Following a complaint by Eurotunnel operators France Manche SA and The Channel Tunnel Group on June 25, 2021, the French Competition Authority (“FCA”) examined allegations that DFDS and P&O Ferries had entered into an anticompetitive capacity-sharing agreement on the Calais–Dover route.
The FCA concluded that the information in the case file had not established the anticompetitive purpose of the agreement in view of its content, objectives, and economic and legal context.[1]
Background on the Agreement Between DFDS and P&O Ferries
On May 25, 2021, P&O Ferries and DFDS entered into a space-chartering agreement covering their ferry services on the Calais–Dover route. This route represents the main short-sea crossing between northern France or Belgium and the United Kingdom, handling a substantial share of cross-Channel freight traffic, where ferry operators compete directly with rail traffic via the Channel Tunnel. The main players on this route are Eurotunnel, P&O Ferries, DFDS, and Irish Ferries.[2]
The agreement was structured around the following main elements:[3]
- Coordination of sailing schedule. P&O Ferries and DFDS agreed to coordinate their respective timetables in order to create a consolidated schedule. This allowed each party to offer and market the full set of combined sailings as part of its own commercial offering.
- Capacity-sharing. Each operator undertook to make available a pre-determined volume of freight capacity for the benefit of the other, but retained the possibility to modify the committed capacity.
- Additional capacity. The agreement provided for short-notice access to additional capacity: where, twenty minutes prior to departure, an operator had not fully utilized its allocated capacity, the other operator could use the surplus in return for financial compensation.
- Capacity rebalancing. The agreement also included a rebalancing mechanism to ensure that neither party could disproportionately rely on the other’s vessels while failing to provide its own capacity, including in circumstances such as external events or technical issues leading to the cancellation of a sailing.
On November 22, 2021, the FCA’s investigation services issued a statement of objections alleging that P&O Ferries and DFDS had entered into an anticompetitive agreement involving capacity-sharing on the Calais-Dover route, joint provision of services to freight carriers, and implementation of a rebalancing mechanism for each party’s contributed capacity.[4]
A revised agreement was concluded on August 12, 2022, as part of the commitments submitted by DFDS and P&O Ferries in the context of the investigation of the UK Competition and Markets Authority (“CMA”) opened on November 11, 2021.[5] The amendments were primarily intended to clarify the terms of the original agreement and address the competition concerns identified by the CMA, in particular those arising from the joint removal of sailings, the fixing of capacity between the parties, and the parties’ incentives to cancel sailings.[6] They confirmed that each party retains full discretion over the capacity it allocates to the cooperation, including the frequency of sailings, and may adjust such allocation at any time. The rebalancing mechanism was confined to cancellations resulting from technical issues, adverse weather, or force majeure, and applicable to the party that has failed to provide its committed capacity.[7]
Due to organizational and operational constraints, the agreement was implemented in the two directions only as of August 2022.[8] It was terminated in August 2024 following the signature by P&O Ferries of a capacity sharing agreement with Irish Ferries, in which DFDS decided not to participate.[9]
The Decision
The FCA dismissed the allegations made in the statement of objections finding that there was no evidence that this agreement had an anticompetitive object.[10] The FCA strictly applied the European Court of Justice case law, which requires that the concept of restriction of competition by object be interpreted restrictively,[11] and mandates an assessment of the degree of harm to competition resulting from the agreement.[12] The FCA recalled that, to assess such degree of harm to competition, it is necessary to take into account, in a concrete and cumulative manner, both the content and objectives of the restrictive practice and the economic and legal context in which it occurs.[13]
First, with regard to the content and objectives of the agreement between P&O Ferries and DFDS, the FCA found that it established “a mere exchange of capacity” based on sailing timetables determined unilaterally.[14] Each party retained the ability, at any time, to market capacity on the other’s vessels strictly in proportion to the capacity it committed under the agreement, with no obligation for such commitment to remain fixed over time.[15] In addition, the agreement did not guarantee the effective utilization of the available capacity.[16] The agreement therefore did not alter the key parameters of competition in the relevant market, in particular the incentives of P&O Ferries and DFDS to optimize operational costs, improve service quality, and offer competitive prices. Nor did it restrict the ability of other competitors, such as Irish Ferries, to compete with P&O Ferries and DFDS on those parameters.[17]
Second, with regard to the economic context, the FCA considered that by enabling carriers to board the first available vessel, the agreement was capable of reducing waiting times and, to some extent, alleviating port congestion which harms the competitiveness of the maritime transport.[18] As to the legal context, the FCA noted that space-chartering agreements are a well-established practice in the freight sector.[19] The FCA refers to the reasoning set out in the Commission’s 2019 evaluation of the block exemption regulation for liner shipping companies (the “CBER”), which highlights that consortia have contributed to technical and economic progress by promoting greater utilization of containers and more efficient use of vessel capacity.[20]
Takeaways
The FCA and the CMA reached convergent conclusions that the agreement between P&O Ferries and DFDS did not have an anticompetitive object. Both authorities recognized that the agreement generated efficiency gains, in particular with regard to reduction of port congestion and overall journey times by allowing freight customers to use the next available sailing from either party. This in turn was considered likely to intensify competitive interaction with Eurotunnel on short sea routes.[21] The two decisions should, also, be considered in light of the Commission’s 2023 evaluation of the CBER, which follows the 2019 evaluation cited in the FCA’s decision.[22] Based on market feedback on the competitive structure of the liner shipping industry in the 2020-2023 period, the Commission concluded that the CBER no longer fulfils the criteria of effectiveness, efficiency, and EU added value.[23] The Commission therefore decided not to extend the CBER and to let it expire on April 25, 2024.[24] Future consortia between liner shipping companies will be assessed under the general EU competition rules.
[1] FCA, Decision No 25-D-04 of September 11, 2025 (“FCA Decision No 25-D-04”), available at: https://www.autoritedelaconcurrence.fr/sites/default/files/integral_texts/2025-09/25d04.pdf.
[2] FCA Decision No 25-D-04, para. 11 and following.
[3] FCA Decision No 25-D-04, para. 27 and following.
[4] FCA Decision No 25-D-04, para. 3. See also FCA Press Release, “Cross-Channel freight transport: the General Rapporteur states that two shipping companies have been notified of objections”, November 25, 2021, available at: https://www.autoritedelaconcurrence.fr/en/communiques-de-presse/cross-channel-freight-transport-general-rapporteur-states-two-shipping.
[5] CMA, Case No 51099 of August 5, 2022 (“CMA, Case No 51099”), available at: https://assets.publishing.service.gov.uk/media/62ecdb34e90e0714325bf9a1/Decision_to_accept_commitments.pdf.
[6] CMA, Case No 51099, paras. 3.5 to 3.15.
[7] FCA Decision No 25-D-04, para. 45.
[8] FCA Decision No 25-D-04, para. 49.
[9] FCA Decision No 25-D-04, paras 52-54.
[10] FCA Decision No 25-D-04, para. 88.
[11] Budapest Bank and Others (Case C‑228/18), April 2, 2020.
[12] FCA Decision No 25-D-04, paras 84 and 85.
[13] FCA Decision No 25-D-04, para 85 ; Allianz Hungária Biztosító and Others (Case C-32/11), March 14, 2013, para 36.
[14] FCA Decision No 25-D-04, paras 89 and 91.
[15] FCA Decision No 25-D-04, paras 90 and 91.
[16] FCA Decision No 25-D-04, para. 93.
[17] FCA Decision No 25-D-04, para. 94.
[18] FCA Decision No 25-D-04, para. 98.
[19] FCA Decision No 25-D-04, para. 99.
[20] European Commission (“Commission”) Staff Working Document: Evaluation of Commission Regulation (EC) No 906/2009 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions, and concerted practices between liner shipping companies (consortia), November 20, 2019, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019SC0411. The CBER was adopted in 2009 and extended in 2014 and 2020.
[21] CMA, Case No 51099, para. 3.2.
[22] Commission Staff Working Document: Evaluation of Commission Regulation (EC) No 906/2009 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions, and concerted practices between liner shipping companies (consortia), October 10, 2023, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52023SC0670.
[23] Ibid, p.59.
[24] Commission Press Release, “Commission decides not to extend antitrust block exemption for liner shipping consortia”, October 10, 2023, available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_23_4742.