In February 2011, a proposal to amend last year's adopted bill to revise the de minimis clause was published.11 This proposal exempts hardcore infringements up to a market share of 10%. One of the main hang-ups of the bill was whether it would constitute an infringement of EU law, since certain hardcore cartels caught by the cartel prohibition of Article 101 TFEU 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 Dutch 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 EUR 5.5 million (for companies whose primary business is in the affected markets) or EUR 1.1 million (for other companies) are involved. Also exempt are restrictive agreements where the parties’ combined turnover does not exceed EUR 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 concept12, 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.13 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,14 which does not apply to hardcore restrictions.
In a letter of 9 September 2010, the European Commission's 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) TEU, according to which Member States should "refrain from any measure which could jeopardise the attainment of the Union's objectives".15 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.
