EU Commission widens list of what it considers are “per se” anti-competitive clauses

On 25 June 2014, the EU Commission published two policy papers. The first was an update to the De Minimis Notice governing when minor agreements are not caught by the general prohibitions against anti-competitive behaviour. Although an update, the thresholds remain the same so that there is a safe harbour for agreements between companies whose market shares do not exceed 10% or do not exceed 15% when the agreement is between non-competitors.

However, this safe harbour does not mean companies with small market shares can contract on severely anti-competitive terms. There are still what are known as ‘hardcore’ restrictions in the various block exemptions or restrictions of competition by object by the Court of Justice and Commission. The use of these hardcore restrictions means that agreement will no longer benefit from the automatic safe harbour in the block exemption. This will not automatically make them anti-competitive per se as the clauses can be exempted under Article 101(3) of the TFEU. However, such exemptions for restrictions of competition by object are rare. The second Commission paper published on the 25 June addresses these restrictions and object and lists and discusses their effect.

These papers were published partly in response to the Expedia case (C-226/11) where the EU Court of Justice reaffirmed the principle that restrictions of competition by object can never enjoy the benefits of the de minimis safe harbour.

The paper on restrictions of competition by object will be of good reference to all competition lawyers and council when drafting agreements.

The policy papers may be found here.