On 25 June 2014 the European Commission adopted a revised "De Minimis Notice". The Commission confirms that agreements between companies with low market shares do not need to be reviewed under the competition rules. However, on account of a shift in the case law of the Court of Justice, agreements which contain "by object" restrictions no longer fall outside the scope of the competition rules.
The competition rules prohibit agreements which have as their object or effect an "appreciable" restriction of competition. In the De Minimis Notice, the Commission clarifies its views on which agreements do not appreciably restrict competition and consequently fall outside the scope of the European competition rules (commonly known as the "safe harbour"):
- agreements between (actual or potential) competitors whose combined market share does not exceed 10% on any of the markets affected by the agreement, and
- agreements between non-competitors whose market shares do not exceed 15% on any affected market.
The Commission confirms that it will not open infringement proceedings with respect to agreements that fall within the safe harbour. Moreover, the Commission will not impose fines on undertakings which have assumed in good faith that the market share thresholds were not exceeded. The Notice is not binding on national competition authorities or courts. Agreements which, in theory, fall within the safe harbour could still be challenged on the basis of national competition law.
The Expedia judgment of the Court of Justice (13 December 2012 – C-226/11) held that an agreement which has an anticompetitive object constitutes, by its very nature and independently of its actual effect, an appreciable restriction on competition. On account of this judgment, the De Minimis Notice now states that restrictions by object no longer benefit from the safe harbour. The new Notice also clarifies that hardcore restrictions mentioned in (current or future) block exemptions are to be considered as restrictions by object.
Accompanying the Notice is a Staff Working Document which lists "by object" restrictions based on the case law of the European Courts and the Commission's decisional practice. The list is non-exhaustive and does not preclude the Commission from finding other restrictions by object.
The fact that "by object" restrictions agreed between companies with small market shares are no longer excluded from the application of the competition rules does not necessarily mean that they are prohibited. However, the exclusion of such restrictions from the safe harbour will increase legal uncertainty. This is all the more so since an increasing number of arrangements are being treated as agreements containing restrictions by object.