In this communication, the Commission draws attention to the circumstances in which it considers that agreements that may have the effect of preventing, restricting or distorting competition in the internal market do not constitute a significant restriction of competition within the meaning of Article 101 of the Treaty. This negative definition of quirk does not mean that agreements between companies that exceed the thresholds set out in this submission constitute a significant restriction on competition. These agreements can have only a negligible effect on competition and therefore cannot be prohibited under Article 101, paragraph 1, of the Treaty (3). The Commission also considers that the agreements do not substantially restrict competition if the market shares held by the parties to the agreement do not exceed the 10 per cent, 15 per cent and 5 per cent thresholds for two consecutive calendar years by more than 2 percentage points. The Court also clarified that an agreement that could affect trade between Member States, with the aim of preventing, restricting or distorting competition in the internal market, results in a significant restriction of competition in its nature and regardless of the possible concrete consequences (2). This communication therefore does not apply to agreements aimed at preventing, restricting or distorting competition in the internal market. 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). However, even where an agreement contains “purposeal” restrictions, it is not necessarily subject to the prohibition of anti-competitive agreements under Article 101, paragraph 1 of the EUSP, if it does not have a significant effect on trade between Member States. However, the “safe port” created by de minimis communication actually has some weaknesses.
This communication only involves the Commission and has no binding effect on national competition authorities and national courts, as the ECJ indicated in Expedia. When a national competition authority takes action or imposes fines under Article 101 of the TFUE, it is free to assess the situation or not competition, even if the agreement in question is covered by the communication. 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. This is particularly the case, but not exclusively, for agreements between companies with a total market share of less than 5% and a turnover of less than 40 million euros, as indicated in the 2004 notice on the impact on trade. 11. Points 7, 8 and 9 do not apply to agreements that contain one of the following restrictions: firms with low market shares in a given market have a safe port for their agreements that do not have a significant restriction on competition.