EUR-Charts

Due to the fact that the Commission Guidelines on horizontal co-operation agreements were published in the Official Journal in 2011, the text in the box entitled “Horizontal agreements” must read:

Horizontal agreements

Agreements between companies operating at the same level(s) in the market, i.e. actual or potential competitors; e.g. between wholesalers; Commission Guidelines on horizontal co-operation agreements (2011)

Add a new box at the very end (bottom) of the chart:

Practical consequences

In the case of market shares and turnover below the thresholds, the Commission will not institute proceedings.

The 2nd box must read:

Importance of the definition of the relevant market

• For the purposes of Art. 102 TFEU, the proper definition of the relevant market is a necessary precondition for any judgment as to allegedly anti-competitive behaviour; Volkswagen (2000); see Chart C30;
• In other contexts (e.g. Art. 101 TFEU, merger control under Regulation 139/2004/EC and sectoral competition law), it may be an important element, e.g. in relation to the effect on trade between Member States and on competition, and in relation to product_turnover and market shares; Heubach (2005).

Due to the fact that the Commission Guidelines on horizontal co-operation agreements were published in the Official Journal in 2011, the text in the box entitled “Licence” must read:

Licence

• Agreements containing clauses related to licensing may fall foul under Art. 101(1) TFEU. Block exemptions may apply; if licensing is the primary object of the agreement, see Chart C21; for franchise agreements, see Chart C24.

• Inclusion of an IPR in a standard: licensing must be based on fair, reasonable and non-discriminatory terms (FRAND commitment); Commission Guidelines on horizontal co-operation agreements (2011).

The text in the 2nd row must read:

Guidance from the Commission through the Commission Notice on agreements of minor importance (2014):
Art. 101(1) TFEU does not apply where certain market share thresholds are not exceeded and where the agreements do not have as their object to restrict competition (e.g. agreements containing hardcore restrictions).

Thresholds:

The text in the box entitled “Vertical agreements” (3rd row, on the right hand side) must read:

Vertical agreements: ≤15%

I.e. agreements between non-competitors; see Chart C8

Threshold of 15% _ market share in any of the relevant markets affected by the agreement.

The text in the last row, on “Practical consequence”, must read:

Practical consequence

In the case of undertakings with market shares below the relevant thresholds, the Commission will not institute proceedings (see Chart C35), unless the agreement has as its object to restrict competition; see Chart C13.

Add a new box at the very end (bottom) of the chart:

Notes:

•     Being part of the EU’s soft-law (see Chart B10), Commission Notices and Guidelines in the field of competition are not binding on the Member States; Pfleiderer (2011).

•     Accordingly, the De Minimis Notice is not binding on the Member States, including the national competition authorities and the national courts. However, by this notice, the Commission imposes a limit on the exercise of its discretion in the application of Art. 101(1) TFEU; Expedia (2012).

The text in the box in the 3rd row, on the right hand side, on “Appreciability: the “de minimis rule“”, must read:

Appreciability: the “de minimis rule“

The actual prevention, restriction or distortion must be
appreciable; Völk (1969).
• Since 1970, guidance through Commission notices;
• At present: Commission Notice on agreements of minor
importance (2014), so-called “De Minimis Notice”.

See Chart C12

Add a new box at the very end (bottom) of the chart:

Note:
There is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition. An agreement that may affect trade between Member States and that has an anti-competitive object constitutes, by its nature and independently of any concrete effect that it may have, an appreciable restriction on competition; Expedia (2012).

New terminology by the Commission requires this Chart to be amended at several points:

The Chart’s title must (newly) read:

Restrictions of competition “by object”

The topic sentence must read:

Where a conduct is characterised as a _ restriction of competition “by object”, it will not be exempt under the de minimis rule even if the undertakings concerned do not reach the relevant thresholds.

The box in the 2nd row must read:

Commission Notice on agreements of minor importance (2014):
The de minimis rule does not apply where an agreement contains _ restrictions of competition “by object”.

The box in the 3rd row must read:

_ Restrictions “by object”:
Distinction between relevant clauses according to the type of agreement

The box in the 6th row, on the left hand side, relating to vertical agreements, must read:

• Price fixing;
• Market sharing;
• Limitation of output or sales;
• Bid rigging;
• Collective boycotts;
• Information sharing;
• Restrictions on carrying out R&D or using own technology.

The box in the 6th row, on the right hand side, relating to vertical agreements, must read:

• Sales restrictions on buyers;
• Sales restrictions on licensees;
• Sales restrictions on the supplier;
• Resale price maintenance.

The text in the box in the very last row, entitled “Note”, must read:

Notes:

• The previous De Minimis Notice (2001) used the term “hardcore restrictions”.
• Hardcore restrictions are also relevant in the context of block exemptions, ; see Chart C17.

The box in the 3rd row at the right hand side must read:

Commission Notice on agreements of minor importance (2014)

The box in the 6th row on the right hand side must read:

See Chart C12, Chart C13

The box in the 6th row in the middle must read:

Competition element

See Chart C32

Insert a new last box at the very bottom which reads:

Note:
Undertakings with a special position under national law may be able to rely on Art. 106(2) TFEU; see Chart C45.