Effect on inter-state trade under EU competition law: Commission Notice guidance, 'may affect' and 'appreciability' criteria, thresholds, and Regulation 1/2003 implications
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Practice notes
Article 101(1) TFEU and Article 102 TFEU bite only on market behaviour—whether agreements/concerted practices or unilateral action—that is liable to appreciably influence trade between EU Member States. This operates as a jurisdictional filter, deciding whether EU or national competition law governs the conduct. Where there is no cross‑border ‘effect on trade’, national rules may apply—for example, French competition prohibitions where the impact is confined to France.
The European Commission and the EU Courts have read the inter‑state clause broadly, with the result that Articles 101(1) and 102 can capture national agreements or conduct where there is some foreclosure or an effect on imports. In practice this threshold is a low one. In addition, the inter‑state condition matters less now that all Member States have competition regimes modelled on EU law, so there is little practical difference as to whether EU or Member State law applies—a price‑fixing cartel is unlawful under both.
The Commission Notice
In 2004, the Commission issued a Notice on the ‘effect on...
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Web page updated on 21/05/2026
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