ON THE POTENTIAL TO APPLY DE MINIMIS EXEMPTION FOR AGREEMENTS CONTAINING HARDCORE RESTRAINTS: EUROPEAN UNION PRACTICE

Abstract

The article analyzes the possibility to apply de minimis exemption for agreements containing hardcore restraints. The statements are derived from analyses of scientific literature, relevant legislation, and the practice of courts and authorities responsible for competition maintenance.
Current European Union legislation excludes agreements containing hardcore restraints from applying de minimis exemption. The early practice of the European Court of Justice (hereinafter – ECJ) and the newest national courts’ (e.g. Spain) decisions do not reflect this position. Furthermore, in 2010 the Netherlands broadened the application of de minimis exemption.
The article approaches a wide range of possibilities rather than the dogmatic practice of de minimis exemption. Besides the analysis of relevant jurisprudence, the article also assesses competition law specialists’ opinions and possible solutions that proceed from the current situation.