The "de minimis" rule concerning agreements in the EU
In a notice on agreements of minor importance (de minimis), the Commission quantifies, with the help of market share thresholds, what is not an appreciable restriction of competition under Article 101 of the Treaty on the functioning of the EU (ex Article 81 TEC) [Commission notice]. The Commission holds the view that an agreement between undertakings, even if it affects trade between Member States, does not appreciably restrict competition within the meaning of Article 101 § 1 of the TFEU if: (a) the aggregate market share held by the parties to the agreement does not exceed 10% on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are actual or potential competitors on any of these markets; or (b) the market share held by each of the parties to the agreement does not exceed 15% on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are not actual or potential competitors on any of these markets. In these cases the Commission will not institute proceedings either upon application or on its own initiative.
Agreements entered into by small and medium enterprises (SMEs) whose annual turnover and balance-sheet total do not exceed EUR 40 million and 27 million respectively and which have a maximum of 250 employees are rarely capable of appreciably affecting trade between Member States and are not, in principle, investigated by the Commission. However, there exists a "blacklist of hardcore restrictions" - such as price-fixing, market-sharing or territorial protection - which, because of their nature are regarded as typically incompatible with Article 101 § 1 of the TFEU and hence liable to be caught by the ban on agreements, even if the parties' market shares are below the above-mentioned thresholds.