Notice of the Commission relating to the revision of the 1997 notice on agreements of minor importance which do not fall under Article 81(1) of the EC Treaty (Text with EEA relevance)
Date: 2001-05-19
Institutions: European Commission
Subjects: European Commission, agreement (EU), exchange of information, revision of an agreement

C 149/18

EN

Official Journal of the European Communities

19.5.2001

NOTICE OF THE COMMISSION

relating to the revision of the 1997 notice on agreements of minor importance which do not fall
under Article 81(1) of the EC Treaty

(2001/C 149/05)

(Text with EEA relevance)

The Commission invites all interested parties to submit their written observations on the following draft of
a revised notice on agreements of minor importance. Observations should be sent in the two months
following the date of the present publication to the following address:

European Commission
Directorate General for Competition
Unit A-2
J 70 (cid:151) 5/203
Rue de la Loi/Wetstraat 200
B-1049 Brussels

Internet address: Lucas.Peeperkorn@cec.eu.int.

Draft Notice on agreements of minor importance which do not appreciably restrict competition
under Article 81(1) of the Treaty establishing the European Community (de minimis) (1)

I

the

prevention,

1. Article 81(1) prohibits agreements which may affect trade
between Member States and which have as their object or
effect
of
competition within the common market. The Court of
Justice of
the European Communities has clarified that
this provision is not applicable where the impact of the
agreement on intra-community trade or on competition is
not appreciable.

restriction

distortion

or

2. In the present notice the Commission quantifies, with the
help of market share thresholds, what is not an appreciable
restriction of competition under Article 81 of
the EC
Treaty. This negative definition of appreciability does not
imply that agreements between undertakings which exceed
the thresholds set out in this notice appreciably restrict
competition. Such agreements may still have only a
negligible effect on competition within the common
market and may therefore not be caught by Article
81(1) (2).

3. Agreements may also not be caught by Article 81(1)
because they are not capable of appreciably affecting
trade between Member States. This notice does not deal
with this issue. It does not quantify what does or does not
constitute an appreciable effect on trade.

4. In cases covered by this notice, and subject to point 11, the
Commission will not
institute proceedings either upon
application or on its own initiative. Where undertakings

(1) This notice replaces the notice on agreements of minor importance

published in OJ C 372, 9.12.1997.

assume in good faith that an agreement is covered by this
notice, the Commission will not impose fines. Although
this notice also intends to give
not binding on them,
guidance to the courts and authorities of
the Member
States in their application of Article 81.

5. This notice also applies to decisions by associations of

undertakings and to concerted practices.

6. This notice is without prejudice to any interpretation of
Article 81 which may be given by the Court of Justice or
the Court of First Instance of the European Communities.

7. This notice is without prejudice to the application of

national competition laws.

II

8. The Commission holds the view that agreements between
undertakings which affect trade between Member States do
not appreciably restrict competition within the meaning of
Article 81(1):

(a)

if the aggregate market share held by all 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
the
are actual or potential competitors on any of
affected
between
competitors) (3); or

relevant markets

(agreements

(2) See for instance the judgment of the Court of Justice in Joined Cases
C-215/96 and C-216/96 Bagnasco (Carlos) v Banca Popolare di Novara
and Casa di Risparmio di Genova e Imperia (1999) ECR I-135, points
34-35.

(3) On what are actual or potential competitors, see the Commission
Notice (cid:145)Guidelines on the applicability of Article 81 of
the EC
Treaty to horizontal cooperation agreements(cid:146), OJ C 3, 6.1.2001,
p. 2, paragraph 9.

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Official Journal of the European Communities

C 149/19

affected by

(b) if the market share held by each of the parties to the
agreement does not exceed 15 % on any of the relevant
markets
the
the
agreement is made between undertakings which are
the
not actual or potential competitors on any of
affected
between
non-competitors).

agreement, where

relevant markets

(agreements

In cases where it is difficult to classify the agreement as
either an agreement between competitors or an agreement
between non-competitors the 10 % threshold is applicable.

9. Where in an affected relevant market competition is
restricted by the cumulative effect of parallel networks of
agreements for the sale of goods or services established by
several suppliers or distributors and which have similar
effects on the market, the market share threshold under
point 8 is reduced to 5 %, both for agreements between
competitors and for agreements between non-competitors.
The agreements of a supplier or distributor with a market
share not exceeding 5 % are in general not considered to
contribute significantly to a cumulative foreclosure effect
resulting
suppliers or
distributors (1).

from agreements of

several

10. The Commission also holds

the view that

the said
agreements are not
the
market shares given at point 8 and 9 are exceeded by
no more than one percentage point during two successive
calendar years.

restrictive of competition if

11.

In order to calculate the market share, it is necessary to
determine the relevant market. This consists of the relevant
product market and the relevant geographic market. When
defining the relevant market, reference should be had to
the notice on the definition of the relevant market for the
purposes of Community competition law (2).

12. Provided that the condition of effect on trade between
Member States is fulfilled, agreements containing any of
the following hardcore restrictions do not benefit from the
thresholds set out in points 8, 9 and 10 and are unlikely to
qualify for individual exemption:

(1) horizontal agreements (i.e. agreements between under-
takings operating at the same level of the production
or distribution chain) which, directly or indirectly, in
isolation or in combination with other factors under
the control of the parties, have as their object:

(c)

(a) the fixing of prices when selling the products to

third parties;

(1) See also the Commission Notice (cid:145)Guidelines on vertical restraints(cid:146),
OJ C 291, 13.10.2000, in particular paragraphs 73, 142 and 189.
While in the guidelines on vertical restraints in relation to certain
restrictions reference is made not only to the total but also to the
tied market share, in this notice the market share thresholds all refer
to total market shares.
(2) OJ C 372, 9.12.1997, p. 5.

(b) the limitation of output or sales;

(c)

the allocation of markets or customers;

(2) vertical agreements (i.e. agreements between under-
takings operating, for the purposes of the agreement,
at a different level of the production or distribution
chain) which, directly or indirectly, in isolation or in
combination with other factors under the control of
the parties, have as their object:

(a) the restriction of the buyer’s ability to determine
its sale price, without prejudice to the possibility of
the supplier imposing a maximum sale price or
recommending a sale price, provided that they do
not amount to a fixed or minimum sale price as a
result of pressure from, or incentives offered by,
any of the parties;

(b) the restriction of the territory into which, or of the
customers
the
contract goods or services, except the following
restrictions which are not hardcore:

the buyer may sell

to whom,

(cid:151) the restriction of active sales into the exclusive
territory or to an exclusive customer group
reserved to the supplier or allocated by the
such a
to another buyer, where
supplier
restriction does not
the
by
sales
customers of the buyer,

limit

(cid:151) the restriction of sales to end users by a buyer
operating at the wholesale level of trade,

(cid:151) the

restriction

unauthorised
distributors by the members of a selective
distribution system, and

sales

of

to

the buyer’s ability to sell
(cid:151) the restriction of
supplied for
the purposes of
components,
incorporation,
to customers who would use
them to manufacture the same type of goods
as those produced by the supplier;

restriction of active or passive

the
to
end-users by members of a selective distribution
trade,
system operating at
without prejudice to the possibility of prohibiting
a member of the system from operating out of an
unauthorised place of establishment;

the retail

level of

sales

(d) the

of

restriction

between
distributors within a selective distribution system,
including
at
different levels of trade;

cross-supplies

distributors

operating

between

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Official Journal of the European Communities

19.5.2001

(cid:151) has the power to appoint more than half the
members of the supervisory board, board of
management or bodies legally representing the
undertaking, or

(cid:151) has

the right

to manage the undertaking’s

affairs;

(b) undertakings which directly or

over a party to the agreement,
powers listed in (a);

indirectly have,
the rights or

(c) undertakings in which an undertaking referred to
the rights or

in (b) has, directly or indirectly,
powers listed in (a);

(d) undertakings in which a party to the agreement
together with one or more of the undertakings
referred to in (a), (b) or (c), or in which two or
more of the latter undertakings,
jointly have the
rights or powers listed in (a);

(e) undertakings in which the rights or the powers

listed in (a) are jointly held by:

(cid:151) parties to the agreement or their respective
to
connected undertakings referred to in (a)
(d), or

(cid:151) one or more of the parties to the agreement or
one or more of their connected undertakings
referred to in (a) to (d) and one or more third
parties.

(3) For the purposes of paragraph 2(e), the market share
held by these jointly held undertakings shall be appor-
tioned equally to each undertaking having the rights or
the powers listed in paragraph 2(a).

(e)

restriction agreed between a supplier of
the
components and a buyer who incorporates those
components, which limits the supplier’s ability to
sell the components as spare parts to end-users or
service providers not
to repairers or other
entrusted by the buyer with the
repair or
servicing of its goods.

(3) vertical agreements entered into between actual or
the
potential competitors
if
hardcore restrictions listed in paragraph (1) or (2)
above.

they contain any of

The above hardcore restrictions may however escape the
prohibition laid down in Article 81(1)
in particular in
cases where the agreement does not affect trade between
Member States. Case-law has established, especially with
regard to territorial protection in vertical agreements,
that there is no violation of Article 81(1) in cases where
the agreement has only an insignificant effect on the
relevant markets due to the weak positions which the
parties concerned have on the markets in question (1).
Agreements between small and medium-sized under-
takings, as defined in the annex to Commission Recom-
mendation 96/280/EC (2), are rarely capable of affecting
trade between Member States.

13.

(1) For the purposes of

this notice,

the terms (cid:145)under-
taking(cid:146), (cid:145)party to the agreement(cid:146), (cid:145)distributor(cid:146), (cid:145)supplier(cid:146)
and (cid:145)buyer(cid:146) shall
include their respective connected
undertakings.

(2) (cid:145)Connected undertakings(cid:146) are:

(a) undertakings in which a party to the agreement,

directly or indirectly:

(cid:151) has the power to exercise more than half the

voting rights, or

(1) See the following judgments of the Court of Justice: Case 5/69 V(cid:246)lck
v Vervaecke (1969) ECR 295; Case 1/71 Cadillon v H(cid:246)ss (1971) ECR
351; Case 19/77 Miller International Schallplatten v Commission (1978)
ECR 131; Case C-70/93 BMW AG v ALD Auto-Leasing D GmbH
(1995) ECR I-3439; Case C-306/96 Javico International and Javico AG
v Yves Saint Laurent Parfums SA (1998) ECR I-1983.

(2) OJ L 107, 30.4.1996, p. 4.