On 25 June 2014, the European Commission issued its revised rules for assessing whether minor agreements between undertakings are caught by EU competition rules (the "De Minimis Notice").
The De Minimis Notice is essentially a policy document which seeks to help companies in their understanding of when agreements of minor importance will be caught by the general prohibition on anti-competitive practices. However, it should be noted that the Notice has no binding effect on national competition authorities and national courts.
Under the Notice, agreements between actual or potential competitors are exempt from antitrust investigations if their combined market share is below 10%. Agreements between non-competitors are similarly exempt if the market share of each company is below 15%. These market share thresholds remain unchanged from the previous De Minimis Notice.
When an agreement remains within these market share thresholds, the Commission will not open an antitrust investigation. Additionally, when an undertaking which is the subject of a Commission antitrust investigation can demonstrate that it assumed in good faith that the thresholds were not exceeded, the Commission will not impose fines.
The Commission revised its De Minimis Notice in consideration of the Court of Justice of the European Union's 2012 ruling in the Expedia case (C-226/11) which held that anti-competitive agreements by object cannot be considered as minor, since they have, by definition, an appreciable impact on competition. As a result, such agreements can never benefit from the de minimis "safe harbour".
The previous Notice had listed the specific hardcore restrictions which were excluded from the safe harbour. It was therefore necessary for the Commission to clarify in the current Notice that all agreements which are in violation of competition rules by their very nature will not benefit from an exemption from investigation. Such "by object" or "hardcore" restrictions include market-sharing, price-fixing and any other hardcore restrictions contained in current or future block exemptions.
To assist companies, the Notice is also accompanied by a Staff Working Document setting out restrictions of competition that are considered restrictions by object. This guidance is, however, without prejudice to developments in the case-law and in the Commission's decisional practice, and will not prevent the Commission from finding restrictions of competition by object that are not currently identified in the Staff Working Document.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
