Urgent review of the Block Exemption
Two cities, one port: a look at the merger of the Port of Antwerp with the Port of Bruges
Brouwersvliet 33 / Box 1, 2000 Antwerp (Belgium)
T +32 3 233 67 86 info@forwardbelgium.be www.forwardbelgium.be
Published by: Olivier Schoenmaeckers
Administration:
Ines De Bruyn
Marketing: Vanessa Thys
Change of address:
Ines De Bruyn, ines@forwardbelgium.be
Editors: Nicole Verstrepen, Olivier Schoenmaeckers
Pre-press:
Ingrid Renders
Concept & creation: KMOdynamoo
For the last three years, our diaries have been mainly determined by a series of crises: Brexit, Covid and the conflict in Ukraine.
Each crisis situation demands a different approach, but it always requires gearing up to ensure the sector is adequately informed and providing support in these unprecedented circumstances. These events have a huge impact on the logistics chain and we have to deal with the consequences on a daily basis.
Frequent contacts with all the relevant local, national and European authorities, daily enquiries from companies about the practical impact, discussions about costs and responsibilities… we’ve become very proficient at all of this.
But a number of ongoing structural cases have disappeared under the piles of paperwork within various governments. And while we understand that people and resources need to be deployed to manage a crisis, we’re also keen to look towards the future in our sector.
FORWARD Belgium has therefore drawn up a to-do list for the Customs Administration, FPS Mobility, FPS Justice… although we sometimes wonder whether it’s worth adding to it since we haven’t received any answer or co-operation.
We’re hopeful that we’ll be able to work constructively over the coming months and focus properly on making positive progress for the sector.
It’s high time that Certified Pick Up (CPU) is realised and work can be done on the digital list of priorities which was drawn up by the private community as part of The Way Forward. Admittedly, this is a complex exercise that requires many factors to be considered, but frustrations are increasing because companies are currently having to pay for an application that is not yet operational.
We’re very interested to find out what the merger of the ports of Antwerp and Zeebrugge will bring; we currently have no idea what the impact on our community will be. We certainly have a good relationship with our colleagues in Zeebrugge, and we’re working together to determine how we can combine forces within FORWARD with mutual respect.
We’re pleased to see that businesses are continuing their sustainability efforts, despite the large amount of work required and the challenge of finding sufficient suitable personnel, and we’re delighted to welcome some new members to our club of FORWARD Goals for Sustainable Development.
Let us hope that those working in customs administration are able to switch from crisis management back to constructive discussions with the sector. A number of important first steps have already been taken in reforming the sanctioning policy, and we mustn’t lose any momentum during this legislature.
The crisis has caused us to change our traditional festive or Christmas event into a summer occasion. And all our forwarding colleagues’ positive vibes and enthusiasm at the magnificent Handelsbeurs show great promise for a hot summer! Emerging from the crisis.
Olivier Schoenmaeckers
Ports are undoubtedly one of the most important engines in our economy, and the beating heart of our imports and exports. That’s why, following lengthy negotiations, the ports of Antwerp and Bruges have resolved to join forces and share their docks. This will strengthen both Belgian ports’ position and highlight Belgium’s key role as a logistics hub that freight forwarders can benefit from.
Shippers & Forwarders Manager Philippe Beaujean takes a look behind the scenes of the much-discussed merger and explains some of the advantages offered by the port of tomorrow.
What is your role for the Port of Antwerp-Bruges?
“As Shippers & Forwarders Manager, I’m their central point of contact. My department is responsible for both the reactive and proactive contact with all the port’s indirect customers. We answer all their questions, address their concerns and incorporate everything in our policy.”
“It used to be much harder for our indirect customers to find the right answers and people in the port. But we’re a vital link in the supply chain, so they need to be able to come to us with their queries.”
What does the merger between Antwerp and Bruges mean in concrete terms?
“First and foremost, it’s a single port with two platforms that will bring people together and ensure climate and economic issues are given a stronger voice worldwide. As the second largest port in Europe, we’re also a powerful driver for the Flemish and European economy, which in turn will attract more potential investments. In short, more people will listen to us and hear what we have to say!”
“Shipping companies and forwarders will also be able
to improve their products for customers thanks to the enhanced possibilities we offer, so it’s a win-win situation for everyone involved.”
Why have you had to wait so long to reach an agreement?
“This is largely because of the competition authorities. We weren’t able to sit down together commercially for a very long time, which is why we’re now taking the time to makes sure our commercial strategy is properly implemented.”
“We’ve already taken our first steps, and are busy working on this merger’s unique selling proposition (USP) for forwarders to communicate. The crisis has shown us, once again, that we need this more and more.”
“Forwarders are like architects who ensure freight is transported efficiently. Supply chains are becoming more and more complex, and political crises – such as the conflict in Ukraine and Brexit – increasingly make timely deliveries difficult. Specialist forwarders take care of customers and help to ensure that shops in the United Kingdom remain properly stocked, for example.”
How do you see these two ports complementing each other? Are they strong enough?
“Absolutely! This complementarity is even reaping rewards already. In Zeebrugge, the focus is on shortsea and it’s a real energy port (for gas). In Antwerp, we’re strong in break bulk, dry bulk and liquid bulk.”
“And we’re highly committed to interconnectivity in the areas where we overlap, such as containers and ro-ro ships. One of our internal working groups is detailing how we can combine these two platforms as efficiently as possible.”
Does this merger also add value in terms of energy?
“The energy transition is a very important issue for the Port of Antwerp-Bruges, and a significant motive behind this merger. We firmly believe that the Port of Antwerp-Bruges can be an important energy hub which will help to shape changes in energy.”
“As for the sources of energy for the ships themselves, we’re focusing on a multi-fuel approach to strengthen our position as a bunkering port. We’re also showing the market that alternative fuels work, for example with a hydrogenpowered tugboat as well as a hybrid vessel.”
You say that you’re bringing people, the climate and the economy together. What does this actually mean?
“As a port, we’re committed to a green future to maintain a base for expansion and investments, which all stakeholders in the wider national and international market can benefit from. That’s why we’re engaging in the EU’s ‘Fit for 55’ package, for example.”
“Becoming more environment-friendly will furthermore
be an important asset for shippers and forwarders moving forward, because sustainability is playing an increasingly major role in the supply chain.”
And what about any digitalisation initiatives?
“Yes, we have a lot of these too. Take the CPU project, for example, with which we’re aiming to organise how import containers are picked up differently. We also have projects in place to help advance the digitisation of data exchange, and are collaborating with partners to create stronger systems.”
How are you dealing with the use of space in the port?
“In parallel with the Extra Container Capacity Antwerp project, the Port of Antwerp-Bruges is working on a ‘Container Plan 22-30’ to safeguard our competitive position. The continuous growth of the container business in Antwerp is resulting in increased demand for capacity. We’re continuing to focus on implementing further optimisations and improving efficiency.”
“Working on all levels together with other countries means we can already offer concrete and effective solutions for this. The Port of Antwerp-Bruges will act as a catalyst for initiating dialogues with various parties to encourage even more improvements in efficiency.”
Finally, can you sum up the core values of this merger for us?
“We strongly believe that the merging of the two ports will have a positive impact on our global positioning and make us stronger in relation to our competitors. Together with the forwarders, shippers and all other stakeholders, we can find new opportunities even faster and more efficiently in every aspect. And this will ensure we can continue to grow!” ■
The recently announced Port of Antwerp-Bruges merger raises the question of what possible consequences there might be if the bill of lading states ‘Port of AntwerpBruges’ as the port of discharge.
concept?
First and foremost, the destination port stated on the B/L remains an agreement between the maritime carrier and the consignor.
The ‘destination port’ term is a geographical or territorial concept by definition. In principle, there is no connotation with the legal entity that operates the destination or other ports. In other words, the fact that the ports of Zeebrugge and Antwerp will fall under one and the same port authority is irrelevant.
While there is a general understanding that a maritime carrier is supposed to call at their destination port, they are permitted, under certain circumstances, to call at an alternative port – if there is one nearby – with the obligation that they ensure the goods are delivered to the contractual destination at their own risk and expense.
What constitutes a ‘nearby port’ is not defined in the legal doctrine, but nearby is presumed to be nearby. This general rule is weakened against the background of the liberty clauses that often appear in bills of lading, whereby a maritime carrier reserves the right to unload goods
in a port other than the destination port, through the application of general conditions – whether or not this is still opposable – under certain circumstances.
The maritime carrier then takes the view that delivery at the alternative port of discharge constitutes the end of the sea voyage. Naturally, this is not something the consignee wants to hear, and maritime carriers are often held accountable for all the consequences.
Existing congestion in various ports currently leads to shipping companies unilaterally changing the port of loading/unloading and declaring ‘end of voyage’. And these situations usually generate extra costs.
However, unilaterally changing agreed terms and conditions cannot mean that the cargo owner is responsible for the resultant costs. The carrier is obliged to deliver the goods at the port or place of destination as stated on the B/L, and to do so under their own responsibility and at their own expense. However, again, the relevant clauses in the B/L always need to be considered. These usually include provisions for situations where the shipping company reserves the right to deviate from the original route or to discharge at other ports.
But this doesn’t mean that these provisions are always valid and
necessarily need to be accepted. Congestion at a given port of discharge that was entirely foreseeable for some time can hardly be considered a form of force majeure entitling the carrier to escape their obligations.
Firstly, it’s a matter of waiting to see how the various shipping companies react, and it’s always important to remember to check the B/L conditions carefully.
It’s advisable for the cargo interests (shippers/receivers) to inform themselves well in advance (before concluding the sea transport agreement) about who should bear the costs and responsibilities if the Port of Antwerp-Bruges is stated as the destination port. This can then serve as the basis for reaching informed agreements with the shipping company. These agreements can prevent discussions around the costs and responsibilities for transferring the goods if the maritime carrier unilaterally unloads them at a port of their choice.
In addition to the legal issues, careful consideration of course also needs to be given to who is best placed to ensure the transfer of the goods between the two ports and therefore retains ‘control’ of the cargo. ■
These members may now use the FORWARD Belgium sustainability logo. They have demonstrated their commitment to various SDGs and sustainability.
EUTRACO NV
- Energy- and CO2-neutral warehouse
- LED lighting
- Well-being at work: fruit baskets, pool table, dartboard and plants in the workplace
- Training and learning paths for employees
- Electrification of the vehicle fleet
- Offsetting CO2 emissions
- Multimodal transport
- Coordinated waste management
SCHENKER NV
- Bicycle leasing plan
- Structural teleworking policy and teleworking facilities for employees
- Contributing to biodiversity by installing beehives
- LED lighting
Preparations for the 2023 World Congress of Freight Forwarders & Logistics Service Providers in Brussels have restarted.
FORWARD Belgium brought the World Congress to Belgium in 2021 but it was postponed for two years due to Covid.
The FIATA World Congress is one of the most important events for the logistics sector and is therefore a unique opportunity to put the Belgian logistics sector in the spotlight.
In addition to the conference that will take place in Square Convention Centre, there will also be a trade fair with many company exhibitions.
You will have the opportunity to meet logistics companies from all over the world at various networking events in Brussels City Hall, Autoworld and the Comic Strip Museum.
We’re happy to offer you a variety of options to showcase your company at this unique event.
Please contact the FORWARD Belgium secretariat.
Justitiestraat 26
2018 Antwerp
Tel: 0032/ (0)3/203.40.00
Fax: 0032/ (0)3/225.28.81
www.vandoosselaere.be
Van Doosselaere Advocaten focuses on companies with a specific specialization in the legal branches of transport, logistics, customs and excise duties, insurance and company law
Our team of lawyer experts is available for your services
Guy Van Doosselaere (guy@vandoosselaere.be)
Adry Poelmans (adrypoelmans@vandoosselaere.be)
Jan Daneels (jan@vandoosselaere.be)
Geert Preckler (geertpreckler@vandoosselaere.be)
Christophe Van Mechelen (christophevanmechelen@vandoosselaere.be)
There is an increasing trend towards compliance in our sector. As a freight forwarder or logistics service provider, you have to deal with complex issues on a daily basis, such as the use of logistics agreements and general terms and conditions, and settling claims and other legal disputes.
A logistics service provider’s liability demands that they need a certain level of knowledge and support.
FORWARD Belgium has written a course for Portilog on freight forwarders’ legal position.
The topics covered include:
- The legal capacity of the freight forwarder
- The relationship with the maritime carrier, terminal, transporter… with practical examples and tips
- Insurance recommendations
- Use of House B/L
- Attention to customs responsibility
- E-commerce and the logistics service provider
- …
This training will provide you with practical tools to better understand your responsibilities and rights as a freight forwarder or logistics service provider.
The course is also part of the Portilog Port Professional programme. ■
Clecat, the European Association for Forwarding Transport Logistics and Customs Services, is asking the European Commission to investigate the unfair and discriminatory behaviour of shipping companies and their alliances. According to the interest group, their behaviour breaches Articles 101 and 102 of the European Union Treaty. Clecat also believes that the Consortia Block Exemption Regulation (CBER) is in need of a thorough overhaul.
We don’t have to tell you about the current massive disruption to operations in our sector. The logistics chain is having to contend with congestion, sharply rising demand, freight rates going through the roof, container shortages and shipping companies’ services that could often be much better.
According to van der Jagt, the cause of this disruption needs to be sought in the concentration and manner in which alliances operate, but the coronavirus pandemic was the trigger. On top of that came the Suez Canal blockage. The difficulties started in February 2020 when a large part of the supply chain in China came to a standstill. We saw a large increase in blank sailings where ships were taken out of service. There was a shortage of containers and ships, and tariffs skyrocketed.”
The influence of the sanitary crisis also created a consumption boom, which reached massive proportions, especially in the United States. Far East - US freight proved more profitable for the carriers than sailing from the Far East to Europe. So quite a lot of the capacity went to the US trade, which caused major shortages in Europe. According to the carriers, these were due to factors such as port congestion, increased demand, sick port workers, etc.
Van der Jagt acknowledges that carriers have ordered new ships in the meantime, but the problem seems to be becoming cyclical because there are more lockdowns in
Shanghai again and demand for capacity is declining. She is concerned about the new development that has been ongoing for a few months now, where the largest carriers are increasingly focusing on a door-to-door supply chain.
“The big shipping companies have wanted this for a long time, but they seem to have continued improving at becoming integrated carriers since the pandemic. They’ve made huge profits over recent years, and have reinvested this money in their supply chain by taking over all kinds of logistics stakeholders.”
“The carriers are putting pressure on shippers to deal directly with them, and we’re also seeing some carriers refusing direct contracts to the forwarders, especially the SMEs, from one moment to the next. We also hear of cases where a freight forwarder who just wants to reserve a container is refused unless they also buy other services from the carrier. But these are unfair practices. The service also leaves much to be desired. For example, forwarders are rarely informed, if at all, about when a container is available for pick-up in the port. In a healthy market, where rules for fair trade apply, some issues need to be reviewed: it can’t be the case in a competitive market that the service deteriorates so badly while prices skyrocket. The consortia block exemption allows carriers to manage capacity, but what we see is a manipulation of the market. That’s why it’s high time this exception to normal competitive rules was revised because some boundaries are currently defined very vaguely, such as access to data.”
The Director General also said that forwarders’ customers are currently being approached directly by carriers with an offer just below the prevailing prices: “Add developments such as vertical integration and consolidation, with ships getting bigger and bigger, to that… and we cannot call these trends healthy. Carriers are also taking advantage of certain schemes where they a maximum of 2% tax on their huge profits, including for their hinterland logistics services, while their logistics competitors are paying the normal tax…”
The same problem exists in the United States, but the US Congress is taking action there. Van der Jagt: “The Biden Administration has shown itself to be committed to US importers and exporters, given the enormous damage they have suffered due to high container prices and lack of capacity. Various government investigations into unfair shipping line practices are already underway and various lawsuits have been filed. Congress is also working on reforming the Ocean Shipping Reform Act.”
As in Europe, shipowners there enjoy a degree of antitrust immunity, which allows carriers to manage their capacity within the alliances. The US Congress is aiming to put a stop to this by amending the Ocean Shipping Reform Act.
For its part, Clecat raised this issue with the European Commission and asks that it follow the example of the United States.
“We’ve been in talks with the Commission since 2020. Specifically, we’re calling for an urgent investigation into the application of European competition rules in container transport and an early and thorough review of the Consortia Block Exemption Regulation. This regulation is vaguely drafted and allows shipowners to engage in capacity management in practice. Data from the International Transport Forum and elsewhere shows that carriers delayed the return of capacity to the market in the third quarter of 2020, which had a huge impact on rates. Port congestion is a product of fluctuating schedule reliability, not the other
way around. Moreover, carriers have an interest in port congestion because they create a scarcity of capacity that can keep freight rates high. This contradicts the myth that schedules collapsed because of port congestion. We’ve also seen that alliances have been able to shift capacity to the most profitable trade lanes. According to the block exemption for consortia, shipping companies are entitled to organise joint services on a trade provided they don’t engage in price-fixing and their combined market share does not exceed 30%, but we see no difference in behaviour between carriers operating above or below this market share. The regulation is completely out of date due to major changes in the market, alliances, digitalisation, consolidation and increases in scale.”
According to the Director-General, a new delineation of the carriers’ activities is needed: “We’re thinking of introducing a ‘permission to operate’, a new way for carriers to work together, and are currently working out the exact definition.”
Clecat believes that forwarders will certainly continue to play an important role in the logistics chain: “They may have to innovate and digitise their processes to a large extent, but they provide solutions when things threaten to go wrong or have to change at the last minute. If a container is parked somewhere it shouldn’t be, if an airport suddenly closes… these problems require the service and creative solutions provided by the freight forwarders. A forwarder thinks very differently to a shipping line. They will always propose a customer-oriented solution.” ▪
On Friday 6 May 2022, Young FORWARD Belgium organised the 5th edition of the FORWARD Cup – with over 200 athletes and lots of supporters in attendance. MSC Belgium ultimately won the FORWARD cup after an exciting competition at SV Groenendaal in Merksem. ▪
On Thursday 12 May 2022, Young FORWARD Belgium, Alfaport Voka, YoungShip Belgium and ASVTNG organised a successful young people’s congress in the KAVA Congress Centre. ▪
