On June 25, 2014 the European Commission (Commission) issued a revised Notice on agreements of minor importance (De Minimis Notice), which are not subject to the prohibition of Article 101(1) of the Treaty of the Functioning of the European Union (TFEU). The revised Notice is accompanied by a separate guidance paper that contains a checklist of "by object" restrictions that do not benefit from the protection granted in the De Minimis Notice.

The Court of Justice of the European Union (CJEU) has consistently held that the prohibition in Article 101(1) is not applicable where the impact of the agreement on competition is not appreciable. The objective of the De Minimis Notice is to provide guidance on whether the impact of an agreement is "appreciable" and whether it therefore may be caught by Article 101(1). The original 2001 notice established that restrictive agreements entered into between undertakings whose combined market share is below certain thresholds are not capable of producing "appreciable" effects. The thresholds were fixed at 10 percent for agreements between competitors and at 15 percent for agreements between non-competitors, except were the relevant market was characterized by networks of parallel agreements, in which case the threshold was 5 percent. The thresholds remain unchanged in the revised notice.

The 2001 Notice also established that to benefit from the "safe harbor," agreements must not contain certain "hard-core restrictions" (e.g., price fixing or market sharing), since such restrictions always have appreciable effects irrespective of market shares. The Commission has now widened the list of hard-core restrictions contained in the 2001 Notice by explicitly including all agreements that have an anticompetitive object (the "by-object restrictions") as well as those restrictions listed as "hard-core" in any present or future Commission block-exemption regulation (such as the Vertical Agreements Block Exemption Regulation or the Technology Transfer Block Exemption Regulation). This change reflects developments in the case law of the European courts in clarifying that anticompetitive agreements by object are never "minor," since such agreements have, by definition, an appreciable impact on competition. The separate guidance paper on restrictions of competition "by object" provides a list of the types of restrictions that have already been considered by-object restrictions by the European courts or by the Commission in individual cases, or as hard-core/by-object restrictions in existing block exemption regulations and Commission guidelines but does not introduce any new restrictions.

Further, the revised Notice now clarifies that agreements that contain a restriction by object may still fall outside the scope of Article 101(1) where they are not capable of appreciably affecting trade between Member States. The revised Notice does not give guidance as to what constitutes an appreciable effect, referring instead to the guidance in the Commission’s Notice on Effect on Trade, which quantifies those agreements that are not, in principle, capable of appreciably affecting trade between Member States.

The text of the revised De Minimis Notice is available here and the Guidance paper is available here.

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