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De Minimis Notice: Exemption for agreements of minor importance
Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (de minimis) [Official Journal C 368 of 22.12.2001].
The Court of Justice has recognised that Article 81(1) of the Treaty establishing the European Community (TEC) (now Article 101(1) of the Treaty on the functioning of the European Union (TFEU)), which prohibits agreements liable to affect competition, is not applicable where the impact of the agreement on intra-European Union (EU) trade or competition is not appreciable.
The De Minimis Notice defines, with the help of market share thresholds, what is not considered as an appreciable restriction of competition under Article 101 TFEU. This negative definition does not imply that agreements between firms which exceed the thresholds will appreciably restrict competition; the notice only creates a safe harbour. The notice helps to reduce compliance costs for (smaller) undertakings when engaged in agreements which are not covered by any of the block exemption regulations.
This notice does not deal with what is an appreciable effect on trade. This is covered by a separate Commission notice which establishes guidelines on the effect on trade concept contained in Articles 101 and 102 TFEU (ex-Articles 81 and 82 TEC).
The safe harbour created by the De Minimis Notice applies to agreements between actual or potential competitors (horizontal agreements) as long as their aggregate market share does not exceed 10%. For agreements between non-competitors (vertical agreements), the market share held by each of the parties should not exceed 15% to benefit from the notice. For markets where there is a cumulative effect of parallel networks of similar agreements, these market share thresholds are reduced to 5%.
This notice also excludes from its benefit agreements which contain one or more hardcore restrictions, as such restrictions are presumed to have negative effects. As stated in the Guidelines on the application of Article 101(3) TFEU (ex-Article 81(3) TEC), hardcore restrictions are restrictions of competition by object, which by their very nature have such a high potential of restricting competition that it is unnecessary for the purposes of applying Article 101(1) TFEU to demonstrate any actual or likely effects on the market.