1° Its market share on the relevant market is less than 5% throughout the period during which the anti-competitive practice was committed;
2° Application of Article L. 481-9 would irremediably compromise its economic viability and cause its assets to lose all value.
This derogation does not apply where the small or medium-sized enterprise instigated the anti-competitive practice, coerced other persons to participate in it or has previously committed such a practice as found by a decision of a competition authority or an appeal court.
A person falling within the category of small and medium-sized enterprises within the meaning of the article 51 of law n° 2008-776 of 4 August 2008 on modernisation of the economy and the regulatory measures taken for its application.