(only the greek and italian texts are authentic) (text with eea...

COMMISSION DECISION

of 9 December 1998

relating to a proceeding pursuant to Article 85 of the EC Treaty

(IV/34466 Ð Greek Ferries)

(notified under document number C(1998) 3792)

(Only the Greek and Italian texts are authentic)

(Text with EEA relevance)

(1999/271/EC)

THE COMMISSION OF THE EUROPEANCOMMUNITIES,

Having regard to the Treaty establishing the EuropeanCommunity,

Having regard to Council Regulation (EEC) No4056/86 of 22 December 1986 laying down detailedrules for the application of Articles 85 and 86 of theTreaty to maritime transport (1), as amended by theAct of Accession of Austria, Finland and Sweden, andin particular Articles 11 and 19 thereof,

Having regard to the Commission decision of 21February 1997 to open a proceeding in this case,

Having given the parties the opportunity to makeknown their views on the objections raised by theCommission in accordance with Article 23 ofRegulation (EEC) No 4056/86, and with CommissionRegulation (EEC) No 4260/88 (2) on thecommunication, complaints and applications and thehearings provided for in Regulation (EEC) No4056/86, as last amended by the Act of Accession ofAustria, Finland and Sweden,

After consulting the Advisory Committee onAgreements and Dominant Positions in the field ofMaritime Transport,

Whereas:

PART I

THE FACTS

A. The background to this Decision

(1) This Decision arises from a complaint made tothe Commission by a member of the public on

23 August 1992 that ferry prices were verysimilar on routes between Greece and Italy. TheCommission, acting pursuant to Article 18(3) ofRegulation (EEC) No 4056/86, carried outinvestigations at the offices of six ferryoperators, five in Greece and one in Italy.During the investigations the Commissiondiscovered documentary evidence showing that anumber of ferry operators had been agreeing onprices for several years. Requests forinformation, pursuant to Article 16 ofRegulation (EEC) No 4056/86 were sent later toMinoan Line, Strintzis Lines, and Anek askingfor further details concerning the documentsfound during the investigations. TheCommission opened formal proceedings on 21February 1997 by sending a statement ofobjections to the seven addressees of thisDecision as well as to Med Link and HellenicMediterranean Lines. An oral hearing was heldon 13 and 14 May 1997.

B. The undertakings

(2) The undertakings involved in this procedure areroll-on roll-off ferry operators, who providepassenger and freight services on a number ofroutes between Greece and Italy, namely:Minoan Lines, of Iraklio, Crete, Greece(hereinafter referred to as �Minoan') StrintzisLines, of Piraeus, Greece (hereinafter �Strintzis',Anek Lines, of Hania, Crete, Greece (hereinafter�Anek'), Marlines SA, of Piraeus, Greece(hereinafter �Marlines'), Karageorgis Lines, ofPiraeus, Greece (hereinafter �Karageorgis'),Ventouris Group Enterprises SA, of Piraeus,Greece (hereinafter �Ventouris Ferries'), andAdriatica di Navigazione SpA, of Venice, Italy(hereinafter �Adriatica').

(1) OJ L 378, 31.12.1986, p. 4.(2) OJ L 376, 31.12.1988, p. 1.

L 109/24 27.4.1999Official Journal of the European CommunitiesEN

C. The market

(3) The relevant market is that for the provision ofroll-on roll-off ferry services between Greeceand Italy.

(4) There are three major routes between Italy andGreece where regular services are offered forpassengers, cars and trucks. These routes are theroute between Ancona (Italy) and Patras(Greece), the route between Brindisi (Italy) andPatras (Greece) and the route between Bari(Italy) and Patras (Greece). In addition Trieste,and ± more recently ± Venice, are served fromPatras.

(5) It is clear that these routes are not operated inisolation as separate markets, and there is adegree of substitutability between themdepending on the points of origin anddestination of the traveller or goods, andpreferences regarding journey time, etc.However, for the purposes of this procedure theCommission does not consider it necessary toexamine in depth the degree of substitutabilitybetween these routes, since the practices at issuehere covered all three main routes for at leastpart of the period in question.

(6) On the Ancona-Patras route, during at least partof the time of the suspected infringement, therewere five major operators ± Minoan, Strintzis,Marlines and Karageorgis. Of these, Karageorgisceased operating in 1993. At least one otheroperator ± Superfast Ferries ± has recentlyentered the market and is not implicated in thepresent procedure. On the routes between Patrasand Bari and Brindisi there are a large numberof regular operators (at least 11), and someseasonal operators. Minoan, Anek, Strintzis,Marlines and Karageorgis have between themhad a share of traffic which was close to 100 %on the Patras-Ancona route during the period ofthe infringement. For 1993, Ventouris Ferries,Adriatica, Hellenic Mediterranean Lines andMarlines had a combined share of traffic ofapproximately 75 % for passengers and 60 %for freight on the Patras-Bari/Brindisi routes (1).

(7) Approximately 1 258 000 passengers and229 000 freight vehicles were transported during1996 from Greece to Italy, of which around38 % and 46 % respectively was carried on thePatras-Ancona route. On the Patras-Brindisi

route the respective percentages were 35 % and26 %, with 13 % and 16 % having beentransported on the route Patras-Bari. For 1993,the figures were 1 316 003 passengers and213 839 freight vehicles. From them,approximately 49 % and 38 % were transportedthrough the Patras-Ancona route, 35 % and38 % on the Patras-Brindidsi one as well as10 % and 19 % on the Patras-Bari route. Acomparable number of passengers and vehiclesis transported per year from Italy to Greece, too.

D. Evidence

(8) The main evidence on which this Decision isbased includes:

(a) messages sent, mostly by telex, betweenvarious operators relating to theintroduction, and calculation, of prices;

(b) admissions made by Anek and Strintzis intheir replies to the Commission's request forinformation and in their replies to theCommission's statement of objections.

Evidence for 1987/1988/1989

(9) From a telex sent by Minoan to Anek, dated 15March 1989, provided by Anek upon requestfor information, it appears that consultations onprices took place in 1987 for the 1988 tariffs forthe Patras-Ancona route. An agreement onprices was reached on 18 July 1987. Minoanreports in that telex that �The pricing policy for1988, as mutually established with the otherinterested parties, was decided on 18 July 1987.This has in fact been the usual practice.'

(10) Anek began to operate ferries between Patrasand Ancona for the first time in 1989. In 1989,consultations took place as to the tariffs theywould apply. In the telex mentioned inparagraph 9, Minoan says �We regret that yourrefusal fully to accept the proposals we putforward in our earlier [message] at least for thetime being prevents the conclusion of a broaderagreement which would be extremelyadvantageous to our companies ¼ We refer ofcourse to your refusal of our proposalsconcerning the definition of a joint pricingpolicy for the Patras-Ancona route; and we askyou to understand the positions we set outbelow, which are intended as a response to yourview that you cannot accept the 1989 tariff in(1) Source: Cruise & Ferry Info.

27.4.1999 L 109/25Official Journal of the European CommunitiesEN

force for goods vehicles and that the pricingpolicy for the forthcoming year 1990 cannot bedefined immediately'.

(11) Minoan then attempted to persuade Anek tojoin in the agreement on fares by informing it ofhow successfully it had been applied: �in the lastthree months on the particular route tworeadjustments of the fares for goods vehicleshave been agreed jointly by all the shipownerson the Patras-Ancona route, amounting to atotal of 40 %, and have certainly caused noagitation or difficulties with our drivercolleagues'.

(12) Having failed, for the moment, to persuadeAnek to join in the agreement, Minoan,Karageorgis, Marlines and Strintzis decided tocharge collectively, from 26 Juni 1989, exactlythe same goods vehicle tariffs as those appliedby Anek. Very detailed tables were exchangedbetween the parties, and Anek was informed ofthe outcome both orally and in writing. Indeed,Minoan sent Anek a telex on 22 June 1989,announcing the four other companies' intentionto apply Anek's tariffs as from 26 June 1989.

Evidence for 1990

(13) The parties began to discuss passenger fares for1990 in June 1989. On 20 June 1989, Minoansent to Anek, Karageorgis, Strintzis andMarlines detailed proposals for a common pricepolicy for 1990 for passengers, cars and truckvehicles. A telex sent by Anek to Minoan,Karageorgis, Marlines and Strintzis on 6 July1989 says �we agree to the establishment of auniform tariff for passengers by all fivecompanies on the Patras-Ancona ¼ we candiscuss the subject of goods vehicles in October'.

(14) Strintzis sent a message to Minoan, Karageorgis,Marlines and Anek on 12 June 1989 in which itstates that �the prices were calculated on thebasis of the telexes recently exchanged,following the agreement of all our companies tostick to a common price policy'. This faxcontains the prices and discounts for passengersand for vehicles, and the port taxes, in drachmasand in 10 foreign currencies.

(15) Anek confirmed its agreement �on the proposedtariffs for the Patras-Igoumenitsa-Corfu-Anconaroute based on our decision concerning acommon tariff policy', in a telex of 14 July 1989addressed to the four other companies.

Consultations continued later on some minorpoints, e.g. the prices for jeeps were discussed ina telex from Strintzis to the other companies on17 July 1989 and a telex from Anek to the othercompanies on 22 September 1989.

(16) A fax sent by Strintzis on 8 December 1989 toMinoan, Anek, Karageorgis and HellenicMediterranean Lines (1) detailes the new prices,by category of truck, to be applied from 10December 1989 for the Patras-Ancona route andthe Patras-Bari and Brindisi routes. This fax alsoindicated that the photocopy was signed �also byVentouris Ferries', and the table of tariffs bearssix signatures.

(17) Another telex shows again the common pricepolicy in force in 1990. This document, dated11 April 1990, sent by Anek to Karageorgis,Minoan and Strintzis, refers to the �telexesexchanged between the four companiesregarding the price policy for the Patras-Anconaroute' where Anek confirms that �our agreementconcerns the passenger, passenger cars and truckvehicles fares, but does not concern the agents'commission and the rebates for groups'.

(18) Consultations took place again to increasecommonly the truck fares during 1990. Thecompanies exchanged a number of telexesduring September and October and Strintzisorganised a meeting at its premises. In a telex of5 September 1990 addressed to Anek,Karageorgis and Minoan, Strintzis states that �acondition for the application of the proposedincrease is a proportional increase in fares forthe Bari and Brindisi routes; nevertheless, it isnecessary to reach an agreement in principlebetween our four companies'. In a telex sent toAnek, Minoan and Strintzis, Karageorgis statesthat �following our common decision ¼ we areobliged to readjust prices for trucks as from 20October 1990'. It follows a detailed list ofprices. Karageorgis also states: �Please send theabove telex as it stands to your port agents andyour clients as soon as possible'.

(1) Although there is evidence that Hellenic MediterraneanLines participated in the infringement, the presentDecision is not addressed to this undertaking because theCommission has been unable to send it the statement ofobjections.


(19) Agreement was reached and a fax was sent byStrintzis on 30 October 1990 to eight companiesoperating ferries between Greece and Italy(Adriatica, Anek, Hellenic Mediterranean Lines,Karageorgis, Minoan, Med Lines, Strintzis andVentouris Ferries). This fax states: �Wecommunicate the final agreement for truck fares.Please acknowledge your agreement as to thecontents and we suggest to announce the priceson 1 November and to put them into effect, asit has been agreed, from 5 November 1990.' Atable follows with prices in drachmas andItalian lire for various categories of trucks forthe routes Patras to Ancona, Bari and Brindisi.

(20) Minoan sent on 2 November 1990 a documentto its agent with the new prices, valid from 5November 1990 where they clearly state thatthese prices were agreed by the companies on allthe Greece-Italy routes.

Evidence for 1991

(21) That tariffs continued to be agreed for 1991 isevidenced by several documents. Karageorgissent a letter on 10 August 1990 to Anek,Minoan and Strintzis concerning the 1991 listprices for the Patras-Ancona route. It states:�Following the agreement by the four companiesthat there should be a 5 % increase on top ofthe first 5 %, please find attached the new priceschedules with the final 10 %.'

(22) A telex was sent to Anek from Karageorgis,Minoan and Strintzis on 22 October 1991, inwhich it is stated that �¼ we note that you wantto apply to the Patras-Trieste route the samefare that we have all agreed for thePatras-Ancona route. You will realise that theobscurity in the wording causes us greatconcern, because it raises the prospect of acollapse of the equilibrium in tariffs which wehave succeeded, with considerable difficulty, inestablishing for all the Italian ports. Let usremind you that by a joint effort ± to which youyourselves contributed ± we reorganised thetariffs as best we could and establisheddifferentials on the basis of the distances innautical miles to the ports of Brindisi, Bari andAncona ¼ We would accordingly entreat you todefend ± as you ought to do ± the agreementbetween the 11 companies and the 36 vessels onthe Greece-Italy crossing because given theintense differences which are smouldering away

under the surface the existing agreement couldwell collapse. We would suggest to you that thetariff for the Patras-Trieste trip should be put at20 % above that for the Patras-Ancona (asindeed was the case in the past), so as toharmonise fully with the differentials betweenAncona and the more southerly ports ¼ ourcompanies are obliged to notify you that if youinsist on applying the same price from Triesteand Ancona for Greece, our agreement for acommon price policy concerning the Anconaroute will cease and each company willdetermine its own price policy'.

(23) The reply of Anek to this telex, dated 18November 1991, confirms the existence of anagreement: �The threat to abandon the commonprices on the Ancona route cannot be based,from our point of view, on the non-applicationby Anek of this illogical and inadmissibleincrease of 20 %. We will accordingly ask younot to persist in your position, in order to avoiddisturbing the climate of cooperation betweenthe four companies, which would havedestructive consequences for all of us. Toconclude, we would assure you that if in thefuture Anek should decide to schedule a vesselon the Patras-Trieste route without includingAncona, the tariff will of course be higher thanthat for the Patras-Ancona route, but not by20 %, which on any impartial judgement is atleast unrealistic.'

Evidence for 1992

(24) The collusion continued during 1992. On 22July 1991 Strintzis sent a highly detailedschedule of passenger fares to Anek, Karageorgisand Minoan saying �We attach the 1992schedule as agreed at our meeting of (illegible)July. Please confirm if you agree'. A number oftelexes were subsequently exchanged in whichways were discussed of dealing with thedepreciation of the drachma.

(25) After a meeting held on 7 October 1991between Strintzis, Anek, Karageorgis andMinoan, Strintzis sent the list prices �as agreed'for 1992 (Patras-Igoumenitsa-Corfou-Anconaroute) to the three other companies requesting


their agreement. This list contained the pricesfor passengers, detailed by high or low seasonand cabin categories, and for all the vehiclecategories. The parties had also agreed theperiods of high and low season, and the pricesof meals. Anek sent its agreement by telex on 16October 1991. This reply was forwarded toKarageorgis and Minoan.

Moreover, a letter, dated 18 October 1991, wasfound at the premises of Strintzis, sent by Anekto port agents saying �We enclose for you thedrachma tariffs for 1992 for the Patras-Anconaroute as agreed with the Strintzis, Minoan Linesand Karageorgis companies'. A similar letterwas sent by Strintzis.

(26) The four companies also agreed on the validityperiod of their commonly agreed tariffs for thetransitional year-end period. A telex sent byAnek to Karageorgis, Minoan and Strintzisstates that �¼ we agree with the extension ofthe 1992 prices for the Patras-Ancona routeuntil 10 January 1992'. Anek informed its portagents by telex on 21 October 1991 that �¼following agreement with our competitors the1991 prices for the Patras-Ancona-Patras routeare valid until 10 January 1992'.

(27) A telex dated 7 January 1992, found at thepremises of Minoan, from Minoan to Anek,Strintzis and Karageorgis, warns them thatseveral importers of motor vehicles are�endeavouring to lure our companies into tariffcompetition ¼ we propose to you that weshould stick to a common policy which willkeep us off the slippery slope'. It proposes aprice to be quoted by all the companies andrequests agreement �in order to reply to theCalberson company which, as you know, hasbeen in contact with all of the companies'.Strintzis agreed to adhere to a common policyand proposed a common price for allunaccompanied cars. Anek also agreed withStrintzis.

(28) A document dated 25 February 1992, found atthe premises of Minoan, indicates that theagreement to maintain differentials between thetariffs applied on the various Greece-Italy routes

continued during 1992. In this documentEuropean Trust Agencies (hereinafter �ETA')reports to the head office of Minoan on �thelatest development concerning the Italy routes'.After mentioning new ships introduced, and theproblems that the extra tonnage is likely tocause, it is stated: �we are concentrating ourefforts on the tariff policy to be implemented bythe Ventouris company on the Otranto route.We have already commenced discussions on thematter. To make things clearer we give youpresent fares for Bari, Otranto and Ancona andour own proposed Otranto fares.' A table offares for different sized goods vehicles follows.

(29) Furthermore, a telex dated 7 January 1993 fromMinoan to Strintzis, Anek and Karageorgis,suggested an adjustment in tariffs for vehicles onthe Greece-Italy-Greece routes. It says �We pointout that two years have passed since the vehicletariff was last adjusted'.

Evidence for 1993

(30) Consultations about the new tariff for 1993took also place in 1992. ETA informed Minoanon 21 May 1992 that a �conference ofrepresentatives of the Patras-Ancona routeshipping companies is to be convened to discussthe drafting of the new tariff for 1993'. Thisdocument contained also the agenda of thismeeting. A telex from ETA to the head office ofMinoan, dated 27 May 1992, says �we informyou concerning the proposals that we put to themeeting of the four shipping companies andwhich, with minor differentiations for theKarageorgis and Strintzis companies, wereaccepted. Anek is reserving its position and willreply in 10 days time'. A series of specific priceincreases for various types of traffic followed.

(31) Discussions continued later. A letter from ETAto the head office of Minoan dated 30 July1992, stated that a meeting would take place ofrepresentatives of the four �collaboratingcompanies on the Greece-Italy route' on 4August 1992, at which �all relevant matters willbe discussed'.


(32) Strintzis sent to Anek, Karageorgis and Minoana telefax message on 6 August 1992 announcingthat prices in European currencies would bedrafted on the basis of the drachma tariff andspecifying the currency rate in German marks. Itproposed also to not divulge the drachma tariffbefore 30 September 1992. Anek agreed by telexon 7 August 1992. This reply was also sent toStrintzis, Karageorgis and Minoan.

(33) Minoan sent a letter on 29 September 1992, toAnek, Karageorgis and Strintzis, in which itexpressed concern about the fluctuations offoreign currencies in relation to the drachma,and asked the others to reply as to whether theyshould adapt the prices, otherwise the list pricesin German marks, Italian lire and drachmaswould diverge widely. Minoan sent to Anek,Karageorgis and Strintzis on 12 October 1992several proposals which had already beendiscussed orally or by telex exchanges. A telexdated 15 October 1992 from Minoan to Anek,Strintzis and Karageorgis says �further to ourconversation concerning the final arrangementof tariffs in DEM, ITL and GRD, we add ourdecisions'. An increase of 5 % in the Italian liretariff was suggested. Anek replied by telex on 16October 1992 that it agreed as regards theprices in German marks and Italian lire. Strintzisalso agreed on 16 October 1992. Karageorgisreplied by telex on 26 October 1992 indicatingits agreement and adding �we insist, further, onan increase in the vehicle rates and await yourdecision'. Anek replied by telex on 6 November1992 indicating its agreement.

(34) In November 1992, having received a requestfor information from the Commissionconcerning prices on Greece-Italy routes,Minoan sent a telex to Anek, Karageorgis andStrintzis stating: �Because of the sensitivesituation brought about by the Commission'squestion concerning our price schedules on theGreece-Italy route and after the verbal exchangeof views, we propose the following: Of the 17categories in our schedule, ªdeckº should bedisregarded, since this is where none of us wantsanyone to be cheaper; as for the remaining 16,each company should take four categories each(to be chosen by Mr Sakellis) (Strintzis) andreduce its schedule by 1 %.' Minoan sent also toAnek a copy of its reply to the abovementionedrequest for information.

(35) A telex dated 9 December 1992 from Strintzis toAnek, Minoan and Karageorgis, says �regardingthe 1992 fares we remind you that it was agreedthat these should apply from 11 January 1993'.

(36) A telex dated 7 January 1993 (mentioned inparagraph 29) from Minoan to Strintzis, Anekand Karageorgis, suggested an adjustment intariffs for vehicles on the Greece ± Italy routes.It says �our decision to proceed to an agreementwith you on the readjustment without firstconsulting with the companies on the otherItalian routes is motivated by a desire to avoidthe interminable discussions that would ensue ifwe were to embark on that consultation. Webelieve that this joint agreement will be lookedupon positively by those companies ¼ We awaityour agreement'. A table of proposed tariffs wasattached. Karageorgis replied by telex of 8January 1993 stating �we agree totally'. Minoansent another telex to Anek, Karageorgis andStrintzis on 14 January 1993 which suggestedthat Anek should apply an increase of 15 % toits goods vehicle tariff on the Trieste route.Strintzis agreed with Minoan on both issues, on15 January 1993. Anek replied on 15 January1993 agreeing with the proposals regarding thePatras-Ancona route, but saying it had alreadypublicised an increase of 8 % on the Triesteroute from 1 February 1993 and would find itdifficult to retract this.

(37) On 24 November 1993 a meeting was heldwhich was attended by 14 companies. Thepurpose of this meeting was to readjust theprices on the routes Patras to Ancona, Brindisiand Bari for 1994. A telex from ETA to thehead office of Minoan, dated 24 November1993, says �We are pleased to inform you that attoday's meeting we achieved agreement on areadjustment of the vehicle tariff byapproximately 15 % ¼ to be given immediateeffect from 16 December 1993. We are verypleased because we began with the problem ofthe collapse of the previous agreement'. This lastsentence implies that an agreement was in placeconcerning the differentiation between Ancona,Bari and Brindisi earlier in the year.


Evidence for 1994

(38) On 24 November 1993 a meeting was heldwhich was attended by 14 companies. Thepurpose of this meeting was to achieveagreement on prices on the routes Patras toAncona, Brindisi and Bari. A telex from ETA tothe head office of Minoan, dated 24 November1993, says �We are pleased to inform you that attoday's meeting we achieved agreement on areadjustment of the vehicle tariff byapproximately 15 % ¼ to be given immediateeffect from 16 December 1993. We are verypleased because we began with the problem ofthe collapse of the previous agreement onaccount of the opposition of the companies ofKosma-Giannatou and Ventouris A., we repairedthe situation bit by bit, overcoming the 5 % to10 % (positions of Strintzis, Ventouris G. andAdriatica), and finally got to the percentagestated above. In addition we balanced out thevarious conflicts which, as you know, existconcerning the discrepancies from one port toanother. Truly, we are very pleased, given thaton 1993 throughput figures this will provide ourcompany with an immediate yield of new netreceipts in the order of GRD 600 000 000annually'. Further on, the note mentions that 14companies were present at the meeting.

(39) The �Kosma-Giannatou' mentioned in paragraph38 is interpreted by the Commission to be areference to the company known as Med Lines,since both Mr Kosmas and Giannatos weremembers of its board. Ventouris G. is believedto be a reference to Ventouris Ferries, whileVentouris A. is taken to be a reference to AKVentouris, a different company. TheCommission has not included AK Ventouris inthis Decision as it has no evidence other thanthe above note that this company actuallyinfringed the competition rules. Moreover, theCommission has not been able to identify othersmall companies which eventually participatedin this meeting.

(40) A telex from Minoan to Anek and Strintzis of13 May 1994, mentions that a new type oftrailer was becoming common on the Anconaroute and it suggested a new category of fareand a common implementation date. This is

followed by further telexes of 25 May 1994 and3 June 1994 on the same subject requestingagreement.

(41) A telex from ETA to the head office of Minoandated 26 May 1994 says �We have embarked onan initiative to get a new tariff implemented onthe Italy routes with differing rates for cashpayment and two-month cheques. The problemis that we have to get the agreement of 16companies. Nevertheless, we are optimistic'.

(42) The Commission investigation took place in July1994. There is no evidence that the companiescontinued their collusion after that date.

E. The arguments of the parties

General arguments of the parties

Strintzis

(43) According to Strintzis, the agreements on pricestook place under the influence of the Greeklegal and regulatory framework for coastalshipping, in particular Law 4195 of 11 to 13July 1929, Strintzis argues that, owing to thefollowing factors:

Ð the Greek regulatory framework,

Ð the practice and obligations imposed by theGreek Ministry for the Merchant Navy(�YEN'),

Ð the need for a regular schedule,

Ð the uncertain length of the tourist period,

Ð the danger of drastic changes in cost levels asa result of unexpected yearly devaluations ofthe drachma,

Ð the necessary disclosure of the business plansof Strintzis through the obligatory meetingsfor the domestic part of the line Greece-Italy,

Ð the need to adhere to the directive of theYEN that lays down that increases in freightrates for the international part of theGreece-Italy market must be within thelimits of inflation,


it had to protect itself from unrestrictedcompetition against which it would not havebeen able to react by suspending or reducing itsactivities.

(44) In any case, all the abovementioned factorsrestricted the autonomy of the parties indefining their fares policy. According toStrintzis, YEN guidelines on the companies'pricing policy should be regarded as restrictivemeasures within the meaning of Greek Law4195/29. Furthermore, the company wasunaware that its activities constituted aninfringement of Community competition law.

(45) Strintzis contends that the agreements did notinclude obligations or negative clauses, that iteffectively competed with the other companiesby offering discounts, and that a significant partof its net profit derived from the on-boardservices that were not the subject of theagreements.

(46) In the opinion of Strintzis, the YEN's actionsdefined all factors of competition except priceson the international part of the Greece-Italyroutes. Consequently, residual competition wasvery limited or even unworkable. In fact, theagreement on prices was a government-led andsupervised cartel and not a cartel of individualsoperating with the intention of maximising theprofit of the participants. On the contrary,prices on Greece-Italy routes were lower thanthose on other international routes within theCommunity. As regards the gravity of theinfringement, Strintzis submits that theinvolvement of the Greek authorities createdconfusion among the parties as to the applicablelegal framework, and the price levels wouldhave been the same even without the allegedprice arrangements.

Ventouris Group Enterprises

(47) Ventouris Ferries argues that it determinedindependently its own commercial and pricepolicy taking into account the marketconditions, inflation and operating costs, andthe policy of the YEN which imposed importantpublic service obligations on the companies thatoperated in Greece. The company claims ineffect that it determined its business behaviourand practice in accordance with the provisions

of national and Community law with duerespect to the rules of competition law and tothe Greek maritime legal framework. Also,Ventouris alleges that it operated only on thePatras-Ingoumenitsa-Corfu-Bari line where itfaced not substantial competition and, therefore,it had no reason to form an agreement withcompanies that operated on different routesunder different conditions and with differentbuyers. Ventouris argues that any kind ofcooperation between the companies was limitedto the operations on the Patras-Ancona route.

(48) Finally, Ventouris Ferries draws attention to thepolicy of the YEN and to the Greek legal andregulatory framework as well as the particularsituation in this market (transparency,competition on discounts, etc.) owing to which,even if there had been agreement, the situationin the market in relation to price competitionwould have been the same.

Anek

(49) Anek acknowledges that from 1990 itparticipated in an agreement to establishcommon prices on certain routes, although atthe time the agreement was entered into it wasnot aware that it violated any applicable law.Anek also suggests that the Commission shouldtake into account, with respect to all operators,the domestic regulatory environment in whichthe companies operated, the involvement of thenational authorities in setting the stage for thearrangements, and the limited effect oncompetition at issue. Furthermore, Aneksuggests that the Commission should take intoaccount Anek's participation, Anek's limitedpresence on the relevant market, and Anek'sserious commitment to future compliance withthe law.

(50) Anek maintains that for all the shipping routeswhere cabotage applies, consultations among theoperators on price and other issues have beenmandatory for the domestic part of internationalshipping routes. Although the Ministry for theMerchant Navy has not required the ferryoperators to agree on prices for the internationalpart of the route to Italy, Anek claims that the


ferry operators perceived the ministry as havingencouraged them to enter into discussions onthis topic. Moreover, Anek emphasises that itsparticipation was limited to the period1990-1994.

(51) Anek argues that it did not act as the instigatoror play a leading role in the determination ofprices and that sometimes it objected to certainacts proposed by others, notably when itconsidered proposed tariffs to be unfair orexcessive. For example, in late 1991 Anekresisted attempts by other ferry operators toagree to apply a 20 % increase in fares for thePatras-Trieste route compared to thePatras-Ancona route.

(52) As regards price, Anek argues that fares per milebetween Greece and Italy remained at levelsbelow other comparable international routes inEurope, and significantly below domestic fares.Moreover, Anek contends that the agreementson prices concerned only fares and did notextend to other areas, such as services on board,prices on board, advertisements, and agents'commissions. Also, Anek argues that it did nothave a significant market share on the marketbetween Patras and Brindisi and between Patrasand Bari, and hence that its cooperation onthose routes could not be considered to havehad a major impact on competition.

Minoan

(53) Minoan argues that the alleged agreements hadno binding character but simply confirmed theexistence of a general framework of businesspractice that was in any case predefined by theexisting legislative framework for shipping andthe policy of the Ministry for the MerchantNavy (YEN). From the YEN's correspondencewith the Commission, Minoan concludes thatfares for the international part of theGreece-Italy routes were influenced by theYEN's decisions regarding prices for the internalpart as well as YEN's recommendationsregarding international fares. In particular,Minoan refers to the YEN's policy as preventivemeasures within the meaning of Greek Law4195/29. In the opinion of Minoan, the allegedagreements dealt only with the fares for theinternational lines that were publicly announcedand did not include any other parametersregarding the business behaviour of the

companies, such as the organisation of thecommercial network, the policy of discounts andadvertising, the prices offered for on-board foodand services and the policy of upgrading.Minoan asks the Commission to take intoconsideration the cumulative effect of all thesefactors in the economic and legal context in thiscase.

(54) As to the implementation of the relevantagreements, Minoan maintains that these werenever followed in practice. Furthermore,Minoan contends that ETA represented anindependent company which acted as its agent.Therefore, Minoan challenges the legality of theinvestigation in the offices of ETA and of thedocuments that were collected by theCommission. the company draws attention tothe letter of 14 September 1993 that was foundduring the investigation of 5 and 6 July. In theopinion of Minoan, this letter proves that manyof the activities which are attributed to Minoan,and especially those related to the pricing policy,were ETA's initiatives and were implementedwithout Minoan's approval.

(55) As to the gravity of the alleged infringement,Minoan states that the existence of agreementson prices would not in reality play an importantrole due to the transparency of the market. Asregards the duration, Minoan submits that thealleged agreements were not applied.

Adriatica

(56) Adriatica acknowledges its representative'sparticipation in discussions with the companiesoperating on the routes between Greece andItaly. However, Adriatica argues that itdetermined independently its own commercialand price policy in the light of marketconditions. Indeed, there was sufficientcompetition in the market since the operatorswere competing through rebates, commissions,supplementary charges for dangerous cargoes,etc., while market shares have never been thesubject of negotiations. As a result, Adriatica'smarket share was declining from 1990.

(57) Finally, Adriatica argues that it did not play anyrole in the determination of prices and that itnever implemented any agreement on prices.These agreements were, according to Adriatica,negotiated between the Greek operators.


Consequently, if the Commission were toconclude that Adriatica participated in suchagreements, its participation should be regardedas limited to 1991.

Marlines

(58) Marlines states that it is not a shipowner but anagency company established in Liberia anddescribed under the Greek Law 89/67 as an�offshore' company. Marlines maintains that italways offered lower prices than its competitorsaccording to the instructions of its principals, ascan be concluded from its brochures of 1987,1988 and 1989.

Arguments of the parties relating to specificallegations

1987, 1988, 1989

(59) Strintzis accepts that in 1987, 1988 and 1989 itparticipated in consultations on prices. However,it argues that the meetings between thecompanies in 1987 related exclusively to thefares for 1988. As regards the fares for goodsvehicles for 1989, Strintzis admits that itfollowed the fared of Anek, since the companiesthat operated on the Greece-Italy lineoccasionally followed the published prices oftheir competitors.

(60) As regards the attempt to persuade Anek to joinin the alleged agreement, Strintzis mentions thatunder the Greek regulatory framework, Anekcould not charge prices that were significantlylower from those available at the port of Patras.Thus, the companies proposed a joint pricingpolicy to Anek so as to avoid significant pricedifferences downwards and the intervention ofthe Greek authorities.

(61) Strintzis maintains that the meetings for thefares of 1988 and 1989 did not lead to anagreement for a common tariff for passengers,since its published fares for passengers differedfrom those published by the other companies.

(62) Minoan argues that the behaviour of the othercompanies towards Anek should be consideredunder the Greek legal and regulatory frameworkand the policy of the YEN. It also contends thatany possible readjustment of the fares was notmotivated by the desire to increase profits butby other factors, such as inflation, the increasein the prices of fuel and the relationshipbetween the drachma and other currencies.

1990

(63) Strintzis accepts that it agreed common pricesfor passengers and goods vehicles for 1990 withMinoan, Anek, Karageorgis and Marlines.However, it argues that the relevant agreementswere never followed, since Strintzis appliedautonomously its own pricing policy.

(64) In particular, as regards the telex of 6 July 1989,Strintzis draws attention to Anek's explanationthat each company could freely apply its owngroup policy. Anek regarded as �group' everygroup of at least 24 people travelling with thesame ticket. On the contrary, Strintzis did notimpose such a limitation but it freely offeredgroup discounts to its customers, irrespective ofthe number of persons. Strintzis claims that itsdiscounts policy and the other fidelity rebateswere never revealed to its competitors and,therefore, that it did not implement theagreement on prices for 1990.

(65) As regards the fax of 12 June 1989, Strintzisargues that the exchange of information wasnecessary because the YEN advised the fivecompanies to keep the price increases within thelimits of inflation for every currency in whichtickets were issued. It also mentions that it wasresponsible for the readjustment of the fareswithin the limits of inflation for every currency,because it had better infrastructure and logisticalmethods.

(66) In relation to the fax of 8 December 1989,Strintzis maintains that these signatures had noobligatory force other than that the signatorieswere informed of the proposed prices.According to Minoan, the signatures on the faxof 8 December 1989 did not imply that therewas a typical written agreement. The signatureis attributed to the fact that the relevant


documents, which expressed the logicaldeviations between the prices for Ancona andBari or Brindisi, were also taken into account byVentouris which operated on the southern lines.According to Minoan, the proposed prices forthe various categories of trucks provided an�ideal' model for the calculation of the pricedifferences that depended on the distance inmiles, and there was not intention to fix aparticular price for every line and every categoryof trucks. In support of this argument, Minoanclaims that it did not strictly follow the relevantprices on the line to Ancona but it followed itsown policy of discounts.

(67) Ventouris argues in relation to the fax of 8December 1989, that it had already determinedits pricing policy for 1990 and that thesignatures below the prices did not imply thatthere was an agreement since the price list wasnot legally binding. Indeed, this list containedVentouris Ferries' suggestion of generalindicative prices. Nevertheless, the company hadalready notified this list to its agents on 4December 1989.

(68) Moreover, as regards the telex of 11 April 1990,Strintzis argues that this proves, on the onehand, the existence of an agreement on prices,and, on the other hand, the freedom of theparticipating parties to determine independentlytheir policy of discounts and commission totheir agents.

(69) According to Minoan, the telex of 11 April1990 refers to an agreement on some parametersof the pricing policy that could neverthelesseasily become known to the competitors.

(70) In relation to the telex of 6 September 1990,Strintzis states that the readjustment of the farescan be attributed to inelastic factors, such as thefluctuation in the prices of fuel, and to otherobjective factors that relate to the policy of theGreek Government, such as the increase in thetransport of heavy goods by road, due to theproblems in Yugoslavia, the decision of theMinistry of Transport in relation to the exportof goods and the need to increase the fares so asto enable the companies to operate in theGreece-Italy market during the winter.

(71) In the opinion of Strintzis, Minoan hadconfirmed by fax of 13 September 1990 that theincrease in the fares was made on the basis ofan analysis of the economic data that make upthe operational costs of the ships. Thecompanies knew in detail the relevant economiccomponents, owing to the publication of theiroperational licences and the necessary meetingsfor the domestic lines in which they participatedunder the aegis of the YEN, Strintzis argues thatthe parties were forced to discuss theseeconomic elements in order to remain in theGreece-Italy market during the winter period.

(72) As regards the telex of 5 September 1990 andthe telex of 10 October 1990, Minoan arguesthat owing to the increase in the price of fuel,the problems in Yugoslavia and the need tocontinue to operate during the winter period,the four companies had been forced to considera readjustment of the fares for theCorfu-Ancona part in order to reduce thenegative effects of the costs of transport.

(73) In relation to the fax of 30 October 1990,Strintzis accepts that it applied the agreed pricesfor trucks. However, it argues that the relevantprices were based on the real expenditure of theitineraries between Greece and Italy, namely theincrease in the cost of fuel and the need torationalise the difference between the domesticand international fares per mile and per metre oftransported truck.

(74) In relation to the fax of 30 October 1990,Ventouris Ferries claims that it never received it,and that its truck fares were included in the listby the other companies which has probablyreceived them from an agent of VentourisFerries.

(75) Adriatica admits that it took part in a meetingon 25 October 1990 dealing with truck fares,although it had already decided its fares for1991 before this meeting. In fact, Adriatica'spurpose was to monitor its competitor's policy,taking into account that the Greek operatorshad already reached an agreement one yearearlier, on 10 December 1989. Adriatica alsoargues that it did not follow the fares agreed inthe meeting, as can be shown from the fares itactually charged at the end of 1990.


1991

(76) Strintzis argues that the �climate of cooperation'to which it refers in the telex of 18 November1991, and the �pricing stability' that ismentioned by Karageorgis, Minoan and Strintzisin the telex of 22 October 1991, concern thegeneral framework of compulsory meetingsbetween the companies and the exchange ofconfidential information for the formation of aframework agreement on prices for the nextperiod. Also, Strintzis claims that Anek's wish toset up for the first time a route on thePatras-Trieste line, offering fares of exactly thesame amount as those for the routePatras-Ancona even though the distance fromTrieste is about 20 % longer, was treated byKarageorgis, Minoan and Strintzis as attractinga risk of intervention by the Greek Government.

(77) Strintzis draws attention to the telex of 18November 1991 which, in its opinion, indicatesthat the amount of the fares must be relevant tothe distance of every journey, a principle thatwas adopted by YEN for the calculation of thedomestic fares. According to the view ofStrintzis, the prevention of painful competition�with the known effects', which is referred to atthe end of the relevant fax, concerns theprevention of a commercial war in theGreece-Italy market and the consequentintervention of the Greek Government. Finally,Strintzis alleges that Anek did not apply anincrease of 20 % to its prices for thePatras-Brindisi route. It is claimed thataccording to the Greek regulatory frameworkfor shipping, especially Law 4195/29, the policyof extremely cheap prices disproportionate tothe services offered in a given international linemight lead to the imposition of fines on thecontraveners.

(78) Finally, Strintzis contends that the aboveframework agreement on prices for 1991 hadnot been followed in practice, since Strintzis hadfollowed its own independent discount policy.

(79) Minoan alleges that in the relevant period theincrease of 10 % was dictated by the increase ininflation. It also claims that under the influenceof the YEN and on the basis of the distance inmiles, the prices for Trieste were 20 % higherthan the price for Ancona. According toMinoan, the correspondence between the partiesrelated to Anek's decision to fix the fares forPatras-Trieste at the same level as the fares forPatras-Ancona and it was therefore intended toensure an appropriate differential and to avoidunfair competition. Minoan also argues that itfollowed its own policy of discounts.

(80) Adriatica states that during 1991 it had had nocontact with the other companies and continuedto set its fares according to market conditions.Moreover, Adriatica submits that during 1991,its market share had declined owing to theintense competition from the Greek operators inthe form of discounts, rebates, etc.

1992

(81) As regards the fax of 22 July 1991, and thecorrespondence that is mentioned at points 26to 32 of the statement of objections, Strintzisclaims that the relevant exchange of informationtook place within the framework of thecompulsory meetings for the prices of 1992.

(82) In relation to the telex of 7 January 1992,Strintzis argues that despite the initial agreementwith Minoan not to offer the Calbersoncompany the requested discount, this agreementwas not followed in practice, since Strintzisfinally offered a higher discount. Strintziscontends that the relevant agreement was madeorally and that the largest number of therelevant vehicles was transported by Marlines.In the opinion of Strintzis, the above proves thatthere was price competition between theparticipating companies at the level of discounts.Again, Strintzis claims that the above agreementon prices for 1992 was not followed in practice,since Strintzis followed its own independentdiscount policy.

(83) Minoan contends in relation to the similarity inthe prices for passengers and passenger vehiclesthat this can be attributed to their publication inthe companies' brochures. Also it claims that theoligopolistic nature of the market and the policyof the YEN led to homogeneous prices. It is theview of Minoan that competition took place notthrough the published prices but through thepolicy of discounts, the offers and the otherincentives provided by the company.


(84) In relation to Calberson, Minoan argues that itwas logical for the companies to react and to tryto ascertain whether their competitors hadoffered such excessive discounts. As regards thedocument of 25 February 1992, Minoan allegesthat it is not proof of an agreement and that therelevant prices were not applied in practice.Also, according to Minoan, ETA's suggestedprice list for Ortona was intended to secure theapproval of Minoan, in case the latter companydecided to operate a ship on the Ancona route.

(85) As regards the telex of 7 January 1993, Minoanclaims that it related to the price balancingbetween drachmas and Italian lire and not toany price increase in either currency.

(86) Finally, Minoan claims that there is no proof ofan agreement between itself and Ventouris,Hellenic Mediterranean Lines and Med Link for1992.

(87) Adriatica claims that in 1992 it had no contactwith the other companies and continued to setits fares according to market conditions, ascould be shown from the fares it actuallyapplied. According to Adriatica, the ETAdocument of 25 February 1992 shows thatconsultations took place between the Greekoperators but not with Adriatica. Furthermore,Adriatica submits that during 1992, its marketshare declined due to the lower prices chargedby the Greek companies.

(88) For 1992, Ventouris argues that there is nospecific evidence of its participation in priceagreements.

1993

(89) As regards the meetings with the companiesoperating on the other lines of the Greek-Italianmarket, Strintzis accepts that there was anattempt to agree prices on the basis of theprinciples for the determination of domesticfares. However, Strintzis does not know whetherthe companies of the other lines applied suchfares or not.

(90) As for the telex of 6 November 1992, Strintzismaintains that the proposal of Minoan was notfollowed in practice, since the differences in thefares of the companies were not based on theproposal of Minoan but on their autonomousdiscount policies.

(91) Minoan admits that there were discussionsbetween the companies. As regards the telex of6 November 1992, Minoan claims that it wassent by ETA without the knowledge or approvalof Minoan. Furthermore, in relation to themeeting of 24 November 1993, Minoan claimsthat the alleged �previous agreement' was anon-binding declaration by various companiesthat there should be a differential between thedistance in miles and the applied fares and thatthey should avoid unfair competition by anydevaluation. However, it its alleged that theabove declaration was not followed in practice.

(92) As regards 1993, Adriatica states that itcontinued its independent policy, readjusting itstruck fares by 4,03 % in relation to 1992 faresowing to exchange rates fluctuations. From 1January 1993, Adriatica was also obliged, unlikethe Greek operators, to introduce the VATpursuant to the relevant Community regulation.Nevertheless, Adriatica admits that it wasrepresented in the meeting of 24 November1993 between the ferry operators but arguesthat it decided not to enter the proposedagreement on tariffs in view of the possibleinfringement of Community competition rules.

(93) As for 1992, Ventouris Ferries argues that thereis no specific evidence of its participation inprice agreements in 1993. Nevertheless, inrelation to the fax of 24 November 1993,Ventouris Ferries concedes that it participated inthe relevant meeting, but claims that it hadalready determined its pricing policy for thatyear.

1994

(94) Strintzis does not know whether the relevantfares were followed by the companies. Asregards the Patras-Ancona route, Strintzisadmits that the framework agreement on prices


was applied. However, it claims that the relevantagreement was not followed in practice, sinceStrintzis followed its own autonomous discountpolicy.

(95) Again, Minoan denies the existence of anagreement on prices. In relation to the telex of13 May 1994 which refers to the new categoryof 12-14 metres for trailers, Minoan argues that,as is evident from the telex of 23 June 1994, ithad modified the relevant category of trailersfrom 12-14 metres to 12,5-14 metres. In itsopinion, this indicates that the trailers of 12,5metres represented a different category of lowerfares. Finally, as regards the telex of 26 May1994, Minoan claims that it did not approve thealleged �initiative' of ETA and that it hadapplied a different policy as is shown by otherdocuments available to the Commission.

(96) Adriatica argues that it did not increase itsprices during 1994, although it had readjustedthe rate between US dollars and Italian lire by1,22 %.

F. The Commission's assessment of the evidenceand the parties' arguments

Conclusion

(97) The Commission concludes that ferry companiesoperating the Ancona/Bari/Brindisi-Greeceroutes participated in a price fixing cartel forseveral years. This was an ongoing agreementdescribed by the companies as �the usualpractice' (telex of Minoan dated 15 March1989). There is strong evidence to suggest abroad agreement including a large number ofcompanies (such as Minoan's document of 2November 1990 stating that prices were agreedby the companies on all the Greece-Italy routes,the telex sent to Anek on 22 October 1991stating �the agreement between 11 companiesand 36 vessels', the ETA telex of 24 November1993 referring to 14 companies, the ETA telexdated 26 May 1994 referring to �the agreementof 16 companies'). The Commission has beenable to prove that certain companies operatingon the Ancona-Greece route participated in theprice-fixing cartel regarding fares for passengersand vehicles from 18 July 1987 the latest.Although consultations took place before thatdate, there is no indication of the exact date onwhich price-fixing negotiations were initiated.Moreover, the Commission proved that certain

ferry operators in Bari/Brindisi-Greece routesparticipated in the cartel at the latest from 8December 1989, at least as regards the level offares for trucks. The collusion lasted from 8December 1989, at least as regards the level offares for trucks. The collusion lasted at leastuntil July 1994. The cartel operated in the formof regular meetings and exchange ofcorrespondence in order to readjust collectivelyprices for passengers and vehicles. TheCommission has been able to identify sevencompanies that participated in the cartel:Minoan, Karageorgis, Marlines, Strintzis, Anek,Ventouris Ferries and Adriatica. Theinvolvement and the duration of theparticipation for each of these companies arediscussed at paragraphs 111 to 139.

Assessment to the general arguments of theparties

Involvement of the Greek authorities

(98) In their answers to the requests for informationaddressed to them by the Commission, Minoan,Strintzis and Anek, on 9 and 10 February 1995,stated, inter alia, that the tariff agreement inquestion had been concluded within theapplicable legislative framework under the aegisof the Ministry for the Merchant Navy (YEN).

(99) In support of this argument, the three companiesproduced a copy of the text of Law 4195/29,relating to unfair competition, as well as a seriesof decisions and recommendations of the YENconcerning the Greece-Italy maritime lines; theserelated to the public-service obligations in thissector and, in particular, the connectionfrequency, the priority, according to the seasons,to be granted to the transport of freshagricultural products, the minimum number ofships to be maintained in operation as well asthe starting schedules of the ships.


(100) In a letter of 28 October 1994, the Commissionasked the Greek Ministry for the MerchantNavy to provide certain statistics relating totraffic on the Greece-Italy routes as well as toclarify whether the Ministry had ever threatenedto withdraw operating licences for domesticroutes if companies failed to agree prices oninternational routes.

(101) On 23 December 1994, the Ministry replied tothe Commission that the sea corridor betweenGreece and Italy should be regarded as being ofparamount national and Communityimportance, while tariff rates should becompetitive but at the same time at a levelwhere transportation costs would be kept low.Nevertheless, the Ministry denied anyconnection between the revocation of operatinglicences and the companies' price agreements oninternational routes.

(102) On 13 January 1995, the Commission addressedto the Greek Permanent Representation to theEuropean Union a copy of the informationforwarded by the companies, asking for thecomments of the Greek Government on itspossible involvement in agreements on themaritime lines between Greece and Italy and, inparticular, tariff fixing on these same lines.

(103) On 17 March 1995, the Greek PermanentRepresentation replied to the Commission thatthe Greek Government considered servicesprovided on the route in question to be servicesof public interest and that consequently, thegovernment's primary concern was the viabilityof the route and the avoidance of any possible�price war' which could possibly hinder thesmooth promotion of export and import tradeor the transport of vehicles and passengers.However, the involvement of the YEN in tarifffixing concerned only internal routes (cabotage).In the case of the maritime lines between Greeceand Italy, which include a national part (forexample Patras-Corfu-Ancona), only thenational part (Patras-Corfu) is covered by thetariff policy of the YEN. For the internationalpart of the maritime lines, the YEN does notintervene in any way, and prices are fixed freelyby the companies concerned, account beingtaken of the fact that the fare fixed by the Statefor the domestic part of the route has anindirect and partial impact on the total fare toand from Italy. Moreover, the Permanent

Representation stressed that the YENencourages the companies, informally, tomaintain the tariffs at low levels and the annualincreases within the limits of inflation. Lastly,the freedom of the companies to set their pricesis restricted by Law 4195/29 where it leads tounfair competition. Article 2 of that Lawprohibits any devaluation of fares for passengersand goods in the external (international) routesto a level which would be derisory anddisproportionate to the level of service provided,with the object of unfair competition. Accordingto Article 4, if the freedom in fixing fares onthese routes degenerates into unfair competition,the Ministry for the Merchant Navy is entitledto impose upper and lower levels of fares.

(104) Consequently, the Commission rejects theargument of some of the Greek companies thatthey did not act autonomously in the field oftariff policy owing to the relevant regulatoryarrangements in Greece.

(105) In this case, it is clear that Greek companiesoperating on the Greece-Italy routes are subjectto a rigid legal and regulatory frameworkconcerning the domestic part of the routes, inparticular as regards the grant of operatinglicences and the fixing of fares by the Ministryfor the Merchant Navy. This, however, has nodirect effect, as the Greek authorities confirmed,on the tariff policy of the companies concerningthe international part of the routes. Moreover,the Greek authorities have strongly denied that,through their administrative practice in relationto the application of these rules, they obligedthe Greek companies to enter into priceagreements for international fares. In his replyof 23 December 1994 to a Commission letter,Director Manos of the Ministry for theMerchant Navy stated: �¼ there is noinvolvement of the Ministry in the rate-fixingpolicy which is followed by the companies inthe international routes. Our involvement isstrictly confined in the fixing of prices indomestic routes only ¼ It is unthinkable and itis out of question that the Ministry threatens towithdraw operating licences for domestic routesif companies fail to agree prices on internationalroutes.'


(106) It is also clear that Law 4195/29 does noteliminate price competition. On the contrary, itpresupposes that price competition exists andthat companies are free to set their prices. It isonly when this freedom is used for unfaircompetition purposes that Article 4 of the Lawentitles the Ministry for the Merchant Navy tointervene. Even in this case, the Ministry mayonly define upper and lower prices and notimpose a specific level of fares. Moreover, it isto be noted that this Law has never beenapplied.

(107) The Commission considers it significant that,although the parties argue that many of theirdiscussions were motivated by a desire to satisfythe requirements of the YEN and to avoidunfair competition (as with the discussions withAnek when it opened the Trieste route forexample), not one of the contemporarydocuments quoted in evidence by theCommission makes any mention whatsoever ofthe YEN or of Law 4195/29. Consequently, theargument that the Greek companies wereobliged by the Ministry's preventive measures toenter into collusive practices owing to the fearthat Article 4 of the Law might be applied, isrejected.

(108) It is also difficult to accept that the Ministry'srecommendations to the companies relating tothe fare increases within the limits of inflationhad any relation whatsoever with theabovementioned law. It is clear from Article 2 ofthe Law that it applies only when fares arederisory but not when fares are high. As theMinistry explained, its recommendations werebased on other considerations relating toGreece's international trade patterns. Inconclusion, the Greek maritime transportcompanies, carrying out activities on theAdriatic, must be regarded, in the field of tariffpolicy, as having acted autonomously.

Assessment of other general arguments of theparties

(109) It is also ingenuous for certain of the parties tocontend that the companies' price initiativeswere the result not of collusion but of naturalmarket forces (for instance the impact of fuelcosts) or other specific events like the war in theformer Yugoslavia or sudden fluctuations offoreign currencies. This assertion is whollyagainst the weight of documentary evidence ofprice fixing collusion. The argument of certain

parties that they were merely following priceincreases of which they had knowledge throughtheir agents' network can similarly be rejected.It is clear that almost all the �price increase'correspondence was obtained by directexchanges between competitors and not fromagents.

Assessment of the arguments relating to theduration of the infringement

(110) As regards the duration of the infringement,most of the companies on the Patras-Anconaroute argued that although a price-fixingagreement was reached during 1987, itexclusively concerned fares for 1988. Similarly,Anek argues that it entered into the agreementsin 1989 but in relation to fares for 1990. TheCommission rejects this argument, since enteringinto price-fixing agreements is in itself aninfringement of Article 85 of the EC Treaty.

Assessment of the arguments relating to specificallegations

The involvement of individual companies

(111) It is necessary to establish in respect of eachaddressee of this Decision that it participated inthe infringement. This does not, however, assome undertakings have argued, require directproof that every alleged participant expresslygave its consent to, or committed some overt actof support for, each and every individual aspectof the price arrangements throughout theirduration. The whole gravamen of theinfringement lies in the association of thecompanies, over several years, in a jointunlawful enterprise pursuant to a commondesign.

(112) The proper approach in a case such as this oneis to demonstrate the existence, the operationand the salient features of the collusion inquestion and then to determine: (a) whetherthere is credible and persuasive proof to link


each individual company to the commonscheme; and (b) for what period each companyparticipated (1).

(113) There is ample direct evidence to prove theadherence of every addressee of this Decision tothe infringement. The �core' documents whichprove the existence of the overall cooperation orindividual manifestations thereof usually identifyparticipants by name.

(114) Evidence of the participation of eachundertaking in the infringement is provided by:(a) explicit references to that undertaking in thecorrespondence exchanged between the parties;(b) its participation in meetings and subsequentconcerted price initiatives; and (c) the internaldocumentation of that undertaking, or anotherundertaking, linking it to the collusion. In nosignificant respect was any of that evidencecontradicted or shown to be anything butreliable during the administrative procedure.

(115) Several documents (in particular, Minoan's faxof 15 March 1989, Strintzis' fax of 12 July1989, fax sent to Anek on 22 October 1991,Anek's reply of 18 November 1991, Minoan'sletter to its agents of 2 November 1990, Anek'sletter to its agents of 21 October 1991,Minoan's telex of 7 January 1993, ETA's telexof 24 November 1993) demonstrate thatconsultations and agreements on prices werecontinuously taking place, for several years,between all the addressees of this Decision.

(116) Minoan, Strintzis and Anek admit theirparticipation in the alleged collusion whileKarageorgis did not submit any arguments in itsdefence.

(117) As regards the Bari/Brindisi operators, Adriaticaand Ventouris Ferries admit their participationin meetings where fares have been discussed andagreed between competing ferry operators.Moreover, certain documents (Strintzis' faxes of8 December 1989, 5 September 1990 and 30

October 1990, Minoan's letter of 2 November1990, the fax sent to Anek on 22 October 1991,Minoan's document of 25 February 1992,Minoan's telex of 7 January 1993, ETA's telexof 24 November 1993) indicate ongoingnegotiations and agreements between theAncona and the Bari/Brindisi opertors. OnlyMinoan's telex of 7 January 1993 refers to anagreement between the Ancona operators,expressly stating that other companies were not,at that time, aware of it. However, even thisdocument refers to discussions involving theBari/Brindisi companies which, as the documentindicates, were to be consulted subsequently bythe Ancona operators. The Commission has notbeen able to identify other companies operatingin the Bari/Brindisi lines which eventuallyparticipated in the collusion. In particular, thisDecision is not addressed to AK Ventouris andHellenic Mediterranean Lines because there isnot sufficient evidence that they actuallyinfringed the competition rules (both companiesare mentioned only once in other companies'documents).

Marlines

(118) Marlines' participation in the collusion from1987 until 1989 is proved by eight documents(referred to in sections relating to theagreements for 1988 and 1989) received byMarlines or indicating Marlines as party to therelevant agreements. The Commission concludesfrom the above that Marlines negotiated andagreed every year with Strintzis, Minoan andKarageorgis common prices for passengers andgoods vehicles on the route Patras-Ancona asearly as 18 July 1987 and for 1988 and 1989.The last occasion on which Marlines ismentioned in the documentary evidence is in atelex sent by Anek to Marlines on 22 September1989. There is no evidence that Marlines tookpart in any further consultations with othercompanies nor is there conclusive evidence of itssubsequent involvement in the cartel. TheCommission concludes that Marlinesparticipated in the infringement, at most, from18 July 1987 to 8 December 1989, when theother companies agreed to readjust their prices.

(1) Judgment of the Court of First Instance in Case T-1/89,Rhône-Poulenc v. Commission [1991] ECR II-867, atparagraph 126.


(119) The argument of Marlines that it is an offshorecompany under Greek law must be rejected. TheCommission never alleged that the infringementwas limited only to Greek companies.

Med Link

(120) Med Link argues that it has no relationshipwhatsoever with the companies mentioned inthe statement of objections addressed to MedLink Lines by the Commission as MediterraneanLines Inc. or Med Line. Moreover, Med Linkalso claims that it did not participate in any ofthe alleged infringements. In particular, therepresentative of Med Link, Mr Giannatos,whose name is mentioned in the telex of 24November 1993 from ETA to the head office ofMinoan, states that he did not take part in themeeting referred to in that telex. He states thatMed Link was established in Liberia on 15 July1993 and established its headquarters in Greeceafter 31 December 1993.

(121) The Commission accepts that there is no clearevidence of an organic link between Med Linkand Mediterranean Line. In particular, MedLink cannot be regarded as the successor toMediterranean Line in its activities in therelevant market. Consequently, this Decision isnot addressed to Med Link.

Adriatica

(122) Adriatica admits its participation in price-fixingconsultations with its competitors inGreece-Italy routes. In particular, Adriaticaconcedes that it participated in two meetings, on25 October 1990 and 24 November 1993respectively, where prices were agreed betweenferry operators. Nevertheless, Adriatica deniesthat it had other contacts with its competitors inthe Italy ± Greece routes.

(123) As regards the meeting of 25 October 1990 andStrintzis' fax of 30 October 1990, Adriaticaclaims that did not follow the fares discussed inthe meeting and listed in Strintzis' fax, eventhough Strintzis' fax included Adriatica's truckfares for the Brindisi-Greece route. Furthermore,

Adriatica submits that its fares wereapproximately 10 % lower than the Greekcompanies' fares on the same route.

(124) Upon the Commission's request, Adriaticasubmitted on 27 October 1992 two lists of itstruck fares for 1991. In the first list, categoriesof vehicles are indeed different from those usedin Strintzis' fax. However, the second list isidentical to the one included in that fax.Moreover, differences between Adriatica's andthe Greek operators' fares in the same route areevidenced in Strintzis' fax, too. Consequently,the Commission rejects Adriatica's argumentsthat only Greek operators were involved in thepreparation of truck fares for 1991 and thatAdriatica did not follow the agreed fares.

(125) As regards the meeting of 24 November 1993,Adriatica acknowledges its participation butargues that it subsequently instructed itsrepresentative to avoid any collusive practicesince this could be considered by theCommission as a cartel arrangement. However,an internal note is not sufficient evidence toallow Adriatica to escape liability for theremaining period of the infringement (1).Nevertheless, the Commission takes intoaccount the evidence provided by Adriatica thatit did not in practice follow the agreedreadjustment of 15 % for 1994.

(126) According to the Commission, strong evidenceindicates an ongoing agreement between theAncona and the Bari/Brindisi operators. There isdirect evidence that Adriatica joined the cartelfrom 30 October 1990 at the latest, by agreeingto readjust its truck fares for 1991. There is alsosufficient direct evidence of its involvement for1993. On 24 November 1993, Adriaticanegotiated and agreed with its competitors thereadjustment of its truck fares as fromDecember 1993. As regards, the periodsbetween 30 October 1990 and 24 November1993, there is evidence of the Bari/Brindisi

(1) See judgment of the Court of First Instance in CaseT-141/89, Trefileurope v. Commission [1995] ECR II-791,at paragraph 85.


operators' participation in the ongoing collusionand there is no evidence that Adriatica, havingjoined the cartel, left it during this period. Thetelex sent to Anek on 22 October 1991 refers tothe collusion between �the 11 companies and the36 vessels on the Greece-Italy crossing'.Consequently, the Commission concludes thatAdriatica participated in the infringement untilJuly 1994.

Hellenic Mediterranean Lines

(127) Hellenic Mediterranean Lines is mentioned oncein a Strintzis' telex dated 30 October 1990. Asno other evidence of its participation in thecollusion exists, this Decision is not addressed toHellenic Mediterranean Lines.

Ventouris Group Enterprises

(128) There is evidence of Ventouris Ferries'participation in the collusion from 8 December1989 until July 1994. The Commission rejectsVentouris Ferries' arguments that it did notreceive the relevant documents or that it hadalready decided on its pricing policy beforetaking part in the consultations in question(seeparagraphs 47 and 48).

(129) In relation to its second argument, VentourisFerries submitted a telex sent to one of itsagents on 4 December 1989 including the priceslisted in Strintzis' fax of 8 December 1989 forthe Bari-Greece route. Ventouris Ferries claimsthat Strintzis' fax simply reproduced Ventouris'fares established before 8 December 1989.However, it is undeniable that Strintzis' faxsimply related to an agreement between severalcompanies, including Ventouris. It is thus clearthat Ventouris Ferries participated in pricefixing. It is to be noted that the two documentsnot only contain the same list of fares but bothexplicitly mention that those fares were valid asfrom 10 December 1989.

(130) Furthermore, Ventouris Ferries submitted lettersaddressed to its clients or agents dated 8

October 1990 and 11 October 1990 containingthe truck fares listed in Strintzis' fax of 30October 1990. However, these letters confirmthe evidence contained in Strintzis' fax. Strintzisrefers to �a final agreement for truck fares' andproposed to �announce the prices on 1November and put them into effect, as it hasbeen agreed, from 5 November 1990'. In itsletters Ventouris Ferries stated that those fareswere �indicative' and that Ventouris intended toput them into effect �from end ofOctober/beginning of November 1990'. Indeed,the letters confirm that the infringement was anongoing agreement and that Ventourisparticipated in it.

(131) There is strong evidence to indicate an ongoingagreement between the Ancona and theBari/Brindisi operators. Even for 1992, forwhich Ventouris Ferries argues that there is noevidence against it, ETA's document dated 25February 1992 demonstrates that Ventourisparticipated in the collusion, discussing fares forthe Otrando route, too. As regards 1991, thetelex sent to Anek on 22 October 1991 refers tothe collusion between �the 11 companies and the36 vessels on the Greece-Italy crossing'. TheCommission concludes that Ventouris Ferriescontinued to participate in the collusion during1991, as there is sufficient direct evidence ofVentouris' involvement for the remaining yearsof the infringement, namely the telex of Strintzisdated 8 December 1989, the telefax fromStrintzis dated 30 October 1990, ETA'sdocument dated 25 February 1992, telex fromETA to the head office of Minoan dated 24November 1993, and there is no evidence thatVentouris Ferries dissociated itself from theagreement in 1991.

Strintzis

(132) Strintzis did not contest its participation in thealleged collusion. Its arguments refer to theinvolvement of Greek authorities and to thenon-binding character of the agreements. TheCommission concludes that Strintzis participatedin the alleged price-fixing collusion from, at thelatest, 18 July 1987 up to July 1994.


Anek

(133) Anek did not contest its participation in thealleged collusion. Its arguments refer to theinvolvement of Greek authorities and to thenon-binding character of the agreements. TheCommission concludes that Anek participated inthe alleged price-fixing collusion from 6 July1989 to July 1994.

Karageorgis

(134) Karageorgis did not submit any arguments in itsdefence. The Commission concludes thatKarageorgis participated in the allegedprice-fixing collusion from, at latest from 18July 1987 until 27 December 1992 whenKarageorgis definitively withdrew its vesselsfrom the Greece-Italy routes.

Minoan

(135) Minoan did not contest its participation in thealleged collusion. Its arguments refer to theinvolvement of Greek authorities, the marketconditions and the non-binding character of theagreements. The Commission concludes thatMinoan participated in the alleged price-fixingcollusion from, at latest, 18 July 1987 until July1994.

(136) Minoan refers to its contractual relationshipwith ETA, its exclusive managing agent for allMinoan ships operating on international routes.Minoan argues that several of the activitiesreferred to in this Decision were ETA's owninitiatives, not approved by Minoan, sometimesoutside the scope of the ETA-Minoan contracts,and that Minoan should not be regarded asresponsible for them. The Commission does notaccept this argument. As regards the relationshipbetween ETA and Minoan, it is clear from allthe contracts between the two parties availableto the Commission that ETA is the exclusivecentral managing agent for Minoan whichoperates under Minoan's instructions andsupervision. Under all these contracts ETArepresents Minoan before all national and

international authorities and organises the localand port agents' network of Minoan. If Minoanso requests, ETA must use all its endeavours toensure Minoan's cooperation with othercompanies. Commissions payable to ETA byMinoan and to other Minoan or tourist agentsby ETA precisely (in percentage terms or infixed amounts) defined by several provisions.

(137) Consequently, ETA should be described as thelonga manus of Minoan, operating as arepresentative of Minoan, as an intermediarywho acts exclusively on behalf of Minoan anddoes not undertake business on its own account.In all the documentary evidence used in thisDecision, Mr Sfinias, the legal representativeand manager of ETA, represented Minoan(Athens), signing all relevant documents, even areply dated 20 November 1992 to a request forinformation addressed to Minoan by theCommission. Indeed, Mr Sfinias acted as therepresentative of a functional unit insideMinoan. All other companies replying to fax ortelex messages signed by Mr Sfinias addressedtheir replies to �Minoan' or �Minoan Athens'and never to ETA. In all these documents, MrSfinias referred to ETA only when addressingMinoan headquarters in Heraklion, Crete.Nevertheless, Minoan refers to the documentaryevidence used in this Decision, arguing that only6 out of 17 Minoan documents relate to ETA'sinforming Minoan of the arrangements inquestion and that in only two of them does ETArequest Minoan's approval of its suggestions.However, the Commission rejects the argumentthat the documents do not allow ETA'santi-competitive actions to be imputed toMinoan. It is clear from the Minoan documentsemanating from its headquarters in Heraklion aswell as from Mr Sfinias' messages to MinoanHeraklion that Minoan was aware of thecollusion and participated in it (such as ETAdocuments dated 25 February 1992, 21 May1992, 30 July 1992 where ETA acts as Minoan'srepresentative vis aÁ vis the other companies).

(138) In the Commission's view, Mr Sfinias' letters toMinoan Heraklion concerning their contractualrelationship does not prove, as Minoan argued,that ETA acted autonomously in its owninterest, outside the scope of ETA-Minoan


contracts. On the contrary, this correspondence,as well as Mr Sfinias' requests for Minoan'sapproval, proves that Minoan was always keptinformed of the collusion and that it could inany case influence the conduct of its managingagent in a decisive manner. In conclusion, theCommission rejects the argument that ETAwhich was addressed as �Minoan Athens' orsimply as �Minoan' in all relevant documentaryevidence, enjoyed such a high degree ofcommercial autonomy that its conduct cannotbe imputed to its principal (1). For the purposesof this Decision, ETA and Minoan areconsidered to form a single legal and economicunit.

(139) As a procedural point, Minoan contends thatETA is an independent company which acted asits agent. Accordingly, Minoan challenges thelegality of the investigation in the offices of ETAand of the documents that were collected by theCommission. This argument cannot be accepted.The Commission considers that there issufficient documentary evidence that ETA,whilst representing Minoan, described itself as�Minoan Athens' or simply �Minoan'. It issignificant that in ETA's premises in Athens,ETA used Minoan's logo and trademarks. Moreimportantly, before the investigation in question,Mr Sfinias replied to a Commission request forinformation, signing a document in the name ofMinoan. At the top of the document, the ETApremises' address appears under the logo andtrademark of Minoan, with no mention of ETAwhatsoever. The Commission concludes that,independently of ETA's occupation and use ofthe premises in question, Minoan permitted ETAto use these premises as �Minoan Athens'premises', too.

PART II

LEGAL ASSESSMENT

Article 85

(140) Article 85(1) of the EC Treaty prohibits asincompatible with the common market all

agreements between undertakings or concertedpractices which may affect trade betweenMember States and which have as their objector effect the prevention, restriction or distortionof competition, and in particular those whichdirectly or indirectly fix purchase or sellingprices or any other trading conditions.

(141) It is not necessary, in order for a restriction toconstitute an agreement within the meaning ofArticle 85(1) for the agreement to be intended tobe legally binding on the parties. An agreementexists if the parties reach a consensus on a planwhich limits their commercial freedom bydetermining the lines of their action in themarket. No contractual sanctions orenforcement procedures are required. Nor is itnecessary for such an agreement to be made inwriting. It is clear from the evidence in this casethat the parties engaged in regular, directconsultations aimed at fixing passenger faresand freight rates between Greece and Italy.Regular, detailed discussions took place eachyear to decide the tariff levels for the followingyear, and ad hoc consultations took place todecide how the parties should react to issuesthat arose during the year, such as currencydevaluation or new categories of vehicles. It isalso clear that these discussions took place atsenior levels between the parties. There can beno doubt that this arrangement amounted to anagreement, the object of which was to fix sellingprices and other trading conditions between theparties thereto.

(142) In order for Article 85 to apply, it is necessarythat the agreement or concerted practicebetween the parties has the object or effect ofrestricting competition. The clear object of theagreement between the parties in this case wasto bring about the imposition of common prices,thereby restricting their ability to actindependently in the market. As the Court ofJustice has consistently held, it is unnecessary toconsider the actual effects of an agreement if itis apparent that it has the object of preventing,

(1) See judgment of the Court of Justice of 25 October 1983in Case 107/82, AEG-Telefunken v. Commission [1983]ECR 3151, at paragraph 49; and the judgment of 14 July1972 in Case 48/69, ICI v. Commission [1972] ECR 619,at paragraphs 132 and 133 as to the imputation ofsubsidiaries' conduct to their parent companies.


restricting or distorting competition (1).Moreover, in this case, the agreement does notfall within any applicable block exemption and,furthermore, does not fulfil the conditions forindividual exemption.

Effect on trade between Member States

(143) The services affected by the practices in issue inthis procedure are the roll-on roll-off ferryservices between Greece and Italy. The searoutes between Greece and Italy have assumedeven more importance in 1992 when thebeginning of the war in the former Yugoslaviaeffectively closed the overland routes for importsand exports between Greece and the rest of theEuropean Union. In 1993, 1 316 003 passengersand 213 839 freight vehicles were transported inGreece-Italy routes. Of these, 49 % and 38 %were transported via the Patras-Ancona route,35 % and 38 % on the Patras-Brindisi one, and10 % and 19 % on the Patras-Bari route. Five ofthe undertakings covered by this procedureaccounted for almost 100 % of traffic at onetime or another on the Patras-Ancona route.Any agreement which affects demand forservices between two Member States (such as anagreement fixing price levels between the majorproviders of that service) is likely to deflectdemand both within the group of undertakingsinvolved in the agreement, and those outsidethis group, and thus after the pattern of trade inthat service between Member States.

Conclusion

(144) On the basis of the above, the Commissionconsiders that Minoan, Anek, Karageorgis,Marlines and Strintzis, participated in anagreement contrary to Article 85 by agreeingprices which would be applied to roll-on roll-offferry services between Patras and Ancona. TheCommission also considers that Minoan, Anek,Karageorgis, Strintzis, Ventouris Ferries andAdriatica agreed on the levels of fares for trucksto be applied on the Patras to Bari and Brindisiroutes. These agreements formed part of abroader scheme of collusion in the setting offares for the ferry services between Italy and

Greece. These should therefore not be regardedas separate infringements but as aspects of asingle continuous infringement.

FINES

Article 19(2) of Regulation (EEC) No 4056/86

(145) Under Article 19(2) of Regulation (EEC) No4056/86, the Commission may by decisionimpose on undertakings fines of from ECU1 000 to ECU 1 000 000, or a sum in excessthereof but not exceeding 10 % of the turnoverin the preceding business year of each of theundertakings participating in the infringement,where either intentionally or negligently theyinfringe Article 85(1) of the Treaty. In fixing theamount of the fine, regard shall be had both tothe gravity and to the duration of theinfringement. In this case, the infringement hasbeen committed intentionally, which is to saythat it was designed to restrict pricecompetition. Direct documentary evidenceindicates that the parties were aware that thecollusion aimed to or at least was liable toeliminate price competition (for instanceMinoan's telex of 15 March 1989, Strintzis' faxof 12 June 1989, Minoan's telex of 7 January1992, Minoan's telex of 7 January 1993). Thedeliberate nature of the parties' practice can beseen further in the measures for monitoring theadjustments in tariffs (for instance, Minoan'stelex of 22 June 1989, Karageorgis' telex of 10October 1990, telex sent to Anek on 22 October1991, Minoan's telex of November 1992).

Gravity

(146) In assessing the gravity of the infringement,account must be taken of its nature, its actualimpact on the market, where this can beassessed, and the size of the relevant geographicmarket.

(147) An agreement by which the price of transportingpassengers and freight by roll-on roll-off ferrieswas agreed by some of the most important ferryoperators in the relevant market constitutes, byits nature, a very serious breach of Communitylaw.

(1) See, for instance, the judgement of 11 January 1990 inCase C-277/97, Sandoz v. Commission [1990] ECR 1-45,at paragraph 39.


(148) However, the infringement had a limited actualimpact on the market. The Commission acceptsthat the parties did not apply in full all thespecific price agreements and that they engaged,during the period of the infringement, in pricecompetition through discounting. Moreover, theGreek Government, during the period of theinfringement, encouraged the undertakings tokeep fare increases within the inflation rates.Fares were kept at one of the lowest levelswithin the common market for maritimetransport from one Member State to the other.

(149) Moreover, the infringement produced its effectswithin a limited part of the common market,namely three of the Adriatic Sea routes. Even ifall Greece-Italy routes are taken into account,the market is still small compared to othermarkets within the Community. The followinglist shows the number of passengers, cars andtrailers transported during 1996 in this marketand along other Community routes (1).

1996 Passengers Cars Trailers

Italy-Greece 1 258 000 245 983 229 000

France/Belgium-UK 28 352 635 4 944 644 1 944 028

Denmark-Germany 9 698 357 1 363 940 279 274

Denmark-Sweden 23 132 174 2 628 311 498 916

Eurotunnel 8 399 463 2 076 954 519 003

(150) Consequently, the Commission concludes thatthe infringement is a serious breach ofCommunity competition rules.

(151) In setting the level of fines, the Commission maytake account of the effective capacity ofoffenders to cause significant damage and setthe amount of fine at a level which ensures thatit has a sufficiently deterrent effect. TheCommission considers it appropriate that larger

fines be imposed on the larger undertakings thanon the smaller because of the considerabledisparity between their sizes (2). Table 1indicates the relative size of each of theundertakings concerned in 1993, the last fullyear of the infringement for all undertakings(except for Marlines and Karageorgis (3)), ascompared to Minoan, the largest operator in themarket. The comparison is made on the basis of1993 turnover in respect of roll-on roll-offservices in the Adriatic routes. This is theappropriate basis for the comparison of therelative size of the undertakings because itenables the Commission to assess the specificweight and importance of the undertakings inthe relevant market and, therefore, to evaluatethe real impact of the offending conduct of eachundertaking on competition

Table 1

Large carriers Minoan 1,00

Anek 0,76

Medium carriers Strintzis 0,45

Adriatica 0,40

Ventouris 0,30

Karageorgis 0,26

Small carriers Marlines 0,12

(1) Source: Cruise & Ferry Info.

(2) It is to be noted that Marlines and probably Ventourismay be categorised as small and medium-sized enterprisesaccording to the Commission's Recommendation96/280/EC of 3 April 1996. According to the Commissionnotice on agreements of minor importance (OJ C 372,9.12.1997, p. 13) agreements between SMEs are not, ingeneral, caught by the prohibition in Article 85(1).However, in this case, only two of the parties, i.e.Marlines and Ventouris, can be described as SMEs.Moreover, it is certain that the agreement significantlyimpedes competition in a substantial part of the relevantmarket (see Part III of the notice on agreements of minorimportance).

(3) Karageorgis' size is calculated on the basis of theinformation which Karageorgis provided as to thenumber of passengers and vehicles carried by its vesselsduring 1992, which according to Karageorgis was the lastfull year of its activities in Greece. For Marlines, this baseis its total turnover for 1989. For the purposes of thiscomparison, it is of no consequence whether oneconsiders Marline's turnover for 1989 or for 1993.


(152) Following this grouping, the medium carriers'fines relating to the gravity of the infringementwill amount to 65 % of the large carriers' fines.For Marlines, the same percentage will be 20 %.

Duration

(153) The Commission considers the agreement todate from, at latest, 18 July 1987 up to July1994 (the date of the Commissioninvestigations), in the case of Strintzis andMinoan, and for Anek from 6 July 1989 to July1994. In the case of Marlines, its participationin the agreement is considered to have beenfrom, at the latest, 18 July 1987 up to at least 8December 1989. Karageorgis appears to haveleft the market during 1993. The duration of theinfringement for that company is thereforeconsidered to be from, at the latest, 18 July1987 until 27 December 1992.

(154) In respect of Ventouris Ferries, the Commissionconsiders that as from 8 December 1989 itentered into the pricing-fixing cartel by agreeing,with four of the companies operating on thePatras-Ancona route, the level of fares for trucksto be applied on the Patras to Bari and Brindisiroutes. Ventouris participated in theinfringement until July 1994. Moreover, theCommission considers that Adriaticaparticipated in the cartel referred to above asfrom 30 October 1990 at the latest until July1994.

(155) The Commission concludes that theinfringement was of long duration for Minoan,Strintzis and Karageorgis, and of mediumduration for the rest of the undertakings.

(156) These considerations justify an increase of thefines by 10 % for every year of the infringementfor Minoan and Strinzis, by 20 % for Marlinesand by 35 % to 55 % for the otherundertakings. Table 2 indicates the relevantadjustments per company.

Table 2

Lage carriers Minoan + 70 %

Anek + 45 %

Medium carriers Strintzis + 70 %

Adriatica + 35 %

Ventouris + 40 %

Karageorgis + 55 %

Small carriers Marlines + 20 %

Conclusion on the basic amount of fines

(157) The Commission concludes that the partiescommitted a serious infringement of Article 85.Consequently, a fine has to be imposed whichpenalises this serious breach in an appropriateway and which, by its deterrent effect, preventsany repetitions.

(158) Table 3 sets out the calculation of the level offines taking into account the elements set out inparagraphs 146 to 156. Column 1 sets out thebasic fine calculated on the basis of the gravityof the infringement. Column 2 sets out the basicfine per individual company taking into accountthe duration of the infringement.

Table 3

Gravity(million ECU)

Duration(million ECU)

Minoan 2 3,4

Anek 2 2,9

Strintzis 1,3 2,21

Adriatica 1,3 1,75

Ventouris 1,3 1,82

Karageorgis 1,3 2,01

Marlines 0,4 0,48


Aggravating circumstances

(159) It is clear from the documentary evidence thatMinoan acted as the instigator of the cartel.Minoan tried to persuade Anek to join the cartel(Minoan's telex of 15 March 1989), discussedwith Ventouris the latter's tariff policy in theOtranto route (ETA's document of 25 February1992) and organised and directed meetings withthe companies involved in the infringement(ETA's telex of 21 May 1992, ETA's telex of 24November 1993). This company not onlymonitored the cartel's operations but also triedto extend the scope of the companies'collaboration (telexes dated 15 March 1989, 7January 1992, 25 February 1992, 7 January1993, 24 September 1993, 26 May 1994). Theseconsiderations justify an increase of the fine by25 % for Minoan.

(160) In November 1992, after the parties hadreceived requests for information from theCommission, Minoan proposed that eachcompany should differentiate its prices by 1 %for four cabin categories. Each company woulddifferentiate four different categories of price.

(161) This fact not only demonstrates Minoan's roleas the instigator of the cartel but also amountsto an attempt to obstruct the Commission incarrying out its investigation. Theseconsiderations justify an increase of the fine by10 % for Minoan.

Mitigating circumstances

(162) The Commission accepts that the parties did notapply in full all the specific price agreementsand that they engaged, during the period of theinfringement, in price competition throughdiscounting. However, these considerations havealready been taken into account in assessing thegravity of the infringement.

(163) The usual practice ± not directly imposed by thelegal or regulatory framework ± of fixingdomestic fares in Greece through a consultationof all domestic operators (whereby they wereexpected to submit a common proposal) and theex post decision of the Ministry for theMerchant Navy may have created some doubtamong the Greek companies operating also on

domestic routes as to whether price fixingconsultation for the international route didindeed constitute an infringement. Theseconsiderations justify a reduction of the fines by15 % for all the undertakings.

(164) Marlines, Adriatica, Anek and Ventouris playedan exclusively �follow my leader' role in theinfringement. These considerations justify areduction of the fines by 15 % for thoseundertakings.

(165) Table 4 below sets out the amount of fines afterthe aforementioned adjustments.

Table 4

Adjustment(%)

Fines afteradjustment

(million ECU)

Minoan + 20 4,08

Anek � 30 2,03

Strintzis � 15 1,87

Adriatica � 30 1,22

Ventouris � 30 1,27

Karageorgis � 15 1,08

Marlines � 30 0,33

(166) According to Article 19(2) of Regulation (EEC)No 4056/86, the Commission may not imposefines exceeding ECU 1 000 000 or 10 % of theturnover in the preceding business year of eachof the undertakings participating in theinfringement. For all undertakings exceptKarageorgis, the fines set out in the columnheaded �Fines after adjustment' do not exceed10 % of the turnover of the undertakingsinvolved in the present infringement.

(167) Karageorgis ceased its operations in January1993 and subsequently closed all its branches inGreece. The Commission has no informationregarding Karageorgis' turnover for 1997. UnderArticle 19(2) of Regulation (EEC) No 4056/86,the Commission may by decision impose onundertakings fines of from ECU 1 000 to ECU1 000 000 (or a sum in excess thereof but not


exceeding 10 % of the turnover in the precedingbusiness year). Accordingly, the fine forKarageorgis is set at ECU 1 000 000.

(168) By virtue of the Commission notice on thenon-imposition or reduction of fines in cartelcases (1), fines imposed in cartel cases may besignificantly reduced in several cases. Such casesinclude the following: (a) before a statement ofobjections is sent, an enterprise provides theCommission with information, documents orother evidence which materially contribute toestablishing the existence of the infringement;(b) after receiving a statement of objections, anenterprise informs the Commission that it doesnot substantially contest the facts on which theCommission bases its allegations.

(169) In this case, the documents submitted by Anekbefore the Commission's issuance of thestatement of objections have confirmed, to asignificant extent, the existence of theinfringement in question. Moreover, none of thecompanies contested the factual basis of theCommission's statement of objections. Theseconsiderations justify a reduction of the fines by45 % for Anek and by 20 % for the otherundertakings.

Conclusion: the final amount of fines

(170) Table 5 shows the final level of fines taking intoaccount the elements set out in paragraphs 146to 169.

Table 5

Final amount of fines(million ECU)

Minoan 3,26

Anek 1,11

Strintzis 1,5

Adriatica 0,98

Ventouris 1,01

Karageorgis 1,00

Marlines 0,26

HAS ADOPTED THIS DECISION:

Article 1

1. Minoan Lines, Anek Lines, Karageorgis Lines,Marlines SA and Strintzis Lines have infringed Article85(1) of the EC Treaty by agreeing prices to beapplied to roll-on roll-off ferry services between Patrasand Ancona.

The duration of these infringements is as follows:

(a) in the case of Minoan Lines and Strintzis Lines,from 18 July 1987 until July 1994;

(b) in the case of Karageorgis Lines, from 18 July1987 until 27 December 1992;

(c) in the case of Marlines SA, from 18 July 1987until 8 December 1989;

(d) in the case of Anek Lines, from 6 July 1989 untilJuly 1994.

2. Minoan Lines, Anek Lines, Karageorgis Lines,Adriatica di Navigazione SpA, Ventouris GroupEnterprises SA and Strintzis Lines have infringedArticle 85(1) of the EC Treaty by agreeing on thelevels of fares for trucks to be applied on the Patras toBari and Brindisi routes.

The duration of these infringements is as follows:

(a) in the case of Minoan Lines, Ventouris GroupEnterprises SA and Strintzis Lines, from 8December 1989 until July 1994;

(b) in the case of Karageorgis Lines, from 8 December1989 until 27 December 1992;

(c) in the case of Anek Lines, from 8 December 1989until July 1994;

(d) in the case of Adriatica di Navigazione SpA, from30 October 1990 until July 1994.

Article 2

The following fines are hereby imposed on thefollowing undertakings in respect of the infringementfound in Article 1:(1) OJ C 207, 18.7.1996, p. 4.


Ð Minoan Lines, a fine of ECU 3,26 million,

Ð Strintzis Lines, a fine of ECU 1,5 million,

Ð Anek Lines, a fine of ECU 1,11 million,

Ð Marlines SA, a fine of ECU 0,26 million,

Ð Karageorgis Lines, a fine of ECU 1 million,

Ð Ventouris Group Enterprises SA, a fine of ECU1,01 million,

Ð Adriatica di Navigazione SpA, a fine of ECU 0,98million.

Article 3

The fines shall be paid within three months of the dateof notification of this Decision to the followingaccount:

Account No 310±0933000±43.European CommissionBanque Bruxelles-LambertAgence EuropeÂenneRond-Point Schuman/Schumanplein 5B-1040 Brussels.

After three months, interest shall automatically bepayable at the rate charged by the European CentralBank on its ecu transactions on the first working dayof the month in which this Decision was adopted, plus3,5 percentage points, namely 7,5 %.

Article 4

This Decision is addressed to:

Ð Minoan Lines25th August 17GR-71202 Heraklion, Crete

Ð Strintzis Lines26 Akti PossidonosGR-18531 Piraeus

Ð Anek LinesNikolaou Plastira & ApokoronouGR-Hania, Crete

Ð Marlines SA38 Akti PossidonosGR-18531 Piraeus

Ð Karageorgis LinesKarageorgis BuildingsAkti Kondyli 26Ð28GR-18503 Piraeus

Ð Ventouris Group Enterprises SA91 Leoforos Pireos & Kithiron 2GR-18541 Piraeus

Ð Adriatica di Navigazione SpAZattere 1411I-30123 Venice

Done at Brussels, 9 December 1998.

For the Commission

Karel VAN MIERT

Member of the Commission


(only the greek and italian texts are authentic) (text with eea...

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