Brussels, 07/01/2002 (Agence Europe) - The European Commission has published a new Notice on agreements of minor importance that do not appreciably restrict competition under the Treaty ("de minimis Notice"), replacing the previous 1997 Notice as part of the Commission's review of the EC competition rules. The new Notice means the Commission will be better able to avoid examining cases which have no interest from a competition policy point of view and thus will be able to concentrate on more problematic agreements.
The Commission sets out in the new Notice the market share thresholds for agreements not appreciably restricting competition as follows:
1) The "de minimis" thresholds are raised to 10% market share for agreements between competitors and 15% for agreements between non-competitors. The previous Notice had fixed the thresholds at 5% and 10% respectively. The Commission indicates that this raising of the thresholds will not lead to competition problems. As before, the new thresholds take account of the fact that agreements between competitors in general lead more easily to anti-competitive effects than agreements between non-competitors.
2) It specifies for the first time a market share threshold for networks of agreements producing a cumulative anti-competitive effect. The previous Notice excluded agreements in a market where parallel networks of similar agreements existed which meant in practice that firms operating in sectors like beer and petrol (where agreements exist between various manufacturers and agents) could not usually benefit from the de minimis Notice although competition was restricted by the cumulative effects of the networks. The new Notice introduces a special 5% market share threshold for markets where such parallel networks exist.
3) The Notice contains the same list of hardcore restrictions as in the horizontal and vertical Block Exemption Regulations and defines them in a clearer and more consistent manner. These are restrictions that are nearly always prohibited, irrespective of the market share of the companies involved (like price fixing and market sharing) and cannot benefit from the de minimis Notice.
4) Agreements between small and medium-sized companies tend to be "de minimis". The new Notice states that agreements between SMEs generally fall outside the scope of Article 81(1).
The new Notice stipulates that the Commission will not launch proceedings either upon application or on its own initiative for cases covered by the new Notice, which also aims to give guidance to the courts and authorities of the Member States in their application of Article 81. It is published in OJ C368 of 22 December and can also available online at: http: //europa.eu.int/comm/competition/antitrust/deminimis.