Opinion of the Advocate General — ECLI:EU:C:2012:663
Date: 2012-10-25
Language of the case: Hungarian
Subject matter: Competition
Procedure: Reference for a preliminary ruling
Origin: Hungary

summary of that critical point of view is found in the Opinion of Advocate General Ruiz-Jarabo in Case C‑1/99 Kofisa Italia [2001] ECR I‑207, point 22 et seq. Many years ago, in his Opinion in Thomasdünger, delivered on 15 May 1[9]85, Advocate General Mancini also expressed his opposition to the admissibility of this type of reference for a preliminary ruling, which, in his opinion, ran counter to the provisions of the Treaty. A similar line was taken by Advocate General Darmon in his Opinion in Dzodzi, Advocate General Tizzano in his Opinion in Adam, and Advocate General Jacobs in his Opinions in Case C‑28/95 Leur-Bloem [1997] ECR I‑4161 and Case C‑306/99 BIAO [2003] ECR I‑1. 9 – See, inter alia, Leur-Bloem; Case C‑7/97 Bronner [1998] ECR I‑7791; Kofisa Italia; Adam; BIAO; and Case C‑3/04 Poseidon Chartering [2006] ECR I‑2505. 10 – Case C‑346/93 [1995] ECR I‑615. 11 – Opinions of Advocate General Ruiz-Jarabo in Kofisa Italia, of Advocate General Jacobs in BIAO, and of Advocate General Tizzano in Adam. 12 – Case C‑186/07 [2001] ECR I‑60. 13 – Cited above in points 27 and 29, respectively. 14 – Case C‑280/06 [2007] ECR I‑10893. 15 – Paragraph 25. 16 – Case C‑482/10 Cicala [2011] ECR I‑14139. 17 – Cicala, paragraph 19. 18 – Case C‑583/10 [2012] ECR, paragraph 47. 19 – In relation to that principle, see Joined Cases C‑200/07 and C‑201/07 Marra and Clemente [2008] I‑7929, paragraph 41 and the case-law cited. 20 – Cicala, paragraph 28. 21 – And regardless of the fact that, at the hearing, the Commission accepted that the present case does not concern a direct and unconditional reference. 22 – Case C‑217/05 [2006] ECR I‑11987. 23 – Bronner, paragraphs 19 and 20; Poseidon Chartering, paragraph 16; Confederación Española de Empresarios de Estaciones de Servicio, paragraph 20; and ETI, paragraph 26. On the same lines, see the Opinions of Advocate General Kokott in Confederación Española de Empresarios de Estaciones de Servicio and ETI. 24 – Commission Notice — Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty (OJ 2004 C 101 p. 81), paragraph 8. See also the Commission Notice on the co-operation between the Commission and the courts of the EU Member States in the application of Articles 81 EC and 82 EC (OJ 2004 C 101 p. 54), paragraph 6. 25 – It would be a different matter if it were demonstrated that the agreements at issue were capable of affecting intra-Community trade but, as already indicated, that point has not been disputed in this case. 26 – In that regard, see CSERES, K.J., ‘The impact of regulation 1/2003 in the new Member States’, The Competition Law Review, Volume 6, Issue 2 (July 2010). 27 – Case C‑209/07 Beef Industry Development Society and Barry Brothers [2008] ECR I‑8637, paragraphs 15 and 17. 28 – In that connection, it is settled case-law that, for the purposes of applying Article 101(1) TFEU, ‘there is no need to take account of the actual effects of an agreement once it appears that its aim is to restrict, prevent or distort competition’. See, in that connection, Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, paragraph 496, and Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 491. 29 – Communication from the Commission — Notice — Guidelines on the application of Article 81(3) of the Treaty (OJ 2004 C 101, p. 97), paragraph 21. 30 – See, inter alia, Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ and others v Commission [1983] ECR 3369, paragraphs 23 to 25, and Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline and Others [2009] ECR I‑9291, paragraph 58. 31 – See, in that regard, Article 2 of Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ 2010 L 102, p. 1). Article 3 of that regulation provides for a number of market share thresholds for the application of the exemption, while Article 5 sets out a number of vertical restrictions which do not fall within the scope of that exemption. 32 – Between rival undertakings: For example, if there were an agreement relating to repair charges between Allianz and Generali, it would clearly be a horizontal agreement. 33 – Case 243/83 Binon [1985] ECR 2015. 34 – Consten and Grundig v Commission, and Case 19/77 Miller [1978] ECR 131. 35 – Case C‑439/09 Pierre Fabre Dermo-Cosmétique [2011] ECR I‑9419. 36 – In accordance with Article 1(1)(d) of Regulation No 330/2010, ‘non-compete obligation’ means ‘any direct or indirect obligation causing the buyer not to manufacture, purchase, sell or resell goods or services which compete with the contract goods or services, or any direct or indirect obligation on the buyer to purchase from the supplier or from another undertaking designated by the supplier more than 80% of the buyer's total purchases of the contract goods or services and their substitutes on the relevant market, calculated on the basis of the value or, where such is standard industry practice, the volume of its purchases in the preceding calendar year’. 37 – OJ 2010 C 130, p. 1, paragraph 133. 38 – See, to that effect, Case C‑234/89 Delimitis [1991] ECR I‑935, paragraphs 13 to 15; Case C‑214/99 Neste [2000] ECR I‑11121, paragraph 25; Case C‑279/06 CEPSA [2008] ECR I‑6681, paragraph 43; and Case C‑260/07 Pedro IV Servicios [2009] ECR I‑2437, paragraph 83. 39 – See the cases cited in the previous footnote. 40 – See, for example, IAZ and others v Commission, paragraphs 23 to 25. 41– Notice cited above, paragraph 22. 42 – Case 172/80 Züchner [1981] ECR 2021, paragraphs 12 to 14. 43 – In that regard, reference is also made to Case 48/69 ICI v Commission [1972] ECR 619, at paragraph 64: ‘Article 85 draws a distinction between the concept of “concerted practices” and that of “agreements between undertakings”; the object is to bring within the prohibition of that article a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition’. 44 – Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraph 161. 45 – Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others [1993] ECR I‑1307, paragraph 71. 46 – Joined Cases C‑101/07 P and C‑110/07 P [2008] ECR I‑10193.