Port of Longoni in Mayotte: the Autorité de la concurrence fines several companies in the Mayotte-based Nel group a total of €2.1 million for abuse of a dominant position in the port handling sector

The award to MCG of the public service delegation for the management and operation of the infrastructure and facilities at the Port of Longoni

In September 2013, the département of Mayotte awarded a public service delegation to MCG for the management and operation of the infrastructure and facilities at the Port of Longoni. This award covered only some of the port’s economic activities and did not include port handling, for example.

The practices in question

• Exclusionary abuse in the port handling markets

In 2014, several documents seized by the Investigation Services revealed the Nel group’s intention to take control of all port activities by retaining almost all horizontal handling operations (container storage and delivery) and by forcing the incumbent handler into a subcontracting arrangement for vertical handling operations (loading and unloading of ships), while favouring its own port handling subsidiary, Manu-Port.

Consequently, from the start of the public service delegation, the Nel group, through MCG, prevented SMART from gaining access to the areas required for the storage and delivery of full containers to and from Mayotte. Similarly, the Nel group, through MCG and Manu-Port, handled almost all empty-container storage and secured a monopoly in the market for the storage of transhipment containers on behalf of shipowners.

The Nel group also implemented a strategy to control SMART’s vertical handling activities by attempting to impose a subcontracting arrangement on the company for an activity that was not included among the tasks assigned to MCG under the public service delegation. Subsequently, under a “partnership agreement” signed in December 2015, the Nel group gained close control of key aspects of SMART’s vertical handling operations. The granting of a permit to occupy public land, which was necessary for SMART’s activities, was made conditional on its acceptance of these conditions. The Nel group also imposed conditions on the use of quay cranes that were unacceptable to SMART, requiring the latter to relinquish all operational autonomy.

At the same time, the documents in the case file show that the Nel group intended to favour its own handling subsidiary, Manu-Port, by granting Manu-Port a series of advantages unavailable to other companies, by virtue of its links with the public service concessionaire, MCG. In particular, this behaviour led to SMART losing its main client, CMA-CGM, to Manu-Port, which precipitated SMART’s placement in receivership.

Following the court-ordered liquidation of SMART and the acceptance of the offer by CMA-TM, a CMA-CGM subsidiary, to take over its assets and staff, the Nel group continued to pursue its strategy against CMA-TM.

• Exploitative abuse in the imposition of unfair trading conditions

The investigation established that MCG had abused its dominant position by imposing unfair trading conditions on Mayotte-based importers, which were captive to and dependent on MCG, by charging for the delivery of full containers and the cleaning of empty containers at rates bearing no relation to the services provided.

The Autorité notes that these conditions were imposed unilaterally by MCG, even though some of the services were not actually provided.

These trading conditions led to an increase in costs for Mayotte-based importers.

In relation to these two objections, the Autorité considers MCG’s status as a public service concessionaire to be an aggravating circumstance, pointing out that the influence and moral authority of an operator entrusted with a public service mission give that operator a particular responsibility not to restrict competition by means other than competition on the merits.

The Autorité has imposed a total fine of €2,162,599 on several companies in the Nel group and ordered MCG to publish a summary of the decision on the website and in the print edition of Mayotte Hebdo.