(4) As regards actual or potential competitors, see commission communication entitled `Guidelines for the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements`, OJ L 347, 31.12.2006, p. 1. OJ C 3, 6.1.2001, para. 9. An undertaking shall be considered to be a genuine competitor, either when it operates on the same relevant market or where it is unable, in the absence of the agreement, to transform production into the relevant products and to market them in the short term, without there being significant additional costs or risks in response to a low and lasting increase in relative prices (immediate supply-side substitutability). An undertaking shall be treated as a potential competitor if there is evidence that, in the absence of the agreement, it could and could make the necessary additional investments or other necessary foreign exchange costs, so that it can enter the relevant market in response to a slight and lasting increase in relative prices. However, even if an agreement contains `applicable` restrictions, it is not necessarily covered by the prohibition of anti-competitive agreements under Article 101(1) TFEU, if it does not significantly affect trade between Member States. Undertakings with a low market share in a given market benefit from a safe haven with regard to their agreements, which do not have a significant restriction of competition. As in the previous version of the de minimis Notice, the Commission assesses the significant restriction of competition on the basis of market shares. The Commission considers that agreements between undertakings which affect trade between Member States and which may prevent, restrict or distort competition in the internal market do not appreciably restrict competition within the meaning of Article 101(1) of the Treaty on the Functioning of the European Union: the Commission Notice on De minimis Agreements (the De minimis Notice) originally published in 2001, lays down the conditions under which agreements must not appreciably restrict competition and therefore do not fall within the scope of Article 101 TFEU. The Communication no longer covers the main restrictions, but concerns, in this respect, the main restrictions listed in the Commission`s current and future block exemption regulations. The publication of the new de minimis Notice should not be expected to significantly alter the Commission`s approach to the application of Article 101 TFEU.
However, the Commission risks extending its interpretation of « de facto » restrictions and intercepting an increasing number of agreements. This could create additional uncertainty and slightly increased risk for companies that are willing to enter into contractual relationships. However, it is clear that this is a limited risk, given that the Commission`s intention is likely to focus on more damaging agreements (i.e. cartels) . . . .