Commission Notice — Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty (Text with EEA relevance)
Date: 2004-04-27
Institutions: European Commission
Subjects: application of EU law, competition law, trading operation

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Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty

COMMISSION NOTICE

(2004/C 101/07)

(Text with EEA relevance)

1. INTRODUCTION

1. Articles 81 and 82 of the Treaty are applicable to hori-
zontal and vertical agreements and practices on the part
of undertakings which ‘may affect trade between Member
States’.

2.

interpretation of Articles 81 and 82,

In their
the
Community Courts have already substantially clarified
the content and scope of the concept of effect on trade
between Member States.

3. The present guidelines set out the principles developed by
the Community Courts in relation to the interpretation of
the effect on trade concept of Articles 81 and 82. They
further spell out a rule indicating when agreements are in
general unlikely to be capable of appreciably affecting
trade between Member States (the non-appreciable affec-
tation of trade rule or NAAT-rule). The guidelines are not
intended to be exhaustive. The aim is to set out the
methodology for the application of the effect on trade
concept and to provide guidance on its application in
frequently occurring situations. Although not binding
on them, these guidelines also intend to give guidance
to the courts and authorities of the Member States in
their
concept
contained in Articles 81 and 82.

effect on trade

application of

the

4. The present guidelines do not address the issue of what
constitutes an appreciable restriction of competition
under Article 81(1). This issue, which is distinct from
the ability of agreements to appreciably affect
trade
between Member States, is dealt with in the Commission
Notice on agreements of minor importance which do not
appreciably restrict competition under Article 81(1) of
the Treaty (1)
(the de minimis rule). The guidelines are
also not intended to provide guidance on the effect on
trade concept contained in Article 87(1) of the Treaty on
State aid.

5. These guidelines,

including the NAAT-rule, are without
prejudice to the interpretation of Articles 81 and 82
which may be given by the Court of Justice and the
Court of First Instance.

2. THE EFFECT ON TRADE CRITERION

2.1. General principles

6. Article 81(1) provides

‘the following shall be
that
prohibited as incompatible with the common market:

all
agreements between undertakings, decisions of
associations of undertakings and concerted practices
trade between Member States and
which may affect
the prevention,
which have as their object or effect
restriction or distortion of
competition within the
common market’. For the sake of simplicity the terms
‘agreements, decisions of associations of undertakings
and concerted practices’ are collectively referred to as
‘agreements’.

7. Article 82 on its part stipulates that ‘any abuse by one or
more undertakings of a dominant position within the
common market or in a substantial part thereof shall
be prohibited as incompatible with the common market
insofar as it may affect trade between Member States.’ In
what follows the term ‘practices’ refers to the conduct of
dominant undertakings.

8. The effect on trade criterion also determines the scope of
application of Article 3 of Regulation 1/2003 on the
implementation of the rules on competition laid down
in Articles 81 and 82 of the Treaty (2).

9. According to Article 3(1) of

that Regulation the
competition authorities and courts of
the Member
States must apply Article 81 to agreements, decisions
by associations of undertakings or concerted practices
within the meaning of Article 81(1) of
the Treaty
which may affect trade between Member States within
the meaning of
that provision, when they apply
national competition law to such agreements, decisions
or concerted practices. Similarly, when the competition
authorities and courts of
the Member States apply
national competition law to any abuse prohibited by
Article 82 of the Treaty, they must also apply Article
the
82 of
competition authorities and courts of
the Member
States to also apply Articles 81 and 82 when they
apply national competition law to agreements and
abusive practices which may affect
trade between
Member States. On the other hand, Article 3(1) does
not oblige national competition authorities and courts
to apply national competition law when they apply
Articles 81 and 82 to agreements, decisions
and
concerted practices and to abuses which may affect
trade between Member States. They may in such cases
apply the Community competition rules on a stand alone
basis.

the Treaty. Article 3(1)

thus obliges

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10. It

that

follows from Article 3(2)

the application of
national competition law may not lead to the prohibition
of agreements, decisions by associations of undertakings
or concerted practices which may affect trade between
Member States but which do not restrict competition
within the meaning of Article 81(1) of the Treaty, or
which fulfil
the
Treaty or which are covered by a Regulation for the
application of Article 81(3) of
the Treaty. Member
are not under Regulation 1/2003
States, however,
precluded from adopting and applying on their territory
stricter national
sanction
laws which prohibit or
unilateral conduct engaged in by undertakings.

the conditions of Article 81(3) of

11. Finally it should be mentioned that Article 3(3) stipulates
that without prejudice to general principles and other
provisions of Community law, Article 3(1) and (2) do
not apply when the competition authorities and the
the Member States apply national merger
courts of
laws, nor do they preclude the application of
control
law that predominantly pursue
provisions of national
an objective different from that pursued by Articles 81
and 82 of the Treaty.

12. The

criterion is

effect on trade

an autonomous
Community law criterion, which must be assessed sepa-
rately in each case. It is a jurisdictional criterion, which
application of Community
defines
competition law (3). Community competition law is not
applicable to agreements and practices that are not
capable of appreciably affecting trade between Member
States.

scope of

the

13. The effect on trade criterion confines the scope of
application of Articles 81 and 82 to agreements and
practices that are capable of having a minimum level
In the
of cross-border effects within the Community.
words of
the
agreement or practice to affect trade between Member
States must be ‘appreciable’ (4).

the ability of

the Court of

Justice,

14. In the case of Article 81 of the Treaty, it is the agreement
that must be capable of affecting trade between Member
States. It is not required that each individual part of the
agreement,
including any restriction of competition
is capable of
which may flow from the agreement,
doing so (5). If the agreement as a whole is capable of
affecting
is
States,
between Member
the entire
Community law jurisdiction in respect of
that
agreement,
individually do not affect trade between Member States.
In cases where the contractual relations between the same
parties cover several activities, these activities must,
in
order to form part of the same agreement, be directly
linked and form an integral part of the same overall

including any parts of the agreement

there

trade

business arrangement (6). If not, each activity constitutes
a separate agreement.

15. It is also immaterial whether or not the participation of a
particular undertaking in the agreement has an appre-
ciable effect on trade between Member States (7). An
undertaking cannot escape Community law jurisdiction
merely because of the fact that its own contribution to
an agreement, which itself is capable of affecting trade
between Member States, is insignificant.

16. It

affect

is not necessary,

also
example,

agreements may
For
States.

for the purposes of establishing
Community law jurisdiction, to establish a link between
the alleged restriction of competition and the capacity of
the agreement to affect trade between Member States.
trade
Non-restrictive
between Member
selective
distribution agreements based on purely qualitative
selection criteria justified by the nature of the products,
restrictive of competition within the
which are not
meaning of Article 81(1), may nevertheless affect trade
between Member States. However, the alleged restrictions
arising from an agreement may provide a clear indication
as to the capacity of
trade
instance, a distribution
between Member States. For
agreement prohibiting exports is by its very nature
capable of affecting trade between Member States,
although not necessarily to an appreciable extent (8).

the agreement

to affect

that

17. In the case of Article 82 it is the abuse that must affect
trade between Member States. This does not
imply,
however, that each element of the behaviour must be
assessed in isolation. Conduct
forms part of an
overall strategy pursued by the dominant undertaking
must be assessed in terms of its overall impact. Where
a dominant undertaking adopts various practices
in
pursuit of the same aim, for instance practices that aim
at eliminating or foreclosing competitors,
in order for
Article 82 to be applicable to all the practices forming
part of this overall strategy, it is sufficient that at least
one of
is capable of affecting trade
between Member States (9).

these practices

18. It follows from the wording of Articles 81 and 82 and
in the
criterion three

the case law of
application of
elements in particular must be addressed:

the Community Courts that

effect on trade

the

(a) The concept of ‘trade between Member States’,

(b) The notion of ‘may affect’, and

(c) The concept of ‘appreciability’.

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2.2. The concept of ‘trade between Member States’

19. The concept of

‘trade’

limited to traditional
is not
exchanges of goods and services across borders (10). It is
a wider concept, covering all cross-border economic
activity including establishment (11). This interpretation
is consistent with the fundamental objective of
the
Treaty to promote free movement of goods, services,
persons and capital.

20. According to settled case law the concept of ‘trade’ also
encompasses cases where agreements or practices affect
the competitive structure of the market. Agreements and
practices that affect the competitive structure inside the
Community by eliminating or threatening to eliminate a
competitor operating within the Community may be
subject to the Community competition rules (12). When
an undertaking
eliminated the
competitive structure within the Community is affected
and so are the economic activities in which the under-
taking is engaged.

risks being

is or

two Member States.

21. The requirement that there must be an effect on trade
‘between Member States’ implies that there must be an
impact on cross-border economic activity involving at
least
the
It
agreement or practice affect trade between the whole of
one Member State and the whole of another Member
State. Articles 81 and 82 may be applicable also in
cases involving part of a Member State, provided that
the effect on trade is appreciable (13).

is not required that

22. The application of the effect on trade criterion is inde-
pendent of the definition of relevant geographic markets.
Trade between Member States may be affected also in
cases where
is national or
relevant market
sub-national (14).

the

2.3. The notion ‘may affect’

23. The function of the notion ‘may affect’ is to define the
nature of the required impact on trade between Member
States. According to the standard test developed by the
Court of Justice, the notion ‘may affect’ implies that it
must be possible to foresee with a sufficient degree of
probability on the basis of a set of objective factors of
law or fact that the agreement or practice may have an
influence, direct or indirect, actual or potential, on the
trade between Member States (15) (16). As
pattern of
mentioned in paragraph 20 above the Court of Justice
has in addition developed a test based on whether or not
the
competitive
affects
In cases where the agreement or practice is
structure.
liable to affect
the competitive structure inside the
Community, Community law jurisdiction is established.

agreement or practice

the

24. The ‘pattern of

trade’-test developed by the Court of
Justice contains the following main elements, which are
dealt with in the following sections:

(a)

‘A sufficient degree of probability on the basis of a set
of objective factors of law or fact’,

(b) An influence on the ‘pattern of

trade between

Member States’,

(c)

‘A direct or indirect, actual or potential influence’ on
the pattern of trade.

2.3.1. A sufficient degree of probability on the basis of a set of

objective factors of law or fact

25. The assessment of effect on trade is based on objective
factors. Subjective intent on the part of the undertakings
concerned is not required. If, however, there is evidence
that undertakings have intended to affect trade between
Member States, for example because they have sought to
hinder exports to or imports from other Member States,
this is a relevant factor to be taken into account.

26. The words ‘may affect’ and the reference by the Court of
Justice to ‘a sufficient degree of probability’ imply that, in
order for Community law jurisdiction to be established, it
the agreement or practice will
is not
actually have or has had an effect on trade between
Member States.
the agreement or
practice is ‘capable’ of having such an effect (17).

required that

is sufficient

that

It

27. There is no obligation or need to calculate the actual
volume of trade between Member States affected by the
agreement or practice. For example,
in the case of
agreements prohibiting exports to other Member States
there is no need to estimate what would have been the
level of parallel
trade between the Member States
concerned, in the absence of the agreement. This inter-
pretation is consistent with the jurisdictional nature of
the effect on trade criterion. Community law jurisdiction
extends to categories of agreements and practices that are
capable of having cross-border effects,
irrespective of
whether a particular agreement or practice actually has
such effects.

28. The assessment under

the effect on trade criterion
depends on a number of factors that individually may
not be decisive (18). The relevant
factors include the
nature of the agreement and practice, the nature of the
products covered by the agreement or practice and the
position
undertakings
and
concerned (19).

importance

the

of

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the agreement or practice to affect

29. The nature of the agreement and practice provides an
the
indication from a qualitative point of view of
ability of
trade
between Member States. Some agreements and practices
are by their very nature capable of affecting trade
between Member States, whereas others require more
detailed analysis in this respect. Cross-border cartels are
an example of
joint ventures
the former, whereas
confined to the territory of a single Member State are
further
an example of
examined in section 3 below, which deals with various
categories of agreements and practices.

latter. This

aspect

the

is

30. The nature of the products covered by the agreements or
practices also provides an indication of whether trade
between Member States is capable of being affected.
When by their nature products are easily traded across
borders or are important for undertakings that want to
enter or expand their activities in other Member States,
Community jurisdiction is more readily established than
in cases where due to their nature there is limited
demand for products offered by suppliers from other
Member States or where the products are of
limited
interest from the point of view of cross-border estab-
the economic activity
lishment or
carried out from such place of establishment (20). Estab-
lishment includes the setting-up by undertakings in one
Member State of agencies, branches or subsidiaries in
another Member State.

the expansion of

31. The market position of the undertakings concerned and
their sales volumes are indicative from a quantitative
point of view of
the agreement or
the ability of
practice concerned to affect
trade between Member
States. This aspect, which forms an integral part of the
assessment of appreciability, is addressed in section 2.4
below.

32.

it

If

relevant

in which the

into the potential

economic and legal

In addition to the factors already mentioned,

is
the legal and factual
necessary to take account of
agreement or practice
environment
context
operates. The
for an effect on
provides insight
trade between Member States.
there are absolute
barriers to cross-border trade between Member States,
which are external to the agreement or practice, trade
is only capable of being affected if those barriers are
likely to disappear in the foreseeable future.
In cases
where the barriers are not absolute but merely render
cross-border activities more difficult, it is of the utmost
importance to ensure that agreements and practices do
not
such activities. Agreements and
practices
that do so are capable of affecting trade
between Member States.

further hinder

2.3.2. An influence on the ‘pattern of trade between Member States’

33. For Articles 81 and 82 to be applicable there must be an
trade between Member

influence on the ‘pattern of
States’.

34. The term ‘pattern of trade’ is neutral. It is not a condition
that trade be restricted or reduced (21). Patterns of trade
can also be affected when an agreement or practice
causes an increase in trade. Indeed, Community law juris-
diction is established if trade between Member States is
likely to develop differently with the agreement or
practice compared to the way in which it would
probably have developed in the
the
agreement or practice (22).

absence of

35. This interpretation reflects the fact that the effect on
trade criterion is a jurisdictional one, which serves to
distinguish those agreements and practices which are
capable of having cross-border effects, so as to warrant
an examination under the Community competition rules,
from those agreements and practices which do not.

2.3.3. A ‘direct or indirect, actual or potential

influence’ on the

pattern of trade

36. The influence of agreements and practices on patterns of
trade between Member States can be ‘direct or indirect,
actual or potential’.

37. Direct effects on trade between Member States normally
occur
in relation to the products covered by an
agreement or practice. When, for example, producers of
a particular product in different Member States agree to
share markets, direct effects are produced on trade
between Member States on the market for the products
in question. Another example of direct effects being
produced is when a supplier limits distributor rebates
to products sold within the Member State in which the
distributors are established. Such practices increase the
exports,
relative
rendering export sales less attractive and less competitive.

products

destined

price

for

of

38. Indirect effects often occur in relation to products that
are related to those covered by an agreement or practice.
Indirect effects may,
for example, occur where an
agreement or practice has an impact on cross-border
or
economic
the
otherwise
for
agreement
instance, arise where the agreement or practice relates
traded, but
to an intermediate product, which is not

activities
of
rely on the products
or practice (23).
Such

use
that
covered by
can,
effects

undertakings

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which is used in the supply of a final product, which is
traded. The Court of Justice has held that trade between
Member States was capable of being affected in the case
of an agreement involving the fixing of prices of spirits
used in the production of cognac (24). Whereas the raw
material was not exported, the final product — cognac
— was exported. In such cases Community competition
law is thus applicable,
if trade in the final product is
capable of being appreciably affected.

the situation may change as a result of
affected if
changing market conditions (28). What matters is the
ability of
trade
between Member States and not whether at any given
point in time it actually does so.

the agreement or practice to affect

or

For

practice.

instance,

39. Indirect effects on trade between Member States may also
in relation to the products covered by the
occur
agreement
agreements
whereby a manufacturer limits warranties to products
sold by distributors within their Member State of estab-
lishment create disincentives for consumers from other
Member States to buy the products because they would
not be able to invoke the warranty (25). Export by official
distributors and parallel traders is made more difficult
because in the eyes of consumers the products are less
attractive without the manufacturer's warranty (26).

40. Actual effects on trade between Member States are those
that are produced by the agreement or practice once it is
implemented. An agreement between a supplier and a
distributor within the same Member State, for instance
one that prohibits exports to other Member States,
is
likely to produce actual
effects on trade between
Member States. Without the agreement the distributor
It
would have been free to engage in export sales.
should be recalled, however, that it is not required that
actual effects are demonstrated. It is sufficient that the
agreement or practice be capable of having such effects.

41. Potential effects are those that may occur in the future
with a sufficient degree of probability. In other words,
foreseeable market developments must be taken into
account (27). Even if
trade is not capable of being
affected at the time the agreement is concluded or the
practice is implemented, Articles 81 and 82 remain
applicable if the factors which led to that conclusion
are likely to change in the foreseeable future.
In this
respect it is relevant to consider the impact of liberali-
sation measures adopted by the Community or by the
Member State in question and other foreseeable measures
aiming at eliminating legal barriers to trade.

42. Moreover, even if at a given point

in time market
for
conditions are unfavourable to cross-border trade,
example because prices are similar
in the Member
States in question, trade may still be capable of being

43. The inclusion of

effects. The

indirect or potential effects in the
analysis of effects on trade between Member States does
not mean that the analysis can be based on remote or
hypothetical
likelihood of a particular
agreement to produce indirect or potential effects must
be explained by the authority or party claiming that trade
between Member States is capable of being appreciably
affected. Hypothetical or
speculative effects are not
for establishing Community law jurisdiction.
sufficient
that raises the price of a
For instance, an agreement
product which is not
tradable reduces the disposable
income of consumers. As consumers have less money
to spend they may purchase fewer products imported
from other Member States. However, the link between
such income effects and trade between Member States
is generally in itself too remote to establish Community
law jurisdiction.

2.4. The concept of appreciability

2.4.1. General principle

a

fall outside

law jurisdiction

limiting Community

certain magnitude. Agreements
scope of

44. The effect on trade criterion incorporates a quantitative
to
element,
agreements and practices that are capable of having
effects of
and
practices
application of
Articles 81 and 82 when they affect the market only
insignificantly having regard to the weak position of
the
the undertakings concerned on the market
products
be
appraised in particular by reference to the position and
the importance of
the relevant undertakings on the
market for the products concerned (30).

question (29). Appreciability

for
can

the

in

45. The assessment of appreciability depends on the circum-
stances of each individual case, in particular the nature of
the agreement and practice, the nature of the products
covered and the market position of
the undertakings
concerned. When by its very nature the agreement or
practice is capable of affecting trade between Member
States, the appreciability threshold is lower than in the
case of agreements and practices that are not by their
very nature capable of affecting trade between Member
States. The stronger the market position of the under-
an
takings
agreement or practice
trade
between Member
can be held to do so
appreciably (31).

is
affecting

capable of

concerned,

the more

likely it

States

that

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46. In a number of cases concerning imports and exports the
Court of Justice has considered that the appreciability
requirement was fulfilled when the sales of the under-
takings concerned accounted for about 5 % of
the
market (32). Market
alone, however, has not
always been considered the decisive factor. In particular,
it is necessary also to take account of the turnover of the
undertakings in the products concerned (33).

share

that

the assessment
the agreement or practice to affect

47. Appreciability can thus be measured both in absolute
terms (turnover) and in relative terms, comparing the
position of
the undertaking(s) concerned to that of
other players on the market (market share). This focus
on the position and importance of
the undertakings
concerned is consistent with the concept ‘may affect’,
is based on the
which implies
trade
ability of
between Member States rather than on the impact on
actual flows of goods and services across borders. The
market position of the undertakings concerned and their
turnover in the products concerned are indicative of the
trade
ability of an agreement or practice to affect
between Member
are
States. These
reflected in the presumptions set out in paragraphs and
53 below.

two elements

is

the

appreciable. This

impact on trade

48. The application of the appreciability test does not neces-
sarily require that relevant markets be defined and market
shares calculated (34). The sales of an undertaking in
absolute terms may be sufficient to support a finding
that
is
particularly so in the case of agreements and practices
that by their very nature are liable to affect trade between
they concern
Member States,
imports or
several
Member States. The fact
in such circumstances
turnover
in the products covered by the agreement
may be sufficient for a finding of an appreciable effect
on trade between Member States is reflected in the
positive presumption set out in paragraph below.

exports or because

example because

they cover

that

for

49. Agreements and practices must always be considered in
the economic and legal context in which they occur. In
the case of vertical agreements it may be necessary to
have regard to any cumulative effects of parallel networks
of similar agreements (35). Even if a single agreement or
network of agreements is not capable of appreciably
affecting trade between Member States,
the effect of
parallel networks of agreements, taken as a whole, may
be capable of doing so. For that to be the case, however,
it is necessary that the individual agreement or network
of agreements makes a significant contribution to the
overall effect on trade (36).

2.4.2. Quantification of appreciability

50. It is not possible to establish general quantitative rules
covering all categories of agreements indicating when

do

not

affecting

appreciably

96/280/EC (38)

(SMEs)
Recommendation
capable of

is capable of being
trade between Member States
appreciably affected. It is possible, however, to indicate
when trade is normally not capable of being appreciably
in its notice on agreements of minor
affected. Firstly,
restrict
importance which
competition in the meaning of Article 81(1) of
the
rule) (37)
the Commission has
Treaty (the de minimis
stated that agreements between small and medium-sized
as defined in the Annex to
undertakings
are
Commission
normally not
trade between
Member States. The reason for this presumption is the
fact that the activities of SMEs are normally local or at
most regional in nature. However, SMEs may be subject
to Community law jurisdiction in particular where they
engage in cross-border economic activity. Secondly, the
Commission considers it appropriate to set out general
principles indicating when trade is normally not capable
of being appreciably affected, i.e. a standard defining the
absence of an appreciable effect on trade between
Member States (the NAAT-rule). When applying Article
the Commission will consider this standard as a
81,
all
negative
presumption
irres-
agreements within the meaning of Article 81(1)
the restrictions contained in
pective of the nature of
the agreement,
including restrictions that have been
identified as hardcore restrictions in Commission block
exemption regulations and guidelines. In cases where this
presumption applies the Commission will normally not
institute proceedings either upon application or on its
own initiative. Where the undertakings assume in good
faith that an agreement
is covered by this negative
presumption, the Commission will not impose fines.

rebuttable

applying

to

51. Without prejudice to paragraph below, this negative defi-
nition of appreciability does not imply that agreements,
which do not fall within the criteria set out below, are
automatically capable of appreciably affecting trade
between Member States. A case by case analysis is
necessary.

52. The Commission holds

in principle
agreements are not capable of appreciably affecting
trade between Member States when the following cumu-
lative conditions are met:

the view that

(a) The aggregate market share of the parties on any
relevant market within the Community affected by
the agreement does not exceed 5 %, and

(b) In the case of horizontal agreements, the aggregate
the undertakings
annual Community turnover of
concerned (39)
covered by the
in the products
agreement does not exceed 40 million euro. In the
case of agreements concerning the joint buying of
products the relevant turnover shall be the parties'
combined purchases of the products covered by the
agreement.

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the aggregate
In the case of vertical agreements,
annual Community turnover of the supplier in the
products covered by the agreement does not exceed
40 million euro. In the case of licence agreements the
relevant turnover shall be the aggregate turnover of
the licensees
incorporating the
licensed technology and the licensor's own turnover
in such products.
involving agreements
concluded between a buyer and several suppliers
the relevant turnover shall be the buyer's combined
purchases of the products covered by the agreements.

in the products

In cases

The Commission will apply the same presumption where
during two successive calendar years the above turnover
threshold is not exceeded by more than 10 % and the
above market threshold is not exceeded by more than 2
percentage points. In cases where the agreement concerns
an emerging not yet existing market and where as a
consequence
relevant
turnover nor accumulate any relevant market share, the
In such
Commission will not apply this presumption.
cases appreciability may have to be assessed on the
basis of the position of the parties on related product
markets or their strength in technologies relating to the
agreement.

the parties neither

generate

53. The Commission will also hold the view that where an
agreement by its very nature is capable of affecting trade
between Member States, for example, because it concerns
imports and exports or covers several Member States,
there is a rebuttable positive presumption that such
effects on trade are appreciable when the turnover of
the parties in the products covered by the agreement
calculated as
indicated in paragraphs 52 and 54
exceeds 40 million euro. In the case of agreements that
by their very nature are capable of affecting trade
between Member States it can also often be presumed
that such effects are appreciable when the market share
of the parties exceeds the 5 % threshold set out in the
previous paragraph. However, this presumption does not
apply where the agreement covers only part of a Member
State (see paragraph 90 below).

54. With regard to the threshold of 40 million euro (cf.
paragraph 52 above), the turnover is calculated on the
basis of total Community sales excluding tax during the
previous financial year by the undertakings concerned, of
the products covered by the agreement
(the contract
products). Sales between entities that form part of the
same undertaking are excluded (40).

55. In order

is
necessary to determine the relevant market (41). This

to apply the market share threshold,

it

consists of the relevant product market and the relevant
geographic market. The market
to be
calculated on the basis of sales value data or, where
appropriate, purchase value data. If value data are not
reliable market
estimates based on other
available,
information, including volume data, may be used.

shares

are

56. In the case of networks of agreements entered into by the
same supplier with different distributors, sales made
through the entire network are taken into account.

57. Contracts that form part of the same overall business
the
constitute a single agreement
arrangement
the NAAT-rule (42). Undertakings cannot
purposes of
bring themselves inside these thresholds by dividing up
an agreement
that forms a whole from an economic
perspective.

for

3. THE APPLICATION OF THE ABOVE PRINCIPLES TO
COMMON TYPES OF AGREEMENTS AND ABUSES

58. The Commission will apply the negative presumption set
out in the preceding section to all agreements, including
agreements that by their very nature are capable of
affecting trade between Member States as well as
agreements that involve trade with undertakings located
in third countries (cf. section 3.3 below).

59. Outside

the

that

agreement

the products

scope of negative presumption,

the
take account of qualitative elements
Commission will
relating to the nature of the agreement or practice and
the nature of
they concern (see
paragraphs and above). The relevance of the nature of
the
in the positive
also reflected
presumption set out in paragraph 53 above relating to
appreciability in the case of agreements that by their very
nature are capable of affecting trade between Member
States. With a view to providing additional guidance on
the application of
is
therefore useful to consider various common types of
agreements and practices.

the effect on trade concept

is

it

60. In the following sections a primary distinction is drawn
between agreements and practices that cover several
Member States and agreements and practices that are
confined to a single Member State or to part of a
single Member State. These two main categories are
broken down into further subcategories based on the
nature of the agreement or practice involved. Agreements
and practices involving third countries are also dealt
with.

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3.1. Agreements and abuse covering or implemented in
several Member States

61. Agreements and practices covering or implemented in
several Member States are in almost all cases by their
very nature capable of affecting trade between Member
States. When the relevant turnover exceeds the threshold
set out in paragraph above it will therefore in most cases
not be necessary to conduct a detailed analysis of
trade between Member States is capable of
whether
being affected. However,
in order to provide guidance
also in these cases and to illustrate the principles
developed in section 2 above,
to explain
what are the factors that are normally used to support
a finding of Community law jurisdiction.

is useful

it

3.1.1. Agreements concerning imports and exports

62. Agreements between undertakings

Such

States.

irrespective

agreements,

in two or more
Member States that concern imports and exports are by
their very nature capable of affecting trade between
Member
of
whether they are restrictive of competition or not, have
a direct impact on patterns of trade between Member
States.
example, which
concerned an agreement between a French producer
and a German distributor covering more than 10 % of
exports of cement from France to Germany, amounting
in total to 350 000 tonnes per year, the Court of Justice
held that it was impossible to take the view that such an
agreement was not capable of
(appreciably) affecting
trade between Member States (43).

In Kerpen & Kerpen,

for

63. This

that

includes

category

agreements

impose
restrictions on imports and exports, including restrictions
on active and passive sales and resale by buyers to
customers in other Member States (44).
In these cases
there is an inherent link between the alleged restriction
of competition and the effect on trade, since the very
purpose of the restriction is to prevent flows of goods
and services between Member States, which would
otherwise be possible.
the
is
parties
to the agreement are located in the same
Member State or in different Member States.

immaterial whether

It

When undertakings agree to allocate geographic terri-
tories, sales from other areas into the allocated territories
are capable of being eliminated or reduced. When under-
takings agree to fix prices, they eliminate competition
and any resulting price differentials that would entice
both competitors and customers to engage in cross-
border trade. When undertakings agree on sales quotas
traditional patterns of trade are preserved. The under-
takings concerned abstain from expanding output and
in other
thereby from serving potential
Member States.

customers

65. The effect on trade produced by cross-border cartels is
generally also by its very nature appreciable due to the
market position of the parties to the cartel. Cartels are
normally only formed when the participating under-
takings together hold a large share of the market, as
this allows them to raise price or reduce output.

3.1.3. Horizontal cooperation agreements covering several Member

States

all

the

66. This section covers various types of horizontal coop-
eration agreements. Horizontal cooperation agreements
may for instance take the form of agreements whereby
two or more undertakings cooperate in the performance
of a particular economic activity such as production and
distribution (46). Often such agreements are referred to as
joint ventures. However, joint ventures that perform on a
lasting basis
an autonomous
economic entity are covered by the Merger Regu-
lation (47). At
the Community such full
are not dealt with under
function joint ventures
Articles 81 and 82 except in cases where Article 2(4)
of the Merger Regulation is applicable (48). This section
therefore does not deal with full-function joint ventures.
In the case of non-full function joint ventures the joint
entity does not operate as an autonomous supplier (or
buyer) on any market. It merely serves the parents, who
themselves operate on the market (49).

functions of

the level of

3.1.2. Cartels covering several Member States

64. Cartel agreements such as those involving price fixing
and market sharing covering several Member States are
by their very nature capable of affecting trade between
Member States. Cross-border
the
conditions of competition and affect the interpenetration
of trade by cementing traditional patterns of trade (45).

cartels harmonise

67. Joint ventures which engage in activities in two or more
Member States or which produce an output that is sold
by the parents in two or more Member States affect the
commercial activities of the parties in those areas of the
Community. Such agreements are therefore normally by
their very nature capable of affecting trade between
Member States compared to the situation without the
agreement (50). Patterns of trade are affected when under-
takings switch their activities to the joint venture or use
it for the purpose of establishing a new source of supply
in the Community.

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68. Trade may also be capable of being affected where a joint
venture produces an input
for the parent companies,
which is subsequently further processed or incorporated
into a product by the parent undertakings. This is likely
to be the case where the input in question was previously
sourced from suppliers in other Member States, where
the parents previously produced the input
in other
Member States or where the final product is traded in
more than one Member State.

69. In the assessment of appreciability it is important to take
account of the parents' sales of products related to the
agreement and not only those of the joint entity created
by the agreement, given that the joint venture does not
operate as an autonomous entity on any market.

3.1.4. Vertical agreements implemented in several Member States

70. Vertical agreements and networks of similar vertical
agreements implemented in several Member States are
normally capable of affecting trade between Member
States if they cause trade to be channelled in a particular
way. Networks of selective distribution agreements imple-
mented in two or more Member States for example,
trade in a particular way because they limit
channel
thereby affecting
trade to members of
patterns of trade compared to the situation without the
agreement (51).

the network,

71. Trade between Member States is also capable of being
affected by vertical agreements that have foreclosure
effects. This may for instance be the case of agreements
whereby distributors in several Member States agree to
buy only from a particular supplier or to sell only its
products. Such agreements may limit trade between the
Member States in which the agreements are implemented,
trade from Member States not covered by the
or
agreements. Foreclosure may result
from individual
agreements or from networks of agreements. When an
agreement or networks of agreements that cover several
Member States have foreclosure effects, the ability of the
agreement or agreements to affect trade between Member
States is normally by its very nature appreciable.

72. Agreements between suppliers and distributors which
provide for resale price maintenance (RPM) and which
cover two or more Member States are normally also by
their very nature capable of affecting trade between
Member States (52). Such agreements alter
the price
levels
in the
that would have been likely to exist
absence of the agreements and thereby affect patterns
of trade.

3.1.5. Abuses of dominant positions covering several Member States

the

dominant

73. In the case of abuse of a dominant position it is useful to
distinguish between abuses that raise barriers to entry or
eliminate competitors (exclusionary abuses) and abuses
its
whereby
economic power for instance by charging excessive or
discriminatory prices (exploitative abuses). Both kinds of
abuse may be carried out either through agreements,
which are equally subject to Article 81(1), or through
unilateral
as Community
competition law is concerned is subject only to Article
82.

conduct, which

undertaking

exploits

far

as

74. In the case of exploitative abuses such as discriminatory
rebates, the impact is on downstream trading partners,
which either benefit or suffer, altering their competitive
position and affecting patterns of trade between Member
States.

less

likely

system are

to purchase

the dominant

75. When a dominant undertaking engages in exclusionary
conduct in more than one Member State, such abuse is
normally by its very nature capable of affecting trade
between Member States. Such conduct has a negative
impact on competition in an area extending beyond a
single Member State, being likely to divert trade from
the course it would have followed in the absence of
the abuse. For example, patterns of trade are capable of
being affected where the dominant undertaking grants
loyalty rebates. Customers covered by the exclusionary
rebate
from
firm than they would
competitors of
that aims
otherwise have done. Exclusionary conduct
directly at eliminating a competitor such as predatory
pricing is also capable of affecting trade between
Member States because of its impact on the competitive
market structure inside the Community (53). When a
dominant firm engages in behaviour with a view to elim-
inating a competitor operating in more than one Member
State, trade is capable of being affected in several ways.
First, there is a risk that the affected competitor will cease
to be a source of supply inside the Community. Even if
its future
the targeted undertaking is not eliminated,
competitive conduct is likely to be affected, which may
also have an impact on trade between Member States.
the abuse may have an impact on other
Secondly,
competitors.
the
abusive
its
dominant undertaking can signal to its competitors that
it will discipline attempts to engage in real competition.
Thirdly, the very fact of eliminating a competitor may be
sufficient for trade between Member States to be capable
of being affected. This may be the case even where the
undertaking that risks being eliminated mainly engages in
effective
exports
structure inside the Community
competitive market
risks being further impaired,
there is Community law
jurisdiction.

to third countries (54). Once

behaviour

Through

the

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27.4.2004

76. Where a dominant undertaking engages in exploitative or
exclusionary abuse in more than one Member State, the
capacity of the abuse to affect trade between Member
States will normally also by its very nature be appre-
ciable. Given the market position of the dominant under-
taking concerned, and the fact that the abuse is imple-
mented in several Member States, the scale of the abuse
and its likely impact on patterns of trade is normally such
that trade between Member States is capable of being
In the case of an exploitative
appreciably affected.
abuse such as price discrimination, the abuse alters the
competitive position of
in several
Member States.
In the case of exclusionary abuses,
including abuses that aim at eliminating a competitor,
the economic activity engaged in by competitors in
several Member States is affected. The very existence of
a dominant position in several Member States implies
that competition in a substantial part of the common
market is already weakened (55). When a dominant under-
taking further weakens competition through recourse to
a
abusive
competitor,
trade
between Member States is normally appreciable.

the abuse to affect

trading partners

the ability of

eliminating

conduct,

example

for

by

3.2. Agreements and abuses covering a single, or only part
of a, Member State

77. When agreements or abusive practices cover the territory
of a single Member State, it may be necessary to proceed
with a more detailed inquiry into the ability of
the
agreements or abusive practices to affect trade between
Member States. It should be recalled that for there to be
an effect on trade between Member States it
is not
required that trade is reduced.
It is sufficient that an
appreciable change is capable of being caused in the
pattern of trade between Member States. Nevertheless,
in many cases involving a single Member State the
nature of the alleged infringement, and in particular, its
propensity to foreclose the national market, provides a
good indication of
the agreement or
the capacity of
trade between Member States. The
practice to affect
examples mentioned hereafter are not exhaustive. They
merely provide examples of cases where agreements
confined to the territory of a single Member State can
be considered capable of affecting trade between Member
States.

3.2.1. Cartels covering a single Member State

78. Horizontal cartels covering the whole of a Member State
are normally capable of affecting trade between Member
States. The Community Courts have held in a number of
cases that agreements extending over the whole territory
of a Member State by their very nature have the effect of
reinforcing the partitioning of markets on a national
basis by hindering the economic penetration which the
Treaty is designed to bring about (56).

79. The capacity of such agreements to partition the internal
market follows from the fact that undertakings partici-

If

pating in cartels in only one Member State, normally
need to take action to exclude competitors from other
Member States (57).
they do not, and the product
the cartel
covered by the agreement
risks being undermined by competition from under-
takings from other Member States. Such agreements are
normally also by their very nature capable of having an
appreciable effect on trade between Member States, given
the market coverage required for such cartels to be
effective.

is tradable (58),

80. Given the

the

fact

that

effect on trade

concept
encompasses potential effects, it is not decisive whether
such action against competitors from other Member
States is in fact adopted at any given point in time. If
the cartel price is similar to the price prevailing in other
Member States, there may be no immediate need for the
members of the cartel to take action against competitors
from other Member States. What matters is whether or
not they are likely to do so, if market conditions change.
that depends on the existence or
The likelihood of
otherwise of natural barriers to trade in the market,
including in particular whether or not the product in
In a case involving certain retail
question is tradable.
banking services (59)
for
the Court of
example, held that
trade was not capable of being
appreciably affected because the potential for trade in
the specific products concerned was very limited and
because they were not an important
in the
choice made by undertakings from other Member States
regarding whether or not to establish themselves in the
Member State in question (60).

Justice has,

factor

the extent

81. The extent to which the members of a cartel monitor
prices and competitors from other Member States can
to which the
provide an indication of
products covered by the cartel are tradable. Monitoring
suggests that competition and competitors from other
Member States are perceived as a potential threat to the
cartel. Moreover, if there is evidence that the members of
in the
the cartel have deliberately fixed the price level
light of the price level prevailing in other Member States
(limit pricing),
it is an indication that the products in
question are tradable and that trade between Member
States is capable of being affected.

82. Trade is normally also capable of being affected when the
members of a national cartel
temper the competitive
constraint imposed by competitors from other Member
States by inducing them to join the restrictive agreement,
their exclusion from the agreement places the
or if
competitors at a competitive disadvantage (61).
In such
cases the agreement either prevents these competitors
from exploiting any competitive advantage that
they
have, or raises their costs, thereby having a negative
impact on their competitiveness and their sales. In both

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C 101/91

the

the

hampers

agreement

of
cases
competitors from other Member States on the national
in question. The same is true when a cartel
market
agreement
is
resell products
that
concluded between undertakings
imported from other Member States (62).

single Member State

confined to a

operations

3.2.2. Horizontal cooperation agreements covering a single Member

State

function joint ventures

83. Horizontal cooperation agreements and in particular
(cf. paragraph 66
non-full
above), which are confined to a single Member State
and which do not directly relate to imports and
exports, do not belong to the category of agreements
that by their very nature are capable of affecting trade
between Member States. A careful examination of the
capacity of
trade
to affect
the individual agreement
between Member States may therefore be required.

84. Horizontal cooperation agreements may, in particular, be
capable of affecting trade between Member States where
they have foreclosure effects. This may be the case with
agreements that establish sector-wide standardisation and
certification regimes, which either exclude undertakings
from other Member States or which are more easily
fulfilled by undertakings from the Member State in
question due to the fact
they are based on
national rules and traditions. In such circumstances the
agreements make it more difficult for undertakings from
other Member States to penetrate the national market.

that

a

establish

purchasing

85. Trade may also be affected where a joint venture results
in undertakings from other Member States being cut off
from an important channel of distribution or source of
demand. If, for example, two or more distributors estab-
lished within the same Member State, and which account
for a substantial share of imports of the products in
question,
venture
combining their purchases of that product, the resulting
reduction in the number of distribution channels limits
the possibility for suppliers from other Member States of
gaining access to the national market in question. Trade
is therefore capable of being affected (63). Trade may also
undertakings which previously
be
form a joint venture
imported a particular product
which is entrusted with the production of that same
product. In this case the agreement causes a change in
the patterns of trade between Member States compared
to the situation before the agreement.

affected where

joint

3.2.3. Vertical agreements covering a single Member State

86. Vertical agreements covering the whole of a Member
State may, in particular, be capable of affecting patterns
of trade between Member States when they make it more
difficult for undertakings from other Member States to
in question, either by
penetrate the national market

means of exports or by means of establishment (fore-
closure effect). When vertical agreements give rise to
they contribute to the parti-
such foreclosure effects,
tioning of markets on a national basis,
thereby
interpenetration which the
hindering the
Treaty is designed to bring about (64).

economic

87. Foreclosure may,

the Court of

for example, occur when suppliers
impose exclusive purchasing obligations on buyers (65).
In Delimitis (66), which concerned agreements between a
brewer
and owners of premises where beer was
consumed whereby the latter undertook to buy beer
exclusively from the brewer,
Justice
defined foreclosure as the absence, due to the agreements,
of real and concrete possibilities of gaining access to the
market. Agreements normally only create significant
barriers to entry when they cover a significant proportion
of the market. Market share and market coverage can be
In making the
used as an indicator in this respect.
the
assessment account must be taken not only of
in
agreement or network of agreements
particular
question, but
also of other parallel networks of
agreements having similar effects (67).

88. Vertical agreements which cover the whole of a Member
State and which relate to tradable products may also be
capable of affecting trade between Member States, even if
they do not create direct obstacles to trade. Agreements
whereby undertakings engage in resale price maintenance
(RPM) may have direct effects on trade between Member
States by increasing imports from other Member States
and by decreasing exports from the Member State in
question (68). Agreements involving RPM may also affect
patterns of trade in much the same way as horizontal
cartels. To the extent that the price resulting from RPM is
higher than that prevailing in other Member States this
price level
imports from other
is only sustainable if
Member States can be controlled.

3.2.4. Agreements covering only part of a Member State

89. In qualitative

the

terms

assessment of

agreements
covering only part of a Member State is approached in
the same way as in the case of agreements covering the
whole of a Member State. This means that the analysis in
section 2 applies.
In the assessment of appreciability,
however, the two categories must be distinguished, as it
must be taken into account that only part of a Member
State is covered by the agreement. It must also be taken
into account what proportion of the national territory is
susceptible to trade. If, for example, transport costs or the
operating radius of equipment render it economically
unviable for undertakings from other Member States to
serve the entire territory of another Member State, trade
is capable of being affected if the agreement forecloses
access to the part of the territory of a Member State that
is susceptible to trade, provided that this part is not
insignificant (69).

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90. Where an agreement

forecloses access to a regional
market, then for trade to be appreciably affected, the
volume of sales affected must be significant in proportion
to the overall volume of sales of the products concerned
inside the Member State in question. This assessment
cannot be based merely on geographic coverage. The
market share of the parties to the agreement must also
be given fairly limited weight. Even if the parties have a
high market share in a properly defined regional market,
the size of that market in terms of volume may still be
the
insignificant when compared to total
products
in
concerned within the Member
question. In general, the best indicator of the capacity
of the agreement to (appreciably) affect trade between
Member States is therefore considered to be the share
of the national market in terms of volume that is being
foreclosed. Agreements covering areas with a high
concentration of demand will thus weigh more heavily
than those covering areas where demand is less concen-
trated. For Community jurisdiction to be established the
share of the national market that is being foreclosed must
be significant.

sales of
State

91. Agreements that are local in nature are in themselves not
capable of appreciably affecting trade between Member
States. This is the case even if the local market is located
in a border region. Conversely, if the foreclosed share of
the national market is significant,
trade is capable of
being affected even where the market in question is not
located in a border region.

substantial part of

92. In cases in this category some guidance may be derived
from the case law concerning the concept in Article 82
common market (70).
of
a
Agreements
effect of
hindering competitors from other Member States from
to part of a Member State, which
gaining access
constitutes a substantial part of the common market,
should be considered to have an appreciable effect on
trade between Member States.

example, have

that,

the

the

for

3.2.5. Abuses of dominant positions covering a single Member State

it more difficult

93. Where an undertaking, which holds a dominant position
covering the whole of a Member State, engages in
trade between Member States is
exclusionary abuses,
normally capable of being
affected. Such abusive
for
conduct will generally make
competitors from other Member States to penetrate the
market,
in which case patterns of trade are capable of
being affected (71). In Michelin (72), for example, the Court
of Justice held that a system of loyalty rebates foreclosed
competitors from other Member States and therefore
affected trade within the meaning of Article 82.
In
Rennet (73) the Court similarly held that an abuse in the
form of an exclusive purchasing obligation on customers
foreclosed products from other Member States.

94. Exclusionary abuses that affect the competitive market
structure inside a Member State, for instance by elim-
inating or threatening to eliminate a competitor, may
also be capable of affecting trade between Member
States. Where the undertaking that risks being eliminated
only operates in a single Member State, the abuse will
normally not affect
trade between Member States.
However,
trade between Member States is capable of
being affected where the targeted undertaking exports
to or imports from other Member States (74) and where
it also operates in other Member States (75). An effect on
trade may arise from the dissuasive impact of the abuse
on other competitors. If through repeated conduct the
dominant undertaking has acquired a reputation for
competitors
adopting exclusionary practices
that attempt to engage in direct competition, competitors
from other Member States are likely to compete less
aggressively, in which case trade may be affected, even
if the victim in the case at hand is not from another
Member State.

towards

Price

affect

between

discrimination

95. In the case of exploitative abuses such as price discrimi-
nation and excessive pricing, the situation may be more
complex.
domestic
customers will normally not
trade between
it may do so if the buyers
Member States. However,
are engaged in export activities and are disadvantaged
by the discriminatory pricing or if this practice is used
to prevent imports (76). Practices consisting of offering
lower prices to customers that are the most likely to
import products from other Member States may make
it more difficult
for competitors from other Member
States to enter the market. In such cases trade between
Member States is capable of being affected.

access

the whole of a Member State it

96. As long as an undertaking has a dominant position
which covers
is
normally immaterial whether the specific abuse engaged
in by the dominant undertaking only covers part of its
territory or affects certain buyers within the national
firm can significantly impede
territory. A dominant
trade by engaging in abusive conduct in the areas or
vis-à-vis the customers that are the most likely to be
targeted by competitors from other Member States. For
example, it may be the case that a particular channel of
distribution constitutes a particularly important means of
gaining
consumers.
Hindering access to such channels can have a substantial
impact on trade between Member States.
In the
assessment of appreciability it must also be taken into
account that the very presence of the dominant under-
taking covering the whole of a Member State is likely to
make market penetration more difficult. Any abuse
which makes it more difficult
to enter the national
market should therefore be considered to appreciably
affect trade. The combination of the market position of
the dominant undertaking and the anti-competitive
nature of
implies that such abuses have
normally by their very nature an appreciable effect on
trade. However, if the abuse is purely local in nature or

to broad categories of

its conduct

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Official Journal of the European Union

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involves only an insignificant share of the sales of the
dominant undertaking within the Member State in
question, trade may not be capable of being appreciably
affected.

influence, direct or indirect, actual or potential, on the
pattern of trade between Member States, also applies in
the case of agreements and abuses which involve under-
takings located in third countries or which relate to
imports or exports with third countries.

3.2.6. Abuse of a dominant position covering only part of a Member

State

97. Where a dominant position covers only part of a
Member State some guidance may, as in the case of
agreements, be derived from the condition in Article
82 that the dominant position must cover a substantial
part of the common market. If the dominant position
covers part of a Member State that constitutes a
substantial part of the common market and the abuse
makes
from other
Member States to gain access to the market where the
undertaking is dominant, trade between Member States
must
being
considered
be
appreciably affected.

it more difficult

for competitors

normally

capable

of

98. In the application of this criterion regard must be had in
particular to the size of the market in question in terms
of volume. Regions and even a port or an airport situated
in a Member State may, depending on their importance,
constitute a substantial part of the common market (77).
In the latter cases it must be taken into account whether
the infrastructure in question is used to provide cross-
border services and, if so, to what extent. When infra-
structures such as airports and ports are important in
providing cross-border services, trade between Member
States is capable of being affected.

99. As in the case of dominant positions covering the whole
of a Member State (cf. paragraph 95 above), trade may
not be capable of being appreciably affected if the abuse
is purely local in nature or involves only an insignificant
share of the sales of the dominant undertaking.

3.3. Agreements
and
exports with undertakings located in third countries,
involving undertakings
and agreements and practices

and abuses

involving

imports

located in third countries

3.3.1. General remarks

100. Articles 81 and 82 apply to agreements and practices
that are capable of affecting trade between Member
States even if one or more of the parties are located
outside the Community (78). Articles 81 and 82 apply
irrespective of where the undertakings are located or
where the agreement has been concluded, provided that
the agreement or practice is either implemented inside
the Community (79), or produce
the
Community (80). Articles 81 and 82 may also apply to
third countries,
agreements and practices
provided that
affecting trade
they are
between Member States. The general principle set out
in section 2 above according to which the agreement
or practice must be capable of having an appreciable

that cover
capable of

effects

inside

is sufficient

101. For the purposes of establishing Community law juris-
that an agreement or practice
diction it
located in
involving third countries or undertakings
is capable of affecting cross-border
third countries
economic activity inside the Community.
Import into
one Member State may be sufficient to trigger effects of
this nature.
conditions of
competition in the importing Member State, which in
turn can have an impact on exports and imports of
competing products to and from other Member States.
In other words,
imports from third countries resulting
from the agreement or practice may cause a diversion
of trade between Member States, thus affecting patterns
of trade.

can affect

Imports

the

102. In the application of the effect on trade criterion to the
above mentioned agreements and practices it is relevant
to examine, inter alia, what is the object of the agreement
or practice as indicated by its content or the underlying
intent of the undertakings involved (81).

103. Where

is

the object of

the agreement

to restrict
competition inside the Community the requisite effect
on trade between Member States is more readily estab-
lished than where the object is predominantly to regulate
competition outside the Community.
Indeed in the
former case the agreement or practice has a direct
impact on competition inside the Community and trade
between Member States. Such agreements and practices,
which may concern both imports and exports, are
normally by their very nature capable of affecting trade
between Member States.

3.3.2. Arrangements that have as their object
competition inside the Community

the restriction of

104. In the case of imports, this category includes agreements
that bring about an isolation of the internal market (82).
This is, for instance, the case of agreements whereby
competitors in the Community and in third countries
in each
share markets, e.g. by agreeing not
other's home markets or by concluding reciprocal
(exclusive) distribution agreements (83).

to sell

105. In the case of exports, this category includes cases where
undertakings that compete in two or more Member
States agree to export certain (surplus) quantities to
third countries with a view to co-ordinating their
inside the Community. Such export
market conduct
agreements
competition by
to reduce price
limiting output inside the Community, thereby affecting
trade between Member States. Without
export
agreement these quantities might have been sold inside
the Community (84).

serve

the

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3.3.3. Other arrangements

106. In the case of agreements and practices whose object is
not to restrict competition inside the Community, it is
normally necessary to proceed with a more detailed
economic
analysis of whether or not
activity inside the Community, and thus patterns of
trade between Member States, are capable of being
affected.

cross-border

107. In this regard it is relevant to examine the effects of the
agreement or practice on customers and other operators
inside the Community that rely on the products of the
undertakings
to the agreement or
that are parties
In Compagnie maritime belge (86), which
practice (85).
concerned agreements between shipping companies
operating between Community ports and West African
the agreements were held to be capable of
ports,
States
indirectly
the
because
Community ports
and
covered by the
because they affected the activities of other undertakings
inside those areas. More specifically,
the agreements
affected the activities of undertakings that relied on the
parties for transportation services, either as a means of
transporting goods purchased in third countries or sold
there, or as an important input into the services that the
ports themselves offered.

between Member
catchment

trade
they altered the

areas of
agreements

affecting

108. Trade may also be capable of being affected when the
agreement prevents re-imports into the Community. This
may, for example, be the case with vertical agreements

and

third

suppliers

country
between Community
imposing restrictions on resale outside an
distributors,
including the Community. If in the
allocated territory,
absence of
resale to the Community
would be possible and likely, such imports may be
capable of
the
Community (87).

affecting patterns of

the agreement

inside

trade

109. However, for such effects to be likely, there must be an
appreciable difference between the prices of the products
charged in the Community and those charged outside the
Community, and this price difference must not be eroded
by customs duties and transport costs. In addition, the
product volumes exported compared to the total market
for those products in the territory of the common market
must not be insignificant (88). If these product volumes
are insignificant compared to those sold inside the
Community, the impact of any re-importation on trade
between Member States is considered not to be appre-
ciable. In making this assessment, regard must be had not
only to the individual agreement concluded between the
parties, but also to any cumulative effect of similar
agreements concluded by the same and competing
the product
suppliers.
volumes covered by a single agreement are quite small,
but that the product volumes covered by several such
agreements are significant. In that case the agreements
taken as a whole may be capable of appreciably
It should be
affecting trade between Member States.
recalled, however (cf. paragraph 49 above), that the indi-
vidual agreement or network of agreements must make a
significant contribution to the overall effect on trade.

for example,

It may be,

that

(1) OJ C 368, 22.12.2001, p. 13.
(2) OJ L 1, 4.1.2003, p. 1.
(3) See e.g. Joined Cases 56/64 and 58/64, Consten and Grundig, [1966] ECR p. 429, and Joined Cases 6/73 and 7/73, Commercial Solvents, [1974]

ECR p. 223.

(4) See in this respect Case 22/71, Béguelin, [1971] ECR p. 949, paragraph 16.
(5) See Case 193/83, Windsurfing, [1986] ECR p. 611, paragraph 96, and Case T-77/94, Vereniging van Groothandelaren in Bloemkwekerijpro-

dukten, [1997] ECR II-759, paragraph 126.

(6) See paragraphs 142 to 144 of the judgment in Vereniging van Groothandelaren in Bloemkwekerijprodukteten cited in the previous footnote.
(7) See e.g. Case T-2/89, Petrofina, [1991] ECR II-1087, paragraph 226.
(8) The concept of appreciability is dealt with in section 2.4 below.
(9) See in this respect Case 85/76, Hoffmann-La Roche, [1979] ECR p. 461, paragraph 126.
(10) Throughout these guidelines the term ‘products’ covers both goods and services.
(11) See Case 172/80, Züchner, [1981] ECR p. 2021, paragraph 18. See also Case C-309/99, Wouters, [2002] ECR I-1577, paragraph 95, Case
C-475/99, Ambulanz Glöckner, [2001] ECR I-8089, paragraph 49, Joined Cases C-215/96 and 216/96, Bagnasco, [1999] ECR I-135, paragraph
51, Case C-55/96, Job Centre, [1997] ECR I-7119, paragraph 37, and Case C-41/90, Höfner and Elser, [1991] ECR I-1979, paragraph 33.
(12) See e.g. Joined Cases T-24/93 and others, Compagnie maritime belge, [1996] ECR II-1201, paragraph 203, and paragraph 23 of the judgment in

Commercial Solvents cited in footnote.

(13) See e.g. Joined Cases T-213/95 and T-18/96, SCK and FNK, [1997] ECR II-1739, and sections 3.2.4 and 3.2.6 below.
(14) See section 3.2 below.
(15) See e.g. the judgment in Züchner cited in footnote 11 and Case 319/82, Kerpen & Kerpen, [1983] ECR 4173, Joined Cases 240/82 and others,
Stichting Sigarettenindustrie, [1985] ECR 3831, paragraph 48, and Joined Cases T-25/95 and others, Cimenteries CBR, [2000] ECR II-491,
paragraph 3930.

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(16) In some judgments mainly relating to vertical agreements the Court of Justice has added wording to the effect that the agreement was capable of
hindering the attainment of the objectives of a single market between Member States, see e.g. Case T-62/98, Volkswagen, [2000] ECR II-2707,
paragraph 179, and paragraph 47 of the Bagnasco judgment cited in footnote 11, and Case 56/65, Société Technique Minière, [1966] ECR 337.
The impact of an agreement on the single market objective is thus a factor which can be taken into account.

(17) See e.g. Case T-228/97, Irish Sugar, [1999] ECR II-2969, paragraph 170, and Case 19/77, Miller, [1978] ECR 131, paragraph 15.
(18) See e.g. Case C-250/92, Gøttrup-Klim [1994] ECR II-5641, paragraph 54.
(19) See e.g. Case C-306/96, Javico, [1998] ECR I-1983, paragraph 17, and paragraph 18 of the judgment in Béguelin cited in footnote 4.
(20) Compare in this respect the judgments in Bagnasco and Wouters cited in footnote 11.
(21) See e.g. Case T-141/89, Tréfileurope, [1995] ECR II-791, Case T-29/92, Vereniging van Samenwerkende Prijsregelende Organisaties in de
Bouwnijverheid (SPO), [1995] ECR II-289, as far as exports were concerned, and Commission Decision in Volkswagen (II) (OJ L 264, 2.10.2001,
p. 14).

(22) See in this respect Case 71/74, Frubo, [1975] ECR 563, paragraph 38, Joined Cases 209/78 and others, Van Landewyck, [1980] ECR 3125,
paragraph 172, Case T-61/89, Dansk Pelsdyravler Forening, [1992] ECR II-1931, paragraph 143, and Case T-65/89, BPB Industries and British
Gypsum, [1993] ECR II-389, paragraph 135.

(23) See in this respect Case T-86/95, Compagnie Générale Maritime and others, [2002] ECR II-1011, paragraph 148, and paragraph 202 of the

judgment in Compagnie maritime belge cited in footnote 12.
(24) See Case 123/83, BNIC v Clair, [1985] ECR 391, paragraph 29.
(25) See Commission Decision in Zanussi, OJ L 322, 16.11.1978, p. 36, paragraph 11.
(26) See in this respect Case 31/85, ETA Fabrique d'Ébauches, [1985] ECR 3933, paragraphs 12 and 13.
(27) See Joined Cases C-241/91 P and C-242/91 P, RTE (Magill), [1995] ECR I-743, paragraph 70, and Case 107/82, AEG, [1983] ECR 3151,

paragraph 60.

(28) See paragraph 60 of the AEG judgment cited in the previous footnote.
(29) See Case 5/69, Völk, [1969] ECR 295, paragraph 7.
(30) See e.g. paragraph 17 of the judgment in Javico cited in footnote 19, and paragraph 138 of the judgment in BPB Industries and British Gypsum

cited in footnote 22.

(31) See paragraph 138 of the judgment in BPB Industries and British Gypsum cited in footnote 22.
(32) See e.g. paragraphs 9 and 10 of the Miller judgment cited in footnote 17, and paragraph 58 of the AEG judgment cited in footnote 27.
(33) See Joined Cases 100/80 and others, Musique Diffusion Française, [1983] ECR 1825, paragraph 86. In that case the products in question
accounted for just above 3 % of sales on the national markets concerned. The Court held that the agreements, which hindered parallel trade, were
capable of appreciably affecting trade between Member States due to the high turnover of the parties and the relative market position of the
products, compared to those of products produced by competing suppliers.

(34) See in this respect paragraphs 179 and 231 of the Volkswagen judgment cited in footnote 16, and Case T-213/00, CMA CGM and others, [2003]

ECR I-, paragraphs 219 and 220.

(35) See e.g. Case T-7/93, Langnese-Iglo, [1995] ECR II-1533, paragraph 120.
(36) See paragraphs 140 and 141 of the judgment in Vereniging van Groothandelaren in Bloemkwekerijprodukten cited in footnote 5.
(37) See Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty (OJ

C 368, 22.12.2001, p. 13, paragraph 3).

(38) OJ L 107, 30.4.1996, p. 4. With effect from 1.1.2005 this recommendation will be replaced by Commission Recommendation 2003/361/EC

concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).

(39) The term ‘undertakings concerned’ shall include connected undertakings as defined in paragraph 12.2 of the Commission's Notice on agreements
of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (OJ C
368, 22.12.2001, p. 13).
(40) See the previous footnote.
(41) When defining the relevant market, reference should be made to the notice on the definition of the relevant market for the purposes of

Community competition law (OJ C 372, 9.12.1997, p. 5).

(42) See also paragraph 14 above.
(43) See paragraph 8 of the judgment in Kerpen & Kerpen cited in footnote 15. It should be noted that the Court does not refer to market share but to

the share of French exports and to the product volumes involved.

(44) See e.g. the judgment in Volkswagen cited in footnote 16 and Case T-175/95, BASF Coatings, [1999] ECR II-1581. For a horizontal agreement to

prevent parallel trade see Joined Cases 96/82 and others, IAZ International, [1983] ECR 3369, paragraph 27.

(45) See e.g. Case T-142/89, Usines Gustave Boël, [1995] ECR II-867, paragraph 102.
(46) Horizontal cooperation agreements are dealt with in the Commission Guidelines on the applicability of Article 81 of the EC Treaty to horizontal
cooperation agreements (OJ C 3, 6.1.2001, p. 2). Those guidelines deal with the substantive competition assessment of various types of
agreements but do not deal with the effect on trade issue.

(47) See Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p. 1).
(48) The Commission Notice on the concept of full-function joint ventures under the Merger Regulation (OJ C 66, 2.3.1998, p. 1) gives guidance on

the scope of this concept.

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(49) See e.g. the Commission Decision in Ford/Volkswagen (OJ L 20, 28.1.1993, p. 14).
(50) See in this respect paragraph 146 of the Compagnie Générale Maritime judgment cited in footnote 23 above.
(51) See in this respect Joined Cases 43/82 and 63/82, VBVB and VBBB, [1984] ECR 19, paragraph 9.
(52) See in this respect Case T-66/89, Publishers Association, [1992] ECR II-1995.
(53) See in this respect the judgment in Commercial Solvents cited in footnote 3, in the judgment in Hoffmann-La Roche, cited in footnote, paragraph
125, and in RTE and ITP cited in footnote, as well as Case 6/72, Continental Can, [1973] ECR 215, paragraph 16, and Case 27/76, United Brands,
[1978] ECR 207, paragraphs 197 to 203.

(54) See paragraphs 32 and 33 of the judgment in Commercial Solvents cited in footnote 3.
(55) According to settled case law dominance is a position of economic strength enjoyed by an undertaking which enables it to prevent effective
competition being maintained on the relevant market by affording it the power to act to an appreciable extent independently of its competitors,
its customers and ultimately of the consumers, see e.g. paragraph 38 of the judgment in Hoffmann-La Roche cited in footnote 9.

(56) See for a recent example paragraph 95 of the Wouters judgment cited in footnote 11.
(57) See e.g. Case 246/86, Belasco, [1989] ECR 2117, paragraph 32-38.
(58) See paragraph 34 of the Belasco judgment cited in the previous footnote and more recently Joined Cases T-202/98 a.o., British Sugar, [2001] ECR
II-2035, paragraph 79. On the other hand this is not so when the market is not susceptible to imports, see paragraph 51 of the Bagnasco
judgment cited in footnote 11.

(59) Guarantees for current account credit facilities.
(60) See paragraph 51 of the Bagnasco judgment cited in footnote 11.
(61) See in this respect Case 45/85, Verband der Sachversicherer, [1987] ECR 405, paragraph 50, and Case C-7/95 P, John Deere, [1998] ECR I-3111.
See also paragraph 172 of the judgment in Van Landewyck cited in footnote 22, where the Court stressed that the agreement in question reduced
appreciably the incentive to sell imported products.

(62) See e.g. the judgment in Stichting Sigarettenindustrie, cited in footnote 15, paragraphs 49 and 50.
(63) See in this respect Case T-22/97, Kesko, [1999] ECR II-3775, paragraph 109.
(64) See e.g. Case T-65/98, Van den Bergh Foods, [2003] ECR II-. . ., and the judgment in Langnese-Iglo, cited in footnote 35 paragraph 120.
(65) See e.g. judgment of 7.12.2000, Case C-214/99, Neste, ECR I-11121.
(66) See judgment of 28.2.1991, Case C-234/89, Delimitis, ECR I-935.
(67) See paragraph 120 of the Langnese-Iglo judgment cited in footnote 35.
(68) See e.g. Commission Decision in Volkswagen (II), cited in footnote 21, paragraphs 81 et seq.
(69) See in this respect paragraphs 177 to 181 of the judgment in SCK and FNK cited in footnote 13.
(70) See as to this notion the judgment in Ambulanz Glöckner, cited in footnote 11, paragraph 38, and Case C-179/90, Merci convenzionali porto di

Genova, [1991] ECR I-5889, and Case C-242/95, GT-Link, [1997] ECR I-4449.

(71) See e.g. paragraph 135 of the judgment in BPB Industries and British Gypsum cited in footnote.
(72) See Case 322/81, Nederlandse Banden Industrie Michelin, [1983] ECR 3461
(73) See Case 61/80, Coöperative Stremsel- en Kleurselfabriek, [1981] ECR 851, paragraph 15.
(74) See in this respect judgment in Irish Sugar, cited in footnote 17 paragraph 169.
(75) See paragraph 70 of the judgment in RTE (Magill) cited in footnote 27.
(76) See the judgment in Irish Sugar cited in footnote 17.
(77) See e.g. the case law cited in footnote 70.
(78) See in this respect Case 28/77, Tepea, [1978] ECR 1391, paragraph 48, and paragraph 16 of the judgment in Continental Can cited in footnote

53.

(79) See Joined Cases C-89/85 and others, Ahlström Osakeyhtiö (Woodpulp), [1988] ECR 651, paragraph 16.
(80) See in this respect Case T-102/96, Gencor, [1999] ECR II-753, which applies the effects test in the field of mergers.
(81) See to that effect paragraph 19 of the judgment in Javico cited in footnote 19.
(82) See in this respect Case 51/75, EMI v CBS, [1976] ECR 811, paragraphs 28 and 29.
(83) See Commission Decision in Siemens/Fanuc (OJ L 376, 31.12.1985, p. 29).
(84) See in this respect Joined Cases 29/83 and 30/83, CRAM and Rheinzinc, [1984] ECR 1679, and Joined Cases 40/73 and others, Suiker Unie,

[1975] ECR 1663, paragraphs 564 and 580.

(85) See paragraph 22 of the judgment in Javico cited in footnote 19.
(86) See paragraph 203 of the judgment in Compagnie maritime belge cited in footnote 12.
(87) See in this respect the judgment in Javico cited in footnote 19.
(88) See in this respect paragraphs 24 to 26 of the Javico judgment cited in footnote 19.