# C_2006294EN.01005801.xml

| 2.12.2006 | EN | Official Journal of the European Union | C 294/58 |
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2.12.2006

EN

Official Journal of the European Union

C 294/58

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Action brought on 6 October 2006 — Estaser El Mareny v Commission

(Case T-274/06)

(2006/C 294/118)

Language of the case: Spanish

Parties

Applicant: Estaser El Mareny SL (Valencia, Spain) (represented by: A. Hernández Pardo, S. Beltrán Ruiz and L. Ruiz Ezquerra, lawyers)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | annul the Commission Decision of 12 April 2006 in Case COMP/B-1/38.348 Repsol CPP relating to a proceeding pursuant to Article 81 of the EC Treaty; |
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annul the Commission Decision of 12 April 2006 in Case COMP/B-1/38.348 Repsol CPP relating to a proceeding pursuant to Article 81 of the EC Treaty;

| — | order the defendant to pay the costs. |
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order the defendant to pay the costs.

Pleas in law and main arguments

This action is brought against the decision of the Commission of 12 April 2006 by which the defendant institution accepted the commitments offered by REPSOL CPP in accordance with Article 9(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1).

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That decision was made in a proceeding initiated following the application by REPSOL CPP for negative clearance or, failing that, an individual exemption in respect of the standard agreements and/or contracts by means of which it carried out its fuel distribution activities for motor vehicles through service stations in Spain.

In the offer of commitments accepted by the Commission, REPSOL CPP undertook, inter alia, to increase the annual number of service stations which may change supplier, for which it undertook to offer the bare owners/operators of the service stations the possibility of recovery of the right in rem to the usufruct or over the buildings subject, however, to compliance with a series of conditions by the operator.

In support of its claims, the applicant, occupier-operator of a service station which had concluded a supply contract with REPSOL CPP, argues:

| (a) | that REPSOL CPP's contracts with the service stations infringed and infringe the time-limits laid down by Community provisions for non-compete clauses. In fact, prior to the offer of commitments on the part of REPSOL CPP, the Commission was preparing to give a decision declaring that there was an infringement and ordering that it cease; |
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(a)

that REPSOL CPP's contracts with the service stations infringed and infringe the time-limits laid down by Community provisions for non-compete clauses. In fact, prior to the offer of commitments on the part of REPSOL CPP, the Commission was preparing to give a decision declaring that there was an infringement and ordering that it cease;

| (b) | that, accordingly, the contracts at issue must be regarded as void under Article 81(2) of the EC Treaty; |
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(b)

that, accordingly, the contracts at issue must be regarded as void under Article 81(2) of the EC Treaty;

| (c) | that the Commission cannot seek to accept those contracts by means of commitment proceedings, when it does not require the infringing party to bring the restrictive practice to an immediate end, but only requires it to grant the possibility of early recovery. On the other hand, despite the fact that it is the unduly lengthy term of the clauses restricting competition which infringes the competition provisions, it requires the operator, in order to recover its right, to pay a price calculated on the basis, among other things, of the remaining years of the term laid down for the right in rem. |
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(c)

that the Commission cannot seek to accept those contracts by means of commitment proceedings, when it does not require the infringing party to bring the restrictive practice to an immediate end, but only requires it to grant the possibility of early recovery. On the other hand, despite the fact that it is the unduly lengthy term of the clauses restricting competition which infringes the competition provisions, it requires the operator, in order to recover its right, to pay a price calculated on the basis, among other things, of the remaining years of the term laid down for the right in rem.

Finally, the applicant pleads infringement of the principle in accordance with which persons subject to Community law may not benefit from their own unlawful acts or become enriched without just cause.

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(1)  OJ L 1 of 4.1.2003, p. 1.

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