Appreciable restriction of competition
Appreciable restriction of competition

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

  • Appreciable restriction of competition
  • De minimis doctrine—appreciability
  • De Minimis Notice
  • Expedia judgment
  • Implications
  • Reconciling case law?
  • Current position

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 but deemed unproblematic given the trivial level of the parties’ market shares).  

Since Völk, the Courts have consistently held that an agreement will only trigger the Article 101(1) TFEU prohibition where it has an appreciable impact on competition.

Until the position was