commission, Guidance on Article 102 Enforcement Priorities, OJ 2009 C 45/7. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of European Competition Law & Practice Oxford University Press

Black Sea Port in Georgia Scrutinised by the Georgian Competition Authority Relying upon EU Case Law as Plans for Expansion Rejected

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Abstract

Key Points The Georgian Competition Authority has determined that a Danish company’s intended expansion plans at the sea port of Poti, situated by the Black Sea in Georgia, are anticompetitive relying on the practice of the EU and the Member States. The dominant company’s plan to integrate its port services with the terminal services offered through its subsidiary in Poti would result in an abuse of dominance under Georgian Law. I. Setting the scene: seascape On 21 April 2017 the Georgian Competition Authority (the Competition Authority) reached a decision relating to abuse of dominance proceedings brought against the port operating company based in the Georgian port of Poti situated on the Black Sea (the Decision). The Competition Authority determined that the decision of the company operating the port of Poti (PPC)1 to introduce fixed integrated tariffs for disembarking, transportation and the storage of goods would constitute a violation of the Georgian Law on Competition.2 The Competition Authority found that PPC holds a monopoly and has profited for a number of years from exclusive rights for certain services in the port. In its Decision the Competition Authority largely relied on the case law of the EU and Member States.3 Preceded by a brief presentation of the Poti sea port, this article discusses the main issues raised in the Decision as well as their conformity with EU law, where appropriate. II. Poti sea port Poti is the largest Georgian port and is an important gateway for foreign trade in the region. As the only country in the Southern Caucasus with access to the Black Sea, Georgia benefits from a large share of trade passing through the port from the neighbouring landlocked countries of Armenia and Azerbaijan. The trading route from Poti is the quickest trading route between Europe and Asia. In addition, Georgia and the EU signed an Association Agreement (effective as of 1 July 2016) and introduced a free trading area (the so-called DCFTA), which is expected to lead to further trading through the port. As a result of these agreements with the EU, the goods produced in Georgia benefit from free access to the European market. In 2008 the Georgian state sold 51% of its shares in the Poti Sea Port to Ras Al Khaimah Investment Authority (RAKIA), an investment company from the United Arab Emirates. Since 2011 APM Terminals Poti4 (part of the Danish conglomerate A.P. Moeller-Maersk Group) has held a majority shareholding in the port and has operated PPC. APM Terminals has invested over USD 65 million in upgrading and expanding the port, in particular focussing on infrastructure works and service fittings. Most notably APM Terminals’ investment includes the construction of a new customs operation and the improvement of surrounding railway lines.5 Apart from sea port services offered by PPC, sixteen land container terminal companies operate in the vicinity of port of Poti. The service portfolio of these companies includes the storage and safe-keeping of goods. International Container Terminals (ICT), which is a wholly owned subsidiary of PPC, is one of the land container terminal companies providing such services. ICT was incorporated as part of APM Terminals’ port expansion programme and the activities of the port are expected to be expanded following the construction of a new quay, roads and train infrastructure next to ICT.6 In order to start their operations in the port of Poti, the terminal companies are required to obtain approval form the Georgian Revenue Service, which is part of the Georgian Ministry of Finance. In the recent past PPC and its subsidiary ICT already attracted antitrust scrutiny in Georgia. In March 2015 the Competition Authority found that the customs authorities had violated Georgian Law on Competition, through a de facto preference for ICT.7 As a result, the Competition Authority instructed the customs authorities to treat all sea port service providers granted the same rights by means of official authorisations, equally. III. Abuse of dominance proceedings against PPC On 21 June 2016, following complaints from fourteen port terminal and logistics companies, the Competition Authority initiated abuse of a dominant position proceedings against PPC.8 The complaints related to PPC’s decision to introduce new uniform integrated tariffs for disembarking, transportation and the storage of goods from 1 July 2016 (Integration Plan). The Integration Plan was announced to the land terminal companies via e-mails on 31 May 2016. According to the complaints, PPC planned to integrate the sea port quays and the ICT land terminal, which would have resulted in all containers entering Poti being forced to use ICT’s terminal and storage services. The complainants claimed that this would threatened the business of other terminal companies competing with ICT. At the Competition Authority’s request, the Integration Plan was provisionally suspended by the court. On 21 April 2017 the Competition Authority adopted the 148-page Decision – comparable to a sector enquiry – which scrutinised many aspects of the market and the idiosyncrasies of the Georgian port. In its most voluminous decision so far the Competition Authority analysed applicable competition legislation and the legislation relating to port operations in Georgia. In addition, the Competition Authority depicted the Recommended Practices of ICN Unilateral Conduct Working Group in relation to substantial market power analysis. It also described the experience of competition proceedings related to ports and port services in Member States and the European Commission. For this purpose, the Competition Authority presented a Slovenian case from 2009 for abuse of dominance by Luca Koper operating port of Koper in Slovenia9 as well as European Commission abuse of dominance cases in detail (Microsoft cases10 and CBEM v CLT and IPB11). In its analysis the Competition Authority referred to these cases and relied on them in its conclusions. A. Legal basis The legal basis of the Decision is the Georgian Law on Competition. During negotiations of the Association Agreement with the EU, the Georgian parliament approximated Georgian legislation with EU competition law. As a result, Georgian law adopted the wording of Article 102 Treaty of the Functioning of the European Union (TFEU). According to Article 6 (1) of the Georgian Law on Competition any abuse of a dominant position by one or more undertakings is prohibited. Article 6 (2) further lists potential abuses, in accordance with Article 102 TFEU. Under Article 5 of the Georgian Law on Competition, the dominant position of an undertaking is determined on the basis of its share of the relevant market, financial status of competing undertakings, barriers to market entry or to production expansion, buyer market power, availability of raw material sources, degree of vertical integration, network effects and other factors determining market power. For the definition of the relevant market the Competition Authority also relies on the internal Guidelines of Market Analysis (the Market Analysis Guidelines). As regards the port operation rules in Georgia, the Georgian Maritime Transport Agency, a department within the Ministry of the Economy and Sustainable Development, is responsible for the regulation of the marine sector according to the Georgian Maritime Code. The Georgian Maritime Transport Agency has adopted the ‘Sea Port Rules’, which apply to all sea ports in Georgia. According to the rules, a terminal is a distinct part of a port where goods and passenger services are offered. Except for cases specifically provided for in the Act, sea ports may not interfere with the companies rights in the port as well as with their economic activities. B. Analysis of relevant markets in the port of Poti 1. Definition of relevant product markets According to the Market Analysis Guidelines, a relevant product market comprises all those products or services which are regarded as substitutable by reason of the products’ characteristics, their prices and their intended use. Both demand-side and supply-side substitutability have to be taken into account. The Competition Authority determined that the following procedures take place on the basis of the existing infrastructure in the port of Poti: the removal of containers in the port by PPC; the loading of containers onto a container transport vehicle, either owned by an independent car transporter or a land container terminal, and transporting the containers to land container terminals; and the unloading of containers from the container transport vehicle in the land container terminal and storing them in the customs control zone for further processing. The Competition Authority has looked in detail at the services offered in the port. In the sixteen land container terminal companies the following terminal services were offered: the unloading of containers from the container transport vehicle; their transportation into the storage facility; and their storage. Apart from that, the following additional services were offered when required: (i) the opening of containers, (ii) the arrangement of customs documents, (iii) the connection of the containers to a power supply and (iv) the loading of the containers onto a means of transport. The Competition Authority concluded that all of these services were part of the same product market, since the provision of these terminal services by different land container terminal companies would be technically difficult to achieve (for example, it would be inconvenient to transport a container already opened in one terminal to another terminal for storage). The Competition Authority has also considered whether terminal services and port services belong to the same product market. It noted that the service markets in the port of Poti differed from most ports where normally all the services offered in the sea port form a single product market. The reason for this particular feature is that there is no terminal for the initial processing of the containers at the quays in Poti. This has resulted in the formation of ‘off-docks’ land container terminals in the area of the port. By contrast, most sea ports around the world have ocean-going container terminals that allow port and terminal services to be offered in one cycle. As this is not the case at Poti, the Competition Authority considered that the port and terminal services constitute two separate product markets. In order to justify the division of port and terminal services into two separate product markets, the Competition Authority relied on the fact that sixteen companies operating in the port of Poti offered terminal services on an autonomous basis, independently from port services. The Competition Authority based its analysis on the EU case of Microsoft,12 where the fact that there were distributors who developed and supplied streaming media players independently of client PC operating systems served as evidence to demonstrate the existence of separate consumer demand for streaming media players. As a result, the Competition Authority identified the existence of three different service markets in the port: (i) a first market for port services (port handling services) provided for container cargo at PPC, (ii) a second market for the land transport of containers between PPC and the customs terminals and (iii) a third market for terminal services of these containers loaded and unloaded by PPC. The recipients of all three services are shipping lines. According to the Competition Authority, the abovementioned segmentation is appropriate given that the shipping lines normally conclude three different contracts: a contract with PPC, another contract with an operator of container transport vehicles and a third contract with a land container terminal. 2. Definition of relevant geographic markets According to the Market Analysis Guidelines, a relevant geographic market comprises the area in which the buyers are acquiring the product or service or have an economic, technical or other possibility to do so. While determining the geographic borders of the relevant market, the Competition Authority analysed the possibility of considering the port of Poti and the port of Batumi (situated 70 km distance from Poti), as part of a single geographic market. However, since the acquirers of port services for the purpose of the market definition are the owners of the cargo, who have chosen Poti as the desired place of disembarkation, and not the shipping lines, other sea ports were not deemed relevant. Moreover, the Competition Authority ascertained that the types of goods shipped to Batumi and Poti sea ports differ from each other due to different technical characteristics of each port (the share of the so-called ‘dry goods’ is high at Poti, whereas the port of Batumi is focussed on so-called ‘wet goods’ and the share of the dry goods is minimal). Accordingly, the Competition Authority defined the geographic borders for the market of port services (port handling services) provided for container cargo at PPC as the port of Poti. For the markets for the land transport of containers between PPC and the customs terminals, as well as the market for terminal services of these containers loaded and unloaded by PPC, the Competition Authority defined the geographic market as limited to the city of Poti. 3. Market players and the level of concentration The Competition Authority further found that PPC was the only company offering port services (port handling services) for container cargo at the port of Poti and thus that it held a market share of 100%. The Competition Authority noted that even if Batumi port were included in the same geographic market definition, PPC would still have a dominant position on the market for port services for container cargo in the ports of Batumi and Poti. By the beginning of 2016, there were eight transportation companies active on the market for the land transport of containers between PPC and the customs terminals. Based on the HHI index the Competition Authority concluded that this market was moderately concentrated. On the third market for terminal services for containers the Competition Authority identified 16 active companies. According to the HHI index this market was described as unconcentrated. C. Analysis of PPC’s integration plan in terms of abuse of market dominance Given that PPC holds a dominant position in the market for port services, the Competition Authority concluded that PPC would infringe Article 6 of the Georgian Law on Competition (abuse of dominance) with the planned integration of its terminal service provider, ICT. In order to reach this conclusion, the Competition Authority analysed the conformity of the Integration Plan with the competition legislation on the one hand, and evaluated the actual steps taken by PPC, on the other hand. According to the Integration Plan, PPC would unload or load, i.e. provide port services to the containers on the territory of the land container terminal ICT, a subsidiary of PPC. For the combination of the three services, i.e. storage at the facilities of the ICT, transportation to the PPC and port services, PPC would introduce an integrated tariff. The Competition Authority analysed the Integration Plan in relation to the prohibition of abuse of dominant position stipulated in Article 6 of the Georgian Law on Competition. 1. Supplementary obligation In the first instance the Competition authority discussed whether PPC’s actions would constitute a type of abuse as described in Article 6 (2) (d). According to this provision, making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts can constitute abuse. The Competition Authority considered that the only difference between the logistics before and after the implementation of PPC’s Integration Plan would be the place of execution of the contract for PPC’s port services. Thus, the conditions of PPC’s port services contract offered online would, after the introduction of the change, contain a different place of execution, namely the territory of the ICT. The Competition Authority also emphasised that the terms offered by PPC constituted General Terms and Conditions and the contracting parties would not be able to negotiate on them. The only choice the shipping lines would have would be whether to enter the contract for port services or not. For the evaluation of the applicability of Article 6 (2) (d) the Competition Authority explained in detail the necessary legal prerequisites, namely, (i) undertaking holding a dominant position in the market; (ii) bilateral (or multilateral) contract and a subject of the contract; (iii) supplementary obligation as a condition for the conclusion of the contract; (iv) absence of connection between the subject of the contract and the supplementary obligation. The Competition Authority further explained that the change in the place of contract execution would not itself constitute a supplementary obligation. However, this change would actually result in obliging the other party to purchase two more services from PPC or its subsidiary ICT, namely: (i) transportation of the container to the ICT facility and (ii) its storage at ICT’s facilities until collected. According to the observations and analysis of the Competition Authority there was no connection between the subject of the contract on port services concluded between PPC and shipping lines, and the supplementary obligations of concluding a transportation contract with PPC as well as a storage contract with the ICT. The Competition Authority stressed that it shared the approach taken by the European Commission in the Microsoft cases,13 reaching the conclusion that there was an absence of connection between the subject of the contract and the supplementary obligations as the three services purchased constituted different product markets, based on the following reasoning: these markets functioned independently; there were undertakings offering transportation services on the territory of the Poti port to any terminal as well as undertakings providing terminal services (storage or other processing of containers); PPC itself offers terminal services, including services of container storage, separately from port services. Accordingly, the Competition Authority concluded that the Integration Plan contained a condition relating to the conclusion of the contract, namely that the contracting parties would have to accept additional services, which were not related to the subject of the contract (Article 6 (2) (d)). As a consequence, the shipping lines, which use PPC’s port services, would be forced to conclude a contract for terminal services with the ICT as well as a transportation contract with PPC. However, the Competition Authority did not analyse the potential effects of the scenario of actual introduction of the Integration Plan and did not elaborate on how the market for terminal services would be influenced by the fact that the shipping lines would be forced to conclude contracts for terminal services with ICT. 2. Limiting production Secondly, the Competition authority discussed whether PPC’s actions would constitute a type of abused described in Article 6 (2) (b). According to this provision, limiting production, markets or technical development to the prejudice of consumers can constitute abuse. The Competition Authority explained that this provision envisages two possible kinds of limitation: (i) a dominant undertaking limiting its own production in order to cause misbalance of demand and supply, resulting in product deficit and an increase of prices; or (ii) a dominant undertaking limiting the production of competitors. The Competition Authority focussed its analysis on the latter possibility and assessed the effects that PPC’s Integration Plan would have on the markets for terminal services and for the land transport of containers between PPC and the terminals. For this assessment the Competition Authority relied on the essential facilities doctrine and the relevant experience of the competition authorities of European countries. The Competition Authority cited two cases from the European Commission, Port of Rodby14 and Sea Containers Stena Link,15 where the companies operating both ports (DSB and Stena Link), were also providing services on downstream markets and preventing the entry of potential competitors to those markets. In these cases, the European Commission had considered ports as essential facilities and obliged their owners to grant access to the undertakings operating on or wishing to enter the downstream markets. Based on those cases, the Competition Authority developed the following prerequisites for the application of the aforementioned provision (Article 6 (2) (b)): (i) dominant position of the undertaking in the relevant market; (ii) the dominant undertaking having at its disposal an essential facility, access to which is indispensable for operating on the downstream market; (iii) the dominant undertaking preventing other undertakings operating on the downstream markets in some form; and (iv) detriment to customers. The Competition Authority assumed the first two points to be fulfilled and analysed the effects of the Integration Plan on the market for the land transport of containers between PPC and the customs terminals. The Competition Authority came to the conclusion that due to the fact that the primary customs procedures are also offered at the ICT, there would be no need for the shipping lines, i.e. the owner of the container goods to transport the containers unloaded by PPC and stored at the ICT to any other terminals, unless the containers had to undergo other more complicated customs procedures not covered by the primary customs procedures (such as a container needing to be opened up for customs control – which happens for fewer than 40% of all container goods in Poti). According to the Competition Authority, this would lead to a limiting of the market for the land transport of containers between PPC and the customs terminals. In relation to the detriment to consumers, the Competition Authority emphasised the importance of freedom of consumer choice, which the Integration Plan would restrict. Moreover, by introducing an integrated tariff for all three services (port, transport and terminal services) as a result of the Integration Plan, customers would not be able to use services of a terminal or transportation undertaking offering better services or a cheaper price. 3. Objective justification In its Decision the Competition Authority also analysed the possible grounds for objective justification of PPC’s Integration Plan based on the economic paper submitted by RBB Economics. The main arguments in favour of the Integration Plan were the inefficiencies of the whole logistical system in Poti port and security issues. The Competition Authority analysed these grounds of objective justification and rejected the arguments in relation to inefficiencies brought by the economists, relying inter alia on the facts it observed during site visits. As to the security issues, the Authority considered that the implementation of the Integration Plan by PPC would not constitute the unique and proportionate measure to solve them. IV. Helpful but not a sea change In the end, the Competition Authority analysed whether PPC’s Integration Plan was a ‘completed act’ for the purposes of Article 6 of the Georgian Law on Competition (abuse of dominance). The Authority held that a unilateral decision made by an undertaking holding a dominant position constitutes a completed act, however, as long as the decision has not been implemented, the undertaking is not yet able to benefit from the restrictive effect of its decision. This was the case for PPC since its decision which was supposed to be implemented as of 1 July 2016 had been suspended by the court as requested by the Competition Authority. The Competition Authority also emphasised the difference between unilateral conduct and anticompetitive agreements between undertakings. According to the Competition Authority, the legislator emphasised in Article 7 of the Georgian Law on Competition that agreements which have as their object or effect the prevention, restriction or distortion of competition are prohibited; whereas in the case of abuse of dominance there is no such remark in the law. The Competition Authority explained that the difference between the two is that the prohibition of anticompetitive agreements also covers agreements that have no current effect on competition but are intended to have one in the future. According to the Competition Authority, in the case of unilateral anticompetitive conduct the legislator left it open whether the presence of an effect is necessary or whether a mere object of distorting competition suffices. The Competition Authority viewed the distinction between competition restrictions by effect and restrictions by object in a somewhat different way than that common in EU law. Under EU law certain forms of collusion between undertakings can be regarded by their very nature as being injurious to the proper functioning of normal markets. Such collusions are often referred to as restrictions by object, because it is presumed that its effects on the market are restrictive.16 However, this does not necessarily mean that the anticompetitive effects of the restrictions by object are not yet present on the market. Contrary to this, the Georgian Competition Authority suggested that the difference between restrictions by object and restrictions by effect is the moment when a restriction’s anticompetitive effects are realised. Overall, the Competition Authority left the question open as to whether abuse of dominance restricts competition by object or by effect, which aligns with the EU case law17 position, as well as with the position outlined in the European Commission’s Guidance on Article 102 Enforcement Priorities.18 Furthermore, the Competition Authority analysed the term ‘abuse’ and concluded that it meant a completed act, notwithstanding the question in relation to whether to rely on the effects assessment or not. Since PPC’s Integration Plan had never been implemented, the Competition Authority deemed that it could not constitute a completed act, i.e. an act resulting in restriction of any market or imposition of any supplementary obligations. Nonetheless, the Competition Authority observed that the reason why PPC could not complete implementation of its the Integration Plan was the suspension order issued by the court. According to Georgian legislation, the decisions made by PPC including the one introducing the Integration Plan are legally binding for its contracting parties as well as for PPC itself. PPC would not have to take any other steps for its decision to become effective. For the above reasons, the Competition Authority qualified PPC’s conduct as attempted abuse of dominance, for which there are no sanctions prescribed by the legislation of Georgia. Since PPC’s conduct did not constitute a completed act (the decision was not implemented), it could not properly be considered an infringement of Article 6 (2) (b) and (d) by the Competition Authority. However, the Competition Authority warned PPC that the implementation of the Integration Plan in the current form would result in an infringement of Article 6 (2) (b) and (d) of the Georgian Law on Competition, for which Article 33 prescribes fines. V. Summary To summarise, the Competition Authority of Georgia’s Decision in the case of PPC, the company operating the port of Poti, does not have any direct consequences for the undertaking. Even though the introduction of PPC’s Integration Plan would have resulted in an abuse of dominance, no abuse of dominance was found as the Plan has not been implemented, as the legally binding decision introducing the integrated tariffs was suspended by the court upon request of the Competition Authority. Accordingly, the Competition Authority’s Decision only constituted a warning, that if PPC’s new tariffs were implemented in the way intended, PPC’s conduct would be considered an abuse of a dominant position and it would be fined in accordance with Article 33 (1) of Georgian Law on Competition up to 5% of its annual turnover. As there existed prior to the case no such precedent in Georgian competition law practice, the Decision of the Competition Authority provides guidance not only for the port services sector but for future abuse of dominance cases following the EU case law. This clearly demonstrates that the country with a young competition law regime seeks to follow western European values and expertise in this area. The Decision also offers useful information on the market delimitation of port handling services, which can serve as a basis for any future competition proceedings relating to port services. Footnotes 1 The term ‘port of Poti’ will further be used to refer to the geographic area of the sea port. 2 Law of Georgia on Competition dated 8 May 2012 N 6148-IS, last modified on 21 March 2014. An English translation of the Law is available under <https://matsne.gov.ge/ka/document/view/1659450?impose=translateEn> accessed 8 September 2017. 3 After the restoration of its independence and several attempts at introducing competition policy, including liberalised trade policy and abolition of the predecessor competition authority, Georgia first adopted the Law on Competition in May 2012. However, the turning point was April 2014 when, based on recommendations and support from the EU, the Law was amended, founding a competition agency with the functions typical of a modern competition authority. 4 APM Terminals is a leading global service provider for container terminals. It operates a total of 73 ports in 69 countries. Read more at <http://www.apmterminals.com/about-us> accessed 8 September 2017. 5 See more here: <http://www.apmterminals.com/en/operations/africa-middle-east/poti/about-us> accessed 8 September 2017. 6 See more at: <http://www.apmterminals.com/en/operations/africa-middle-east/poti/about-us> accessed 8 September 2017. 7 Decision approved by the Decree of the Head of the Competition Authority N40, dated 30 March 2015. 8 See a summary of the Decision in English here <http://competition.ge/en/page4.php?b = 571> accessed 12 January 2018. 9 See a section relating to the Slovenian case in the OECD paper on competition in ports and port services from 2011, pp. 177–184, available at: http://www.oecd.org/regreform/sectors/48837794.pdf. 10 EC: Case COMP/C-3/39.530 Microsoft (tying). EC: Case COMP/C-3/37.792 Microsoft. 11 ECJ: Case C-311/84 Centre belge d'études de marché – Télémarketing (CBEM) v SA Compagnie luxembourgeoise de télédiffusion (CLT) and Information publicité Benelux (IPB), ECLI:EU:C:1985:394. 12 CFI: Case T-201/04 Microsoft v Commission, EU:T:2007:289, 2007 II-03601, paras 925–927. 13 EC: Case COMP/C-3/37.792 Microsoft. CFI: Case T-201/04 Microsoft v Commission, EU:T:2007:289, 2007 II-03601. 14 EC: 94/119/EC Port of Rodby [1993] OJ 1994 L55/52. 15 EC: 94/19/EC Sea Containers/Stena Sealink [1993] OJ 1994 L15/8. 16 Commission Staff Working Document, Guidance on restrictions of competition ‘by object’ for the purpose of defining which agreements may benefit from the De Minimis Notice, p. 3. 17 See e.g. Michelin II, 30 September 2003, T-203/01, para. 41. 18 Communication from the Commission, Guidance on Article 102 Enforcement Priorities, OJ 2009 C 45/7. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of European Competition Law & PracticeOxford University Press

Published: Mar 1, 2018

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