The notion of appreciability on competition : an analysis of the 2014 de minimis notice under EU competition law

Abstract

This research project seeks to examine in depth the notion of appreciability within the context of restrictions competition under EU competition law, specifically in the light of the newly revised 2014 De Minimis Notice. A background to the EU and the importance of EU competition law shall be presented, in order to appreciate the context in which the notions and doctrines discussed play a role. The function and definitions of Article 101(1) shall be assessed, with particular importance placed on the definitions of ‘object or effect’ of restricting, preventing or distorting competition, and with reference to European Night Services v Commission. The notion of appreciability shall be discussed in terms of the most important judgement from which it stems, namely Völk v Vervaecke. The de minimis Notice, a by-product of the notion of appreciability, shall be assessed. It defines what is not an appreciable effect on competition with the help of market share thresholds and distinguishes between competitors, non-competitors, and a cumulative foreclosure effect, where reference shall be made to Langnese Iglo GmbH v Commission. Lastly, the de minimis doctrine shall be considered in the light of restrictions ‘by object’- and in the light of the Expedia case giving rise to the latest revision of the De Minimis Notice, which does not apply to agreements that restrict competition ‘by object’ due to their appreciable nature. The Allianz case shall also be assessed, which draws attention to the expanding definition of restrictions by object. The Commission does, however, afford some leeway to object restrictions in its Staff Working Document, issued alongside the 2014 Notice. By way of conclusion, the effects of the Notice shall be examined, and the need for clarity and transparency is highlighted.