Appreciable restriction of competition

The following Competition practice note provides comprehensive and up to date legal information covering:

  • Appreciable restriction of competition
  • De minimis doctrine—appreciability
  • De Minimis Notice
  • Benefiting from the Notice
  • Additional considerations
  • Outside 'safe harbour'
  • Expedia judgment
  • Background
  • Preliminary ruling
  • Implications
  • More...

Appreciable restriction of competition

STOP PRESS—On 10 May 2022, the Commission adopted a new Vertical Block Exemption Regulation (Commission Regulation 2022/720) (EU VBER). The new EU VBER replaces the previous Regulation on 1 June 2022. This Practice Note will be updated shortly to reflect the new laws.

Article 101(1) TFEU prohibits agreements which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market. 

However, a restrictive agreement (whether between competitors or non-competitors) will not trigger the Article 101(1) TFEU prohibition where its impact on competition is not ‘appreciable’. In other words, the prohibition does not apply where any identified anti-competitive effects (presumed or otherwise) are ‘insignificant’—the detrimental effects on competition must be of a sufficient magnitude to merit the attention of the authorities.

De minimis doctrine—appreciability

This principle known as the de minimis doctrine was first formulated in Völk v Vervaecke where the Court of Justice stated that:

'...an agreement falls outside the prohibition in Article [81(1)] where it has only an insignificant effect on the market, taking into account the weak position which the persons concerned have on the market of the product in question.’

This was applicable regardless of the nature of the restraint in question, including in relation to ‘hardcore’ restraints (noting that Völk involved a clause ensuring absolute territorial protection against parallel trade—a clear ‘hardcore’ restriction

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