Antitrust: Commission adopts revised safe harbour rules for minor agreements ("De Minimis Notice")

The European Commission has issued revised rules (its so-called "De Minimis Notice") for assessing when minor agreements between companies are not caught by the general prohibition of anticompetitive practices under EU competition law. The Notice facilitates the assessment of compliance with EU antitrust rules for companies, especially SMEs. At the same time it allows the Commission to concentrate its resources on agreements with a higher risk of distorting competition in the Single Market. See also MEMO/14/440.

Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements that are aimed at or result in appreciable restrictions of competition. The revised De Minimis Notice, in line with its predecessor (see IP/02/13), defines what the Commission considers not to be an appreciable restriction of competition by reference to market share thresholds. It creates a "safe harbour" for companies whose market shares do not exceed 10% for agreements between competitors or 15% for agreements between non-competitors. These are unchanged from the previous Notice.

The main change in the revised Notice is that it clarifies that agreements aimed at restricting competition (so-called restrictions "by object", because they have an anti-competitive object) cannot be considered minor and always constitute an appreciable restriction of competition, in violation of Article 101(1) TFEU. These agreements can never benefit from this safe harbour. This was confirmed by the Court of Justice of the European Union in the Expedia judgment (case C-226/11), following a question referred to it by a French court.

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