Commission 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) (Text with EEA relevance)
Date: 2001-12-22
Institutions: European Commission
Subjects: competition law, inter-company agreement, single market

22.12.2001

EN

Official Journal of the European Communities

C 368/13

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

minimis) (1)

(2001/C 368/07)

(Text with EEA relevance)

I

their object or effect

1. Article 81(1) prohibits agreements between undertakings
trade between Member States and
which may affect
the prevention,
which have as
restriction or distortion 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.

share thresholds, what

2. In this notice the Commission quantifies, with the help of
is not an appreciable
market
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 and may therefore not
be prohibited by Article 81(1) (2).

agreement is covered by this notice, the Commission will
this
impose fines. Although not binding on them,
not
notice also intends to give 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.

II

7. 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):

3. Agreements may in addition not fall under 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 not constitute an
appreciable effect on trade. It is however acknowledged
that agreements between small and medium-sized under-
takings, as defined in the Annex to Commission Recom-
mendation 96/280/EC (3), are rarely capable of appreciably
affecting
and
medium-sized undertakings are currently defined in that
recommendation as undertakings which have fewer than
250 employees and have either an annual turnover not
exceeding EUR 40 million or an annual balance-sheet
total not exceeding EUR 27 million.

trade between Member

States.

Small

(a)

if the aggregate market share held by the parties to the
agreement does not exceed 10 % on any of the relevant
markets
the
the
agreement is made between undertakings which are
these
actual or potential competitors on any of
markets (agreements between competitors) (4); or

agreement, where

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
not actual or potential competitors on any of these
markets (agreements between non-competitors).

agreement, where

affected by

4. In cases covered by this notice the Commission will not
institute proceedings either upon application or on its own
initiative. Where undertakings assume in good faith that an

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

published in OJ C 372, 9.12.1997.

(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. This notice is also without prejudice to the principles
for assessment under Article 81(1) as expressed in 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,
in
particular points 17-31 inclusive, and in the Commission notice
in
(cid:145)Guidelines on vertical
particular points 5-20 inclusive.

restraints(cid:146), OJ C 291, 13.10.2000,

(3) OJ L 107, 30.4.1996, p. 4. This recommendation will be revised. It
is envisaged to increase the annual
threshold from
EUR 40 million to EUR 50 million and the annual balance-sheet
total threshold from EUR 27 million to EUR 43 million.

turnover

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.

(4) 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, paragraph
9. A firm is treated as an actual competitor if it is either active on
the same relevant market or if, in the absence of the agreement, it is
able to switch production to the relevant products and market them
in the short term without incurring significant additional costs or
risks in response to a small and permanent increase in relative
prices (immediate supply-side substitutability). A firm is treated as
a potential competitor
the
agreement, this firm could and would be likely to undertake the
necessary additional investments or other necessary switching costs
so that it could enter the relevant market in response to a small and
permanent increase in relative prices.

there is evidence that, absent

if

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Official Journal of the European Communities

22.12.2001

8. Where in a relevant market competition is restricted by the
cumulative effect of agreements for the sale of goods or
services entered into by different suppliers or distributors
(cumulative foreclosure effect of parallel networks of
the
agreements having similar effects on the market),
market share thresholds under point 7 are reduced to
5 %, both for agreements between competitors and for
agreements between non-competitors. Individual suppliers
or distributors with a market share not exceeding 5 % are
in general not considered to contribute significantly to a
cumulative foreclosure effect (1). A cumulative foreclosure
effect is unlikely to exist if less than 30 % of the relevant
market
(networks of) agreements
having similar effects.

is covered by parallel

9. The Commission also holds the view that agreements are
not restrictive of competition if the market shares do not
exceed the thresholds of respectively 10 %, 15 % and 5 %
set out in point 7 and 8 during two successive calendar
years by more than 2 percentage points.

10. 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). The market
shares are to be calculated on the basis of sales value data
or, where appropriate, purchase value data. If value data
are not available, estimates based on other reliable market
information, including volume data, may be used.

11. Points 7, 8 and 9 do not apply to agreements containing

any of the following hardcore restrictions:

(1) as regards agreements between competitors as defined
in point 7, restrictions which, directly or indirectly, in
isolation or in combination with other factors under
the control of the parties, have as their object (3):

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

third parties;

(b) the limitation of output or sales;

(c)

the allocation of markets or customers;

(c)

(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, 143 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 of a particular supplier or buyer, in
this notice all market share thresholds refer to total market shares.

(2) OJ C 372, 9.12.1997, p. 5.
(3) Without prejudice to situations of joint production with or without
joint distribution as defined in Article 5, paragraph 2, of
Commission Regulation (EC) No 2658/2000 and Article 5,
paragraph 2, of Commission Regulation (EC) No 2659/2000, OJ
L 304, 5.12.2000, pp. 3 and 7 respectively.

(2) as regards agreements between non-competitors as
restrictions which, directly or
defined in point 7,
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

to

of

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

the restriction of active or passive sales to end
users by members of a selective distribution
system operating at
trade,
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

(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

C 368/15

(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) as regards agreements between competitors as defined
for the
in point 7, where the competitors operate,
purposes of the agreement, at a different level of the
production or distribution chain, any of the hardcore
restrictions listed in paragraph (1) and (2) above.

12. (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

(cid:151) has

the right

to manage the undertaking’s

affairs;

(b) undertakings which directly or indirectly have, over
a party to the agreement, the rights or powers
listed in (a);

(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
connected undertakings referred to in (a)
to
(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.

(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

(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).