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Nor can the agreements be covered by Article 101, paragraph 1, of the Treaty, because they cannot significantly affect trade between Member States. This communication does not indicate what a significant effect is on trade between Member States. Guidelines in this regard are found in the Commission`s communication on effects on trade (4), in which the Commission quantifies, using a combination of a market share threshold of 5% and a turnover threshold of EUR 40 million, which the agreements are not in principle able to significantly affect trade between Member States (5). As a general rule, these agreements are not covered by Article 101, paragraph 1 of the Treaty, even if they are intended to prevent, restrict or distort competition. (5) It should be noted that agreements between small and medium-sized enterprises (SMEs) within the meaning of the Commission`s recommendation of 6 May 2003 on the definition of micro, small and medium-sized enterprises or a future recommendation that they would replace are also not in a position to affect trade between Member States (JO L 347 of 31.12.2003, p. 1). JO L 124, 20.5.2003, 36). See in particular note 50 of the communication on the effects of trade. The opinion no longer lists the restrictions, but refers, in this context, to the restrictions on state aid contained in the Commission`s current and future category exemption regulations. Companies with low market share in a given market benefit from a secure port under their agreements, which do not have a significant restriction on competition. As in the previous version of the de minimis communication, the Commission assesses the significant restriction of competition on the basis of market share.

Agreements between competitors with a total market share of no more than 10% are not covered by the general ban on anti-competitive agreements (Article 101 of the Treaty on the Functioning of the European Union (TFUE). The overall market share threshold is 15% for non-competitor agreements. (3) If there are difficulties in classifying an agreement, the lower threshold of 10% applies. The thresholds do not mean that agreements between companies whose market shares exceed thresholds constitute a significant restriction on competition. In order to benefit from the Safe Harbour, these agreements must not include “having an object” competition restrictions. Like the Commission`s class exemption regulations, the 2001 de minimis release contained a list of restrictions on competition that, when contained in an agreement, excluded the application of the de minimis exemption. This implies that an agreement that did not contain such characterized restrictions could benefit from the de minimis exemption, even if the thresholds for participation in value of market share are not exceeded, even if there is a “per object” restriction. The concept of anti-competitive object, which has a broader scope than the notion of a characterized restriction of competition, the approach adopted in the 2001 communication no longer seemed to conform to the jurisprudence. Article 101 of the TFUE prohibits any agreement between companies with the purpose or effect of preventing, restricting or eliminating competition in the internal market. Where the distinction between competition restrictions with an actual purpose or purpose concerns the evidence and (…) To be covered by the article 101 ban on anti-competitive agreements, paragraph 1 of the Treaty on the Functioning of the European Union, an agreement between companies must “have the purpose or effect of substantially restricting competition in the common market and be likely to affect trade between Member States” (ECJ, 13 Dec 2012, Expedia, C-226/11, at para.

17). If competition in a particular market is limited by the cumulative effect of agreements to sell goods or services made by different suppliers or distributors (cumulative lock-in effect of parallel agreements with similar effects on the market), the market share thresholds covered at points 8 and 9 are reduced to 5% for both agreements between competitors and for agreements between non-competitors.

Posted on December 7th, 2020 | filed under Uncategorized |

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