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Competition

PR(02)22: EFTA Surveillance Authority adopts new notice on agreements of minor importance (de minimis)

9.10.2002

The EFTA Surveillance Authority has adopted a new notice on agreements of minor importance which do not appreciably restrict competition under Article 53(1) of the EEA Agreement (“de minimis notice). 

Article 53(1) of the EEA Agreement (EEA) prohibits agreements between undertakings which may affect trade between the Contracting Parties to the EEA Agreement and which have as their object or effect the prevention, restriction or distortion of competition within the European Economic Area. The Court of Justice of the European Communities has clarified that Article 81(1) of the EC Treaty is not applicable where the impact of the agreement on intra-Community trade or on competition is not appreciable.  This principle also applies to interpretation of Article 53(1) EEA.  In its new notice the EFTA Surveillance Authority quantifies, with the help of market share thresholds, what is not an appreciable restriction of competition under Article 53(1) EEA.[1]  The notice replaces the Authority’s previous notice of 1998.[2]

Main aspects of the new de minimis notice are:

  • The market share thresholds are raised to 10% for agreements between competitors and to 15% for agreements between non-competitors.
  • The new notice specifies a market share threshold for networks of agreements producing a cumulative anti-competitive effect. The market share thresholds are then reduced to 5%, both for agreements between competitors and agreements between non-competitors.
  • The notice contains a list of hardcore restrictions, i.e., those restrictions, such as price fixing and market sharing, which are normally always prohibited irrespective of the market shares of the companies concerned.
  • The notice states that agreements between small and medium sized enterprises (SMEs) are rarely capable of appreciably affecting trade between the Contracting Parties to the EEA Agreement and such agreements therefore generally fall outside the scope of Article 53(1) EEA.

In cases covered by the notice, the EFTA Surveillance Authority will not institute proceedings, either upon application or on its own initiative. Where companies assume in good faith that the notice covers an agreement, the EFTA Surveillance Authority will not impose fines.

By defining which agreements between companies are not prohibited by Article 53(1) of the EEA Agreement, the notice will reduce the compliance burden for companies. At the same time, the EFTA Surveillance Authority avoids examining cases which have no interest from a competition policy perspective.  This enables the Authority to concentrate on more problematic agreements.

The notice will be published in the Official Journal of the European Communities and in the EEA Supplement thereto in due course.  In the interim please contact the EFTA Surveillance Authority’s Competition and State Aid Directorate at competition@surv.efta.be for more information, or visit the EFTA Surveillance Authority’s website at: http://www.efta.int.




[1] This negative definition does not imply that agreements between companies that exceed the thresholds set out in the notice do appreciably restrict competition. The competitive effect of such agreements can only be assessed on a case-by-case basis.

[2] OJ L 200, 16.7.1998, p. 55, and EEA Supplement to the OJ No. 28, 16.7.1998, p. 13.




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