Plus ça change, plus c’est la même chose: Revised EU de minimis notice retains % thresholds, clarifies per se rule

Nothing new: the newly-revised de minimis Notice of the European Commission isn’t that novel

The revised Notice (after its 1997 and 2001 predecessors) retains the 10% and 15% market-share thresholds for agreements between horizontal and non-horizontal competitors, respectively, which create a safe harbor from EC prosecution for an Art. 101(1) violation.  The document merely adds formal color and substance to the issue of what types of agreements fall within its “safe harbor” and which fall outside that umbrella.

Unsurprisingly, the Staff Guidance paper accompanying the Notice explains the prohibited hallmark per se (or “by object”) category of agreements succinctly as follows, also adding minimum-RPM, bid rigging, collective boycotts and particularly injurious information-sharing arrangements:

The three classical “by object” restrictions in agreements between competitors are price fixing, output limitation and market sharing (sharing of geographical or product markets or customers).

Not binding on Member States

Importantly, as its predecessors, the Notice does NOT have binding effect on EU member states’ competition authorities, but ONLY on the EU Commission and its DG COMP.  As the European Court of Justice held in its Expedia judgment (case C-226/11):

27      It also follows from the objectives pursued by the de minimis notice, as mentioned in paragraph 4 thereof, that it is not intended to be binding on the competition authorities and the courts of the Member States.

28      It is apparent from that paragraph, first, that the purpose of that notice is to make transparent the manner in which the Commission, acting as the competition authority of the European Union, will itself apply Article 101 TFEU. Consequently, by the de minimis notice, the Commission imposes a limit on the exercise of its discretion and must not depart from the content of that notice without being in breach of the general principles of law, in particular the principles of equal treatment and the protection of legitimate expectations (see, to that effect, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 211). Furthermore, it intends to give guidance to the courts and authorities of the Member States in their application of that article.

29      Consequently, and as the Court has already had occasion to point out, a Commission notice, such as the de minimis notice, is not binding in relation to the Member States (see, to that effect, Case C‑360/09 Pfleiderer [2011] ECR I‑0000, paragraph 21).

30      Accordingly, that notice was published in 2001 in the ‘C’ series of the Official Journal of the European Union, which, by contrast with the ‘L’ series of the Official Journal, is not intended for the publication of legally binding measures, but only of information, recommendations and opinions concerning the European Union (see, by analogy, Case C‑410/09 Polska Telefonia Cyfrowa [2011] ECR I‑0000, paragraph 35).

31      Consequently, in order to determine whether or not a restriction of competition is appreciable, the competition authority of a Member State may take into account the thresholds established in paragraph 7 of the de minimis notice but is not required to do so. Such thresholds are no more than factors among others that may enable that authority to determine whether or not a restriction is appreciable by reference to the actual circumstances of the agreement.