Opinion of the Advocate General — ECLI:EU:C:2006:473
Date: 2006-07-13
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Reference for a preliminary ruling
Origin: Spain

summary, in the present case there cannot be excluded the possibility that the criteria identified in relation to the product-specific risk and the transaction-specific investment risk give a mixed picture. In that connection it is to be recalled that those criteria provide merely a basis for allocating risk between agent and principal. As mentioned, the issue depends on an analysis of all the circumstances of the individual case as a whole. 64. Even if the agent bears only part of the costs and obligations specified, his position becomes closer to that of an independent dealer, such that he can no longer be regarded as forming an economic unit with his principal but must be considered to be an independent undertaking on the market for the latter’s products; by contrast, if the agent bears none of the risks bound up with the transactions he negotiates, he may be regarded as a proper agent who is merely an auxiliary to his principal. (69) The latter finding is appropriate also where the agent bears the specified risks only to an insignificant extent. (70) This is because in economic terms it makes no difference whether an agent does not bear, or bears only to an insignificant extent, the risks arising out of the transactions he negotiates. 65. Apart from that, the requisite evaluation does not depend on the commission risk. In the classic agency relationship, the agent’s remuneration depends wholly or partly on his performance, and in particular on the number and/or value of the transactions he negotiates. (71) Thus, the agent normally bears the commission risk whether he is a genuine or non-genuine agent. iii) Consequences of the allocation of risk as regards the assessment for competition law purposes of price-fixing provisions in service-station agreements 66. To the extent that the analysis of the risk allocation leads to the conclusion that the service-station operators supplied by Cepsa act as its proper agents and therefore constitute an economic unit with it, there is no agreement between independent undertakings and the disputed provisions in the service-station contracts are accordingly not within the scope of Article 81 EC at all and thus do not fall within the scope of the block exemptions in Regulation No 1984/83 or Regulation No 2790/1999. It follows that the binding retail prices and other requirements laid down in those contracts cannot be assessed by reference to those provisions. (72) 67. By contrast, if the risk they bear means that the service-station operators are to be regarded as improper agents or independent dealers and therefore as independent economic operators then the service-station contracts are to be assessed by reference to Article 81 EC, including the provisions of the relevant block exemptions. 68. As regards the latter scenario, the following observations should be made for the sake of completeness. 69. First, it is to be observed that Article 81 EC and therefore the block exemptions apply only to agreements between undertakings which have as their object or effect the prevention, restriction or distortion of competition. According to settled case-law, (73) one must have regard not only to the individual agency contract but also to the whole economic and legal context in which the contract exists. In particular, one must take into account that an individual contract, when taken together with other contracts of the same type, may have a cumulative effect on competition. Accordingly, there must be considered how such a contract, taken together with a ‘bundle’ of other contracts of the same type, affects the opportunities of national competitors or those from other Member States to gain access to the relevant market or to increase their market share. 70. So far as national law simply refers to Community law in relation to purely internal situations, it is also irrelevant whether the disputed service-station agreements may affect trade between Member States. (74) In such a case too what is to be assessed is not necessarily the effect of service-station contracts on the Common Market but on the market which is relevant according to national (Spanish) competition law. 71. Finally, as regards the block exemptions under Article 81(3) EC, it is to be observed that with effect from 1 January 2000 Regulation No 2790/1999 replaced Regulation No 1984/83. In respect of agreements already in force on 31 May 2000 which did not satisfy the conditions for exemption provided for in Regulation No 2790/1999 but which did satisfy those provided for in Regulation No 1984/83, a transitional period to 31 December 2001 was granted. 72. What meaning is to be given to the reference in Article 1(1)(B) of Royal Decree No 157/1992 to Regulation No 1984/83 for the period from 1 June 2000 is a question of national law which is solely for the national court to decide. (75) 73. In any event, neither the old block exemption under Regulation No 1984/83 nor the new block exemption under Regulation No 2790/1999 exempts service‑station contracts which fix retail prices for service-station operators from the prohibition in Article 81(1) EC. (76) Nor can such an exemption be read into these Regulations by interpreting them broadly. (77) In addition, Article 3 of the new block exemption under Regulation No 2790/1999 disapplies it where market share exceeds 30%. VI – Conclusion 74. On the basis of the foregoing considerations I would suggest to the Court that it answer the question posed by the Tribunal Supremo as follows: 1) Exclusive purchasing agreements between an oil company and the operators of service stations which it supplies, binding the latter to sell exclusively that oil company’s motor-vehicle and other fuels, are to be assessed by reference to Article 81 EC, regardless of whether the contractual relationship between the oil undertaking and the service-station operator is structured as a commission or agency contract. Since 1 June 2000 such agreements may be lawful in terms 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. Before then, such agreements could be exempted from the prohibition in Article 85(1) of the EC Treaty (now Article 81(1) EC) by 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. 2) Agreements between an oil company and the operators of service-stations which it supplies, subjecting the latter to obligations in relation to retail prices, conditions, and sales and business methods for the oil company’s motor-vehicle and other fuels, are to be assessed against Article 81 EC if the service-station operator in question either sells the motor-vehicle and other fuels to third parties on his own account or if in any event – as a commission agent or as an agent – he has to bear the risks bound up with sales to third parties to a not insignificant degree. Subject to the same conditions such agreements may be assessed by reference to Regulation (EC) No 2790/1999 from 1 June 2000 onwards and before that date by reference to Regulation (EEC) No 1984/83. 1 – Original language: German. 2 – Commission Decision of 12 April 2006 in case COMP/B-1/38.348 – Repsol CPP OJ 2006 L 176, p. 104. 3 – Now Article 81(3) EC. 4 – OJ 1983 L 173, p. 5. This Regulation was enacted under the enabling power in Regulation No 19/65/EEC of 2 March of the Council on the application of Article 85(3) of the Treaty to certain categories of agreements and concerted practices (OJ English Special Edition Series I Chapter 1965-1966, p. 35; most recently amended by 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 (‘Regulation No 1/2003’), OJ 2003 L 1, p. 1). See also the Commission notice concerning Commission Regulations (EEC) No 1983/83 and (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive distribution and exclusive purchasing agreements (originally published in OJ 1983 C 355, p. 7, and completely reprinted in OJ 1984 C 101, p. 2). 5 – OJ 1999 L 336, p. 21. This Regulation was likewise enacted under the power in Regulation 19/65 enabling block exemptions. 6 – Originally, Regulation No 1984/83 was in force until 31 December 1997, as is apparent from Article 19(2) thereof. Its applicability was subsequently extended to 31 December 1999 (see Article 2 of Commission Regulation (EC) No 1582/97 of 30 July 1997 amending Regulations (EEC) No 1983/83 and No 1984/83 on the application of Article 85(3) of the Treaty to categories of exclusive distribution agreements and exclusive purchasing agreements respectively, OJ 1999 L 214, p. 27). In addition, under Article 12(1) of Regulation No 2790/1999 the exemptions provided for in Regulation No 1984/83 continued in force until 31 May 2000. 7 – See Article 13 of Regulation No 2790/1999. Article 12(2) provided for a transitional period until 31 December 2001 in respect of agreements already in force on 31 May 2000 which did not satisfy the conditions for exemption provided for in Regulation No 2790/1999 but which did satisfy those provided for in Regulation No 1984/83. 8 – In short, vertical agreements are agreements between undertakings each of which operates at a different level of the production or distribution chain; for details, see Article 2(1)(1) of Regulation No 2790/1999. 9 – In short, vertical restraints are restrictions on competition contained in vertical agreements (see above, footnote 8); for details, see Article 2(1)(2) of Regulation No 2790/1999. 10 – BOE No 170 of 18 July 1989, p. 22747. 11 – BOE No 52 of 29 February 1992, p. 7106. 12 – BOE No 90 of 15 April 2003, p. 14851. 13 – Ministerio de Economía y Hacienda, Servicio de Defensa de la Competencia. 14 – Hereafter also referred to as ‘the national court’. 15 – As the Court has consistently held: see Case C‑415/93 Union royale belge des sociétés de football association v Bosman [1995] ECR I‑4921, paragraphs 59 to 61, and Case C‑344/04 The Queen, on the application of International Air Transport Association and European Low Fares Airline Association v Department for Transport [2006] ECR I‑0000, paragraph 24. 16 – Bosman (cited above, footnote 15), paragraph 59, and International Air Transport Association (cited above, footnote 15), paragraph 24. 17 – Joined Cases C‑297/88 and C‑197/89 Dzodzi [1990] ECR I‑3763, paragraphs 34 to 36; Case C‑231/89 Gmurzynska-Bscher [1990] ECR I‑4003, paragraphs 19 to 25; Case C‑28/95 Leur‑Bloem [1997] ECR I‑4161, paragraphs 24 to 27; Case C‑130/95 Giloy [1995] ECR I‑4291, paragraphs 20 to 23; Case C‑1/99 Kofisa Italia [2001] ECR I‑207, paragraphs 20 to 22; Case C‑170/03 Feron [2005] ECR I‑2299, paragraph 11; and Case C‑3/04 Poseidon Chartering v Marianne Zeeschip and Others [2006] ECR I‑0000, paragraphs 14 and 15; to similar effect, see Case C‑306/99 Banque internationale pour l'Afrique occidentale [2003] ECR I‑1, paragraphs 88 to 90. 18 – To that effect, see Dodzi, paragraph 37, Leur-Bloem, paragraph 32, Giloy, paragraph 28, Kofisa Italia, paragraph 32, and Poseidon Chartering, paragraph 16 (each cited above, footnote 17). 19 – Case 14/68 Walt Wilhelm and Others [1969] ECR 1, paragraph 3; Joined cases 253/78 and 1/79 to 3/79 Giry and Guerlain and Others [1980] ECR 2327, paragraph 15; Case C‑67/91 Asociación Española de Banca Privada and Others [1992] ECR I‑4785, paragraph 11; and Case C‑7/97 Oscar Bronner v Mediaprint Zeitungs- und Zeitschriftenverlag and Others [1998] ECR I‑7791, paragraph 19. 20 – Regulation No 1/2003 modernised the rules for implementing Articles 81 EC and 82 EC and required national authorities and courts to participate more fully in the application of European competition law: see, for example, the sixth, seventh and fifteenth recitals of Regulation No 1/2003 as well as Articles 5 and 6. 21 – Article 3(1) of Regulation No 1/2003. 22 – To this effect, see Article 3(2)(1) of Regulation No 1/2003. 23 – The second paragraph of the preamble to Royal Decree No 157/1992 states: ‘Having regard to the time which has elapsed since the entry into force of [the Ley de Defensa de la Competencia], it is appropriate to enact into our legal system an exemption for agreements which are the object of an exemption under Community law under the same legal technique in so far as they fall within its scope of application. By this means … the internal legal order and Community law may be aligned within their respective scopes of application …’ (unofficial translation). 24 – The same applies for Royal Decree No 378/2003, which repealed and replaced Royal Decree No 157/1992. Accordingly, the fourth and fifth paragraphs of the preamble to Royal Decree No 378/2003 emphasise the necessity of making the legal situation in relation to block exemptions the same in national law as it is at Community law level and of taking account of various significant changes at Community level, including the enactment of Regulation No 2790/1999. 25 – Contrary to Cepsa’s view, this distinguishes the present case from Kleinwort Benson, in which there was no comparable reference in national law, which even expressly permitted divergence from the provisions in force at Community level (Case C‑346/93 Kleinwort Benson [1995] ECR I‑615, in particular paragraphs 16 to 19; the case concerned the Brussels Convention). Moreover, it is solely for the national court to assess the precise extent of a reference in national law to Community law Dzodzi (cited above, footnote 17), paragraphs 41 and 42, and Leur-Bloem (cited above, footnote 17), paragraph 33). 26 – Again, see the case-law cited above, footnote 17. 27 – See above, paragraph 19, and the case-law cited in footnotes 15 to 17. 28 – See the consistent case-law of the Court, for example Case C‑315/92 Verband Sozialer Wettbewerb v Clinique Laboratoires and another [1994] ECR I‑317, paragraph 7; Case C‑271/01 Consorzio Produttori Pompelmo Italiano [2004] ECR I‑1029, paragraph 27; Case C‑456/02 Trojani [2004] ECR I‑7573, paragraph 38; and Case C‑471/04 Keller Holding [2006] ECR I‑0000, paragraph 26. 29 – See below, paragraphs 38 to 74. 30 – Joined Cases C‑320/90, C‑321/90 and C‑322/90 Telemarsicabruzzo [1993] ECR I‑393, paragraph 6; Case C‑176/96 Lehtonen and Castors Canada Dry Namur-Braine [2000] ECR I‑2681, paragraph 22; Case 134/03 Viacom Outdoor v Giotto Immobilier [2005] ECR I‑1167, paragraph 22; Joined cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2006] ECR I‑0000, paragraph 45; and Case C‑237/04 Enirisorse v Sotacarbo [2006] ECR I‑0000, paragraph 17, in each case with further references. 31 – Joined cases 141 to 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6; Lehtonen and Castors Braine (cited above, footnote 30), paragraph 23; ABNA (cited above, footnote 30), paragraph 47; and Enirisorse (cited above, footnote 30), paragraph 18; and the Orders in Case C‑66/97 Banco de Fomento e Exterior v Pechim and Others [1997] ECR I‑3757, paragraph 8; Case C‑116/00 Laguillaumie [2000] ECR I‑4979, paragraph 14; Case C‑190/02 Viacom Outdoor v Giotto Immobilier [2002] ECR I‑8287, paragraph 14; and Joined cases C‑438/03, C‑439/03, C‑509/03 and C‑2/04 Cannito v La Fondiaria Assicurazioni [2004] ECR I‑1605, paragraph 8. 32 – Holdijk (cited above, footnote 31), paragraph 6; Lehtonen and Castors Braine (cited above, footnote 30), paragraph 23; and Enirisorse (cited above, footnote 30), paragraph 18; and the Orders in Banco de Fomento e Exterior (cited above, footnote 31), paragraph 8, Laguillaumie (cited above, footnote 31), paragraph 14, Viacom Outdoor (cited above, footnote 31), paragraph 14, and Cannito (cited above, footnote 31), paragraph 8. 33 – Lehtonen and Castors Braine (cited above, footnote 30), paragraph 22; and Viacom Outdoor (cited above, footnote 30), paragraph 23; and the Orders in Case C‑157/92 Banchero [1993] ECR I‑1085, paragraph 5, Laguillaumie (cited above, footnote 31), paragraph 19, and Viacom Outdoor (cited above, footnote 31), paragraph 22. 34 – On this point, see also above, footnote 20. 35 – See generally my Opinion in Viacom Outdoor (cited above, footnote 30), paragraph 42. 36 – For reasons of simplicity, in the following I use only the term ‘petrol’; the analysis is equally applicable to other fuels. 37 – Case 36/79 Denkavit Futtermittel [1979] ECR 3439, paragraph 12; Case C‑265/04 Bouanich [2006] ECR I‑0000, paragraph 54; Case C‑253/03 CLT-Ufa [2006] ECR I‑0000, paragraphs 35 and 36; and Case C‑451/03 Servizi Ausiliari Dottori Commercialisti v Giuseppe Calafiori [2006] ECR I‑0000, paragraph 69; to similar effect see Case 243/83 Binon v Agence et messageries de la presse [1985] ECR 2015, paragraph 21. 38 – Gmurzynska-Bscher (cited above, footnote 17), paragraph 21; Case C‑250/91 Hewlett Packard France [1993] ECR I‑1819, paragraph 9; and Case C‑291/03 MyTravel [2005] ECR I‑8477, paragraph 43. 39 – Article 81(1) EC also applies to decisions by associations of undertakings and concerted practices. However, in the present case these two alternatives do not play any part, so that they will not be discussed in the remainder of this Opinion. 40 – For reasons of simplicity, in the following I use only the term ‘agent’; the analysis is equally applicable to commission agents. 41 – Case 56/65 Maschinenbau Ulm [1966] ECR English Special Edition 235, at 248 f.; Case C‑266/93 Volkswagen and VAG Leasing [1995] ECR I‑3477, paragraph 17; Case C‑306/96 Javico International v Yves Saint Laurent Parfums [1998] ECR I‑1983, paragraph 11; see also Joined Cases 56/64 and 58/64 Établissements Consten and Grundig-Verkauf [1966] ECR English Special Edition 299, at 339, and Case 32/65 Italy v Council and Commission [1966] ECR English Special Edition 389, at 407: ‘It is not possible to make a distinction where the Treaty does not make one’. 42 – This is settled case-law: see Case C‑41/90 Höfner and Elser v Macrotron [1991] ECR I‑1979, paragraph 21; Case C‑35/96 Commission v Italy [1998] ECR I‑3851, paragraph 36; Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑0000, paragraph 107; Enirisorse (cited above, footnote 30), paragraph 28; and Case C‑205/03 P FENIN [2006] ECR I‑0000, paragraph 25. 43 – Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7; Commission v Italy (cited above, footnote 42), paragraph 36; Cassa di Risparmio di Firenze (cited above, footnote 42), paragraph 108; Enirisorse (cited above, footnote 30), paragraph 29; and FENIN (cited above, footnote 42), paragraph 25. 44 – This applies mutatis mutandis to the market on which the principal purchases a particular product. 45 – See the Commission notice of 24 May 2000, ‘Guidelines on Vertical Restraints’, OJ 2000 C 291, p. 1, paragraph 19. 46 – This is probably how one should understand paragraphs 20 and 21 of Case 311/85 Vereniging van Vlaamse Reisbureaus [1987] ECR 3801; see also Binon (cited above, footnote 37), paragraphs 20 and 21. 47 – See Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Coöperatieve Vereniging ‘Suiker Unie’and Others [1975] ECR 1663, in particular paragraphs 544 to 547, and Volkswagen and VAG Leasing (cited above, footnote 41), paragraph 19. 48 – To this effect, see Suiker Unie (cited above, footnote 47), paragraphs 538 to 542, in particular paragraph 541, and Volkswagen and VAG Leasing (cited above, footnote 41), paragraph 19. See also the Commission’s Guidelines for Vertical Restraints (cited above, footnote 45), paragraph 13, and its Notice on exclusive dealing contracts with commercial agents (OJ 1962, No 139, paragraph 2921, Section I). 49 – See Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ 1986 L 382, p. 17; ‘Directive 86/653’), in particular Article 3, and the Commission’s Notice on exclusive dealing contracts with commercial agents (cited above, footnote 48), section II. 50 – See for example Case C‑22/98 Becu and Others [1999] ECR I‑5665, paragraph 26. 51 – Case C‑73/95 P Viho v Commission [1996] ECR I‑5457, paragraphs 15 to 17. 52 – The Judgment in Volkswagen and VAG Leasing (cited above, footnote 41) should not be understood as meaning that whether the agent is assimilated into his principal’s undertaking and whether the principal bears the risks of the transactions are two different, independent criteria. Admittedly, paragraph 19 of the Judgment states that, ‘Representatives can lose their character as independent traders only if they do not bear any of the risks resulting from the contracts negotiated on behalf of the principal and they operate as auxiliary organs forming an integral part of the principal’s undertaking’ (emphasis added). However, in the market for the sale of the principal’s goods, the agent’s assimilation into the principal’s undertaking and the principal’s bearing of the transactional risks are two sides of the same coin. Accordingly, the case-law in which whether an agent is integrated has been given particular importance concerned less the market for the principal’s products and more the different market for the agent’s services as such (see above, paragraphs 44 and 45). 53 – To this effect see Suiker Unie (cited above, footnote 47), paragraphs 539, 541 ad 542, and the Judgment of the Court in Case T-325/01 DaimlerChrysler [2006] ECR II‑0000, paragraphs 85, 86 and 88. See also the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraph 13, and its Notice on exclusive dealing contracts with commercial agents (cited above, footnote 48). 54 – Suiker Unie (cited above, footnote 47), paragraphs 541 and 542, Volkswagen and VAG Leasing (cited above, footnote 41), paragraph 19, and DaimlerChrysler (cited above, footnote 53), paragraph 87. 55 – See above, paragraph 43. 56 – This is also unclear in the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraph 15, where a proper agent on the one hand is described as an independent undertaking but on the other is regarded as not exercising any independent economic activity. 57 – On this point, see the case-law cited above, footnote 37. 58 – On this point, see the case-law cited above, footnote 38. 59 – To this effect see the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraphs 16 and 17. 60 – To this effects see also the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraph 16. 61 – See also the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraph 16, first indent. 62 – See also the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraph 16, third and sixth indents; as regards storage of goods see its Notice on exclusive dealing contracts with commercial agents (cited above, footnote 48), section I. 63 – In any event, Cepsa’s claim – which the Confederation disputes – that to date there has been no case of liability arising is irrelevant. What is decisive as regards the relationship between Cepsa and the service-station operators it supplies is who bears the risk of liability for any losses which may arise, not whether that risk has ever materialised before. 64 – See also the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraph 16, third and seventh indents. 65 – Simply having regard to the average time it took to sell the petrol supplied in all service stations supplied by Cepsa would not be sufficient in this context, given that the turnover time can vary significantly depending on the location and size of the service station and how many customers it has. 66 – That is, so much of the petrol delivered by Cepsa which the service station has not been able to sell in the nine days between the delivery by Cepsa and the accounting with Cepsa. 67 – In this connection it is neither necessary nor indeed realistic to require that the unsold petrol is physically returned to Cepsa and taken away by it. Simply postponing the payment to Cepsa for the petrol which has not been sold until such time as it is actually sold to a final consumer would have the effect of keeping the sales risk with Cepsa. 68 – See also the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraph 16, second and fifth indents. The importance of the investment made within the framework of service-station contracts in order to bring the service station into line with the image of the make sold is emphasised for example in Case C‑214/99 Neste Markkinointi v Yötuuli [2000] ECR I‑11121, paragraph 34. 69 – Volkswagen and VAG Leasing (cited above, footnote 41), paragraph 19, and DaimlerChrysler (cited above, footnote 53), paragraph 87; see also the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraphs 15 and 17. 70 – To this effect see also the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraphs 15 and 17. 71 – Article 6(2) of Directive 86/653. See also the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraph 15 in fine and paragraph 16, seventh indent. 72 – See also the Commission’s Guidelines on Vertical Restraints (cited above, footnote 45), paragraph 15 in fine and paragraph 18, in particular the third indent. 73 – Case 23/67 Brasserie de Haecht v Consorts Wilkin-Janssen [1967] ECR English Special Edition 407, pages 415 and 416; Suiker Unie (cited above, footnote 47), paragraph 549; Case C‑234/89 Delimitis v Henninger Bräu [1991] ECR I‑935, in particular paragraphs 13 to 15, 19 and 20; Case C‑230/96 Cabour and Nord Distribution Automobile v Arnor ‘SOCO’ [1998] ECR I‑2055, paragraph 50; and Neste (cited above, footnote 68), paragraphs 25 to 27. 74 – Any potential effect on trade between Member States plays a role only where Community law is applicable directly (and not indirectly by virtue being referred to by national law); as regards the obligation to apply Community law and national law in parallel where necessary, see Article 3(1) of Regulation No 1/2003; as regards the issue of the effect on trade between Member States see also Case C‑475/99 Amublanz Glöckner [2001] ECR I‑8089, paragraphs 47 ff., and in particular paragraph 48, and Case 161/84 Pronuptia de Paris v Pronuptia de Paris Irmgard Schillgallis [1986} ECR 353, paragraph 26, and also the Commission Notice — Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty, OJ 2004 C 101, p. 81. 75 – See Dzodzi (cited above, footnote 17), paragraphs 41 and 42, and Leur-Bloem (cited above, footnote 17), paragraph 33. 76 – As regards Regulation No 2790/1999 this follows from the express provision in Article 4(1)(a). The same applies within the scope of application of Regulation No 1984/83 when Articles 10 to 13, which relate specifically to service-station contracts, are considered as a whole, given that these for example permit exclusive purchasing agreements (see in particular Articles 10 and 11(a)) but do not provide for price-fixing (see the introductory words in Article 11: ‘Apart from the obligation referred to in Article 10, no restriction on competition shall be imposed on the reseller other than …’). 77 – To that effect see Case C‑70/93 Bayerische Motorenwerke v ALD Auto-Leasing D [1995] ECR I‑3439, paragraph 28, and Cabour (cited above, footnote 73), paragraph 30.