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Agreements Of Minor Importance

Where competition on a relevant market is limited by the cumulative effect of agreements for the sale of goods or services concluded by different suppliers or distributors (cumulative effect of foreclosure of parallel networks of agreements with similar effects on the market), the market share thresholds set out in points 8 and 9 shall be reduced to 5%; both for agreements between competitors and for agreements concluded between non-competitors. As a general rule, suppliers or distributors whose market share does not exceed 5% are not considered essential for a cumulative foreclosure effect (8). A cumulative foreclosure effect is unlikely if less than 30% of the relevant market is covered by parallel agreements (networks) with a similar effect. In view of the clarifications of the Court of Justice referred to in point 2, this Notice does not apply to agreements aimed at preventing, restricting or distorting competition in the internal market. The Commission will therefore not apply to those agreements the safe harbour created by the market share thresholds referred to in points 8, 9, 10 and 11 (10). For example, in the case of agreements between competitors, the Commission will not apply the principles set out in this Notice to agreements which contain restrictions aimed, directly or indirectly: (a) at the fixing of prices when selling products to third parties; (b) limiting production or sales; or (c) the award of contracts or customers. Similarly, the Commission will not apply the safe harbour created by these market share thresholds to agreements that contain one of the restrictions contained in a current or future Commission Block Exemption Regulation (11), which the Commission generally considers to be inseparable restrictions. In accordance with the de minimis Notice, the following agreements are not covered by Article 101 of the Treaty on the Functioning of the European Union: the Commission Notice on De minimis Agreements, originally published in 2001, sets out the conditions under which agreements cannot appreciably restrict competition and therefore do not fall within the scope of Article 101 TFEU. Restrictions on the sale imposed on buyers, lessees or suppliers and on the maintenance of resale prices fall within the category of agreements concluded between non-competitors. The de minimis notice is particularly useful for agreements that are not covered by a block exemption regulation or where an agreement covered by a block exemption regulation contains an `excluded restriction`, restrictions that are not covered by the exemption. (7) As regards the definition of actual or potential competitors, see Communication from the Commission – Guidelines for the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements (OJ L 347, 31.12.2006, p.

1). OJ C 11, 14.1.2011, p. 1), point 10. Two undertakings are treated as actual competitors when they operate on the same relevant market. An undertaking shall be treated as a potential competitor of another undertaking if, in the absence of the agreement, in the event of a small but lasting increase in relative prices, it is likely that the undertaking would in a short period of time make the additional investments or other exchange costs necessary to enter the relevant market on which the latter operates. The Commission also considers that agreements do not appreciably restrict competition if the market shares of the parties to the agreement do not exceed by more than 2 percentage points the thresholds of 10, 15 and 5% set out in points 8, 9 and 10 consecutive calendar years respectively. . . .