„New“ de minimis Notice: hardcore restrictions apply to any company!

The European Commission („Commission“) adopted a revised version of the de minimis Notice (“Notice”) on 25 June 2014. The Notice evaluates when agreements, that are usually prohibited, do not fall under the scope of the general prohibition of anticompetitive practices due to its minor impact on competition. The principle purposes of this Notice are (i) to simplify the evaluation of restrictive conducts of small and medium-sized enterprises (“SMEs”) in order to act within the legal boundaries and (ii) to enable the Commission to focus on those cases that involve a higher risk of distorting competition in the Single Market.

Nevertheless, the market share thresholds regulated by the new Notice, with which the Commission assesses the competitive impacts of an agreement, remained untouched. Thus, the “safe harbor” for agreements between competitors is applicable if the combined market share does not exceed 10% as well as for vertical agreements, if the combined market share does not exceed 15%.

However, from now on this “safe harbor” does not include agreements that aim to distort competition (“restrictions by object”). According to the European Court of Justice (“ECJ”), as described already on 13 December 2012 in Case C-226/11, Expedia, such conducts are not to be considered as minor agreements since an appreciability of competition is always given and therefore such constitute an infringement per se.

Furthermore, the Commission annexed a guideline to the Notice listing certain restrictions by object, which are excluded from the abovementioned “safe harbor” by definition due to its anticompetitive effects.

These annexed guidelines include any agreements considered as hardcore restrictions as defined by the block exemption regulations, especially agreements between competitors regarding price fixing, unlawful restrictions on production or allocation of customers or markets. This also applies to vertical agreements regarding price fixing and illegal exclusivity agreements.

Certain agreements regarding joint purchasing, marketing agreements, research and development agreements and technology transfer agreements may benefit exceptionally from the “safe harbor” if these do not qualify as hardcore restrictions in the meaning of the block exemption regulations.



Dr. Christina Hummer
Ori Kahn