De Minimis Notice

A notice published by the European Commission (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), 2001 OJ C 368/13) that establishes a cut-off below which it will usually regard competition issues as not having a large enough effect on intra-community trade to justify an investigation or enforcement action by the European Commission. The notice states that in general, the Commission will not regard otherwise anticompetitive agreements between actual competitors as restricting competition if the combined market share of the competitors is less than 10 percent of the relevant market. The notice should therefore be seen as a semi-formalized statement of the first part of the “Appreciability Test.” The limited legal effect of the de minimis notice should be carefully understood:

  • it only applies to violations of Article 101 (formerly Article 81/85), but not Article 102 (formerly Article 82/86, i.e., abuse of a dominant position);
  • as a notice (as opposed to legislation) it is, in principle, not legally binding on the Commission (though it has a substantial evidentiary effect);
  • it does not suspend the operation of national competition law;
  • it does not limit the private (or civil) law rights of parties, who can still argue in litigation that a provision is illegal and void under Article 101;
  • its interpretation is highly dependent on definitions of the relevant market; and
  • it has an exception for situations where the cumulative effect of parallel agreements between market participants renders the market uncompetitive.

The origin of the Latin term de minimis is the Latin maxim de minimis non curate rex, i.e., “the king does not care about small (trivial) things.”

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