# C_2010011EN.01000702.xml

| 16.1.2010 | EN | Official Journal of the European Union | C 11/7 |
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16.1.2010

EN

Official Journal of the European Union

C 11/7

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Order of the Court (Seventh Chamber) of 3 September 2009 (reference for a preliminary ruling from the Audiencia Provincial de La Coruña — Spain) — Lubricantes y Carburantes Galaicos, S.L. v GALP Energía España SAU

(Case C-506/07) (1)

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(The first subparagraph of Article 104(3) of the Rules of Procedure - Competition - Agreements, decisions and concerted practices - Article 81 EC - Exclusive supply contract for motor vehicle and other fuel between a supplier and a service station operator - Exemption - Agreement of minor importance - Regulation (EEC) No 1984/83 - Article 12(2) - Regulation (EC) No 2790/1999 - Articles 4(a) and 5(a) - Duration of the exclusive rights - Fixing of the retail price)

2010/C 11/12

Language of the case: Spanish

Referring court

Referring court

Audiencia Provincial de La Coruña

Parties to the main proceedings

Parties to the main proceedings

Applicant: Lubricantes y Carburantes Galaicos, S.L.

Applicant:

Defendant: GALP Energía España SAU

Defendant:

Re:

Re:

Reference for a preliminary ruling — Audiencia Provincial de La Coruña — Interpretation of Article 81(1)(a) EC, the eighth recital in the preamble to, and Articles 10 and 12(1)(c) and 12(2) of, Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements (OJ 1983 L 173, p. 5) and Articles 4(a) and 5 of Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21) — Exclusive distribution agreement for motor vehicle and other fuel between a supplier and a service station operator — Service station built by the supplier under a surface right granted by the reseller for a period of 25 years over a piece of the land and granted to the reseller to use for the same period of time

Operative part

Operative part

| 1. | A contract, such as the one at issue in the main proceedings, which provides for the creation of a right in rem, called a ‘surface right’, in favour of a supplier of petroleum products for a period of 25 years and authorises the latter to build a service station and to let that service station to the owner of the land for the same period as the duration of that right, and which contains clauses relating to the fixing of the retail price of goods and/or an exclusive purchasing obligation or a non-compete clause whose duration of application exceeds the time limitations laid down in Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article [81](3) of the Treaty to categories of exclusive purchasing agreements, as amended by Commission Regulation (EC) No 1582/97 of 30 July 1997 and by Commission Regulation (EC) No 270/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices, does not fall within the prohibition laid down in Article 81(1)EC provided that it is not likely to affect trade between the Member States and that it does not aim to significantly restrict competition or have that effect. It is the task of the national court to determine whether that is the case by taking account, inter alia, of the economic and legal context within which that contract is situated. |
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1.

A contract, such as the one at issue in the main proceedings, which provides for the creation of a right in rem, called a ‘surface right’, in favour of a supplier of petroleum products for a period of 25 years and authorises the latter to build a service station and to let that service station to the owner of the land for the same period as the duration of that right, and which contains clauses relating to the fixing of the retail price of goods and/or an exclusive purchasing obligation or a non-compete clause whose duration of application exceeds the time limitations laid down in Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article [81](3) of the Treaty to categories of exclusive purchasing agreements, as amended by Commission Regulation (EC) No 1582/97 of 30 July 1997 and by Commission Regulation (EC) No 270/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices, does not fall within the prohibition laid down in Article 81(1)EC provided that it is not likely to affect trade between the Member States and that it does not aim to significantly restrict competition or have that effect. It is the task of the national court to determine whether that is the case by taking account, inter alia, of the economic and legal context within which that contract is situated.

| 2. | Article 12(2) of Regulation No 1984/83, as amended by Regulation No 1582/97, must be interpreted as not precluding, for the purposes of the implementation of the derogation set out therein, the duration of an exclusive rights agreement from exceeding the time limitations laid down in that regulation, where the owner of a plot of land has granted to a supplier a surface right of a period of 25 years and the latter is required to build a service station to be let to the owner of the land so that he can operate that service station for the same period as the duration of that right. |
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2.

Article 12(2) of Regulation No 1984/83, as amended by Regulation No 1582/97, must be interpreted as not precluding, for the purposes of the implementation of the derogation set out therein, the duration of an exclusive rights agreement from exceeding the time limitations laid down in that regulation, where the owner of a plot of land has granted to a supplier a surface right of a period of 25 years and the latter is required to build a service station to be let to the owner of the land so that he can operate that service station for the same period as the duration of that right.

| 3. | Article 5(a) of Regulation No 2790/1999 must be interpreted as precluding, for the purposes of the implementation of the derogation set out therein, the duration of an exclusive rights agreement from exceeding the time limitations laid down in that regulation, where the owner of a plot of land has granted to a supplier a surface right of a period of 25 years and the latter is required to build a service station to be let to the owner of the land so that he can operate that service station for the same period as the duration of that right. |
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3.

Article 5(a) of Regulation No 2790/1999 must be interpreted as precluding, for the purposes of the implementation of the derogation set out therein, the duration of an exclusive rights agreement from exceeding the time limitations laid down in that regulation, where the owner of a plot of land has granted to a supplier a surface right of a period of 25 years and the latter is required to build a service station to be let to the owner of the land so that he can operate that service station for the same period as the duration of that right.

| 4. | Contractual clauses relating to the retail price of goods, such as the clauses at issue in the main proceedings, are eligible for the block exemptions under Regulation No 1984/83, as amended by Regulation No 1582/97, and Regulation No 2790/1999 where the supplier restricts himself to imposing a maximum sale price or to recommending a sale price and where, therefore, it is genuinely possible for the reseller to determine that retail price. On the other hand, such clauses are ineligible for those exemptions where they lead, directly or by indirect or concealed means, to the fixing of a retail price or the imposition of a minimum sale price by the supplier. It is for the national court to determine whether such obligations constrain the reseller, taking account of all of the contractual obligations in their economic and legal context, and of the conduct of the parties to the main proceedings. |
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4.

Contractual clauses relating to the retail price of goods, such as the clauses at issue in the main proceedings, are eligible for the block exemptions under Regulation No 1984/83, as amended by Regulation No 1582/97, and Regulation No 2790/1999 where the supplier restricts himself to imposing a maximum sale price or to recommending a sale price and where, therefore, it is genuinely possible for the reseller to determine that retail price. On the other hand, such clauses are ineligible for those exemptions where they lead, directly or by indirect or concealed means, to the fixing of a retail price or the imposition of a minimum sale price by the supplier. It is for the national court to determine whether such obligations constrain the reseller, taking account of all of the contractual obligations in their economic and legal context, and of the conduct of the parties to the main proceedings.

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(1)  OJ C 37, 09.02.2008.

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