Commission Adopts De Minimis Notice For Minor Agreements

On 25 June 2014, the European Commission issued its revised rules for assessing whether minor agreements between undertakings are caught by EU competition rules (the "De Minimis Notice").

The De Minimis Notice is essentially a policy document which seeks to help companies in their understanding of when agreements of minor importance will be caught by the general prohibition on anti-competitive practices. However, it should be noted that the Notice has no binding effect on national competition authorities and national courts.

Under the Notice, agreements between actual or potential competitors are exempt from antitrust investigations if their combined market share is below 10%. Agreements between non-competitors are similarly exempt if the market share of each company is below 15%. These market share thresholds remain unchanged from the previous De Minimis Notice.

When an agreement remains within these market share thresholds, the Commission will not open an antitrust investigation. Additionally, when an undertaking which is the subject of a Commission antitrust investigation can demonstrate that it assumed in good faith that the thresholds were not exceeded, the Commission will not impose fines.

The Commission revised its De Minimis Notice in consideration of the Court of Justice of the European Union's 2012 ruling in the Expedia case (C-226/11) which held that anti-competitive agreements by object cannot be considered as minor, since they have, by definition, an appreciable impact on competition. As a...