Workshop Good Practices for Ship Vetting 12 October 2011

1. Workshop Good Practices for Ship Vetting 12 October 2011

2. Nicole L Maréchal Senior Legal Counsellor & Governance Officer 2

3. Legal aspects of ship vetting Guidelines • The Guidelines are of voluntary nature, not made mandatory by law • It is a risk assessment process and risk prevention system, proposed in application of Responsible Care • We (lawyers) are also looking into activities including Guidelines aimed at improving Health Safety & Environment to prevent (legal) risks occurrence

4. Legal aspects of ship vetting Guidelines • Need to have these Guidelines as any Cefic activities conforming with competition compliance to avoid breaching law but also to have any misunderstanding from competition authorities • It is not because you are working within Responsible Care / Product Stewardship / HSE that competition law would not apply → you need to check and to comply

5. EU Competition Law • To ensure competition compliance • how to proceed: • Look at the prohibition of cartels (basically Article 101 TFEU) • Also at the Commission Guidance on Horizontal Agreements, including standardization • Apply this to the Guidelines

6. Cartel prohibition – 101 TFEU • Infringement - Sanctions such as: • Fines (huge) • Agreements void & unenforceable • Damages • Criminal sanctions OK No No Are the 4 conditions of 101 (3) met ? Does Art 101 (1) apply ? No Yes Yes OK Any applicable block exemption - Guidelines ? Yes OK

7. Cartel prohibition • May also apply to activities of a trade association • In addition to usual cartels (eg decision on price, sharing clients, limiting output) cartel prohibition may also apply to systems organised via HSE guidelines • There is a grey zone into which carefulness about activities management is required • → pattern your activity on the right way • Need to be looked at this from Cefic view point, as well as the company one and along the chain

8. Ship vetting Guidelines - compliance • Ship vetting Guidelines – any system alike needs to fulfil the following characteristics: • No exclusion of actual or potential competitor • Freedom to develop alternative systems • Transparency • Means to be proportionate to aims • Exchange of information to be limited to the minimum • System to be open and non-discriminatory

9. Ship vetting Guidelines - compliance • The choice of the logistic service provider is based entirely on the individual decision-making process of each company, which may or may not include criteria/procedure/system developed by the Guidelines • It is certainly NOT a collective decision-making process organised by Cefic or chemical companies to collectively de-select logistic service providers

10. Ship vetting Guidelines - compliance • It IS NOT a: • Certification system to be compared to ISO, or a standardization system • A pass/fail system or system to white/black list providers • An exclusive system replacing any existing or future systems • But it IS a: • A means that companies would use to help avoidance of accident based on voluntary participation • One of the tools that company may use when choosing their respective logistics provider • System to be operated in a non-discriminatory and non-exclusionary manner

11. Thanks your attention • I wish you the best • for developing and applying your own Ship Vetting system