Agreement Of Minor Importance

by lobo September 9, 2021  

Article 101 TFEU prohibits any agreement between undertakings aimed at or having the effect of preventing, restricting or restricting competition in the internal market. Where the distinction between flexible or effective restrictions of competition concerns evidence and (…) In order to be covered by the prohibition of anti-competitive agreements referred to in Article 101(1) of the Treaty on the Functioning of the European Union, an agreement between undertakings `must have the effect of appreciably restricting competition within the common market and liable to affect trade between Member States` (ECJ, 13 December 2012, Expedia, C-226/11, paragraph 17). Like the Commission`s block exemption regulations, the 2001 de minimis Notice contained a list of basic restrictions of competition which, when included in an agreement, excluded the application of the de minimis exemption. This implies that, if the thresholds for the visibility of market share were not exceeded, an agreement which did not contain such basic restrictions could benefit from the de minimis exemption, even in the case of a `positive` restriction. Therefore, the new Notice no longer strictly mentions basic restrictions, but excludes from the de minimis exemption any agreement who has as its object the restriction of competition, thus limiting its scope. Nor can agreements be covered by Article 101(1) TFEU because they are not such as to significantly affect trade between Member States. This Communication does not indicate what constitutes a significant phenomenon of trade between Member States.

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