New “De Minimis Notice” – Commission adopts revised safe harbours for minor agreements

In its latest De Minimis Notice published on 25 June 2014, the European Commission sets out the circumstances under which minor agreements between companies are exempted from the prohibition of anti-competitive practices under EU competition law. Under the revised rules, companies, particularly SMEs, can evaluate whether an appreciable restriction of competition as defined by the Commission exists; where this is not the case, the Commission will neither act ex officio nor as a result of complaints (“safe harbour”).

Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits all agree-ments that aim to achieve or that result in an appreciable restriction of competition. Just like the Commission’s previous notice (see OJ C 368 dated 22 December 2001, p. 13), the revised De Minimis Notice defines – largely on the basis of market share thresholds – the cases in which no appreciable restriction of competition is deemed to exist. Thus, the Notice creates a safe area for companies whose aggregate market share does not exceed 10% in the case of agreements between competitors or 15% in the case of agreements between non-competitors (5% respectively where “networks” of agreements are concerned). These threshold values have remained unchanged from the previous Notice.

The most important change in the revised Notice is that the Commission no longer regards agreements that “aim” to achieve a restriction of competition (since they have an anti-competitive objective) as having a negligible effect on competition. No safe harbour is granted for agreements of this kind under any circumstances. With this, the Commission is acting upon and implementing the decision by the Court of Justice of the European Union dated 13 December 2012 in the matter C-226/11 (Expedia).

At the same time, the Commission stresses in the new De Minimis Notice that an agreement constituting what is known as a “hardcore” restriction of (current or future) block exemption regulations fundamentally does not – irrespective of the market shares of the companies involved – fall within the scope of application of the De Minimis Notice.

For the companies’ benefit, the De Minimis Notice is accompanied by a Commission staff guid-ance paper (to all intents and purposes “guidelines”) setting out those restrictions on competition that are deemed to be restrictions “by object”. The guidance paper provides a list of the restrictions on competition that EU competition law considers “by object” or “hardcore” restrictions, as well as examples from the case law of the Court of Justice and from the Commis-sion’s decision-making practice. This document will be regularly updated by the Commission.

The De Minimis Notice and the guidance paper can be found here.

Finally, it should be noted that the De Minimis Notice is binding only on the Commission, not on the antitrust authorities of the EU Member States or the courts, and for this reason the “safe harbour” does not grant any absolute safety and there are still certain risks. It also remains to be seen how the situation regarding agreements that aim to achieve a restriction on competition further develops.

Further information on this topic can be found in the current article by Heinrich/Ströbl in Betriebs-Berater 2014, No 42, pp. 2506-2508.