Abstract

The article presents the evolution of the assessment of anticompetitive agreements between undertakings in the Internal Market based on De Minimis Notice issued by the European Commission. The Notice allows the Commission to distinguish between the agreements which – because of a minor market share of the parties – are unable to restrict competition in an appreciable way (in case of which the Commission does not initiate any proceedings) and agreements which could potentially appreciably restrict competition. Unlike the previous De Minimis Notice of 2001, the present one excludes restrictions by object from the safe harbour privilege. This change in Commission’s practice may be attributed to the ruling of the European Court of Justice in the Expedia case, where the Court found that all agreements with restrictions by object constitute an appreciable restriction of competition irrespective of their actual consequences for the market. The article focuses on how the Commission approached this deviation from the set case-law and how the ruling influenced the new De Minimis Notice.