Information;Order — ECLI:EU:C:2020:870
Date: 2020-10-28
Language of the case: Spanish
Court formation: Seventh Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Spain

Summary C-716/19 — 1 
Case C-716/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
26 September 2019 
Referring court:  
Juzgado de lo Mercantil No 2 de Madrid (Spain) 
Date of the decision to refer:  
29 July 2019 
Applicants:  
ZA 
AZ 
BX 
CV 
DU 
ET 
Defendant:  
Repsol Comercial de Productos Petrolíferos, S.A. 
  
Subject matter of the main proceedings 
Unfair competition proceedings brought against the company Repsol Comercial 
de Productos Petrolíferos, S.A. (‘Repsol’) (Articles 101 and 102 TFEU) for the 
illegal fixing of the retail price of fuel. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-716/19 
 
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Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of 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’), in relation to evidence and the burden of proof. 
Questions referred for a preliminary ruling 
1) Is it possible to conclude, in the light of Regulation (EC) No 1/2003, that the 
facts as investigated and established in a decision given by a national 
competition authority of an EU Member State — where that authority acts in 
accordance with Articles 101 TFEU and 102 TFEU within the remit granted 
to it pursuant to that regulation, the Notice on the co-operation between the 
Commission and the courts of the EU Member States, and the Commission 
Notice on cooperation within the Network of Competition Authorities (OJ 
2004 C 101, p. 3) of 27 April 2004 — which is subsequently upheld by a 
higher court and becomes final, have the probative force of full proof and 
have a constraining or prejudicial effect on the adjudication by another court 
in subsequent proceedings relating to the same facts? 
2) If the national competition authority gives a decision on the existence of an 
infringement in relation to a network of agreements, must it be presumed, in 
the absence of evidence to the contrary from the infringer, that all the 
agreements which make up that network are affected by the wording of the 
decision? In other words, do decisions given in relation to networks of 
agreements result in the reversal of the burden of proof?  
Provisions of EU law relied on 
Articles 101 and 102 TFEU 
Regulation No 1/2003 
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 
Directive 2014/104/EU of the European Parliament and of the Council of 
26 November 2014 on certain rules governing actions for damages under national 
law for infringements of the competition law provisions of the Member States and 
of the European Union (‘Directive 2014/104’) 
European Commission Guidelines on Vertical Restraints (OJ 2010 C 130, p. 1) 
(‘Guidelines on Vertical Restraints’) 
Paragraph 13: 
REPSOL COMERCIAL DE PRODUCTOS PETROLÍFEROS 
 
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‘The determining factor in defining an agency agreement for the application of 
Article 101(1) is the financial or commercial risk borne by the agent in relation to 
the activities for which it has been appointed as an agent by the principal. In this 
respect it is not material for the assessment whether the agent acts for one or 
several principals. Neither is material for this assessment the qualification given to 
their agreement by the parties or national legislation.’ 
Paragraph 17: 
‘[…] where the agent incurs one or more of the risks or costs […], the agreement 
between agent and principal will not be qualified as an agency agreement […]. If 
contract-specific risks are incurred by the agent, it will be enough to conclude that 
the agent is an independent distributor […].’ 
Paragraph 21: 
‘Where the agent bears one or more of the relevant risks […], the agreement 
between agent and principal does not constitute an agency agreement for the 
purpose of applying Article 101(1). In that situation, the agent will be treated as an 
independent undertaking and the agreement between agent and principal will be 
subject to Article 101(1) as any other vertical agreement.’ 
Commission Notice on the co-operation 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) (‘Notice on co-operation’) 
Commission Notice on cooperation within the Network of Competition 
Authorities (OJ 2004 C 101, p. 43) 
Provisions of national law relied on 
Ley 16/1989 de Defensa de la Competencia (Law 16/1989 on the protection of 
competition) of 17 July 1989 
Article 1: ‘Prohibited conduct 
‘1. The following are prohibited: all agreements, decisions, collective 
recommendations or concerted or consciously synchronised practices, which have 
as their object or which result in or may result in the prevention, restriction or 
distortion of competition in all or part of the national market and, in particular, 
those which: 
a) directly or indirectly fix prices or other commercial or service conditions; 
b) limit or control production, distribution, technical development or investments; 
c) share markets or sources of supply; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-716/19 
 
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d) apply, in commercial or service relationships, dissimilar conditions for 
equivalent operations which place some competitors at a disadvantage vis-à-vis 
others; 
e) make the conclusion of contracts subject to the acceptance of supplementary 
obligations which do not, whether according to their character or according to 
commercial practice, have any connection with the purpose of those contracts; 
[…]’ 
Succinct presentation of the facts and the main proceedings 
1 By judgment of 11 July 2001, the Tribunal de Defensa de la Competencia 
(Competition Court, Spain; ‘TDC’), in the proceedings in case No 490/00, 
imposed a fine on Repsol of EUR 3 005 060.52 for engaging directly, since 1993, 
in the vertical fixing of the retail price of fuel for distributing service stations, 
independent undertakings, under the cloak of purported commission or agency 
contracts — owners of service stations would assume de facto significant risks 
associated with the sale of fuel to third parties — concluded with them. Repsol 
was further ordered to cease that practice. A penalty was also imposed on the oil 
company Cepsa in the same proceedings. The two companies control more than 
50% of the hydrocarbon market, while Repsol has a market share of more than 
30%. 
2 The Servicio de Defensa de la Competencia (Department for the Protection of 
Competition) was supervising the implementation of that judgment and, by 
decision of 30 July 2009, the Comisión Nacional de la Competencia (National 
Competition Commission; ‘CNC’) (now the Comisión Nacional de los Mercados 
y la Competencia (National Markets and Competition Commission)) penalised 
Repsol with a fine of EUR 5 000 000 for ‘having indirectly fixed the retail price 
for independent undertakings operating under its brand, thereby restricting 
competition between service stations in its network and between the remaining 
service stations’ and ordered it to cease the practices complained of. 
3 By judgment of 22 May 2015, the Tribunal Supremo (Supreme Court, Spain) 
upheld that judgment which therefore became final. 
4 In parallel, in 2004 the Commission had commenced a procedure under Article 81 
TEC in relation to Repsol, which concerned the supply of fuel to service stations 
in Spain. Pursuant to Commission Decision COMP/B-1/38.348 of 12 April 2006, 
the commitments proposed by Repsol in that procedure were made binding, in 
accordance with Article 9(1) of Regulation No 1/2003, and the procedure was 
terminated. 
5 On 30 May 2007, the Confederación Española de Empresarios de Estaciones de 
Servicio (Spanish Confederation of Service Station Undertakings; ‘CEEES’) and 
the Asociación de Gestores de Estaciones de Servicio (Association of Service 
REPSOL COMERCIAL DE PRODUCTOS PETROLÍFEROS 
 
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Station Operators; ‘AGES’) lodged a complaint with the Commission, claiming 
that an agreement between fuel suppliers existed contrary to Article 101 TFEU, 
that Repsol was imposing minimum resale prices on service stations contrary to 
Articles 101 TFEU and 102 TFEU, and that Repsol had failed to fulfil its binding 
commitment, laid down in the Commission decision of 12 April 2006, not to 
restrict the purchaser’s right to determine the sale price. The complainants asked 
the Commission to reopen the procedure in relation to the commitments under 
Article 9(2) of Regulation No 1/2003. 
6 By decision of 28 April 2011, the Commission rejected the complaint lodged by 
CEEES and AGES. The complainants brought an action contesting that decision 
before the General Court of the European Union, which dismissed the action by 
judgment of 6 February 2014 (Case T-342/11). 
7 The applicants in the present proceedings allege that Repsol continues to carry out 
illegal price fixing. 
Main arguments of the parties to the main proceedings 
8 The applicants submit that Repsol is in breach of the decisions of the CNC and 
that it is seeking to convert its network of service stations into ‘genuine (in other 
words, not fictitious) agents’ which assume the risks of the business, and, instead 
of concluding contracts for resale linked to the Platts index, which would ensure 
the competitiveness of the sector, to conclude pure agency contracts and thereby 
to control the retail price throughout the national territory, in view of its market 
share. The applicants seek a reference for a preliminary ruling to the Court of 
Justice. 
9 Repsol submits that the right of the service stations in question to apply discounts 
which are deducted from their commission makes illegal fixing of the retail price 
impossible and that only the contracts expressly examined by the competition 
authority are affected by its decisions, which, although final, do not constitute 
prima facie proof of the infringement committed. 
Brief summary of the basis for the request for a preliminary ruling 
10 It is a matter of determining the probative force which Regulation No 1/2003 
attaches to the facts as established in a final decision of a national competition 
authority of a Member State of the European Union in the context of a procedure 
under Articles 101 TFEU and 102 TFEU. 
11 From the outset, in the proceedings which culminated in the judgment of the TDC 
of 11 July 2001 (case No 490/00), Repsol has been accused of illegal price fixing 
based on the imposition of general conditions by way of standard-form contracts 
which are never negotiated by the distributor, who is purported to be an ‘agent’. 
The national competition authority examined a sample of the types of contract 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-716/19 
 
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used for the distribution of fuel by Repsol. In the judgment of the Tribunal 
Supremo (Supreme Court) of 17 November 2010, by means of which the 
judgment in question became final, that court held that ‘once it has been 
established that what the disputed contracts refer to as an “agent” or “commission 
agent” is in fact an independent undertaking which assumed risks and that the 
supplier fixed the final sale prices, there can be no doubt […] that the appellants 
cannot rely on the block exemption laid down in the former Regulation 
No 1984/83 […]. The fixing of prices by Repsol specifically features in a number 
of contracts, the so-called commission contracts, and […] during the procedure 
before the [Servicio de Defensa de la Competencia] it consistently claimed that it 
would impose the sale prices […] before finally stating, in relation to the resellers 
who represent approximately 2.5% of its distribution network, that that imposition 
of prices related to a maximum price consistent with the fact that the owner of the 
service station may reduce that price by deducting it from its commission. That 
practice, which has been included in contracts concluded after 1997 and at the 
request of the Commission, does not undermine the reality of the classification 
made by the TDC which this court must confirm in full.’ 
12 As regards that reference to the fact that distributing service stations were not 
genuine agents, the Commission observed in footnote 10 of the Commission 
decision of 12 April 2006, concerning Repsol’s commitments, which terminated 
the parallel procedure relating to Repsol under Article 81 EC, that that fact ‘would 
require a more detailed analysis in order to confirm whether some service stations 
can be regarded as “agents” and are entitled to grant discounts’ and then went on 
to refer to the outcome of the national proceedings in which it was found that the 
so-called ‘agency contracts’ concluded between some service stations and Repsol 
were not genuine agency contracts. 
13 The decision of the CNC of 30 July 2009 listed a number of factors which had a 
bearing on the indirect fixing of the retail price, namely, the formation of the 
purchase or transfer price of the product; the setting of commissions and margins; 
the system for communicating maximum or recommended prices; the assignment 
to the operator of the service station owner’s obligations in relation to invoicing; 
the role of oil undertakings in the tax treatment of discounts; and the application 
of discounts to the maximum or recommended price. 
14 It was concluded in that decision that the conduct examined amounted to vertical 
fixing of the retail price, contrary to Article 1 of the LDC and Article 81(1) TEC, 
in that it discouraged distributors from departing from the recommended 
maximum prices and led them to apply those prices as fixed or minimum prices, 
as reflected by the adoption of such recommended maximum prices by the vast 
majority of service stations. The CNC conducted its investigation in accordance 
with the applicable EU legislation (Treaty, regulation and guidelines) and the 
case-law of the Court of Justice, by examining the financial and legal context in 
which the contracts were concluded, the types of contract and the financial rules 
laid down in the contracts, and all the contractual terms and obligations entered 
into by the parties. Accordingly, the CNC carried out the assessment provided for 
REPSOL COMERCIAL DE PRODUCTOS PETROLÍFEROS 
 
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in paragraph 47 of the Guidelines on vertical restraints, in order to determine 
whether the conditions stipulated by the operator — in this case, Repsol — 
converted the maximum prices into fixed or minimum prices, and it also complied 
with the guidance in heading 2.8 and paragraphs 226 to 228 of those Guidelines as 
regards the threshold of 30% of market share. 
15 The CNC did not confine itself to examining only whether service stations linked 
to the Repsol, Cepsa and BP network could give discounts which were deducted 
from the commission but also, in accordance with the case-law laid down by the 
Court of Justice, it carried out an exhaustive analysis of all the mechanisms 
indicated by it which could result in the price stated to be the maximum or 
recommended price actually acting as a fixed or minimum price. 
16 The applicants have submitted the standard form contract offered by Repsol to its 
entire network of service stations — and not only to those examined — in order to 
comply with the decision of the CNC, in support of the argument that that 
decision affects the whole network, which uses the same clauses, and not only the 
contracts examined by the CNC. 
17 The problem arises that the case-law of the Spanish Tribunal Supremo (Supreme 
Court) to date on the assessment of whether or not vertical price fixing exists in 
the application of EU competition law is contradictory, with the legal uncertainty 
which that entails. The question arises of whether the decisions of national 
competition authorities — whose conduct is governed by the basic principles of 
cooperation, coordination and uniformity in the application of EU legislation — 
constitute an important indication, if not prima facie evidence, of the 
incompatibility with the rules on competition of the agreement between 
undertakings in question.  
18 It is perfectly clear from the case-law laid down by the Court of Justice that, 
where an agreement is not covered by the block exemption, it must fulfil the 
conditions laid down in Article 81(3) TEC, and if it does not fulfil those 
conditions or is not covered by an individual authorisation, the agreement is 
prohibited and automatically void pursuant to Article 81(2) TEC. 
19 In connection with the relevant case-law of the Court of Justice of the European 
Union, reference should be made to the judgments in the following cases: 
Judgment of 23 November 2017, Gasorba and Others, C-547/16, EU:C:2017:891. 
The Court held that the Commission commitment decision, adopted on the basis 
of Article 9(1) of Regulation No 1/2003, could not ‘legalise’ the market behaviour 
of the undertaking concerned, and certainly not retroactively. In her Opinion, the 
Advocate General stated that the ‘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 Articles 101 and 102 TFEU and, where appropriate, to find that 
an infringement has been committed.’ The advocate general also observed that the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-716/19 
 
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national court may regard the Commission’s analysis as prima facie evidence of 
the anticompetitive nature of the agreement between undertakings in question, 
although it may reach a totally or partially different conclusion on the same case 
after conducting further investigations and a more detailed examination. 
20 Judgment of 11 September 2008, Tobar e hijos, C-279/06, EU:C:2008:485. After 
pointing out that ‘since the categorisation of the contract at issue in the main 
proceedings in the light of the rules on competition is essential for the purpose of 
deciding the case before the referring court, it is for the Court of Justice to recall, 
first, the criteria relevant for such a categorisation’, the judgment states that ‘the 
decisive factor for the purposes of determining whether a service-station operator 
is an independent economic operator is to be found in the agreement concluded 
with the principal and, in particular, in the clauses of that agreement, implied or 
express, relating to the assumption of the financial and commercial risks linked to 
sales of goods to third parties. The question of risk must be analysed on a case-by-
case basis, taking account of the real economic situation rather than the legal 
categorisation of the contractual relationship in national law (CEEES, 
paragraph 46).’ Next, in paragraphs 67, 70 and 71, the Court sets out its findings 
as regards the checks to be made by the national courts in order to assess the 
manner in which the retail price was fixed, account being taken of all the 
contractual obligations and the conduct of the parties in the main proceedings, and 
to ascertain whether the alleged maximum sale price is not, in reality, a fixed or 
minimum sale price, fixed by indirect or concealed means.  
21 Judgment of 2 April 2009, Pedro IV, C-260/07, EU:C:2009:215. The Court of 
Justice found that ‘contractual clauses relating to the retail price […] are eligible 
for the block exemptions under Regulations Nos 1984/83 and 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 the 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.’ 
22 Judgment of 14 December 2006, CEEES, C-217/05, EU:C:2006:784. The 
examination to be carried out by the national court is not confined to an 
assessment of whether the supplier made it possible to offer a discount in a 
derisory amount which would be deducted from the distributor’s commission.  
23 Judgment of 15 September 2005, Daimler Chrysler, T-325/01, EU:T:2005:322. 
24 It clearly follows from the case-law that decisions of the national competition 
authority which have also become final must be treated as prima facie evidence of 
the incompatibility of the agreement with European Union competition legislation.  
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25 Furthermore, the spirit of cooperation which must apply between the competition 
authorities is made clear in the EU legislation and in the decisions adopted by the 
European Commission. 
26 First, recitals 15 and 16 in the preamble to Regulation No 1/2003 point out, inter 
alia, that the Commission and the national competition authorities should form 
together a network of public authorities applying the Community competition 
rules in close cooperation, and that the exchange of information and the use of 
such information in evidence should be allowed, even where the information is 
confidential. 
27 It is clear from Directive 2014/104 that the evidence obtained in any proceedings 
must serve as the basis for a claim, so that final administrative decisions declaring 
that an infringement of competition law has been committed must be binding on a 
civil court seised of an action resulting from that infringement.  
28 Second, the Notice on cooperation pursues the uniform application of the law such 
that the parallel implementation of national competition law in relation to 
agreements cannot lead to different outcomes from those resulting from EU law. 
29 Third, in response to the questions put to it by the Spanish courts in relation to 
disputes on which they were required to adjudicate, concerning the price fixing 
complained of and whether it was compatible with Article 81 TEC, the 
Commission repeatedly stated that it was not appropriate to make comments about 
an investigation pending before a national competition authority or about facts 
which are being adjudicated upon by the Spanish authorities.  
30 In addition, in order to justify its decision of 28 April 2011 to reject the complaint 
lodged on 30 May 2007 by CEEES and AGES against Repsol, the Commission 
stated that that was a matter which the CNC had addressed in its decision of 
30 July 2009, in which a fine was imposed on Repsol in respect of the same acts 
as those to which the compliant related, and that, therefore, it took the view that its 
intervention would amount to a duplication of work. That position was upheld by 
the General Court in Case T-342/11. 
31 Accordingly, the referring court considers that a reference for a preliminary ruling 
to the Court of Justice of the European Union is essential.