De minimis communication is particularly useful for agreements that are not covered by a category exemption regulation or where an agreement covered by a category exemption regulation includes an “excluded restriction,” restrictions that are not covered by the exemption. where the total market share held by the parties to the agreement does not exceed 10% in one of the markets affected by the agreement, where the agreement is reached between actual or potential competitors in one of these markets (agreements between competitors) (7); or three. Moreover, agreements cannot be covered by Article 81, paragraph 1, because they are not likely to significantly affect trade between Member States. This communication does not address this issue. It does not quantify, which has no significant impact on trade. However, it is accepted that agreements between small and medium-sized enterprises within the meaning of the annex of the Commission`s Recommendation 96/280/EC (3) can rarely significantly affect trade between Member States. This recommendation currently defines small and medium-sized enterprises as enterprises employing less than 250 people and with annual turnover of no more than 40 million euros, for an annual balance sheet total of less than 27 million euros. The Commission regularly issues guidelines for its interpretation of competition rules. However, these guidelines are not binding on national competition authorities or jurisdictions that may deviate from them. The de minimis communication adopted on 25 June 2014 sets out how the Commission will analyse minor enforcement agreements in its enforcement measures.
As it explained in its press release, by excluding these agreements from their scope, the Commission decided to “focus its resources on agreements with a higher risk of distortion of competition in the internal market”. 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). (7) With regard to the definition of actual or potential competitors, see the Commission`s communication – Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements (OJ L 347 of 19.12.2001, p. JO C 11, 14.1.2011, p. 1), Z. 10. Two companies are considered real competitors when operating in the same market in question. A company is considered a potential competitor to another company if, in the absence of an agreement, it is likely, in the event of a minor but sustained increase in relative prices, that it would make, in a short period of time, the additional investments or other conversion costs necessary to enter the market in question in which it operates.
(3) De minimis communication provides for a threshold of 5% when competition is limited by the cumulative effect of agreements for both competitors and non-competitors. Commission communication on low-importance agreements that do not materially restrict competition under Article 81, paragraph 1 of the Treaty establishing the European Community (de minimis) (2001/C 368/07) (Text affecting the EEA) I1.