On 11 July 2013, the Commission invited third parties to submit their observations on its proposal to revise its guidance notice on the assessment of minor agreements that currently fall outside the scope of the prohibition on anti-competitive arrangements (i.e. the De Minimis notice). This notice currently provides for a safe harbour for companies whose market shares do not exceed 10% for agreements between competitors or 15% for agreements between non-competitors. The Commission now aims to bring the notice in line with the Expedia judgement of the European Court of Justice (“ECJ”). In this judgement the ECJ ruled that a national competition authority is not required to take into account the thresholds established in the De Minimis notice in order to determine whether or not a restriction of competition is appreciable. The Court concluded that an agreement that has an effect on the interstate trade and an anti-competitive object constitutes an appreciable restriction on competition per se.
In view hereof the Commission wishes to clarify in its revised notice that as regards agreements between competitors, the Commission will not apply the safe harbour to agreements containing price fixing arrangements, to agreements that limit output or sales or that allocate markets or customers. The Commission will neither apply the safe harbour to agreements containing any of the restrictions that are defined or listed as hardcore restrictions in any current or future Commission block exemption regulation. According to the Commission such restrictions are generally considered as restrictions by object. This implies that, for instance, a resale price maintenance obligation in a vertical agreement that has an effect on interstate trade will be caught by the prohibition of Article 101 (1) TFEU, even when the two parties to the agreement only possess minor market shares.
The consultation period lasts until 3 October 2013.