Opinion of the Economic and Social Committee on the "Communication from the Commission relating to the revision of the 1997 notice on agreements of minor importance not covered by the provisions of Article 81(1) of the EC Treaty"
Date: 2001-10-17
Institutions: European Economic and Social Committee
Subjects: aid to undertakings, competition law, horizontal agreement, market-sharing agreement, single market, vertical agreement

8.2.2002

EN

Official Journal of the European Communities

C 36/7

Since

soon as

conglomerates

are
in non-member
is
directive

up
and
5.5.
the EU must,
expanding fast
on
impress
as
the Basle Committee the need to have similar binding
rules introduced and start a process of convergence at its own
the EU’s financial conglomerates would
level. Otherwise,

being
states,
adopted,

the

set

Brussels, 17 October 2001.

suffer a major competitive disadvantage vis-à-vis their non-EU
counterparts.

5.6.
Consultation of the supervised sectors will be a vital
component in the comitology procedure in order to end up
with rules that are as efficient as possible.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Communication from the Commission
relating to the revision of the 1997 notice on agreements of minor importance not covered by
the provisions of Article 81(1) of the EC Treaty’

(2002/C 36/02)

On 16 May 2001 the Commission decided, under Article 262 of the Treaty establishing the European
Community, to consult the Economic and Social Committee on the above-mentioned communication.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 26 September 2001. The rapporteur was
Mr Pezzini.

At its 385th plenary session (meeting of 17 October 2001) the Economic and Social Committee adopted
the following opinion unanimously.

1.

Introduction

2. Comments

1.1.
The process of modernising the competition rules and
the approach of decentralising responsibilities, adopted as a
result of the debate initiated by the Green Paper, are proceeding
smoothly together in the Commission’s work and can also
be found in the Communication under consideration. The
Commission, in tackling this review of agreements of minor
importance, takes account of the judgments issued by the
Court of Justice in recent years and of the need — to which
the ESC has referred earlier — to provide judges and authorities
in the Member States with guidelines (not necessarily binding
ones).

2.1.
The new Commission Notice relating to the revision of
the 1997 Notice on Agreements of Minor Importance is to be
welcomed. It contains a number of significant improvements
upon its predecessor. Yet the Committee thinks it desirable to
emphasise and bring out certain points of special interest.

2.2. Market share maxima

1.2.
It should also be emphasised that the present Com-
munication, although it covers ‘agreements of minor import-
ance’, still has considerable significance, both in terms of the
enormous number of cases covered and in terms of the
complex task of identifying the nature of the agreements.

In the 1997 Notice, the Commission had introduced
2.2.1.
a distinction between ‘horizontal’ and ‘vertical’ agreements and
stated that since vertical agreements posed less of a threat to
and risk for competition in the internal market they can be
treated more leniently than horizontal agreements. The 1997
Notice defined ‘vertical’ agreements as agreements between
undertakings at different levels of production or distribution

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and adopted a market share maximum of 10 %, below which
such agreements were regarded as not caught by Article 81(1)
even if they were involved in trade between the Member States.
It defined ‘horizontal’ agreements as agreements between
undertakings at the same level of production and distribution
and adopted a market share maximum of 5 % for such
agreements.

2.2.6.
The Committee also welcomes the Notice’s proposal
in point 8 to raise the market share maximum from 5 % to
10 % for agreements difficult to classify since this logically
follows from the previous changes.

2.2.2.
The new revised Notice in point 8 replaces the
definition of ‘vertical agreements’ with the wider category of
‘agreements between non-competitors’ defined as ‘agreements
between undertakings which are not actual or potential
competitors on any of the affected relevant markets’. This new
definition is wider because it would include, for example, two
manufacturers engaged in two different lines of manufacture
who enter into a distribution agreement as long as the
machinery of both cannot be adapted to the contract goods.

2.2.3.
This new wider category of agreements will normally
be viewed as not appreciably affecting competition within the
meaning of Article 81(1) if the market share of each of the
parties to the agreement does not exceed 15 %.

2.2.4.
The Committee welcomes both the wider definition
of low risk agreements between undertakings and the higher
market share maxima unequivocally because they recognize
the economic realities that such agreements do not pose
an appreciable threat
to competition in the meaning of
Article 81(1). The Committee also applauds the decision in
this case too not to make use of a turnover maximum since
the relationship of the undertaking to the relevant market
rather than its size is the key to competition concerns, with
reference to Article 81.

For similar reasons, the Committee welcomes the
2.2.5.
new Notice’s proposed narrower category of
‘agreements
between competitors’, defined as ‘agreements between under-
takings which are actual or potential competitors on any of
the affected relevant markets’. It also welcomes the Notice’s
adoption of a higher market share maximum of 10 % of the
aggregate market share held by all the parties to the agreement
because at such market shares even agreements between
competitors cannot represent any appreciable threat to compe-
tition in the meaning of Article 81(1).

2.3.

Parallel networks and foreclosure effects

2.3.1.
The Committee also welcomes the introduction of a
new quantitative market share test of 5 % in point 9 for
the agreements by a single supplier or distributor where
competition in a market may be restricted by the cumulative
effects of parallel networks of agreements for the sale of goods
and services. Some examples of such networks are offered by
the pubs tied to breweries in Belgium and in the United
Kingdom or ice cream freezer agreements between suppliers
and retailers in Germany and Eire. This marks a big improve-
ment on the complicated tests provided in the 1997 Notice
which relied on qualitative criteria set out in various judge-
ments of the Court of Justice. The proposed new quantitative
test will provide greater legal certainty to suppliers and
distributors.

2.3.2.
The Committee welcomes the Commission’s pro-
vision in point 10 to allow the market shares in all of the
above cases to be exceeded by one percentage point during
two successive calendar years. The Committee does wonder
however why the allowance for incremental growth has been
changed from the 10 % allowed in the 1997 Notice, since the
new rule encourages agreements between competitors (15 %
plus one percentage point makes 16 %; adding 10 % of 15 %
makes 16.5 %).

2.4. Relevant market

2.4.1.
The Committee notes that the advice offered by the
Notice on the crucial question of calculating market shares in
point 11 consists solely of referring parties to agreements
(and national courts and competition authorities)
to the
Commission’s Notice on the definition of the relevant market
for the purposes of competition law (1). The Commission
its Notice ‘Guidelines on Vertical
makes no mention of
restraints’ (2) or its Notice ‘Guidelines on the Applicability of
Article 81 of
the EC Treaty to Horizontal Cooperation
Agreements’ (3), despite referring elsewhere in the document
to both of these Guidelines.

(1) OJ C 372, 9.12.1997.
(2) OJ C 291, 13.10.2000.
(3) OJ C 3, 6.1.2001.

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2.4.2.
For the sake of clarity, the Committee thinks that the
Commission should specify whether or not the Guidelines in
the two block exemptions are relevant.

2.5. Hardcore restrictions and definitions of agreements

The Committee’s first concern about

the Com-
2.5.1.
mission’s treatment of hardcore restrictions in point 12 is its
sudden introduction of three new categories of agreements:
‘horizontal agreements’;
‘vertical agreements’; and ‘vertical
agreements entered into between actual or potential competi-
tors’ in the middle of the Notice. The Committee feels that the
concepts in the Notice of relevant market, market thresholds
etc. are sufficiently complex without having to deal with
different definitions of agreements in the same Notice.

2.5.2.
The Committee would urge the Commission to
rethink its approach and use the same definitions of categories
of agreements throughout the Notice.

they would be subject

given in the Communication,
to
Article 81 of the Treaty. The Committee would point out,
however, that most agreements between SMEs do not influence
trade between States, and that many of those that do would
not come within the scope of Article 81, because of the
increase in market thresholds envisaged in the Communi-
cation. Moreover, the Commission itself,
in the European
Charter for Small Enterprises, has called for — and stressed
the importance of — the creation of networks and agreements
between small firms, to ensure better production and market-
ing of their products.

2.7. The Communication and national competition laws

2.7.1.
The Committee would draw attention to the Com-
mission’s comment in point 7 of the Communication: ‘This
Notice is without prejudice to the application of national
competition laws’. The Committee points out that this pro-
vision will have to be reviewed once the legislative reforms on
modernisation have been implemented.

2.6.

Small and medium-sized enterprises

3. Conclusions

2.6.1.
The Committee approves of the treatment of SMEs
envisaged by the Commission in the new Communication. It
appreciates the constant attention given to SMEs by the
Commission, in the context of competition policy, because of
the importance of this sector in the European economy. It also
agrees with the principle expressed in point 12 of the new
Communication, in the context of the hardcore restrictions:
‘Agreements between small and medium sized undertakings,
as defined in the Annex to Commission Recommendation
96/280/EC, are rarely capable of affecting trade between
Member States’. If, exceptionally, agreements between SMEs
do affect interstate trade, this still leaves open the possibility
that, if the said agreements also exceed the market thresholds

The communication is part of the process of updating
3.1.
competition policy law. The Committee highlights the major
improvements over the previous communication: the estab-
lishment of ‘categories’, the raising of existing thresholds, the
establishment of a new threshold, improved legal certainty.

3.2.
The Committee calls for further thought to be given to
the concept of ‘relevant market’, and for further simplification
of the categories of agreement giving rise to hardcore restric-
tions of competition policy and greater uniformity in the
leeway allowed in the event of the market share laid down
being exceeded.

Brussels, 17 October 2001.

The President

of the Economic and Social Committee

Göke FRERICHS