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. (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. If competition in a particular market is limited by the cumulative effect of agreements to sell goods or services made by different suppliers or distributors (cumulative lock-in effect of parallel agreements with similar effects on the market), the market share thresholds covered at points 8 and 9 are reduced to 5% for both agreements between competitors and for agreements between non-competitors. Individual suppliers or distributors with a market share of 5% or less are generally not considered a significant contribution to a cumulative partitioning effect (8). A cumulative silos effect is unlikely if less than 30% of the market in question is covered by parallel agreements (networks of) agreements with similar effects. 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. (4) With regard to real or potential competitors, see the Commission`s communication entitled “Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements”, JO L 347 of 31.12.2006, p. C 3, 6.1.2001, point 9. A company is considered a real competitor when operating in the same market in question or if, in the absence of the agreement, it is able to convert production to the affected products and market them in the short term, without incurring significant additional costs or risks in response to a small and lasting increase in relative prices (immediate supply substitution). A company is considered a potential competitor if there is evidence that, without the agreement, it could and could make the additional investments or other conversion costs necessary to enter the market in question in response to a small and sustained increase in relative prices. (4) Through the de minimis communication, the Commission has published a Commission working paper containing guidance on competition restrictions.
This accompanying document – which contains several relevant case excerpts – provides a useful snapshot of what the Commission considers to be “by purpose”. The new communication indicates that only companies that, in good faith, believe that they have not reached market share thresholds, do not receive fines. Unlike the previous version, the “good faith clause” no longer applies where the parties have wrongly considered that the agreement does not contain competition restrictions for the purpose of the agreement. Nor can the agreements be covered by Article 101, paragraph 1, of the Treaty, because they cannot significantly affect trade between Member States.