Opinion of the Advocate General — ECLI:EU:C:2008:163
Date: 2008-03-13
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Meaning – Agreement for the exclusive distribution of motor-vehicle and other fuels concluded between a supplier and a service-station operator (Art. 81(1) EC) 2. Competition – Agreements, decisions and concerted practices – Prohibited – Block exemption – Exclusive purchasing agreements – Regulation No 1984/83 – Agreement for the exclusive distribution of motor-vehicle and other fuels concluded between a supplier and a service-station operator – Maximum duration – Conditions (Commission Regulation No 1984/83, as amended by Regulation No 1582/97, Arts 10 and 12(1)(c)) 3. Competition – Agreements, decisions and concerted practices – Prohibited – Block exemption – Exclusive purchasing agreements – Agreement concluded under Regulation No 1984/83 – Provisions applicable after the entry into force of Regulation No 2790/1999 (Commission Regulations No 1984/83, as amended by Regulation No 1582/97, and No 2790/1999, Arts 3(1), 5(a), and 12) 4. Competition – Agreements, decisions and concerted practices – Prohibited – Block exemption – Exclusive purchasing agreements – Regulation No 1984/83– Agreement for the exclusive distribution of motor-vehicle and other fuels concluded between a supplier and a service-station operator – Fixing of retail price by the supplier – Not included (Commission Regulations No 1984/83, as amended by Regulation No 1582/97, Arts 10, 11, 12 and 13, and No 2790/1999) 5. Competition – Agreements, decisions and concerted practices – Prohibited – Block exemption – Vertical agreements – Regulation No 2790/1999 – Fixing of a maximum sale price – Conditions (Commission Regulation No 2790/1999, Arts 2 and 4(a)) 6. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Automatic nullity (Art. 81(1) and (2) EC) 1. An exclusive supply contract for petroleum products between a service‑station operator and a supplier is capable of falling within the scope of Article 81(1) EC where, first, it constitutes an agreement between undertakings because the service‑station operator assumes, in a non‑negligible proportion, one or more financial and commercial risks linked to the sale of those products to third parties, so that he is regarded as an independent economic operator and where, second, that contract contains clauses capable of infringing competition, such as that relating to the fixing of the retail price, which is explicitly prohibited by Article 81(1)(a) EC, to the extent to which all the other conditions for the application of that provision are satisfied. If the service‑station operator does not assume such risks or assumes only a negligible share of them, he does not become an independent economic operator when selling fuel to third parties, since the relationship between the operator and the supplier is then identical to that between an agent and his principal. In that hypothesis, only the obligations imposed on the service-station operator concerning the sale of the goods to third parties on behalf of the supplier, including the fixing of the retail price, fall outside the scope of Article 81(1) EC. By contrast, the obligations imposed on the operator in the context of services as an intermediary offered by the operator to the supplier, which concern their relationship as independent economic operators, are capable of falling within the scope of that provision. That is the case with exclusivity and non‑competition clauses, which are capable of infringing the competition rules in so far as they entail locking up the market concerned. (see paras 35, 40-42, 44, operative part 1) 2. An exclusive supply contract for petroleum products between a service‑station operator and a supplier is capable of benefiting from a block exemption provided for in Regulation No 1984/83 on the application of Article 85(3) of the Treaty (now Article 81(1) EC) to categories of exclusive purchasing agreements, as amended by Regulation No 1582/97, if it complies with the maximum duration of 10 years referred to in Article 12(1)(c) and if the supplier grants the service‑station operator, in return for exclusivity, substantial commercial advantages which contribute to an improvement in distribution, facilitate the establishment or modernisation of the service station and lower the distribution costs. (see paras 49, 54, 60, operative part 2) 3. If the period of performance of an exclusive purchasing agreement concluded under Regulation No 1984/83 extends beyond the expiry date of that regulation, on 31 December 1999, the exemption provided for in that regulation continues to apply until 31 May 2000 pursuant to Regulation No 2790/1999 on the application of Article 81(3) EC to categories of vertical agreements and concerted practices. Such an agreement then benefits from the exemption provided for in Regulation No 2790/1999 from its date of application, on 1 June 2000, on condition that the market share held by the supplier does not exceed 30% of the relevant market on which it sells the contract goods or services and that the duration of the direct or indirect non-compete obligations is not indefinite or does not exceed five years, since a non-compete obligation which is tacitly renewable beyond a period of five years is to be deemed to have been concluded for an indefinite duration. However, a transitional period, during which the prohibition laid down in Article 81(1) EC does not apply, runs until 31 December 2001 in respect of agreements in force on 31 May 2000 which satisfied the conditions for exemption provided for in Regulation No 1984/83, but not those provided for in Regulation No 2790/1999. (see paras 56-60) 4. Articles 10 to 13 of Regulation No 1984/83 on the application of Article 85(3) of the Treaty (now Article 81(1) EC) to categories of exclusive purchasing agreements, as amended by Regulation No 1582/97, must be interpreted as precluding the application of the block exemption to an exclusive supply contract which provides for the fixing of the retail price by the supplier, since such an obligation is not amongst those listed exhaustively in Article 11 of Regulation No 1984/83 and which, in addition to an exclusivity clause, can be imposed on the reseller. The questions whether, first, it is possible for the supplier to amend unilaterally the clause governing the fixing of the price in order to bring it into line with the competition rules and, second, whether, in that case, the contract may become valid, are matters to be decided under the national law applicable to such a contract. If a unilateral amendment is permissible, the conditions for exemption must be examined in the light of the legislation in force at the time of such an amendment. (see paras 63, 65, 67-68, 75-76, operative part 3) 5. The exemption provided for in Article 2 of Regulation No 2790/1999 on the application of Article 81(3) EC to categories of vertical agreements and concerted practices is not to apply, according to Article 4(a) of that regulation, to vertical agreements which have as their object the restriction of the buyer’s ability to determine its sale price, without prejudice to the possibility of the supplier’s imposing a maximum sale price or recommending a sale price, provided that they do not amount to a fixed or minimum sale price as a result of pressure from, or incentives offered by, any of the parties. As regards the fixing of a maximum sale price, it is for the referring court to examine whether it is genuinely possible for the reseller to lower that sale price, taking account of all the contractual obligations in their economic and legal context, and the conduct of the parties to the main proceedings. In particular, it is necessary to ascertain whether the retail price is not, in reality, fixed by indirect or concealed means, such as the fixing of the margin of the reseller, threats, intimidation, warnings, penalties or incentives. (see paras 69-71) 6. The automatic nullity provided for in Article 81(2) EC affects a contract in its entirety only if the clauses which are incompatible with Article 81(1) EC are not severable from the contract itself. Otherwise, the consequences of the nullity, in respect of all the other parts of the contract, are not a matter for Community law. (see paras 78-80, operative part 4)