# C_2023205EN.01000201.xml

| 12.6.2023 | EN | Official Journal of the European Union | C 205/2 |
| --- | --- | --- | --- |

12.6.2023

EN

Official Journal of the European Union

C 205/2

---

Judgment of the Court (First Chamber) of 20 April 2023 (request for a preliminary ruling from the Juzgado de lo Mercantil No 2 de Madrid — Spain) — ZA, AZ, BX, CV, DU, ET v Repsol Comercial de Productos Petrolíferos SA

(Case C-25/21, (1) Repsol Comercial de Productos Petrolíferos)

(Reference for a preliminary ruling - Competition - Vertical restrictions of competition - Article 101(1) and (2) TFEU - Principle of effectiveness - Regulation (EC) No 1/2003 - Article 2 - Directive 2014/104/EU - Article 9(1) - Binding effect of the final decisions of the national competition authorities finding an infringement of the competition law rules - Temporal and material application - Actions for damages and for a declaration of nullity for infringements of the EU competition law provisions)

(2023/C 205/02)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil No 2 de Madrid

Parties to the main proceedings

Applicants: ZA, AZ, BX, CV, DU, ET

Defendant: Repsol Comercial de Productos Petrolíferos SA

Operative part of the judgment

| 1. | Article 101 TFEU, as implemented by Article 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] and read in combination with the principle of effectiveness, must be interpreted as meaning that the infringement of competition law found in a decision of a national competition authority, against which an action for annulment had been brought before the competent national courts but which became final after having been confirmed by those courts, must be deemed to be established, in the context of both an action for a declaration of nullity under Article 101(2) TFEU and an action for damages for an infringement of Article 101 TFEU, by the applicant until proof to the contrary is adduced, thereby shifting the burden of proof defined by that Article 2 to the defendant, provided that the nature of the alleged infringement that is the subject of those actions and its material, personal, temporal and territorial scope coincide with those of the infringement found in the said decision. |
| --- | --- |

1.

Article 101 TFEU, as implemented by Article 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] and read in combination with the principle of effectiveness, must be interpreted as meaning that the infringement of competition law found in a decision of a national competition authority, against which an action for annulment had been brought before the competent national courts but which became final after having been confirmed by those courts, must be deemed to be established, in the context of both an action for a declaration of nullity under Article 101(2) TFEU and an action for damages for an infringement of Article 101 TFEU, by the applicant until proof to the contrary is adduced, thereby shifting the burden of proof defined by that Article 2 to the defendant, provided that the nature of the alleged infringement that is the subject of those actions and its material, personal, temporal and territorial scope coincide with those of the infringement found in the said decision.

| 2. | In the light of the foregoing considerations, the answer to the second question is that Article 101 TFEU must be interpreted as meaning that, in so far as an applicant succeeds in establishing the existence of an infringement of Article 101 TFEU which is the subject of its action for annulment brought under Article 101(2) TFEU, as well as its action for damages in respect of that infringement, the national court must draw all the consequences and infer from this, in particular, pursuant to Article 101(2) TFEU, that all the contractual provisions incompatible with Article 101(1) TFEU are automatically void, as the agreement concerned is void in its entirety only if those elements do not appear to be severable from the agreement itself. |
| --- | --- |

2.

In the light of the foregoing considerations, the answer to the second question is that Article 101 TFEU must be interpreted as meaning that, in so far as an applicant succeeds in establishing the existence of an infringement of Article 101 TFEU which is the subject of its action for annulment brought under Article 101(2) TFEU, as well as its action for damages in respect of that infringement, the national court must draw all the consequences and infer from this, in particular, pursuant to Article 101(2) TFEU, that all the contractual provisions incompatible with Article 101(1) TFEU are automatically void, as the agreement concerned is void in its entirety only if those elements do not appear to be severable from the agreement itself.

---

(1)  OJ C 189, 17.5.2021.

---