White & Case has successfully advised Terminal Porte Océane, "TPO" (a container handler at the port of Le Havre), in a major case concerning anticompetitive practices in the maritime sector.
TPO is a joint venture jointly controlled by the French group Perrigault (providing container and dockside handling services) and the Danish ship owner Maersk group, operating in Le Havre's Port 2000. This harbour extension project was launched in 2000 and was intended to construct new infrastructure to enhance the competitiveness of France's ports in Northern Europe.
The 20 January 2011 decision of the Paris Court of Appeals reversed a decision of the Competition Authority which had sanctioned the Perrigault Group and TPO for cartel, in particular by attacking the base for the complaint, namely the very existence of an anticompetitive practice.
The case began with a complaint before the Competition Council in January 2008 by which the Maersk Group, accused its own subsidiary (TPO) and the other parent company (the Perrigault group) of anticompetitive cartel.
The Maersk Group accused them of obstructing access of third party shipowning companies to the TPO installations, whereas Perrigault and TPO only invoked the commitments by Maersk to provide the principal volume of containers to TPO and the non-compete clause existing between Perrigault and TPO concerning their respective clientele.
In July 2008, the Competition Council had rejected the request for interim measures submitted by the Maersk Group, but in its material decision of 15 April 2010, the Competition Authority (which replaced the Council) upheld the claim of anticompetitive practices on the part of Perrigault and TPO and found against them under the complaint of "clientele sharing" notably resulting from an extensive application of the non-compete clause between these two companies.
The Court of Appeals reversed the decision of the Competition Authority, finding that there could not have been any anticompetitive practice – a category which requires an agreement between independent companies – because of the simple fact of TPO's lack of independence from its shareholder Perrigault. This relies particularly on the fact that the founding agreement for TPO deprives it structurally of any commercial autonomy with regard to its two parent companies. Furthermore, since the behaviours at stake were between a parent company and its own representatives inside the company or on the board of directors, this could only be considered as unilateral conduct by the parent company.
By this decision, the Court of Appeals acknowledged that the alleged complaint of clientele sharing between the Perrigault Group (Terminaux de Normandie) and TPO brought by the Maersk Group was without grounds and that their behaviour was not in any way to be seen as anticompetitive practices.
TPO was represented by:
White & Case (Paris): Charles-Henri Calla, Jean-Patrice de La Laurencie and Jean-Julien Lemonnier
RBB Economics: Dr Francesco Rosati
Perrigault was represented by:
Xavier Deplanque and François Mazot
A.P Möller-Maersk was represented by:
Hogan Lovells (Paris): Pierre de Montalembert and Ombline Ancelin
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