On June 25th, 2020 165438+20201October 25th, THE Federal Maritime Commission (FMC) of the United States announced that it would take relevant measures to strengthen the supervision of 2M, The and OCEAN global shipping alliances.
According to the announcement issued by the Federal Maritime Committee, the Committee has sent letters to three global shipping alliances, asking them to submit specific trade data to them every month, while the previous requirement was only once a quarter.
In fact, recently, the issue of shipping monopoly has been the focus of the industry. Liner companies and alliances believe that the shutdown of facilities and personnel caused by market demand and epidemic situation leads to an increase in freight rates, while shippers believe that liner alliances conspire to control transport capacity and are suspected of monopoly.
The highly centralized and ineffective market supervision mechanism has become an important reason for the relevant regulatory agencies to strengthen supervision, because the shipping industry, which has always enjoyed institutional protection because of the particularity of the industry, may wear the "golden hoop" of "normalization antitrust".
High concentration brings hidden dangers of monopoly.
In fact, since 20 16, THE shipping industry has formed three global shipping alliances: 2M, The and OCEAN, and the major liner companies have never stopped competing in groups.
In recent years, in the international container liner shipping market, major liner companies have continuously promoted the reshuffle of the whole industry through various measures such as acquisition, ship enjoyment, space exchange and joint service, thus significantly improving the concentration of the whole industry.
According to the data of Alphaliner, as of February 22nd, 10, the total capacity of the world's top three Maersk, Mediterranean Shipping Company and COSCO Shipping Group has reached 45.3% of the global container liner capacity, while the total capacity of the world's top 10 liner companies has reached 83.7% of the global container liner capacity.
According to the report released by Deluli, an international shipping consulting company, by 20021year, the top seven liner companies in the world will control 3/4 of the global container fleet. Considering that the major liner companies provide services on different routes, when these liner companies allocate their related capacity to the corresponding routes, their influence and dominance are undoubtedly dominant.
From the far east-America and Europe-North America routes, the three global shipping alliances have obvious scale advantages and significantly enhanced market control, which can have a decisive impact on the shipping costs of far east-America and Europe-North America routes.
Because THE freight rate of international container liner transportation is relatively transparent, and the operating cost of operators is basically fixed, with the improvement of the concentration of the whole industry, especially on some routes, the three major shipping alliances in the world, such as 2M, The and OCEAN, have insufficient motivation to launch price competition on specific routes, and it is easy to form a tacit understanding.
After forming a dominant position, members of the alliance can easily achieve the purpose of expanding profits, regulating supply and demand and squeezing small and medium-sized liner companies by charging various surcharges or reducing capacity when the capacity is insufficient or surplus.
Taking demurrage charges and Hong Kong demurrage charges as examples, FMC previously thought that these charges would help solve the problem of empty containers and congestion, and accelerate the circulation of international trade to some extent. However, it is obviously unfair to charge the shipper after encountering force majeure. Especially through "collusion".
In fact, during the epidemic period, it was precisely because of these soaring costs that the importers, exporters, middlemen and truck drivers in the United States had a huge burden, and at the same time, the three major shipping alliances in the world had gained a lot. Therefore, it has become the focus of FMC supervision and needs to be clearly regulated and adjusted.
The market regulation mechanism is out of order.
In addition to the increasing concentration of the industry, the chaos brought by the epidemic this year to the container transport market is also a reflection of the failure of the market mechanism.
At present, the victory of "anti-epidemic" in China has promoted the overall start of production and accelerated the export of trade products.
After the global "anti-epidemic" struggle took the lead in recovery and won, China's huge production capacity boosted the overall recovery of the domestic economy.
On the one hand, the epidemic forced some global supplies to be transferred to China. On the other hand, the surge in consumer demand and the global demand for emergency epidemic prevention have prompted China's productive enterprises to start work in an all-round way and work overtime to cope with the increasing orders.
In order to speed up the export of related products, China's docks, yards, trailer companies and the world's major container liner companies are also operating at full capacity, trying to transport their trade products to all parts of the world.
However, the supply capacity of containers, docks and yards is limited. As a result, the goods entering the dock and yard are seriously affected, and there are problems such as tight container source and delayed turnover. At the same time, the surge in user demand has further promoted the skyrocketing shipping prices of related routes.
According to the foreign trade data of 5438+0 1 released by the General Administration of Customs in June, China's exports of 5438+0 1 achieved positive growth for three consecutive months, and the growth rate reached a new high in nearly 20 months. The New York Times also pointed out in a recent report that China's exports to the United States in that month were 1 1.98 billion US dollars, a year-on-year increase of 46 1%, setting a historical record.
At the same time, according to the statistics of the past three months, the trade volume of China-US, Central Europe, China-Southeast Asia and other routes has soared, and the shipping freight and surcharge have soared, with some routes increasing more than four times, and some even higher. China-US sea freight hit a 20-year high.
Contrary to the situation in China, the production in the United States and other countries and regions is still seriously affected by the COVID-19 epidemic.
Before the outbreak of COVID-19, the export volume of the United States to China was relatively stable, with an average freight rate of $200,300 per TEU. After the COVID-19 outbreak, American enterprises were seriously under-started, and related enterprises engaged in wharf loading and unloading, yard, trailer and other services were no exception, which led to the obstruction of the entire logistics supply chain, inefficient container repair and wharf operation, and difficult to keep up with related services.
At present, there is a strong demand for fitness equipment, household appliances and other daily necessities in the United States. As the traditional Christmas season approaches, major liner companies are facing a 465,438+00-fold increase in container freight on China's export routes, and their service efficiency is low. Their practices are gradually divorced from the essence of shipping services and the market regulation mechanism.
A few days ago, it was reported that the liner companies affiliated to the three major alliances, in order to speed up their profits, have raised freight rates in ports in the United States, Europe and other countries and regions, emptied their cargo, and even refused to accept the cargo, and sailed for China port at full speed.
This chaotic situation has also brought inevitable problems to exporters and other stakeholders, who are unwilling to pay for this chaos, but have to accept the pressure exerted by major liner companies.
Anti-monopoly supervision to solve market failure
For a long time, considering that the shipping industry is capital-intensive and needs economies of scale, and the industry is of great significance to the national economy and national security, countries and regions including the United States have provided many institutional care and protection for shipping operators.
However, the operators engaged in international shipping business are not what they used to be. With THE strong integration of major liner companies in the whole industry, the market share of trade routes of the three major global shipping alliances 2M, The and OCEAN in major economies such as the United States, China and the European Union has increased significantly, and their control ability has improved significantly, and they have extremely high market entry barriers, making it difficult for small and medium-sized shipping companies to enter the international container liner shipping market among major economies.
In view of this, strengthening anti-monopoly supervision is an important means for anti-monopoly law enforcement agencies in various countries to protect the fair competition order in the international container liner market, especially when the outbreak of COVID-19 epidemic leads to further failure of relevant market mechanisms.
As FMC pointed out in its announcement, the Federal Maritime Commission is reviewing and supervising the filing agreement in accordance with 46 U.S.C Section 4 1307; The Committee will give priority to monitoring more than 300 cooperation agreements currently submitted to the Committee; The world's three major shipping alliances have been listed as the highest priority and will be subject to the highest review; According to the authority and geographical scope of the agreement, combined with the potential market conditions, these three alliance agreements are most likely to cause or contribute to adverse market impact; If the Federal Maritime Committee finds any signs of violating the competition standards in Section 6(g) of the Shipping Law, it will immediately discuss with the carrier to solve these problems; If necessary, the Federal Maritime Committee will seek an injunction from the federal court to prohibit the further implementation of the alliance agreement.
It should be pointed out that in this special economic environment, China's anti-monopoly law enforcement agencies and maritime industry supervision departments should also cooperate with each other, strengthen supervision and law enforcement activities, crack down on monopolistic behavior, and solve the problem of market mechanism failure under a highly oligopolistic market structure, thus protecting the legitimate interests of Chinese exporters.
Ports and shipping industry should be alert to monopolistic behavior.
* * * the Political Bureau of the Central Committee held a meeting and put forward a series of requirements on how to do a good job in economic work next year, including "strengthening anti-monopoly and preventing disorderly expansion of capital". This is the first time that the meeting of the Political Bureau of the Communist Party of China has put forward anti-monopoly requirements. Although the outside world interprets this meeting as talking about anti-monopoly, which is intended to emphasize financial innovation and fair competition in the Internet field, it does not mean that other industries can "sit on the Diaoyutai".
Especially for the port and shipping industry, because of the recent surge in shipping prices and surcharges, upstream and downstream enterprises in the industry have questioned the suspected monopoly of liner companies. At the same time, the regulatory agencies in China, the United States, South Korea and other countries have also paid close attention to the recent shipping market and announced relevant regulatory measures.
Ports and shipping have the nature of natural monopoly.
In the field of port and shipping logistics, the voice of anti-monopoly has a long history.
For example, the integration of port resources by province has triggered doubts about port monopoly in the industry. In fact, since 20 1 1 year, the port's capacity adaptability (the ratio of port throughput to completed throughput) has been fluctuating above 1.2, and even exceeded 1.3 in 20 16 years. Faced with the reality of port overcapacity and declining profitability, the industry has taken two measures.
First, the integration of port resources may lead to low-level competition between ports in capital integration and business integration in the region, thus weakening competition among them.
Second, dismantling and handling illegal docks can not only improve the green and safety level of ports, but also ensure the cargo handling needs of regular docks.
Accompanied by this, will the integrated port enterprises have stronger pricing power for shipping companies?
20 17 The results of the port anti-monopoly survey released by the National Development and Reform Commission show that some domestic ports require shipping companies to use tugboat, tally, shipping agency and other services provided by local subsidiaries; Charging excessive loading and unloading fees for local foreign trade containers; Attach unreasonable trading conditions such as compulsory unpacking and tally, non-competition clause and loyalty clause to the trading object.
The relevant person in charge of the National Development and Reform Commission said that these behaviors excluded and restricted the competition in relevant markets, affected the business environment of fair competition and increased the operating cost of the real economy.
However, it should be noted that the above-mentioned anti-monopoly investigation is mainly aimed at part of the enterprise's own business behavior, rather than completely denying the integration of port resources.
Outside the port field, the establishment of COSCO Shipping Group has also triggered doubts about monopoly in the industry.
COSCO Shipping Group was formally established in Shanghai on February 20 18 16. It was reorganized by China Ocean Shipping (Group) Corporation and China Shipping (Group) Corporation. It is a super-large central enterprise directly managed by the Central People's Government and headquartered in Shanghai. After the merger, COSCO Shipping Group's comprehensive fleet capacity, self-owned fleet capacity of dry bulk cargo, tanker capacity and special fleet capacity of groceries all rank first in the world.
It can be seen that because of this merger, China enterprises have a stronger ability to participate in international shipping competition, such as the narrowing of the trade deficit in transport services in China on 20 19. Moreover, the merger of the above two companies has also undergone relevant antitrust investigations. Therefore, it is obviously inappropriate to measure such mergers and acquisitions only by whether they are suspected of monopoly.
The author believes that enterprises in the market are always seeking their own competitive advantages, which sometimes come from technical barriers and sometimes from scale barriers. The larger the scale, the more obvious the scale economy effect of the enterprise, and the easier it is to become the threshold of the market, making the new enterprise unprofitable.
However, there is another kind of enterprises that belong to natural monopoly enterprises and provide services by establishing networked infrastructure. Such a service model, the larger the scale, the more economical it is, which is more conducive to maximizing social value.
The port and shipping logistics industry itself has a certain natural monopoly attribute, and it is reasonable to expand its scale within a certain range. As far as the integration of port resources is concerned, it has a certain network effect. In the current integration model, large shipping companies are also involved. Therefore, the integration of port capital and ship capital will promote the integration of related businesses and services, which may weaken the possibility of monopoly.
As far as the merger of COSCO and China Shipping is concerned, COSCO Shipping Group undertakes the heavy responsibility of "One Belt, One Road" connecting the whole world. The investment and operation of Piraeus Port in Greece can demonstrate the foresight and responsibility of China central enterprises in the layout of key nodes of the Belt and Road Initiative. From the perspective of national competition, the merger of the two is more reasonable.
"Connecting the world" requires the improvement of infrastructure and the ability of network services, so it deserves greater freedom. European and American countries have long adopted the "anti-monopoly exemption" policy for the shipping industry, and its inherent rationality is reflected here.
Enterprises need to have anti-monopoly compliance awareness.
The shipping industry itself is a low-return industry. Since 2008, the overall market has been in a relatively depressed state, and the overall profitability of the industry is not optimistic. Therefore, the capital market's pursuit of the shipping industry is very limited, and only some shipping digital platforms have been invested, but overall, the scale is not large and the impact is not great. There is no phenomenon that huge capital "burns money" to promote the promotion of a new model.
In other words, the "disorderly expansion of capital" proposed by the meeting of the Political Bureau of the Communist Party of China did not occur in the shipping field.
However, in the face of the national measures of "strengthening anti-monopoly and preventing the disorderly expansion of capital", port and shipping logistics enterprises need to have a sense of crisis and risk awareness and do their own self-examination, although they are not the direct targets of supervision.
The author believes that although the overall monopoly ability of the port and shipping logistics industry is not strong, it does not rule out the abuse of monopoly position in local time and local market, and upstream and downstream enterprises are expressing the monopoly suspicion of port and shipping logistics enterprises from time to time.
At present, the container liner routes between China and the United States, and between China and Europe are experiencing abnormal freight rates soaring. The increase in freight rates is not entirely due to the fact that liner companies * * * have sought and sealed up part of the transport capacity, but to the "intestinal obstruction" caused by the COVID-19 epidemic and the strong demand for cargo transport in the United States.
However, from the shipper's point of view, the overall increase in freight rates and the decrease in transportation options will naturally lead to the conclusion that liner companies are suspected of monopoly. Therefore, shipping companies need to do a good job in anti-monopoly investigation, review and interview, dispel the doubts of relevant management agencies, dispel the suspicion of monopoly, and take various measures to promote the normalization of global container liner transportation.
In addition, port and shipping enterprises should actively study the relevant laws and regulations of the market supervision department, participate in the seminars on competition law and policy held by relevant departments, strengthen the work of the legal department in the field of competition neutrality and compliance, and make the shipping enterprises develop steadily in compliance.
Author | Gold
Position | Deputy Director of Competition Law Center, Institute of International Law, Chinese Academy of Social Sciences