The de minimis doctrine in EC competition law

Abstract

Section 1 examines how the principle of de minimis was first enunciated by the European Court of Justice-and applied to Article 85(1) in the early years of the Community in order to exclude from the scope of the prohibition in Article 85(1), those parties to an agreement, decision or concerted practice which hold a weak position on the market in the products in question. Since the concept was, however, couched in vague terms, the Commission issued in 1970 a Notice concerning Agreements of Minor Importance with the aim of giving more concrete meaning to the notion of de minimis by laying down specific quantitative criteria regarding the market shares and the size of the parties concerned having regard to their aggregate annual turnover. Section 2 examines in detail the content of this notice, as it was later revised, and identifies its shortcomings and limitations and considers the question of its legal status. Though the notice is useful and serves as a form of guidance to undertakings and their legal advisers attempting to invoke the de minimis rule, it is not completely reliable since the European Court of Justice and the Commission itself have, on certain occasions, in the particular cases before them, taken into consideration other factors as well, besides those indicated in the notice, in order to determine whether an agreement, concerted practice or decision of an association of undertakings falls within the de minimis rule and so escapes the prohibition in Article 85(1). Sections 3 and 4 review the case-law of the European Court of Justice and the Commission respectively in order to analyse how, throughout the years, they have applied the rule in practice and what other factors and considerations must be taken into account by an undertaking before it can be certain that it falls within the confines of the de minimis rule.