Opinion of the Advocate General — ECLI:EU:C:2022:659
Date: 2022-09-08
Language of the case: Spanish
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-25/21 – 1 
Case C-25/21 
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: 
15 January 2021 
Referring court: 
Juzgado de lo Mercantil de Madrid No 2 (Spain) 
Date of the decision to refer: 
30 November 2020 
Applicants: 
ZA 
AZ 
BX 
CV 
DU 
ET 
Defendant: 
Repsol Comercial de Productos Petrolíferos, S. A. 
  
Subject matter of the main proceedings 
Application for a declaration that an agreement for the exclusive supply of motor-
vehicle and other fuels to a service station owned by the applicants, contained in a 
series of connected contracts, is automatically void in accordance with 
Article 101(2) TFEU on the ground that it infringes Article 101(1) TFEU, and for 
damages. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-25/21 
 
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Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling on interpretation – Article 267 TFEU – 
Competition – Article 101(1) and (2) TFEU – Regulation (EC) No 1/2003 – 
Article 2 – Action for damages – Action for a declaration of nullity – Means of 
proof – Burden of proof – National case-law which, in actions for a declaration of 
nullity, does not regard final decisions of the national competition authority as 
irrefutable proof of an infringement. 
Questions referred for a preliminary ruling 
(1) If the applicant establishes that its exclusive supply contract under a brand 
name (on a commission basis or an executed sale basis with a discounted 
reference resale price) with REPSOL falls within the territorial and temporal 
scope examined by the national competition authority, must the contractual 
relationship be found to be covered by the decision of the Tribunal de 
Defensa de la Competencia (Competition Court, Spain) of 11 July 2001 
(case 490/00 REPSOL) and/or by the decision of the Comisión Nacional 
de la Competencia (National Competition Commission, Spain) of 
30 July 2009 (case 652/07 REPSOL/CEPSA/BP), the conditions laid 
down in Article 2 of Regulation (EC) No 1/2003 regarding the burden of 
proof of the infringement being deemed to be satisfied pursuant to those 
decisions? 
(2) If the previous question is answered in the affirmative, and it is established 
in the specific case that the contractual relationship is covered by the 
decision of the Competition Court of 11 July 2001 (case 490/00 REPSOL) 
and/or the decision of the National Competition Commission of 30 July 
2009 (case 652/07 REPSOL/CEPSA/BP), must the necessary consequence 
be a declaration that the agreement is automatically void in accordance 
with Article 101(2) TFEU? 
Provisions of EU law relied on 
Article 101(1) and (2) TFEU 
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: in 
particular, recitals 5 and 22 and Article 2 
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: in particular, recitals 3, 4, 11, 14 and 34 and, implicitly, 
Article 9 
REPSOL COMERCIAL DE PRODUCTOS PETROLÍFEROS 
 
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Provisions of national law relied on 
Ley 16/1989, de 17 de julio, de Defensa de la Competencia (Law 16/1989 of 
17 July 1989 on the Protection of Competition; the ‘LDC 1989’): Article 1(1) 
Ley 15/2007, de 3 de julio, de Defensa de la Competencia (Law 15/2007 of 3 July 
2007 on the Protection of Competition; presumably the 2017 version; the 
‘LDC 2007’): Article 75(1) 
Summary of the facts and procedure in the main proceedings 
Preliminary observation 
1 The referring court submitted a request for a preliminary ruling in connection with 
the same main proceedings in 2019. By order of the Court of Justice of 28 October 
2020, Repsol Comercial de Productos Petrolíferos (C-716/19, not published, 
EU:C:2020:870), that request was deemed inadmissible on the ground that, in 
essence, the conditions laid down in Article 94 of the Rules of Procedure of the 
Court of Justice were not satisfied. The present request for a preliminary ruling is 
intended to satisfy those conditions. 
Liberalisation of the petroleum sector 
2 In 1927, the Monopolio de Petróleos del Estado (State Petroleum Monopoly) was 
created in Spain and Compañía Arrendataria del Monopolio de Petróleos, S. A. 
(CAMPSA) was given responsibility for its administration. 
3 In 1970, under that monopoly, a system of State concessions was set up for the 
retail sale of petroleum products through service stations; that system was also 
administered by CAMPSA. 
4 In anticipation of Spain’s entry into the European Economic Community (EEC) 
and the liberalisation of the petroleum sector, national refining undertakings 
(including the defendant, REPSOL) were, in 1984, permitted to become 
shareholders of CAMPSA. Therefore, those refining undertakings were placed in 
a privileged position and they began to prepare for the opening up of the market to 
competition by encouraging the then concessionaires of service stations to sign 
documents to join their respective networks. 
5 In 1991, with the approval of the European Commission, the commercial assets of 
CAMPSA were segregated in favour of a number of the refining undertakings’ 
subsidiaries, which assumed the rights and obligations of CAMPSA under the 
supply contracts concluded by it with service station proprietors. 
6 The liberalisation process concluded in 1993: it was declared that the State 
monopoly was terminated and that activities in the sector were fully open to 
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competition. For concessionaires, the termination of the monopoly meant the 
termination of the rights and obligations derived from the concessions. 
The contracts at issue 
7 During and after that liberalisation process, Mr KN concluded four contracts (in 
1987, 1996, 1997 and 2001) with the defendant, REPSOL, for the exclusive 
supply of motor-vehicle and other fuels to the service station which Mr KN owned 
in Galicia. Subsequently, the applicants, Mr KN’s heirs, signed two similar 
contracts with REPSOL (in 2006 and 2009, the latter for a term of five years). 
8 Although the initial [three] contracts were described as executed resale or sale 
contracts (since, once the product had been delivered, it became the property of 
Mr KN, who assumed the risk in the products supplied), those contracts stipulated 
that the proprietor of the service station would receive remuneration in the form of 
commission. In particular, in the second contract, REPSOL undertook to 
communicate a ‘recommended’ retail price (RP), which would be the same as the 
RP recommended to service stations having the same characteristics in the same 
geographical area. The price payable by Mr KN to REPSOL for the product was 
the result of applying a discount to the ‘recommended’ RP. In short, in the initial 
contracts concluded between the parties, the financial basis of the contract 
changed from resale to commission with the only alteration being that relating to 
the proprietor’s remuneration. 
9 In the following three contracts, now called ‘commission-based’ contracts, the 
financial basis was merely ‘assumed’ commission, because the commission agent 
assumed the risk in the product and was required to pay the cost of the products 
ordered (the RP set by REPSOL minus commission on every litre supplied) in 
advance, regardless of when the product was actually sold to consumers. 
Moreover, since the commission agent owned the installations, he was responsible 
for maintaining and replacing those installations. The commission agent’s right to 
effect discounts deducted from his commission was formally acknowledged in 
every contract, but the amount payable to REPSOL for the products was 
calculated by subtracting the commission from the RP set by REPSOL. 
Administrative and judicial competition proceedings 
10 The conclusion of contracts with service stations following the liberalisation of 
the sector gave rise to a number of proceedings. In April 1999, an Andalusian 
association of service station proprietors submitted to the Servicio de Defensa de 
la Competencia (Department for the Protection of Competition; the ‘SDC’) a 
document complaining that REPSOL and CEPSA (another refining undertaking) 
had infringed national and Community competition legislation. As regards 
REPSOL, that complaint was resolved by decision of the Tribunal de Defensa de 
la Competencia (Competition Court; the ‘TDC’) of 11 July 2001 (case 490/00 
REPSOL). 
REPSOL COMERCIAL DE PRODUCTOS PETROLÍFEROS 
 
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11 In that decision, the TDC ruled that, by setting the RP for fuel for distributors 
which worked with it on an assumed commission or agency basis, REPSOL had 
engaged in a practice prohibited by Article 1(1) of the LDC 1989, and ordered 
REPSOL to cease fixing prices in its relationships with service stations to which it 
was tied by contracts with similar features. 
12 REPSOL appealed against that decision to the Audiencia Nacional (National High 
Court, Spain) (appeal No 866/01), which dismissed the appeal on 11 July 2007. 
REPSOL brought an appeal in cassation before the Tribunal Supremo (Supreme 
Court, Spain) (appeal No 6188/2007), which, on 17 November 2010, also 
dismissed the appeal. 
13 While the court proceedings were underway, REPSOL sent a communication in 
November 2001 to all the ‘assumed’ commission agents in its network, including 
the applicants, expressing its intention to comply with the orders made in the 
decision of the TDC of 2001 and formally granting the distributors-commission 
agents in its network the right to effect discounts deducted from their commission. 
By decision of 2006, the TDC ruled that as a result of the sending of that 
communication, the orders made in its decision of 2001 were deemed to have been 
complied with, but warned that the SDC was conducting an investigation to 
establish whether the changes announced by REPSOL had actually been carried 
out. In that investigation, it was confirmed that the defendant was continuing to 
infringe national and Community competition rules. 
14 Therefore, the Comisión Nacional de Competencia (National Competition 
Commission; the ‘CNC’) (now the Comisión Nacional de los Mercados y la 
Competencia (National Markets and Competition Commission; the ‘CNMC’)), by 
decision of 30 July 2009, imposed a fine on REPSOL, in addition to CEPSA and 
BP OIL ESPAÑA (which were also investigated), for ‘having indirectly fixed the 
retail price for independent traders operating under its brand name, thereby 
restricting competition between service stations in its network and between all 
other service stations’ and ordered it to cease the practices complained of. 
15 The CNC’s decision of 30 July 2009 was confirmed by the courts and is, 
therefore, final. 
16 In the subsequent monitoring procedure, the CNMC issued three decisions (of 
20 December 2013, which became final following confirmation in February 2020 
by the Third Chamber of the Supreme Court; of 27 July 2017 and of 12 June 
2020). It is apparent from those decisions that REPSOL continued the unlawful 
practice for more than 10 years. 
Essential arguments of the parties to the main proceedings 
17 The applicants have brought an action for a declaration that the connected 
contracts in existence between the parties are void, and the applicants claim 
damages on the ground that REPSOL directly or indirectly fixed the RP of the 
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motor-vehicle and other fuels exclusively supplied to the service station owned by 
them, which is contrary to Article 101(1) TFEU. As evidence of the unlawful 
practice, the applicants have submitted final decisions of the national competition 
authority (decision of the TDC of 2001 and decision of the CNC of 2009; the 
‘decisions concerned’). 
Summary of the grounds for the request for a preliminary ruling 
18 The case requires determination of the probative force that Regulation No 1/2003 
attaches to facts as established in a final decision of a national competition 
authority of a Member State of the European Union in the context of proceedings 
for the application of Article 101 TFEU. 
19 As stated, to support their claim that the contracts they entered into with REPSOL 
are void, the applicants submitted, as evidence of REPSOL’s unlawful conduct, 
the decisions concerned, which were confirmed by the courts and are final. Those 
decisions were given in administrative proceedings in which the applicants’ 
specific contracts were not examined. 
20 According to Article 2 (‘Burden of proof’) of Regulation No 1/2003, in any 
national or Community proceedings for the application of Article 101 TFEU, the 
burden of proving an infringement of Article 101(1) TFEU is to rest on the party 
or the authority alleging the infringement. The same view is expressed in recital 5 
of that regulation. 
21 The referring court considers that, pursuant to Regulation No 1/2003, it is clear 
that the burden of proving an unlawful practice in matters relating to competition 
rests on the applicant. However, the referring court asks whether it is possible to 
discharge that burden of proof if it is established that the contractual relationship 
concerned comes within the subjective scope of final decisions of the national 
competition authority. 
22 In that respect, the referring court states that Division 28 of the Audiencia 
Provincial de Madrid (Provincial Court, Madrid, Spain; the ‘AP, Madrid’), in 
judgment No 381/2020 of 17 July 2020, given on appeal in proceedings similar to 
the present proceedings, did not attach any probative force to the decisions of the 
national competition authority. In that judgment, the AP, Madrid stated that it is 
for the applicant to demonstrate the existence and the circumstances of the 
agreements reached or of any pressure exerted, directly or indirectly, by the 
defendant petroleum company on the applicant. The AP, Madrid took the view 
that, in civil proceedings, where a declaration is sought that an individual 
contractual relationship is void, it is not sufficient to put forward general 
submissions regarding the operation of a commercial network which can be 
deduced from the administrative case file and that instead it is necessary to 
conduct an individual examination of the contractual relationship at issue in the 
dispute and to demonstrate that the applicant service station proprietor, and not 
another individual, has been the victim of a price-fixing practice. The AP, Madrid 
REPSOL COMERCIAL DE PRODUCTOS PETROLÍFEROS 
 
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held that there is no reason why administrative proceedings of the CNC, even 
where those proceedings were subsequently confirmed by the administrative 
courts, should result in the automatic nullity of absolutely every exclusive supply 
contract under a brand name concluded by petroleum operators subject to those 
proceedings. The AP, Madrid took the view that, otherwise, the absurd situation 
would arise in which administrative decisions – for example, the decisions 
concerned – could be deemed to lead inevitably to the nullity of thousands of 
supply contracts concluded by different petroleum operators, disregarding the 
specific relationship derived from each contract. The AP, Madrid concluded by 
drawing attention to the fact that civil proceedings of the kind before it are stand-
alone actions for a declaration of nullity and not follow-on actions for damages for 
infringement of Community competition rules which only seek to compensate the 
injured party for an infringement already identified by the competition supervisory 
bodies. 
23 The referring court believes that the AP, Madrid did not regard it as sufficient to 
establish that the service station in question fell within the subjective scope of a 
decision of the national competition authority and that instead the evidence 
forming part of the investigation of the specific administrative case must be 
reproduced before the civil court in each case. Therefore, even though the 
decisions of the national competition authority were confirmed by the courts, they 
do not, from the point of view of a civil court, constitute even an indication of the 
unlawful practice, in spite of the fact that the cases concluded by the decisions 
concerned found that the unlawful practice had been established as regards all the 
service stations which are assumed to be ‘commission agents’ in REPSOL’s 
branded network. 
24 The referring court states that that issue appears to be resolved as regards actions 
for damages, since, pursuant to Directive 2014/104, as transposed by Article 75(1) 
of the LDC 2007, ‘an infringement of competition law found by a final decision of 
a Spanish competition authority or a Spanish court is deemed to be irrefutably 
established for the purposes of an action for damages brought before a Spanish 
court.’ 
25 Although the referring court acknowledges that these proceedings do not merely 
involve an action for damages but rather an action for a declaration of nullity of 
the contracts by application of Article 101(2) TFEU, it considers that refusal to 
recognise the probative force of the final decisions of the national competition 
authority has a twofold consequence: the maintenance in force of agreements 
which infringe Article 101 TFEU and failure to compensate the injured party for 
the prohibited practice, resulting in the unjust enrichment of the infringer. 
26 The referring court is therefore uncertain whether the probative rigour applied by 
the AP, Madrid in actions for a declaration of nullity is compatible with EU law. 
The referring court does not call into question the need to satisfy the condition 
regarding the burden of proof laid down in Article 2 of Regulation No 1/2003, but 
it asks whether that condition can be deemed to be satisfied where it is established 
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that the contract concerned reflects the practices penalised and the classification of 
the contracts examined (exclusive supply under a brand name) as regards one of 
the undertakings penalised (REPSOL) over the period examined by the decisions 
(1999 to 2019) and in the territorial area in which the infringement occurred 
(Spain). A strict interpretation of that provision would create a kind of probatio 
diabolica which is impossible to satisfy. 
27 The referring court points out that Article 101 TFEU has direct effect and argues 
that the principles of effectiveness and equivalence, as framed in the preamble to 
Directive 2014/104, should also apply to actions for a declaration of nullity. 
28 The referring court concludes by stating that it is not the court of last instance but 
that the AP, Madrid, which will review its judgment at second instance, may be 
the court of last instance in practice in view of the extraordinary nature of appeals 
in cassation and the repeated rulings of inadmissibility handed down by the First 
Chamber of the Supreme Court when called on to review judgments on appeal 
relating to the fixing of the RP and the force which decisions of the national 
competition authority should have in Spanish law.