Opinion of the Advocate General — ECLI:EU:C:2017:692
Date: 2017-09-14
Language of the case: Spanish
Subject matter: Competition
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Spain

summary analysis by the Commission in the commitment decision or relates to entirely new matters which the Commission has not yet addressed at all. 34. That conclusion is also confirmed by the preamble to Regulation No 1/2003. It follows both from the third sentence of recital 13 and from the last sentence of recital 22 thereof that a commitment decision adopted by the Commission does not in any way preclude the competition authorities and courts of the Member States from deciding upon the case, for which purpose they are permitted to apply Article 101 and 102 TFEU and, where appropriate, to find that an infringement has been committed. 35. None of which means that a Commission decision under Article 9(1) of Regulation No 1/2003 has no legal effect before the national courts. For, on the one hand, such a commitment decision serves to declare undertakings’ commitments to be binding, thus enabling interested third parties, where appropriate, to take legal action to ensure that they are honoured. On the other hand, the provisional assessment of an agreement between undertakings within the meaning of Article 101(1) TFEU which the Commission carries out, in the light of competition law, in the commitment decision cannot be disregarded by the national courts. (21) On the contrary, the principle of sincere cooperation (Article 4(3) TEU) and the general objective of applying EU antitrust law as effectively and uniformly as possible require the national court to regard the assessment carried out by the Commission as a strong indication, if not prima facieevidence, of the anticompetitive nature of the agreement between undertakings in question, to take due account of that assessment and to consult the Commission in so far as it intends to depart from the latter’s evaluation. (22) On account of its summary and provisional nature, however, the assessment of conformity with antitrust law carried out by the Commission in a decision under Article 9(1) of Regulation No 1/2003 cannot ultimately prevent the national court from reaching a conclusion which, in the light of further investigations and a more detailed examination, deviates in full or in part from that reached in the commitment decision in the same case. 36. Repsol raises the objection that it is contrary to the principle of legal certainty for the Commission to terminate on the basis of commitments given to it antitrust proceedings it has brought in relation to an agreement between undertakings only for a national court nonetheless to be able to regard that same agreement as being anticompetitive and, therefore, invalid within the meaning of Article 101(2) TFEU. 37. That objection is unconvincing, however. Repsol fails to take into account the difference between a decision under Article 9(1) of Regulation No 1/2003, which, primarily for reasons of efficiency, is based only on a summary examination by the Commission, and a decision under Article 7(1) of Regulation No 1/2003, which is based on a detailed analysis of conformity with competition law and is delivered at the end of full antitrust proceedings. The Court of Justice spelled out that fundamental difference in Alrosa and expressly rejected the different assessment arrived at in this regard by the General Court, on which Repsol relies here. (23) 38. The mere fact that the Commission accepts an undertaking’s commitments in a decision under Article 9(1) of Regulation No 1/2003 and declares those commitments to be binding does not in any way mean that the EU competition authority endorses the previous market behaviour of the undertaking concerned and considers it to be in conformity with the competition rules. On the contrary, by adopting such a commitment decision (and Decision 2006/446, at issue here, is no exception in this regard), the Commission declares only that its concerns have been met and it sees no grounds for action at the present time. (24) 39. It is true that the commitments offered by an undertaking and accepted by the Commission under Article 9(1) of Regulation No 1/2003 are intended to mitigate against or even to remedy any anticompetitive effects of that undertaking’s market behaviour. It cannot be concluded from this, however, that the commitment decision adopted by the Commission operates to ‘legalise’ the market behaviour of the undertaking concerned, certainly not retroactively. 40. Article 9(1) of Regulation No 1/2003 serves a twofold purpose, and it is for this reason, moreover, that it is attractive to the practitioners of EU antitrust law. First, it enables the Commission, as the competition authority, to carry out its tasks, in accordance with the principle of discretionary prosecution, as efficiently and economically as possible. Secondly, it gives undertakings an opportunity to avoid a finding by the Commission that they have infringed the competition rules, which would be detrimental to them, and to avert any imminent fine, by offering commitments to the Commission. (25) 41. Otherwise, however, the responsibility of each undertaking for its own market behaviour, which forms the central plank of the entire scheme provided for in Regulation No 1/2003, continues to apply. Not even a commitment decision adopted by the Commission can relieve the undertaking of that responsibility. 42. In summary, it may therefore be concluded with respect to the interpretation of Article 16(1) of Regulation No 1/2003 that a commitment decision adopted by the Commission under Article 9(1) of that regulation in relation to specific agreements between undertakings does not preclude the national courts from examining the conformity of those self-same agreements with the competition rules and, if appropriate, declaring them to be invalid under Article 101(2) TFEU. B. A commitment decision adopted by the Commission does not operate as an exemption (second question) 43. By its second question, the referring court wishes to ascertain, in essence, whether Decision 2006/446 (a commitment decision within the meaning of Article 9(1) of Regulation No 1/2003) has the effects of an individual exemption within the meaning of Article 101(3) TFEU (formerly Article 81(3) EC) in relation to the long-term exclusive purchasing agreements with which it deals. 44. This question is raised only in the event that the first question is answered in the affirmative. However, since, as I have already said, I am assuming that the first question must be answered in the negative, I shall consider the second question below only in the alternative and in an effort to provide the referring court with any guidance that will help it to arrive at an appropriate resolution of the dispute in the main proceedings. 45. At no point does Decision 2006/446 expressly state that the Commission, acting in accordance with Article 101(3) TFEU, is granting an individual exemption for the long-term exclusive purchasing agreements concluded between Repsol and its service station tenants. In that decision, the Commission, rather, simply declares certain commitments given by Repsol up to 31 December 2011 to be binding and terminates the antitrust proceedings being conducted against Repsol at that time. 46. Nor can the present case be said to involve an individual exemption which has been implicitly granted. For, as most of the parties to the proceedings have rightly pointed out, in order for an individual exemption of any variety to be granted under Article 101(3) TFEU, a restriction of competition prohibited under Article 101 TFEU would of necessity have to be found to exist first. (26) However, Decision 2006/446 does not contain any such finding in relation to the long-term exclusive purchasing agreements concluded with Repsol service station tenants in Spain. 47. What is more, it is only to be expected that the commitment decision does not contain any findings on the existence of anticompetitive behaviour. After all, as I have already said, it is in the very nature of decisions under Article 9(1) of Regulation No 1/2003, of which the contested Decision 2006/446 is one, for the Commission to carry out in them only a provisional assessment of the competitive situation, without adopting a definitive position on the existence of an infringement of Article 101(1) TFEU. (27) 48. It must be borne in mind, moreover, that one of the key objectives of the reform introduced by Regulation No 1/2003 was to abolish the administrative grant of individual exemptions by the Commission. Thus, on the effective date of 1 May 2004, the EU switched to a directly applicable exception system which no longer made any provision for the adoption of individual decisions by the Commission under Article 101(3) TFEU (see in this regard Article 1(1) and (2), Article 6 and recital 4 of Regulation No 1/2003). 49. It is only very exceptionally now, and only in the context of a decision under Article 10 of Regulation No 1/2003 (‘Finding of inapplicability’), that the Commission adopts an individual decision containing a purely declaratory finding that the conditions laid down in Article 101(3) TFEU are fulfilled, (28) but not in a decision under Article 9(1) of Regulation No 1/2003 such as that at issue in the present case. 50. On balance, therefore, it cannot be assumed that Decision 2006/446 has the effects of an individual exemption within the meaning of Article 101(3) TFEU in relation to long-term exclusive purchasing agreements between Repsol and its Spanish service station tenants. VI. Conclusion 51. In the light of the foregoing considerations, I propose that the Court’s answer to the questions referred for a preliminary ruling by the Tribunal Supremo (Supreme Court, Spain) should be as follows: Article 16(1) of Regulation (EC) No 1/2003 must be interpreted as meaning that a commitment decision adopted by the European Commission under Article 9(1) of that regulation in relation to specific agreements between undertakings does not preclude the national courts from examining the conformity of those self-same agreements with the competition rules and, if appropriate, declaring them to be invalid under Article 101(2) TFEU. 1 Original language: German. 2 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 (OJ 2003 L 1, p. 1), ‘Regulation No 1/2003’. 3 See in this regard the judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377). 4 See, for example, the judgments of 14 December 2006, Confederación Española de Empresarios de Estaciones de Servicio (C‑217/05, EU:C:2006:784); of 11 September 2008, CEPSA (C‑279/06, EU:C:2008:485); and of 2 April 2009, Pedro IV Servicios (C‑260/07, EU:C:2009:215); and the orders of 3 September 2009, Lubricarga (C‑506/07, EU:C:2009:504); of 27 March 2014, Bright Service (C‑142/13, EU:C:2014:204); and of 4 December 2014, Estación de Servicio Pozuelo 4 (C‑384/13, EU:C:2014:2425). 5 The right of usufruct also extends to the official licence to operate a service station. 6 The referring court speaks in this connection of an ‘exchange of contracts’. 7 The starting point for those proceedings was marked by the agreements and draft contracts which Repsol had notified to the Commission under the legislation preceding Regulation No 1/2003. However, that notification lapsed on the entry into force of Regulation No 1/2003 on 1 May 2004 (see in this regard Article 34(1) of Regulation No 1/2003). 8 See, on the content of those commitments, the Commission’s comments in paragraph 2 of its summary of Decision 2006/446 (OJ 2006 L 176, p. 104). 9 Notice pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 concerning Case COMP/B-1/38.348 — Repsol CPP SA (OJ 2004 C 258, p. 7). 10 Commission Decision 2006/446/EC of 12 April 2006 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/B-1/38.348 — Repsol CPP), notified under document number C(2006) 1548 and summarised in OJ 2006 L 176, p. 104. The full wording of Decision 2006/446 is available only on the Competition Directorate-General website at the following address: http://ec.europa.eu/competition/antitrust/cases/dec_docs/38348/38348_997_1.pdf (last visited on 11 July 2017). 11 By its own account, Repsol itself brought an action against Gasorba before a civil court in Madrid. According to Repsol, both actions were preceded by an out-of-court dispute between the parties with respect to the arrangements for terminating the supply agreement, following which Repsol terminated that agreement, Gasorba having then in turn disputed the legality of that termination. Repsol accuses Gasorba of having abusively relied on EU competition law. 12 Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the EC Treaty to categories of exclusive purchasing agreements (OJ 1983 L 173, p. 5). 13 Commission Regulation (EC) No 2790/99 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). 14 Commercial Court No 4, Madrid, which gave judgment on 8 July 2011. 15 Provincial [Appeal] Court, Madrid, which gave judgment on 27 January 2014. 16 Appeal Proceedings No 757/2014. 17 That debate was triggered by the judgment of 21 November 2013, Deutsche Lufthansa (C‑284/12, EU:C:2013:755), and the order of 4 April 2014, Flughafen Lübeck (C‑27/13, not published, EU:C:2014:240), each of which is concerned with the effects of Commission decisions within the meaning of the current Article 4 of Council Regulation (EU) 2015/1589 of 13 July 2015 (OJ 2015 L 248, p. 9) in national court proceedings. 18 Judgments of 13 February 1969, Wilhelm and Others (14/68, EU:C:1969:4, paragraph 3), and of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraph 81). 19 See, for example, the judgment of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraph 87), concerning Article 16(2) of Regulation No 1/2003. 20 Second sentence of recital 13 of Regulation No 1/2003; see also the judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, in particular paragraph 35). 21 The same is true of decisions and concerted practices within the meaning of Article 101(1) TFEU and of the abuse by undertakings of a dominant position in the market within the meaning of Article 102 TFEU. 22 See also in this regard the Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC (OJ 2004 C 101, p. 54). 23 Judgment of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377, paragraphs 35, 38, 40 and 46 to 48); see also my Opinion in that case (EU:C:2009:555, points 47 to 51). 24 See again in this regard recital 13 of Regulation No 1/2003. 25 See to that effect my Opinion in Commission v Alrosa (C‑441/07 P, EU:C:2009:555, point 60). 26 Judgment of 7 February 2013, Slovenská sporiteľňa (C‑68/12, EU:C:2013:71, paragraph 30). See also, more extensively, paragraph 11 of the Commission communication ‘Guidelines on the application of Article 81(3) of the Treaty’ (OJ 2004 C 101, p. 97), which states that the assessment under Article 81 EC (now Article 101 TFEU) consists of two parts, the examination of the pro-competitive effects of an agreement between undertakings under Article 81(3) EC taking place only where an anticompetitive object or anticompetitive effects have previously been established under Article 81(1) EC. 27 See again in this regard the second sentence of recital 13 of Regulation No 1/2003 and my comments on the first question, in particular in point 32 of this Opinion. 28 See also in this regard recital 14 of Regulation No 1/2003.