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

In practice, the competition authorities only acknowledge such thresholds as being of limited scope. Simply exceeding the appreciability threshold set out in the Notice on Agreements of Minor Importance (de minimis notice) does not necessarily make an agreement anticompetitive . Conversely, competitive restraints which have no appreciable effect per se have already been contested under Article 101 …

Scope

In practice, the competition authorities only acknowledge such thresholds as being of limited scope. Simply exceeding the appreciability threshold set out in the Notice on Agreements of Minor Importance (de minimis notice) does not necessarily make an agreement anticompetitive . Conversely, competitive restraints which have no appreciable effect per se have already been contested under Article 101 . Frequently, the supervisory authorities temper the scope of the reference to the market share controlled by companies, and look to the intrinsic characteristics of the anticompetitive behavior . In other cases, the Commission modifies the conclusions drawn from the economic strength of parties to the agreement, by taking into account the level of concentration of the market on which it produces its effects . Thus, the concept of absolute appreciability is replaced by a concept of relative appreciability, in the light of which the appreciable nature of the restriction is dependent not only on the economic strength of the undertakings responsible for the practices but also on the seriousness of the anticompetitive conduct and the competitive structure of the markets affected. Far from corresponding to the traditional interpretation of the appreciability threshold as merely an illustration of the de minimis non curat praetor rule, the supervisory process reveals on the contrary a tendency to change the criterion of the extent of the anticompetitive effect into a veritable rule for the assessment of an agreement.

The scope of the appreciability thresholds is clearly limited where the de minimis notice is relied on before a national authority or court. According to the Commission, “Although not binding on them, this notice also intends to give guidance to the courts and authorities of the Member States in their application of Article 101 TFEU”. For the Court of Justice, the Commission merely limits itself through the de minimis notice in terms of its own power of assessement but cannot bind the national courts and authorities of the Member States , the appreciability threshold being just one indication out of several allowing the authority to determine the appreciable nature of the restriction by reference to the actual circumstances of such an agreement.

Case T-7/93 Langnese-Iglo v Commission [1995] ECR II-1533, LawLex200400003648JBJ.

Case 5/69 Voelk v Vervaecke [1969] ECR 295, LawLex200400002764JBJ: the relevant products represented between 0.2 and 0.5% of production in Germany; Case 19/77 Miller v Commission [1978] ECR 131, LawLex200500004035JBJ, control by Miller of a 5% market share. See, also, Case 100/80 through 103/80 Musique Diffusion française v Commission [1983] ECR 1825, LawLex200400003564JBJ.

Thus, the blatant character of the restriction may be enough to establish an appreciable effect: Commission Decision No 72/403/EEC of 23 November 1972, Pittsburgh Corning Europe/Formica Belgium/Hertel (not available in English), for discriminatory tariffs; Commission Decision No 74/292/EEC of 15 May 1974, Agreements between manufacturers of glass containers, LawLex200500005280JBJ: for a large volume of transactions included in the framework of a price agreement; Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 337, LawLex200400002665JBJ: excessive rigor of exclusivity clauses; No 78/516/EEC of 26 May 1978, Rai/Unitel, LawLex200500004034JBJ: on the obligation of a local authority to contract with a waste collection and recycling company; Case 260/82 NSO v Commission [1985] ECR 3801, LawLex200400003540JBJ: agreement between most of the manufacturers and importers in a sector introducing a bonus equal to 7% of the margin of retailers; Commission Decision No 2001/663/EC of 15 June 2001, Eco-Emballages, LawLex200400002642JBJ; Commission Decision No 2001/837/EC of 19 September 2001, Hofmann, LawLex200500004674JBJ: excessively long duration of exclusivity.

See particularly Commission Decision No 75/76/EEC of 20 December 1974, Rank/Sopelem, LawLex200400003451JBJ, finding an appreciable effect where the market consists of a limited number of big manufacturers and where two of them are closely coordinating their activities in the fields of research and development, manufacturing and distribution; No 84/381/EEC of 12 July 1984, Carlsberg, LawLex200500004390JBJ, finding a particularly significant effect of cooperation in an industry sector that is already highly concentrated; No 85/616/EEC of 16 December 1985, Villeroy & Boch, LawLex200400002436JBJ, which rules out the restrictive effect of the collusion resulting from selective distribution agreements on a market which is as fragmented at the level both of production and of distribution- See also Commission Decision No 79/934/EEC of 5 September 1979, BP Kemi - DDSF, LawLex200400002404JBJ; Commission Decision No 80/128/EEC of 28 November 1979, Floral (not available in English), on the effects of standardization of supply on the oligopolistic structure of the market; ; Commission Decision No 82/506/EEC of 15 July 1982, SSI, LawLex200400003541JBJ: on the participation of the majority of players in the sector in the anticompetitive practice; : for an agreement concluded by the main supplier and the main buyer of a market where competition appears structurally weak; Case 260/82 NSO v Commission [1985] ECR 3801, LawLex200400003540JBJ; Commission Decision No 2001/837/EC of 17 September 2001, Hofmann, LawLex200500004674JBJ: for a market with the supply side characterized by a large number of small suppliers and the demand side by a single undertaking in a dominant position.

Case C-226/11 Expedia Inc. Judgment of 13 December 2012, LawLex201200002452JBJ; Case C-384/13 Estacion de Servicio Pozuelo 4 SL Judgment of 4 December 2014, not available in English.

European Competition Law

46. Scope

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46. Scope

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Les notions juridiques connexes

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