No C 231/2 Official Journal of the European Communities 12.9.86 
Commission notice of 3 September 1986 on agreements of minor importance which do not fall 
under Article 85 (1) of the Treaty establishing the European Economic Community (') 
(86/C 231/02) 
I 
1. The Commission considers it important to facilitate 
cooperation between undertakings where such 
cooperation is economically desirable without presenting 
difficulties from the point of view of competition policy, 
which is particularly true of cooperation between small 
and medium-sized undertakings. To this end it published 
the 'Notice concerning agreements, decisions and 
concerted practices in the field of cooperation between 
undertakings ' (2) listing a number of agreements that by 
their nature cannot be regarded as restraints of 
competition. Furthermore, in the Notice concerning its 
assessment of certain subcontracting agreements (3) the 
Commission considered that this type of contract which 
offers opportunities for development, in particular, to 
small and medium-sized undertakings is not in itself 
caught by the prohibition in Article 85 (1). By issuing the 
present Notice, the Commission is taking a further step 
towards defining the field of application of Article 85 (1), 
in order to facilitate cooperation between small and 
medium-sized untertakings. 
2. In the Commission's opinion, agreements whose 
effects on trade between Member States or on 
competition are negligible do not fall under the ban on 
restrictive agreements contained in Article 85 (1). Only 
those agreements are prohibited which have an 
appreciable impact on market conditions, in that they 
appreciably alter the market position, in other words the 
sales or supply possibilities, of third undertakings and of 
users. 
3. In the present Notice the Commission, by setting 
quantitative criteria and by explaining their application, 
has given a sufficiently concrete meaning to the concept 
'appreciable' for undertakings to be able to judge for 
themselves whether the agreements they have concluded 
with other undertakings, being of minor importance, do 
not fall under Article 85 (1). The quantitative definition 
of 'appreciable' given by the Commission is, however, no 
absolute yardstick; in fact, in individual cases even 
C) The present Notice replaces the Commission Notice of 19 
December 1977, OJ No C 313, 29. 12. 1977, p. 3. 
O OJ No C 75, 29. 7. 1968, p. 3, corrected by OJ No C 84, 
28. 8. 1968, p. 14. 
(») OJNoC 1, 3. 1. 1979, p. 2. agreements between undertakings which exceed these 
limits may still have only a negligible effect on trade 
between Member States or on competition, and are 
therefore not caught by Article 85 (1). 
4. As a result of this Notice, there should no longer 
be any point in undertakings obtaining negative 
clearance, as defined by Article 2 of Council Regulation 
No 17 (4), for the agreements covered, nor should it be 
necessary to have the legal position established through 
Commission decisions in individual cases; notification 
with this end in view will no longer be necessary for such 
agreements. However, if it is doubtful whether in an 
individual case an agreement appreciably affects trade 
between Member States or competition, the undertakings 
are free to apply for negative clearance or to notify the 
agreement. 
5. In cases covered by the present Notice the 
Commission, as a general rule, will not open proceedings 
under Regulation No 17, either upon application or 
upon its own initiative. Where, due to exceptional 
circumstances, an agreement which is covered by the 
present Notice nevertheless falls under Article 85 (1), the 
Commission will not impose fines. Where undertakings 
have failed to notify an agreement falling under Article 
85 (1) because they wrongly assumed, owing to a 
mistake in calculating their market share or aggregate 
turnover, that the agreement was covered by the present 
Notice, the Commission will not consider imposing fines 
unless the mistake was due to negligence. 
6. This Notice is without prejudice to the competence 
of national courts to apply Article 85 (1) on the basis of 
their own jurisdiction, although it constitutes a factor 
which such courts may take into account when deciding 
a pending case. It is also without prejudice to any inter­
pretation which may be given by the Court of Justice of 
the European Communities. 
II 
7. The Commission holds the view that agreements 
between undertakings engaged in the production or 
distribution of goods or in the provision of services 
generally do not fall under the prohibition of Article 81 
(1) if: 
(4) OJ No 13, 21. 2. 1962, p. 204/62. 
12.9.86 Official Journal of the European Communities No C 231/3 
— the goods or services which are the subject of the 
agreement (hereinafter referred to as 'the contract 
products') together with the participation under­
takings' other goods or services which are considered 
by users to be equivalent in view of their charac­
teristics, price and intended use, do not represent 
more than 5 % of the total market for such goods or 
services (hereinafter referred to as 'products') in the 
area of the common market affected by the 
agreement and 
— the aggregate annual turnover of the participating 
undertakings does not exceed 200 million ECU. 
8. The Commission also hods the view that the said 
agreements do not fall under the prohibition of Article 
85 (1) if the abovementioned market share or turnover is 
exceeded by not more than one tenth during two 
successive financial years. 
9. For the purposes of this Notice, participating 
undertakings are: 
(a) undertakings party to the agreement; 
(b) undertakings in which a party to the agreement, 
directly or indirectly, 
— owns more than half the capital or business assets 
or 
— has the power to exercise more than half the 
voting rights, or 
— has the power to appoint more than half the 
members of the supervisory board, board of 
management or bodies legally representing the 
undertakings, or 
— has the right to manage the affairs; 
(c) undertakings which directly or indirectly have in or 
over a party to the agreement the rights or powers 
listed in (b); 
(d) undertakings in or over which an undertaking 
referred to in (c) directly or indirectly has the rights 
or powers listed in (b). 
Undertakings in which several undertakings as referred 
to in (a) to (d) jointly have, directly or indirectly, the 
rights or powers set out in (b) shall also be considered to 
be participating undertakings. 
10. In order to calculate the market share, it is 
necessary to determine the relevant market. This implies 
the definition of the relevant product market and the 
relevant geographical market. 11. The relevant product market includes besides the 
contract products any other products which are identical 
or equivalent to them, This rule applies to the products 
of the participating undertakings as well as to the market 
for such products. The products in question must be 
interchangeable. Whether or not this is the case must be 
judged from the vantage point of the user, normally 
taking the characteristics, price and intended use of the 
goods together. In certain cases, however, products can 
form a separate market on the basis of their char­
acteristics, their price or their intended use alone. This is 
true especially where consumer preferences have 
developed. 
12. Where the contract products are components 
which are incorporated into another product by the 
participating undertakings, reference should be made to 
the market for the latter product, provided that the 
components represent a significant part of it. Where the 
contract products are components which are sold to 
third undertakings, reference should be made to the 
market for the components. In cases where both 
conditions apply, both markets should be considered 
separately. 
13. The relevant geographical market is the area 
within the Community in which the agreement produces 
its effects. This area will be the whole common market 
where the contract products are regularly bought and 
sold in all Member States. Where the contract products 
cannot be bought and sold in a part of the common 
market, or are bought and sold only in limited quantities 
or at irregular intervals in such a part, that part should 
be disregarded. 
14. The relevant geographical market will be narrower 
than the whole common market in particular where: 
— the nature and characteristics of the contract 
product, e.g. high transport costs in relation to the 
value of the product, restrict its mobility; or 
— movement of the contract product within the 
common market is hindered by barriers to entry to 
national markets resulting from State intervention, 
such as quantitative restrictions, severe taxation 
differentials and non-tariff barriers, e.g. type 
approvals or safety standard certifications. In such 
cases the national territory may have to be 
considered as the relevant geographical market. 
However, this will only be justified if the existing 
barriers to entry cannot be overcome by reasonable 
effort and at an acceptable cost. 
No C 231/4 Official Journal of the European Communities 12.9.86 
15. Aggregate turnover includes the turnover in all 
goods and services, excludings tax, achieved during the 
last financial year by the participating undertaking. In 
cases where an undertaking has concluded similar 
agreements with various other undertakings in the 
relevant market, the turnover of all participating under­
takings should be taken together. The aggregate 
turnover shall not include dealings between participating 
undertakings. 
The Commission has received a complaint alleging that 
imports of ferro-silicon originating in Brazil are being 
dumped and are thereby causing injury to a Community 
industry. 
Complainant 
The Complaint was lodged by the 'Comite de Liaison 
des Industries de Ferro-Alliages de la Communaute 
economique europeenne' on behalf of producers 
representing substantially all Community production of 
ferro-silicon. 
Product 
The product allegedly being dumped is ferro-silicon, 
used as a deoxidiser in steel manufacture and as an 
alloying component, falling under Common Customs 
Tariff subheading 73.02 C and corresponding to 
NIMEXE code 73.02-30. 
Allegation of dumping 
The allegation of dumping is based on a comparison of 
the Brazilian domestic price with the prices charged for 
export to the Community. On this basis the dumping 
margins estimated are significant. 
Allegation of injury 
With regard to injury, the complaint alleges that 
important quantities of low-priced Brazilian ferro-silicon 
arrived in the Community at the beginning of 1986 
thereby undermining the anti-dumping measures taken in 
1983 in the framework of a previous proceeding which 
cover the major exporters of ferro-silicon to the 
Community. 
More specifically the complaint alleges that imports of 
ferro-silicon originating in Brazil have increased from 
approximately 2 000 tonnes in 1983 to around 8 500 
tonnes in 1985 and were more than 4 000 tonnes in the 16. The present Notice shall not apply where in a 
relevant market competition is restricted by the cumu­
lative effects of parallel networks of similar agreements 
established by several manufacturers or dealers. 
17. The present Notice is likewise applicable to 
decisions by associations of undertakings and to 
concerted practices. 
first quarter of 1986. This would represent an increase 
in market share from 0,4 % in 1983 to 1,5 % in 1985 
and to more than 3 % in the first quarter 1986. It is 
furthermore alleged that the prices at which the imports 
during 1986 have been sold in the Community 
significantly undercut the prices of Community 
producers which are at a level resulting from the existing 
anti-dumping measures. The consequent impact on the 
Community industry is claimed to be a reduction in 
market share and an increase in stocks and financial 
losses. 
It is finally alleged that actual and planned increases in 
production capacity in Brazil (140 000 tonnes in 1980, 
180 000 tonnes in 1985, 207 000 tonnes in 1986 and 
330 000 tonnes in 1988) coupled with increased total 
worldwide exports from Brazil (27 000 tonnes in 1980 to 
114 000 tonnes in 1985) constitute a threat of additional 
injury to the Community industry. 
Procedure 
Having decided, after consultation, that there is 
sufficient evidence to justify initiating a proceeding, the 
Commission has commenced an investigation in 
accordance with Article 7 of Council Regulation (EEC) 
No 2176/84 of 23 July 1984 on protection against 
dumped or subsidized imports from countries not 
members of the European Economic Community ('). 
Interested parties may make known their views in 
writing, in particular by replying to the questionnaire 
addressed to the parties known to be concerned and by 
providing supporting evidence. Furthermore, the 
Commission will hear parties who so request when 
making their views known, provided that they can show 
that they are likely to be affected by the result of the 
proceeding. 
This notice is published in accordance with Article 7 (1) 
(a) of the abovementioned Regulation. 
0) OJ No L 201, 30. 7. 1984, p. 1. Notice of initiation of an anti-dumping proceeding concerning imports of ferro-silicon 
originating in Brazil 
(86/C 231/03)