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

Insofar as restrictions on competition must be such as to produce an effect on the market, the EU authorities generally find that only hindrances that are large or “appreciable” enough concern competition law. Drawing inspiration from its decision-making practice , the Commission sets forth an “appreciability threshold” in its Notice of 30 August 2014 .
According to the Notice, agreements between  …

Notice on agreements of minor importance

Insofar as restrictions on competition must be such as to produce an effect on the market, the EU authorities generally find that only hindrances that are large or “appreciable” enough concern competition law. Drawing inspiration from its decision-making practice , the Commission sets forth an “appreciability threshold” in its Notice of 30 August 2014 .

According to the Notice, agreements between undertakings that affect trade between Member States do not appreciably affect competition within the meaning of Article 101(1):

a) if the aggregate market share held by the parties to the agreement does not exceed 10% on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are actual or potential competitors on any of these markets (agreements between competitors); or

b) if the market share held by each of the parties to the agreement does not exceed 15% on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are not actual or potential competitors on any of these markets (agreements between non-competitors).

The Commission has added two exceptions to those thresholds:

- the thresholds are brought down to 5% when, on the market in question, competition is restricted by a cumulative foreclosure effect from parallel networks of similar agreements, whether those agreements be horizontal or vertical . The cumulative foreclosure effect is only probable if more than 30% of the market in question is covered by similar agreements.

- exceeding the specified thresholds (5%, 10% and 15%) for two consecutive calendar years by two points has no restrictive effect.

The market share controlled by the participants to the agreement is not the only indication as to degree of appreciability. The Notice is not applied when the agreement in question  contains a restriction by object. According to the Commission, this refers, inter alia, to agreements which either directly or indirectly have as their object the setting of prices for the sale of products to third parties, the limitation of output or sales or the allocation of markets or customers . The hardcore restrictions set out in the block exemption regulations which the Commission considers as restrictions by object , are also excluded from the scope of the de minimis notice.

The term “parties to the agreement” means not only the participating undertakings, but also those connected to said undertakings, namely those that have control over the parties (controlling undertakings), those controlled by the parties (undertakings under control) and those in which the undertakings hold joint control. More than just the extent of the effects produced by the agreement at issue, the appreciability threshold thus tends to take account of the economic strength of the groups to which the participating undertakings belong, as well as the degree of concentration on the market on which the agreement operates.

Generally, the competition authorities consider that a market share greater than or equal to 30% is sufficient to demonstrate the appreciable effect of restriction: market share less than or equal to 30%: Commission Decision No 78/172/EEC of 21 December 1977, Spices, LawLex200400002398JBJ; less than or equal to 50 %: Case T-86/95 Compagnie générale maritime and others v Commission [2002] ECR II-1011, LawLex200400003557JBJ; Commission Decision No 1999/243/EC of 16 September 1998, Trans-Atlantic Conference Agreement, LawLex200400002949JBJ; No 98/531/EC of 11 March 1998, Van den Bergh Foods Limited, LawLex200400002932JBJ; No 76/915/EEC of 1st December 1976, Miller International Schallplatten GmbH, LawLex200400003447JBJ; Case T-65/98 Van den Bergh Foods v Commission [2003] ECR II-4653, LawLex200400003524JBJ; more than 50%: Case 61/80 Coöperatieve Stremsel- en Kleurselfabriek v Commission [1981] ECR 851 LawLex200500004084JBJ; Commission Decision No 74/292/EEC of 15 May 1974, Agreements between manufacturers of glass containers, LawLex200500005280JBJ; Case T-30/05 Prym and Prym Consumer v Commission [2007] ECR II-107. - Market share must be assessed for all of the parties to the agreement: Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 337, LawLex200400002665JBJ. - The economic power of the parties does not only lie in the detention of a big market share; a high overall turnover for the companies involved is a sign of their economic power: Commission Decision No 77/543/EEC of 25 July 1977, De Laval-Stork, LawLex200400002394JBJ; No 90/22/EEC of 20 December 1989, Teko, LawLex200400002456JBJ.

Notice No 2014/C 291/01 on agreements of minor importance which do not appreciably restrict competition under Article 101(1) of the Treaty on the Functioning of the European Union (De Minimis Notice) OJ C291 of 30 August 2014, supplemented by the Guidance on restrictions of competition "by object" for the purpose of defining which agreements may benefit from the De Minimis Notice, replacing Notice No 2001/C 368/07 of 22 December 2001

When it is difficult to determine whether a horizontal or vertical agreement is concerned, the 10% threshold applies.

Case T-251/12 EGL Inc., Judgment of 29 February 2016, LawLex201600000470JBJ; Case T-264-12 UTi Worldwide Inc.,  LawLex201600000445JBJ: an agreement that has an anticompetitive object constitutes, by its nature and independently of any concrete effect that it may have, an appreciable restriction on competition.

According to the ECJ in Case C-226/11 Expedia Inc. v Autorité de la concurrence and Others, Judgment of 13 Dec. 2012, LawLex201200002452JBJ, "an agreement that may affect trade between Member States and that has an anticompetitive object constitutes, by its nature and independently of any concrete effect that it may have, an appreciable restriction on competition".

Commission Notice of 30 August 2014, pt. 14.

European Competition Law

45. Notice on agreements of minor importance

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

45. Notice on agreements of minor importance

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise