European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

To determine the applicability of EU law, the effect on trade between Member States must be appreciable . An agreement which does not have any appreciable economic effects also does not affect trade between Member States nor does it infringe competition within the meaning of Article 101(1) TFEU . The Commission is not at this stage required to establish that the participation of an undertaking in  …

Condition of appreciability

To determine the applicability of EU law, the effect on trade between Member States must be appreciable . An agreement which does not have any appreciable economic effects also does not affect trade between Member States nor does it infringe competition within the meaning of Article 101(1) TFEU . The Commission is not at this stage required to establish that the participation of an undertaking in a concerted practice had an appreciable effect on trade between Member States where the practice is likely to distort trade patterns .

Traditionally the test of the appreciability of the effect on trade is in respect of the volume of trade concerned , turnover achieved by the products concerned  or the market share held by the undertaking concerned . The effect on trade between Member States is even more appreciable where the agreement is implemented on a market on which trade is still limited .

Now , according to the Guidelines on the effect on trade concept , the Commission holds the view that in principle agreements are not capable of appreciably affecting trade between Member States when the following two conditions are both met: the aggregate market share on any relevant market within the Union affected by the agreement should not exceed 5% and turnover of the undertakings concerned in the case of horizontal agreements, and of the supplier in case of vertical agreements, should not exceed EUR 40 million .

A presumption of appreciability - which may be reversed by evidence to the contrary - affects those agreements or practices which, by their very nature  are likely to affect trade between Member States, where the EUR 40 million of turnover and the 5% market share thresholds are exceeded. The presumption is waived when the agreement covers only part of a Member State . When the Commission defines the market in order to ascertain whether the appreciability thresholds have been reached, it is not required to engage in as detailed a definition as when defining the restrictive effects on competition of the cartel, but may limit itself to a sufficiently detailed description of the sector in question .

The assessment of the appreciable effect must be carried out in respect of the context and take account of the legal and economic framework of the restriction of competition. Also, in the case of vertical agreements, the possible existence of similar agreements likely to produce a cumulative effect should be examined . In effect, an agreement which by itself produces limited effects may appreciably affect trade between Member States if it is part of a series of similar agreements .

Commission Notice No 2004/C 101/07 of 27 April 2004, at pt 44.

Case 5/69 Voelk v Vervaecke [1969] ECR 295, LawLex200400002764JBJ.

Such is the case for import and export agreements or those concerning several Member States. See, Commission Notice No 2004/C 101/07 of 27 April 2004, at pt 53.

Case C-440-11 P Stichting Administratiekantoor Portielje & Gosselin Group NV, Judgment of 11 July 2013, LawLex201300001113JBJ: where the 5% market share threshold is exceeded, that may be sufficient in itself to demonstrate an appreciable effect on trade between Member States; Case T-254-12 Kühne + Nagel International, Judgment of 29 February 2016, not available in English.

Case C-439-11 P Ziegler, Judgment of 11 July 2013, LawLex201300001127JBJ; upholding General Court in Case T-199/08 Ziegler SA, Judgment of 16 June 2011 LawLex201200000052JBJ; Case T-8/16 Toshiba Samsung Storage Technology Corp, Judgment of 12 July 2019, LawLex201900000929JBJ.

Case 23/67 Brasserie De Haecht v Wilkin Janssen [1967] ECR 525, LawLex200400002686JBJ; Case C-393/92 Gemeente Almelo and others v Energiebedrijf IJsselmij [1994] ECR I-1477, LawLex200400002880JBJ.

Case 27/87 Erauw-Jacquery v La Hesbignonne [1988] ECR 1919, LawLex200500003943JBJ. See also Case C-393/92 Gemeente Almelo and others v Energiebedrijf IJsselmij [1994] ECR I-1477, LawLex200400002880JBJ; Case T-77/94 VGB and others v Commission [1997] ECR II-759, LawLex200400003640JBJ: in this case the Court stated that an exclusive agreement could not combine with others to have a cumulative effect on competition liable to have an effect on trade between Member States where all the agreements do not relate to the same business activity; see also: Case T-9/93 and T-7/93 Schöller v Commission [1995] ECR II-1611, LawLex200400003649JBJ; Case C-214/99 Neste [2000] ECR I-11121, LawLex200500004917JBJ.

Case T-368/10 Rubinetteria Cisal SpA, Judgment of 16 September 2013, not available in English.

Case 22/71 Béguelin Import v G.L. Import Export [1971] ECR 949, LawLex200400002766JBJ: to assess whether an exclusive distribution agreement appreciably affects trade between Member States, it is appropriate to take into account in particular the nature and quantity, restricted or otherwise, of the products covered by the agreement; Case 28/77 Tepea v Commission [1978] ECR 1391 LawLex200500004033JBJ: an agreement appreciably affects trade between Member States where the sale of appliances of the licensed brand represents 15% of the product market at issue; Case 126/80 Salonia v Poidomani e Giglio [1981] ECR 1563, LawLex200400002966JBJ: an agreement does not appreciably affect trade between Member States when it is established that it does not lead to any substantial variations in demand; Case 319/82 Société de vente de ciments v Kerpen & Kerpen [1983] ECR 4173 LawLex200400003565JBJ: agreement concerning around 10% of exports of merchandise to Germany from France; Cases C-89/85; C-104/85; C-114/85; C-116/85; C-117/85; C-125 to 129/85 Ahlström Osakeyhtiö and others v Commission [1988] ECR 5193, LawLex200500003941JBJ: exports of products concerned representing between 14% and 17% of total consumption in the Union; Commission Decision No 95/477/EC of 12 July 1995, BASF Lacke+Farben AG, and Accinauto SA, LawLex200400003647JBJ: products representing 6% - 9% market share; Case T-305/94 through T-307/94, T-313/94 à T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 LVM v Commission [1999] ECR II-931 LawLex200400003601JBJ: anticompetitive practices covering virtually all sales of a product subject to intense trade flows in the Union.  

Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II-389, LawLex200400002901JBJ: practices implemented by an undertaking in dominant position exert a significant influence on intra-community trade.

Although the weak position on the interested party excludes an appreciable effect on trade between Member States, Case 5/69 Voelk v Vervaecke [1969] ECR 295, LawLex200400002764JBJ, position as leader can establish such effect: Commission Decision No 76/915/EEC of 1st December 1976, Miller International Schallplatten GmbH, LawLex200400003447JBJ; Case 19/77 Miller v Commission [1978] ECR 131, LawLex200500004035JBJ: supplier with a share exceeding 5% of the market concerned; Case 30/78 Distillers v Commission [1980] ECR 2229 LawLex200500004055JBJ: anticompetitive practices in respect of a product for which only one company is responsible for the entire production; Case 100/80 through 103/80 Musique Diffusion française v Commission [1983] ECR 1825, LawLex200400003564JBJ: practice implemented by two of the biggest suppliers on the market; Case T-35/92 Deere v Commission [1994] ECR II-957, LawLex200400003658JBJ: for suppliers with 88% of a national market; Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, LawLex200400003638JBJ: between 37% and 40% control of the relevant market.

Case T-29/92 SPO and others v Commission [1995] ECR II-289, LawLex200400003655JBJ.

There was confusion for a long time between the appreciability of the anticompetitive effect and the appreciability of the effect on trade between Member States. The 1986 and 1997 guidelines on agreements of minor importance established quantitative thresholds applicable to both tests at the same time, before a threshold specific to the appreciability of the effect on trade between Member States was defined. For an example of its application, see Case T-77/94 VGB and others v Commission [1997] ECR II-759, LawLex200400003640JBJ: a distribution agreement does not appreciably affect trade between Member States when the appreciability thresholds set by the Commission in its notice are not exceeded.

Commission Notice No 2004/C 101/07 of 27 April 2004, at pt 52.

Exceeding by 10% the EUR 40 million turnover threshold or by 2 points the 5% market share threshold over two consecutive calendar years is of no consequence.

European Competition Law

20. Condition of appreciability

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20. Condition of appreciability

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Les notions juridiques connexes

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