EU Commission adopts a new De Minimis Notice

On August 30, 2014 the EU Commission published in the Official Journal a review of its rules for assessing when minor agreements between companies are not caught by the general prohibition of anticompetitive practices under EU Article 101 of the TFEU. The De Minimis Notices creates safe harbors for agreements (Article 101 TFEU) between undertakings that are not anticompetitive by object. Thus, the De Minimis Notice clarifies that object restrictions cannot be considered as minor offenses and always constitute an appreciable restriction of competition, in line with the Expedia Judgment.[1]

The principles suggested in the De Minimis Notice applies to undertakings as well as decisions by associations of undertakings and to concerted practices. Its legal value, however is limited. As stated by the ECJ, the De Minimis Notice has no binding nature for the competition authorities and the courts of the Member States.[2]

For the Commission, agreements between undertakings which may affect trade between Member States and which may have as their effect the prevention, restriction or distortion of competition within the internal market, do not appreciably restrict competition:

(a) if the aggregate market share held by the parties to the agreement does not exceed 10 % on any of the relevant markets affected by the agreement, where the agreement is made between actual or potential competing undertakings;

or

(b) if the market share held by each of the parties to the agreement does not exceed 15 % on any of the relevant markets affected by the agreement, where the agreement is made between not actual or potential competitors.

An additional Staff Working Document has been publishing setting out restrictions of competition that have been considered restrictions by object, including as classical examples price fixing, output limitation and market sharing.

The full text of the De Minimis Notice can be found at:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C:2014:291:TOC

The full text of the Staff Working Document can be found at:

http://ec.europa.eu/competition/antitrust/legislation/de_minimis_notice_annex.pdf

[1] C-226/11 – Expedia, ECLI:EU:C:2012:795, para. 37: “It must therefore be held that an agreement that may affect trade between Member States and that has an anti-competitive object constitutes, by its nature and independently of any concrete effect that it may have, an appreciable restriction on competition”.

[2] C-226/11 – Expedia, ECLI:EU:C:2012:795, paras. 24-31.