Brussels, 25/06/2014 (Agence Europe) - On Wednesday 25 June, the European Commission issued revised rules (its so-called “de minimis notice”) for assessing when minor agreements between companies are not caught by the general prohibition of anti-competitive practices under EU competition law (under Article 101 of the Treaty on the Functioning of the European Union). The notice creates a safe harbour for companies whose market shares do not exceed 10% for agreements between competitors or 15% for agreements between non-competitors. These thresholds are unchanged from the previous notice.
The main change in the revised notice is that it clarifies that agreements aimed at restricting competition (so-called restrictions “by object”, because they have an anti-competitive object) cannot be considered minor and always constitute an appreciable restriction of competition, in violation of Article 101(1) TFEU. The main reason for the new notice is that such agreements can never benefit from this safe harbour, as was confirmed by the European Court of Justice in the Expedia ruling (case C-226/11 on 13 december 2012). The Court was ruling on an agreement between travel company Expedia and French railway company SNCF and said that Article 101 fully applies even to agreements of below the level laid down in the de minimis notice if there is an appreciable restriction of competition.
The notice is accompanied by a Commission working document that, listing by object restrictions and 'hard-core' restrictions. The 2014 de minimis notice now specifically refers to the rule in the notice on effect on trade that excludes agreements between parties with an aggregate market share equal to or below 5% and an annual turnover equal or below €40 million from the scope of EU competition law because they are considered to have no effect on trade. (EL)