In February 2011 a proposal to amend the bill adopted in 2010 to revise the de minimis clause was published.(1) The proposal exempts hardcore infringements up to a market share of 10%. One of the main issues with the bill was whether it would constitute an infringement of EU law, since certain hardcore cartels caught by the cartel prohibition of Article 101 of the Treaty on the Functioning of the European Union could be exempted under the revised de minimis clause. The proposal to amend the bill intends to smooth this over.
Currently, the de minimis clause laid down in the Competition Act provides for an exemption for restrictive agreements, including hardcore cartels, where no more than eight participants with an aggregate turnover of less than €5.5 million (for companies whose primary business is in the affected markets), or €1.1 million (for other companies) are involved. Also exempt are restrictive agreements where the parties' combined turnover does not exceed €40 million and their aggregate market share remains below 5%. The latter thresholds have been based on the European Commission's guidelines on the effect on trade concept,(2) according to which inter-state trade will not be appreciably restricted when these thresholds are met.
In June 2010 the Dutch Parliament adopted a bill to increase the market share threshold of the national de minimis clause to provide small and medium-sized companies with more leeway to join forces against buyer power.(3) The bill aimed to amend the latter exemption by abandoning the turnover threshold and raising the market share threshold to 10%. As a result, the national de minimis clause would no longer be in line with the thresholds of the European Commission's guidelines. Consequently, hardcore restrictions exempted under the national de minimis clause could run counter to the European Commission's De Minimis Notice,(4) which does not apply to hardcore restrictions.
In a letter of September 29 2010, the European Commission director general for competition indicated that the revised de minimis clause would lead to the exemption of hardcore restrictions which could affect inter-state trade and could thus be prohibited under EU law. In this context, he referred to Article 4(3) of the Treaty on European Union, according to which member states should "refrain from any measure which could jeopardise the attainment of the Union's objectives".(5) The proposal to amend the bill has taken the European Commission's view to heart and introduces an additional condition to the 10% market share threshold, reading that the restrictive agreement at hand may not have an appreciable effect on inter-state trade.
For further information on this topic please contact Jolling De Pree or Erik H Pijnacker Hordijk at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email ([email protected] or [email protected]).
(1) Second Chamber, 2010-2011 session, 32 664.
(2) See para 52 of the guidelines on the effect of trade concept contained in Articles 101 and 102 of the Treaty on the Functioning of the European Union, OJ 2004, C101/81.
(3) Second Chamber, 2007-2008 session, 31 531.
(4) Commission Notice on Agreements of Minor Importance Which Do Not Appreciably Restrict Competition, OJ 2001, C368/13.