COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEMENTS
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 “De Minimis” 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 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.
In practice, the competition authorities only acknowledge such thresholds as being of limited scope. According to the General Court, simply exceeding the appreciability threshold does not necessarily make an agreement anticompetitive. Conversely, competitive restraints which have no appreciable effect per se have already been contested under Article 101. 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 (“the praetor does not concern himself with trifles”) 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 Commission merely limits itself through the de minimis notice in terms of its own power of assessment 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.