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

The cumulative effects theory consists in taking into consideration when assessing anticompetitive effects, not only the agreement at issue, but all the parallel agreements binding other suppliers to their respective distributors on the market concerned. The doctrine is only subsidiary in nature and, according to the Commission, only plays a role when an agreement does not meet the appreciable eff …

Cumulative effects doctrine

The cumulative effects theory consists in taking into consideration when assessing anticompetitive effects, not only the agreement at issue, but all the parallel agreements binding other suppliers to their respective distributors on the market concerned. The doctrine is only subsidiary in nature and, according to the Commission, only plays a role when an agreement does not meet the appreciable effect condition . This now contains two strands; first, the supervisory authorities verify whether a series of similar agreements have as their effect the closing-off of access to the market concerned . It is irrelevant that the agreements would not individually be likely to appreciably restrict competition due to their effects remaining below the threshold defined by the Commission . And, the cumulative effect theory can only apply to agreements that significantly contribute to a cumulative foreclosure effect resulting from a set of identical agreements .

Assessment of the sealing-off effect, which involves establishing evidence of real, concrete market access possibilities, takes account of the number and size of operators present, the degree of market saturation and customer loyalty to existing brands . The existence of similar exclusive purchasing or supply agreements  or selective distribution agreements  on the same market is therefore liable to seal off market access. A sealing-off effect, however, cannot be established unless the contract in question is similar to the group of contracts within the same context . Market foreclosure resulting from the cumulative effect of a set of exclusive agreements is not established when the market operates, on the contrary, in a very competitive manner due to the presence of several competitors and the possibility for third parties to win calls for tender . Likewise, according to the Court of Justice, to assess the closing-off effect produced by the clause of a lease agreement granting the lessee the right to oppose the letting by the lessor, in a commercial center, of commercial premises to other tenants, it is necessary to check if in the same catchment area, there are other commercial premises available in other shopping centers or outside them, and to take into consideration the availability and accessibility of commercial land in the catchment areas concerned, the number and size of the operators present on that market, its degree of concentration and customer fidelity to existing brands .

2º Significant contribution to the cumulative effect

The significant contribution to the cumulative effect criterion was first developed by the Court of Justice and has now been endorsed by the Commission. The Notice on agreements of minor importance  provides that agreements entered into by distributors or suppliers with a market share not exceeding 5%, do not significantly contribute to the cumulative market foreclosure that would result from agreements concluded by several suppliers or distributors.

To assess an agreement's contribution to market foreclosure, the supervisory authorities take into account the effect produced by the supplier's entire network . The supplier's market position , the degree of apparent dependence of sales outlets and the nature and duration of restrictive agreements  are all factors used to assess how significant a contribution an agreement makes to the cumulative effect. On the markets for fuel distribution  or beer supply , only those agreements that exceed the average duration for agreements habitually concluded on the market are found to be anticompetitive . Sometimes, the supervisory authorities may break down the network of a specific supplier in order to focus on only those agreements that contribute significantly to market foreclosure .

The cumulative effects doctrine generally increases the effectiveness of the legal review insofar as it makes it possible to adapt the severity of the control to the degree of concentration of the market concerned by the agreement. From a legal standpoint, the method used is open to criticism even though the EU Court has tempered its scope with the requirement that, for the prohibition to apply, the agreement must sufficiently contribute to the cumulative effect established. Firstly, there is an issue of legal uncertainty, in that undertakings party to an agreement are put in the position where they are unable to predict the exact legal consequences of the commitment entered into, unless they conduct a full survey of the entire market, which is uncertain in itself. Also, the method may lead to treating similar behavior differently by the mere fact that actions take place on separate markets or on the same market but at different times. Such consequences are not exactly compatible with a norm that only aims to police the behavior of undertakings. They demonstrate the “structuralization” of the law on anticompetitive agreements, as the behavior of the undertakings is reduced to the mere trigger for an investigation, the purpose of which is to preserve the competitive structure of the market on which the conduct takes place.

Commission Decision No 93/406/EC of 23 December 1992, Langnese-Iglo GmbH, LawLex200500004811JBJ; Commission Decision No 93/405/EC of 23 December 1992, Schöller Lebensmittel GmbH Co. KG, LawLex200500004818JBJ.

Case T-9/93 and T-7/93 Schöller v Commission [1995] ECR II-1611, LawLex200400003649JBJ.

See Commission Notice No 2014/C 291/01 of 30 August 2014.

Commission Decision No 1999/230/EC of 24 February 1999, Whitbread, LawLex200500004733JBJ.

Commission Decision No 98/531/EC of 11 March 1998, Van den Bergh Foods Limited, LawLex200400002932JBJ.

Commission Decision No 1999/474/EC of 16 June 1999, Scottish and Newcastle, LawLex200400002630JBJ; No 1999/474/EC of 16 June 1999, Scottish and Newcastle, LawLex200400002630JBJ.

Case C-214/99 Neste [2000] ECR I-11121, LawLex200500004917JBJ.

Case T-25/99 Roberts v Commission [2001] ECR II-1881, LawLex200500005164JBJ.

Case T-25/99 Roberts v Commission [2001] ECR II-1881, LawLex200500005164JBJ; Case C-384/13 Estacion de Servicio Pozuelo 4 SL Judgment of 4 December 2014, not available in English.

Case C-214/99 Neste [2000] ECR I-11121, LawLex200500004917JBJ: fuel supply contracts representing only a small proportion of agreements concluded by the supplier (less than 5% of distributors making less than 10% of sales) and which can be terminated at any time with a notice period that is of sufficient duration to reasonably protect the economic and legal interests of each of the parties, make no significant contribution to the cumulative effect.

See Case C-234/89 Delimitis v Henninger Bräu [1991] ECR I-935, LawLex200500003931JBJ; Case T-7/93 Langnese-Iglo v Commission [1995] ECR II-1533, LawLex200400003648JBJ; Cases T-9/93 and T-7/93 Schöller v Commission [1995] ECR II-1611, LawLex200400003649JBJ.

See Case C-234/89 Delimitis v Henninger Bräu [1991] ECR I-935, LawLex200500003931JBJ.

Case 23/67 Brasserie De Haecht v Wilkin Janssen [1967] ECR 525, LawLex200400002686JBJ; 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 31/80 L'Oréal v De Nieuwe AMCK [1980] ECR 3775, LawLex200400002967JBJ. See also Case C-393/92 Gemeente Almelo and others v Energiebedrijf IJsselmij [1994] ECR I-1477, LawLex200400002880JBJ: relative to a set of agreements between a regional distributor and local distributors. In this case, the assessment focused more on the anticompetitive consequences of a particular network than on the reduced effects of an agreement because of its inclusion in a bundle of restrictive agreements.

Commission Decision No 2000/484/EC of 29 June 2000, Inntrepreneur - Spring, LawLex200500004716JBJ: absence of cumulative effect of the leases with purchasing obligations entered into by pub chains and the contracts for beer concluded by the brewers, from which they differ fundamentally insofar as the chains are not tied to a specific brewery.

Case T-699/14 Topps Europe Ltd, Judgment of 11 January 2017, LawLex201700000067JBJ.

Case C-345/14 SIA "Maxima Latvija", Judgment of 26 November 2015, LawLex201500001538JBJ.

European Competition Law

44. Cumulative effects doctrine

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

44. Cumulative effects doctrine

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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