20. 3. 92 Official Journal of the European Communities No L 74/47 COMMISSION DECISION of 9 March 1992 suspending the examination procedure concerning illicit commercial practices. within the meaning of Council Regulation (EEC) No 2641/84 consisting of the imposition in Japan of a port charge or fee used for the creation of a Harbour Management Fund (92/169/EEC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 2641/84 of 17 September 1984 on the strengthening of the common commercial policy with regard in particular to protection against illicit commercial practices ('), After consultation within the Advisory Committee in accordance with the abovementioned Regulation, Whereas : O] @ A. COMPLAINANT On 7 January 1991, the Commission received a complaint from the European Community Shipow- ners Associations (ECSA, hereafter referred to as ‘the complainant) on behalf of shipping lines representing about 90 % of all Community liner shipping companies transporting goods to and from Japan. - B. SUBJECT OF THE COMPLAINT The complaint alleged that in November 1989 a port charge or fee was introduced by the Japan Harbour Transportation Association (hereafter ‘JHTA') on all cargoes moving through Japanese ports for the creation of a so-called ‘Harbour Mana- gement Fund’. The alleged purpose of this Fund was to ensure a stable and regular supply of dock labour and to update and modernize the Japanese import distribution system. According to the complaint, the Japan Foreign Steamship Associa- tion (hereafter ‘JFSA’), representing all non-Japa- nese shipping lines, had originally refused payment. However, as it was allegedly pointed out that refusal to sign an ‘agreement’ accepting the charge would create a substantial risk that the vessels of the refusing shipping lines would suffer serious difficulties when being loaded or unloaded in Japanese ports, in the end all shipping lines, including those from the Community, signed up to an ‘agreement’ covering the period from 1 October 1989 to 31 March 1990. Allegedly this ‘agreement’ () OJ No L 252, 20. 5. 1984, p. 1. &) @ 3 © was subsequently renewed for the period from 1 April 1990 to 31 March 1991. The complaint submitted that the charge for the Harbour Management Fund constituted an illicit commercial practice within the meaning of Article 2 of Council Regulation (EEC) No 2641/84. Arguments presented were that in practice Community shipping lines were forced to make contributions to the Fund, that they had no real influence over the use of the money collected, that the purpose for which the money was actually used (i.e. the construction of inland distribution centres) represented no benefit to Community shipping lines, and that the charges were discriminatory in the sense that the charge for cabotage trade (reserved to Japanse shipping lines) was only one fourth approximately of the charge for imports and exports. According to the complaint, this illicit commercial practice should be attributed to Japan, because the Harbour Management Fund had been authorized and guided by the Japanse Ministry of Transport (MOT), and because JHTA itself operated under the guidance of MOT and had obtained through MOT’s approval its powerful position as interme- diary between dock labour trade unions and ship- ping lines, a position which easily lent itself to abuse if not properly supervised. The complaint further alleged that this illicit commercial practice caused injury to Community shipping lines in the order of US$ 4,5 million per year. The uncertainty which the creation of the Fund introduced in trading relations would also pose a threat of injury to EEC — Japan trade in general. The complaint concluded by urging the Commu- nity to take appropriate action to secure the early elimination of the Harbour Management Fund. C. EXAMINATION PROCEDURE As the complaint contained sufficient evidence to justify initiating an examination procedure, and as initiating such a procedure was considered to be in the interest of the Community, the Commission, after consultation within the Advisory Committee in accordance with Article 6 of Council Regulation (EEC) No 2641/84, announced the initiation of an