EU Court Narrows Scope of the De Minimis Principle

Cormac Little, Jul 15, 2013

A recent court decision has significantly narrowed the application of the de minimis principle under EU competition rules.

In late 2012, the Court of Justice of the European Union considered whether national competition authorities of EU Member States are required to follow the European Commission’s de minimis rule. This principle is contained in guidance adopted by the Commission in 2001, formally called the Notice on agreements of minor importance which do not appreciably restrict competition under Article 101(1) of the TFEU.

In a preliminary ruling on a reference from the French Cour de Cassation, the CJEU examined whether an NCA may condemn companies whose market shares fall below the thresholds set out in the 2001 Notice. The issue arose from a decision of the French Autorité de la concurrence to fine both the on-line travel agent, Expedia, and the French State-owned railway company, SNCF, regarding an agreement that undermines competition in the market for the sale of leisure travel services.

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