62006CC0279_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. By decision of 16 June 2006, the Audiencia Provincial de Madrid (Provincial Court, Madrid) (Spain) submitted to the Court a request for a preliminary ruling on the interpretation of Article 85(1) of the EC Treaty (now Article 81(1) EC) and of Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements. (2)
2. That request has been submitted in proceedings between CEPSA Estaciones de Servicio SA (‘CEPSA’), appellant in the main proceedings, and the service-station operator LV Tobar e Hijos SL (‘Tobar’), respondent in the main proceedings, regarding a restriction on competition alleged against CEPSA and arising from the exclusive purchasing agreement concluded between the parties.
II – Legal framework
3. Regulation No 1984/83 excludes from the scope of Article 85(1) of the Treaty certain categories of exclusive purchasing agreements and concerted practices regarded as normally satisfying the conditions laid down in paragraph 3 of that article, on the ground that they lead in general to an improvement in distribution.
4. Under Article 3(d) of that regulation, that exemption does not apply where the agreement in question is concluded for an indefinite duration or for a period of more than five years.
5. Regulation No 1984/83 contains, in Articles 10 to 13, special provisions for service-station agreements.
6. As provided in Article 10 of that regulation:
‘Pursuant to Article 85(3) of the Treaty and subject to Articles 11 to 13 of this Regulation, it is hereby declared that Article 85(1) of the Treaty shall not apply to agreements to which only two undertakings are party and whereby one party, the reseller, agrees with the other, the supplier, in consideration for the according of special commercial or financial advantages, to purchase only from the supplier, an undertaking connected with the supplier or another undertaking entrusted by the supplier with the distribution of his goods, certain petroleum-based motor-vehicle fuels or certain petroleum-based motor-vehicle and other fuels specified in the agreement for resale in a service station designated in the agreement.’
7. Article 11 of that regulation provides:
‘Apart from the obligation referred to in Article 10, no restriction on competition shall be imposed on the reseller other than:
(a) the obligation not to sell motor-vehicle fuel and other fuels which are supplied by other undertakings in the service station designated in the agreement;
(b) the obligation not to use lubricants or related petroleum-based products which are supplied by other undertakings within the service station designated in the agreement where the supplier or a connected undertaking has made available to the reseller, or financed, a lubrication bay or other motor-vehicle lubrication equipment;
(c) the obligation to advertise goods supplied by other undertakings within or outside the service station designated in the agreement only in proportion to the share of these goods in the total turnover realised in the service station;
(d) the obligation to have equipment owned by the supplier or a connected undertaking or financed by the supplier or a connected undertaking serviced by the supplier or an undertaking designated by him.’
8. Article 12 of Regulation No 1984/83 sets out the clauses and contractual obligations which preclude the application of Article 10, including the condition that the contract may not be concluded for an indefinite duration or for a period exceeding 10 years.
9. Article 13 of that regulation provides that Articles 2(1) and (3), 3(a) and (b), 4 and 5 are to apply mutatis mutandis to service‑station agreements.
10. Recital 13 in the preamble to Regulation No 1984/83 states:
‘… these agreements are generally distinguished by the fact that, on the one hand, the supplier confers on the reseller special commercial or financial advantages by contributing to his financing, granting him or obtaining for him a loan on favourable terms, equipping him with a site or premises for conducting his business, providing him with equipment or fittings, or undertaking other investments for his benefit and that, on the other hand, the reseller enters into a long-term exclusive purchasing obligation which in most cases is accompanied by a ban on dealing in competing products’.
11. Regulation No 1984/83 was repealed by 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, (3) which entered into force on 1 January 2000.
12. Article 4(a) of Regulation No 2790/1999 provides that the exemption from the prohibition laid down in Article 81(1) EC does not apply to vertical agreements which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, 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’.
13. Under Article 5 of that regulation, the exemption provided for in Article 2 does not apply to any direct or indirect non-compete obligation, the duration of which is indefinite or exceeds five years. 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.
14. Under Article 12 of Regulation No 2790/1999, the prohibition laid down in Article 81(1) EC was not to apply during the period from 1 June 2000 to 31 December 2001 in respect of agreements already in force on 31 May 2000 which did not satisfy the conditions for exemption provided for in that regulation but which satisfied those provided for in, among others, Regulation No 1984/83.
III – The main proceedings and the questions referred for a preliminary ruling
15. On 7 February 1996, the parties to the main proceedings concluded a ‘contract with a service station for use of brand name and image, technical and commercial assistance and supply on a commission‑agent basis’.
16. It is apparent from the order for reference that the contractual relationship between CEPSA and Tobar is characterised, in essence, by three types of clause, namely, firstly, an exclusive purchasing clause, also described by the referring court as a ‘non‑competition clause’, (4) secondly, clauses on the allocation of costs and risks and, thirdly, clauses relating to payment for the motor‑vehicle and other fuels.
17. As regards the exclusive purchasing or non‑competition clause, Tobar undertook to purchase exclusively from CEPSA fuels, including motor‑vehicle fuels, as well as lubricants and other related products, for resale in the service station at prices fixed for retail sale and in accordance with the conditions and methods of sale and business laid down by that supplier. That obligation was entered into for a period of 10 years, which could be extended for successive five‑year periods by express agreement in writing on notice of at least six months. Tobar was thus prohibited from undertaking sales or promotion campaigns for competing products and from participating in such campaigns, both inside the service station and in the surrounding area.
18. As regards the clauses on the allocation of costs and risks, Tobar was obliged, first, to assume the risks associated with the goods as soon as they had been received from the supplier by being placed in the storage tanks and to keep them under the conditions necessary to ensure that they underwent no loss or deterioration. Second, Tobar was liable, both to the supplier and to third parties, for any loss, contamination or adulteration which might affect the goods and for any damage caused by those goods. (5) Third, although Tobar did not bear the risk associated with unpaid debts arising from the use of the CEPSA CARD credit card, it nevertheless guaranteed and was responsible for customers who had signed up, through Tobar, for the use of that card or who had been allowed direct credit. Tobar also contributed to the financing of a small proportion of the costs relating to use of the CEPSA loyalty card. On the other hand, CEPSA bore the cost of transporting the goods and the cost of installing and maintaining its brand image in the service station. Moreover, CEPSA also transferred to Tobar the fuel tanks and pumps which the service‑station operator could use only to sell CEPSA’s products and which it had to hand back to CEPSA when it ceased to use them as authorised. However, the service station had to provide a guarantee on first demand in favour of CEPSA to cover the value of the technical installations.
19. As regards the clauses relating to payment for the motor‑vehicle and other fuels, Tobar was required to pay the price of the motor‑vehicle or other fuels within nine days from the date of their delivery to the service station, and to take out and present, on the date of the first delivery, a bank guarantee for a total amount equivalent to 15 days’ supply. If Tobar were to fail to pay, CEPSA was entitled to enforce the guarantee, with the consequence that the service‑station operator would be required to pay for supplies in advance. Tobar received, by way of remuneration, the market commission in force for each service station. The initial amount was stipulated in the contract, which provided that the commission to be received would be not less than the average amount of the commissions paid to service stations by other market operators having a significant market share and for the same products in the same geographical area. The payments to CEPSA, determined on the basis of the number of litres delivered to the service station, were made by deducting from the retail price fixed by CEPSA, including value added tax (‘VAT’), the amount of the service‑station operator’s commission, including VAT.
20. In November 2001, CEPSA sent a letter to Tobar authorising it, ‘henceforth’, to lower the retail price but without reducing CEPSA’s receipts.
21. In 2003, after sending several letters to CEPSA, the service‑station operator ceased obtaining supplies from that supplier and concealed its logo on the service‑station installations.
22. In 2004, Tobar brought an action against CEPSA for annulment of the contract, claiming that it was incompatible with Article 85 of the Treaty, and that its purpose was non‑existent or unlawful on the ground that the determination of the price was left to the sole discretion of CEPSA. Tobar also applied for damages.
23. CEPSA, for its part, defended the action and counterclaimed, demanding performance of the contract or its rescission if its performance was impossible and, in both cases, compensation.
24. On 29 July 2005, the Juzgado de Primera Instancia de Madrid (Court of First Instance, Madrid) annulled the contract at issue on the ground that it was incompatible with Article 85(1) of the Treaty and with Regulations No 1984/83 and No 2790/1999. CEPSA appealed against that judgment to the referring court.
25. Having established the need for an interpretation of Article 85 of the Treaty and Regulation No 1984/83 in order to give judgment on the action for annulment of the contract, the Audiencia Provincial de Madrid decided to stay the proceedings and to submit to the Court the following questions for a preliminary ruling:
‘(1)(a)	Is Article [85](1) [of the Treaty] to be construed as meaning that an exclusive supply contract under a brand name concluded in 1996 by a distributor of petroleum products and the operator of a service station requiring the latter to sell exclusively the supplier’s motor-vehicle and other fuels for a fixed period, and to undertake not to sell such products supplied by other distributors, falls within the ambit of that provision in so far as that obligation involves a no-competition agreement, even though that contract might, given its commercial significance, be regarded as an agency contract?
(b) If the contract does fall within the ambit of Article [85](1) [of the Treaty], is it possible to claim the benefit of exemption from the prohibition if it satisfies the requirements of Regulation No 1984/83, especially those relating to duration?
(c) If that should be the case, does the fact that Articles 10 and 12 of that regulation permit the duration of the no-competition agreement to exceed five years as consideration for the granting of commercial or financial advantages by the supplier to the service‑station operator, require those commercial or financial advantages to be substantial or is it enough that they are not insignificant? Can those provisions be interpreted as meaning that such commercial or financial advantages have been conferred in exclusive supply contracts under a brand name in which the supplier of petroleum products bears the costs of installing and maintaining its brand image in the service station, or transfers fuel-tanks and -pumps which the service‑station operator may not use without the authorisation in writing of the sole supplier for products not supplied by the latter and which it must hand back when it ceases to use them as authorised, and the value of which is covered by the guarantee on first demand that the service‑station operator has provided in favour of the supplier?
(d) If that exemption should not be applicable, does the automatic nullity provided for by Article [85](2) [of the Treaty] affect the contract in its entirety?
(2)(a)	Is Article [85](1) [of the Treaty] to be interpreted as meaning that an exclusive supply contract under a brand name, such as that in the present case, in so far as it provides that the service‑station operator must sell motor‑vehicle and other fuels supplied by the exclusive supplier at the prices for sale to the public fixed by the supplier, is in theory caught by the prohibition of restriction of competition because it fixes sale prices, taking account of its economic significance and in particular of the risks assumed by the service‑station operator and its contribution to the costs connected with the supply of goods under the contract or of the sales promotion of those goods, given the following relevant points:
(i) The service-station operator undertakes to sell exclusively the supplier’s lubricants, vehicle products and motor‑vehicle and other fuels, in accordance with the retail prices, conditions and sales and business methods stipulated by the supplier for a period of 10 years, which may be extended for successive periods each of five years by express agreement in writing on notice of at least six months.
(ii) The service-station operator assumes the risk associated with the motor-vehicle and other fuels as soon as they are received from the supplier in the storage tanks, including the risk of discrepancies in volume. From the moment of receipt the operator assumes the obligation to keep the products in the conditions necessary to ensure that they undergo no loss or deterioration and is liable, where applicable, to the supplier and to third parties for any loss, contamination or adulteration which may affect the products and for any damage arising as a result thereof.
(iii)	The service-station operator is required to pay the supplier the cost of the motor-vehicle and other fuels nine days after the date of their delivery to the service station, on present ation on the date of the first supply of a bank guarantee for the total price … equivalent to 15 days’ [supply]. If it should fail to pay, apart from the possibility that the supplier might enforce the guarantee presented by the service‑station operator, the latter would be required to pay for supplies before they were delivered to the service station. Payment is made by the service-station operator to the supplier by deducting from the retail price fixed by the distributor, including VAT, the amount of “commission” due to the service-station operator, plus the corresponding VAT. The fuel supplied is sold on average in a period of much less than the nine days provided for payment by the applicant (respondent in these proceedings) to the defendant (appellant in these proceedings). The distributor debits or credits the service station monthly, depending on the upward or downward variation in the prices fixed for the fuel delivered. The cost of transport is borne by the supplier.
(iv) The operator of the service station guarantees and is responsible for those customers who have signed up for the use of the credit card created and managed by the group of companies to which the supplier belongs, charges the sales made by means of the card one month after they are made, finances a small part of the cost of customers’ use of the fuel distributor’s loyalty card and assumes the risk of non‑payment by those customers who have been allowed direct credit.
(v) The supplier of the petroleum products bears the costs of installing and maintaining its brand image in the service station, and also transfers the fuel-tanks and -pumps which the operator of the service station may not use, without the supplier’s authorisation in writing, to sell products not supplied by that supplier, and which are valued precisely at the amount of the bank guarantee that the service‑station operator has presented in favour of the supplier?
(b) If so, on a proper construction of Regulation [No 1984/83], and in particular of Articles 10 to 13 thereof, do those provisions catch within their scope a contract of that kind with the result that the prohibition laid down in Article [85](1) [of the Treaty] is not applicable if the contract satisfies the requirements for exemption contained in those articles of the regulation?
(c) In that case, is Article 11 of that regulation to be construed as meaning that, if the contract at issue imposes more than one restriction on competition, and, moreover, if it stipulates no competition by providing for exclusive supply by one supplying undertaking, sale prices are fixed by the supplier? Does the authorisation given by [the supplier] to the service‑station [operator] to lower its sale price without affecting [that supplier’s] receipts, which took place in November 2001, make it possible to regard the contract as valid?’
IV – Procedure before the Court
26. CEPSA, Tobar and the Commission of the European Communities submitted written observations in accordance with Article 23 of the Statute of the Court of Justice. They also presented oral argument at the hearing on 7 June 2007.
V – Analysis
27. The referring court submits two questions which appear to postulate opposite situations. The first, which subdivides into four parts ((a) to (d)), is raised to cover the case in which the contractual relationship at issue in the main proceedings is classifiable as an agency relationship between the principal and his intermediary. (6) The second, which subdivides into three parts ((a) to (c)), is submitted to cover the case in which that contractual relationship is to be regarded as a relationship between two independent undertakings and consists, in essence, in ascertaining the interpretation of Article 85 of the Treaty and of Regulation No 1984/83 in the light of the facts of the case in the main proceedings. (7)
28. Although it would be possible to contemplate answering the two questions and their respective subdivisions in turn, I propose to adopt a different approach which consists in examining them according to the issues which they raise. It is therefore necessary, firstly, to analyse the problem of classifying a contract such as that at issue in the main proceedings as an ‘agreement between undertakings’ within the meaning of Article 85(1) of the Treaty (Question 1(a) and Question 2(a)), secondly, to assess, according to the two possible situations contemplated by the referring court, whether the block exemption provided for by Regulation No 1984/83 (and subsequently by Regulation No 2790/1999) is applicable (Question 1(b) and (c) and Question 2(b) and (c)) and, thirdly, to examine, in the event that the abovementioned block exemption is not applicable, the consequences of possible nullity of the contract (Question 1(d)).
A – Classification of a contract such as that at issue in the case in the main proceedings as an ‘agreement between undertakings’ within the meaning of Article 85(1) of the Treaty (Question 1(a) and Question 2(a))
29. In essence, by its Question 1(a), the referring court asks whether, if it must be held that the contract at issue is a genuine agency contract, such a contract falls within the scope of Article 85(1) of the Treaty by virtue of the exclusive supply or non‑competition clause which characterises it. In its Question 2(a), it asks whether a contract such as that in the main proceedings falls within the scope of Article 85(1) of the Treaty, regard being had in particular to the fact that the sale price is fixed by the supplier.
30. As the Court has already ruled in Confederación Española de Empresarios de Estaciones de Servicio, vertical agreements such as the agreements between CEPSA and service-station operators are covered by Article 85 of the Treaty only where the operator is regarded as an independent economic operator and there is, consequently, an agreement between two undertakings. (8) According to settled case‑law, the term ‘undertaking’ within the meaning of Community competition law covers any entity engaged in an economic activity, regardless of the legal status of that entity and the way in which it is financed. Moreover, any activity consisting in offering goods and services on a given market is an economic activity. (9)
31. In that regard, it should be made clear, as pointed out by the referring court and the Commission, that commercial agents operate, in principle, on two distinct markets, namely, on the one hand, the upstream market on which the agent offers his agency services to potential principals and, on the other, the downstream market, on which he offers his principal’s goods or services to potential customers. (10)
32. On the first market, the commercial agent is normally an independent economic operator and thus an undertaking for the purposes of Article 85(1) of the Treaty. Therefore, clauses in a commercial-agency agreement by which a principal requires an agent not to act on behalf of other principals (non-compete provisions) must be assessed by reference to Article 85 of the Treaty. (11)
33. However, on the second market, namely that for the sale of the principal’s goods or services to potential customers, commercial agents, despite having a legal personality separate from that of their principal, lose their character as independent traders if they do not assume the financial and commercial risks as regards the economic activity concerned, which prevents them from independently determining their conduct on the market since they depend entirely on their principal. Where that is the case, the prohibition laid down in Article 85(1) of the Treaty is in principle not applicable to the relationship between the agent and his principal. (12) That agent will then be regarded as an auxiliary organ forming an integral part of the principal’s undertaking.
34. The Court appears to have endorsed that dichotomy, based on the different markets on which the agent operates, in the judgment in Confederación Española de Empresarios de Estaciones de Servicio
in regard to the agreements concluded between CEPSA and service‑station operators, which has some relevance to the present case. (13)
35. After identifying the criteria for assessing the actual allocation of the financial and commercial risks as between the service‑station operators and the supplier of fuels, as effected in the agreements at issue in that case, for the purpose of determining whether Article 85 of the Treaty was applicable – a question which I shall examine in more detail at a later stage in this Opinion – the Court made it clear that Article 85 of the Treaty is inapplicable not only where the operator does not assume any financial and commercial risk, but also where the operator bears only a negligible share of those risks. (14)
36. However, the Court added that, in such a case, ‘only the obligations imposed on [the operator] in the context of the sale of the goods to third parties on behalf of the principal
fall outside the scope of that article. As the Commission submitted, an agency contract may contain clauses concerning the relationship between the agent and the principal to which that article applies, such as exclusivity and non‑competition clauses . In that connection it must be considered that, in the context of such relationships, agents are, in principle, independent economic operators and such clauses are capable of infringing the competition rules in so far as they entail locking up the market concerned ’. (15)
37. That clarification means that, where the commercial agent bears, on the market for the sale of goods to third parties, only, at the very most, a negligible financial and commercial risk, it is not the whole of the contractual relationship between that agent and his principal which falls outside the scope of Article 85(1) of the Treaty, but only the part of that relationship which is based on the contractual clauses relating to that market.
38. Such clauses will be capable of falling within the scope of Article 85 of the Treaty only if the commercial agent assumes, at the very least, a non‑negligible share of the financial and commercial risks relating to the sale of goods (and/or services) to third parties on behalf of the principal.
39. By contrast, the non-competition clause stipulated between the commercial agent and its principal, which relates to the market for agency services, continues to fall within the scope of Article 85(1) of the Treaty, irrespective
of any financial and commercial risks assumed by the commercial agent on the market for the sale of goods to third parties on behalf of the principal . That approach appears to be justified on the ground that such a clause, which affects inter‑brand competition, is not inherent in the agency contract.
40. The whole of an agency contract falls within the scope of Article 85 of the Treaty if it contains, in addition to a non‑competition clause such as that mentioned in point 17 of this Opinion, clauses under which the agent bears, at the very least, a non‑negligible share of the financial and commercial risks linked to the sale of goods to third parties on behalf of the principal. In those circumstances, the contractual relationship is no longer a genuine commercial‑agency relationship.
41. In that regard, by its Question 2(a), the referring court asks whether, in the light of the characteristics of the contractual relationship between CEPSA and Tobar, set out in that question, Article 85(1) of the Treaty should be interpreted as precluding that type of contract on the ground, in particular, that the sale price is fixed by the supplier.
42. Although CEPSA strongly disputes the description and assessment of the contractual relationship between it and Tobar, as given by the referring court in its Question 2(a), it is settled case‑law that, in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court, which remains responsible for the subsequent judicial decision. (16) Similarly, the task of applying the rules of Community law which the Court has interpreted to particular situations also falls within the jurisdiction of the national court, and not within that of the Court. (17)
43. Under the division of jurisdiction between the Community judicature and the national courts, the Court must nevertheless take account of the factual and legislative context, as described in the order for reference, in which the questions put to it are set, (18) and in order to give a useful answer to the referring court, it is appropriate to set out the criteria enabling an assessment to be made as to the actual allocation of the financial and commercial risks between service-station operators and the fuel supplier under the contract at issue in the case in the main proceedings. (19)
44. That having been said, such criteria were developed by the Court in Confederación Española de Empresarios de Estaciones de Servicio, and will be set out again below in the light of their relevance to this case.
45. According to that judgment, the national court should take account, first, of the risks linked to the sale of the goods, such as the financing of fuel stocks and, second, of the risks linked to investments specific to the market, namely those required to enable the service-station operator to negotiate or conclude contracts with third parties. (20)
46. As regards the first category of risks, it is also clear from the judgment in Confederación Española de Empresarios de Estaciones de Servicio
that the service-station operator is likely to assume those risks, wholly or in part, when he owns the goods which he has obtained from the supplier, prior to selling them on to a third party, when he assumes, directly or indirectly, the costs linked to the distribution of those goods, particularly the transport costs, when he maintains stocks at his own expense and/or when he assumes responsibility for any damage caused to the goods, such as loss or deterioration, and for damage caused by the goods sold to third parties, irrespective of the agent’s fault liability. (21) The financial risk linked to the goods must also be assessed, in particular as regards payment for the fuel should the operator not find a purchaser, or where payment is deferred as a result of payment by credit card, on the basis of the rules or practices relating to the payment system for fuel. (22)
47. As regards the risks linked to market‑specific investments, their transfer to the service-station operator arises, according to the Court, when the operator makes specific investments linked to the sale of the goods, such as premises or equipment such as a fuel tank, or commits himself to investing in advertising campaigns. (23)
48. As I have already mentioned, it is not necessary, in order for Article 85(1) of the Treaty to be applicable, for the operator to assume all the abovementioned risks, which are, moreover, not exhaustive, provided that he assumes a non‑negligible share of them. It is only where, on the one hand, the operator does not bear any of the risks resulting from the contracts negotiated or concluded on behalf of the supplier or, on the other, as explained by the judgment in Confederación Española de Empresarios de Estaciones de Servicio, he assumes only a negligible share of those risks that the contractual relationship between that agent and the principal relating to the market for the sale of goods to third parties may be regarded as not covered by the concept of ‘agreements between undertakings’ within the meaning of Article 85(1) of the Treaty. (24) That is because, in economic terms, there is no difference between the position of an agent who does not bear any risks linked to the transactions he negotiates and that of an agent who bears only a negligible share of them. (25)
49. In the case in the main proceedings, and regarding the risks linked to the sale of goods, the referring court points out, firstly, that the service‑station operator assumes ‘the risk’ linked to the goods from the time of their delivery by the supplier into the storage tank existing in the service station, secondly, that the operator is liable for any damage caused to the goods and for any damage caused by those goods, thirdly, that the operator is required to pay to CEPSA the amount corresponding to the sale of the fuels within nine days following the date of their delivery, regardless of whether they are sold to third parties, failing which the operator is required to pay the price p rior to delivery of the goods and the supplier is authorised to activate the bank guarantee equivalent to 15 days’ supply taken out beforehand by the operator, fourthly, that he assumes the volumetric (or volume-difference) risk occasioned by changes in fuel temperature, with the result that he is obliged to pay for the number of litres supplied by CEPSA even though he has sold a lesser quantity and, fifthly, that the transfer of the fuels gives rise to invoicing of VAT between CEPSA and the operator.
50. Those particulars tend to suggest that the fuels are the subject of a transfer of ownership between CEPSA and the operator upon their receipt by the latter and that the operator assumes the risks linked to that transfer, including, where relevant, the risk linked to product liability.
51. Moreover, the volumetric risk borne by the operator may be likened, as the Commission has rightly maintained, to a risk of loss of stock. (26)
52. In addition, according to the explanations given in the order for reference, the operator appears to guarantee and assume liability for the unpaid debts of customers who have joined, through the operator, the credit card scheme created and managed by CEPSA, debts which may be of significant amounts, the order for reference mentioning an example of an unpaid debt of more than EUR 30 000.
53. Even though the referring court points out that CEPSA assumes the risks linked to transport of the goods, the factors listed above, whilst they need to be assessed in concrete terms by the referring court, tend, in my view, to suggest that Tobar bears non-negligible risks linked to the sale of the petroleum products which are the subject‑matter of the contract at issue in the main proceedings.
54. As regards the allocation of the risks relating to market‑specific investments, it must be observed that the referring court does not provide sufficient information on this question. It does, admittedly, state that CEPSA bears the costs of installing and maintaining its brand image in the service station and that it transfers the fuel tanks and petrol pumps to the operator. It is also apparent from the order for reference that Tobar is the owner of the service station and that that operator is obliged to provide a bank guarantee for an amount corresponding to the value of the equipment transferred by CEPSA, which suggests, as submitted by the Commission, that the operator bears costs which are not negligible and is forced to have recourse to the financial market, as if that operator had had to set up in business himself. However, the order for reference does not provide any information whatsoever, even approximate, as to the costs which the parties to the contract bear and the income which they obtain, nor as to any use of the equipment and its depreciation, when the contractual relationship ends. It is for the referring court to assess the nature of the investments made by the parties in connection with the sale of the goods concerned, having regard to all of those factors.
55. Should the examination to be carried out by the national court show that the service‑station operator assumes a non‑negligible share of the commercial and financial risks linked to the transactions concluded by him for the supplier, that agent will be considered to be an independent economic operator. The exclusive contractual relationship between himself and the supplier will then be covered by the concept of ‘agreements between undertakings’ within the meaning of Article 85(1) of the Treaty. It will then follow that the clause relating to the requirement for the operator to sell the fuels at a price determined by the supplier, referred to at the end of Question 2(a) submitted by the referring court, will also be caught by that provision, provided that all the conditions for the application of Article 85(1) of the Treaty are satisfied. (27) If that is the case, such a clause will fall under the prohibition laid down in Article 85(1)(a) of the Treaty. The subsequent question will then arise as to whether the obligation imposed on the operator to sell the fuels at a specific price would fall within the block exemption provided for in Articles 10 to 13 of Regulation No 1984/83, (28) a question which will be considered at a later stage in this Opinion.
56. However, should the referring court find that the service‑station operator assumes only a negligible fraction of the risks linked to the transactions concluded on behalf of the principal, the intermediary’s obligations arising from the contractual relationship in respect of the market for goods sold to third parties will fall outside the scope of Article 85(1) of the Treaty. Consequently, as the Court has already stated, the obligation imposed on the operator to sell fuel at a price determined by the supplier will be inherent in CEPSA’s ability to delimit the scope of the activities of its agents and will also fall outside the scope of Article 85(1) of the Treaty. (29)
57. For all of those reasons, I propose that Question 1(a) and Question 2(a) should be answered to the effect that, so far as the market for the sale of goods to third parties is concerned, the clauses of an agency contract, including a clause relating to the fixing of the retail price, between a supplier of fuel and the operator of a service station, pursuant to which the latter assumes, at the very most, only a negligible share of the financial and commercial risks linked to the sale of those goods, do not constitute agreements between undertakings within the meaning of Article 85(1) of the Treaty, even if that contract also contains a non‑competition or exclusivity clause by which the operator undertakes to purchase supplies exclusively from the supplier. The non‑competition or exclusivity clause present in such a contract, by which the operator undertakes to purchase supplies exclusively from the supplier and which relates to the market for agency services, constitutes an agreement between undertakings within the meaning of Article 85(1) of the Treaty. Similarly, a distribution contract concluded between a fuel supplier and a service‑station operator constitutes an agreement between undertakings within the meaning of Article 85(1) of the Treaty where that operator assumes, in a non‑negligible proportion, one or more financial or commercial risks linked to the sale of that fuel to third parties. In order to determine whether Article 85(1) of the Treaty is applicable in the case in the main proceedings, it is for the national court to assess, in the light of the clauses of the contract at issue, the actual allocation of the financial and commercial risks between the service‑station operator and the supplier, taking into account the risks linked to the sale of the goods and those linked to the market‑specific investments. Against that background, and provided that the conditions for the application of Article 85(1) of the Treaty are satisfied, the obligation imposed on the operator to sell the fuel at a price fixed by the supplier appears to be incompatible with Article 85(1)(a) of the Treaty.
B – Applicability of the block exemption provided for by Regulation No 1984/83 (and subsequently by Regulation No 2790/1999) (Question 1(b) and (c), Question 2(b) and (c))
58. By its Question 1(b) and Question 2(b), the referring court essentially asks whether the contract at issue in the case in the main proceedings could benefit from the application of the system of block exemption established by Regulation No 1984/83, which applies to exclusive purchasing agreements entered into for the purpose of resale, if that contract fulfils the conditions laid down by that regulation. The national court refers in particular to the conditions relating to the maximum duration of the exclusivity (or non‑competition) clause and the question of the extent of the commercial and financial advantages which must be granted by the supplier in order for such a clause to be concluded for a duration exceeding five years (Question 1(b), at the end, and (c)). In addition, it raises the question of the effect of the contractual clause relating to the fixing of the sale price by the supplier on the applicability of the system of block exemption (Question 2(c)).
59. It should be pointed out that Regulation No 1984/83 provides inter alia for the application of Article 85(3) of the Treaty to exclusive purchasing agreements entered into for the purpose of resale of petroleum products in service stations. Those rules, which differ from the general provisions applicable to exclusive purchasing agreements, are contained in Articles 10 to 13 of Regulation No 1984/83. Article 10 of that regulation exempts from the prohibition laid down in Article 85(1) of the Treaty the exclusive purchasing obligation imposed on the reseller by the supplier of petroleum-based motor-vehicle and other fuels, ‘in consideration for the according of special commercial or financial advantages’. Article 11 of Regulation No 1984/83 sets out the other restrictions on competition, apart from that provided for in Article 10, which may be imposed on the reseller, including ‘the obligation not to sell motor-vehicle fuel and other fuels which are supplied by other undertakings in the service station designated in the agreement’. Article 12(1)(c) of that regulation states that Article 10 does not apply where the agreement is concluded for an indefinite duration or for a period of more than 10 years.
60. In my opinion, the answer to the questions set out in point 58 of this Opinion depends on the classification of the contract at issue in the main proceedings, according to whether it results in recognition of the existence of a genuine agency relationship between the parties to the main proceedings or of a contractual relationship between two independent undertakings (distribution contract), hypotheses which must be considered in turn below.
1. The hypothesis of a genuine agency relationship
61. While Regulation No 1984/83 formally applies to vertical distribution and resale agreements concluded between two independent undertakings, the Court has held that the block exemption provided for in Articles 10 to 13 of Regulation No 1984/83 was also capable of applying in the context of an agency relationship between a supplier of motor-vehicle and other fuels and service‑station operators. (30)
62. It is, however, obvious that the provisions of that regulation cannot apply to the contractual obligations imposed on a commercial agent on the market for the sale of goods to third parties if, on that market, that agent does not assume, under the contractual clauses tying him to his principal, any financial and commercial risks or incurs only a negligible share of those risks linked to that activity, since, in such a case, those obligations do not fall within the concept of an ‘agreement between undertakings’ within the meaning of Article 85(1) of the Treaty. (31)
63. In such a situation, as explained by CEPSA and Tobar, only the exclusivity or non‑competition clause tying the agent to his principal, considered, in itself, as an agreement between undertakings within the meaning of Article 85(1) EC, is capable of benefiting from the application of the provisions of Articles 10 to 13 of Regulation No 1984/83. Such a clause must satisfy the conditions laid down by the abovementioned provisions of the regulation, in particular that laid down in Article 12(1)(c) of that regulation, relating to the permitted duration of the agreement.
64. In that regard, the referring court is uncertain, essentially, (Question 1(c)) whether an exclusivity of a duration not exceeding 10 years, such as that referred to in Article 12(1)(c) of Regulation No 1984/83, must be subject to the according, by the fuel supplier, of significant commercial or financial advantages or whether such advantages must merely be ‘not insignificant’, in the absence of any specific indication as to the extent of those advantages in the wording of Article 10 of that regulation. (32)
65. Leaving aside the Spanish version of Article 10, which does not feature any word qualifying the advantages in question, it is true that, by merely stating that the commercial and financial advantages accorded by the supplier in consideration for extended exclusivity must be ‘particuliers’, the French version of Article 10 of Regulation No 1984/83 is rather imprecise on this point since it could concern, as certain language versions of that provision which use the word ‘special’ suggest, (33) either advantages earmarked exclusively for the service‑station operator, that is to say, specific to the contractual relationship concerned, or extraordinary advantages, as suggested by one of the senses of the French adjective ‘particulier’.
66. Those two senses of the word ‘particulier’ may, admittedly, preclude the advantages referred to in Article 10 of Regulation No 1984/83 from merely being insignificant. Consequently, although the literal analysis supports the assertion that the advantages accorded by the supplier must, at the very least, be ‘not insignificant’, it does not, on the other hand, permit the inference that those advantages must be considerable.
67. However, it seems to me to follow from the purpose of the legislation in question that the commercial and financial advantages referred to in Article 10 of Regulation No 1984/83 must be of a sufficiently substantial scale to justify an extended exclusivity of supply of a duration not exceeding 10 years.
68. As recital 15 in the preamble to Regulation No 1984/83 suggests, the idea which governs the according of the advantages in question by the supplier is that of ‘mak[ing] it significantly
easier to establish, modernise, maintain and operate … service stations’. (34) In other words, it is a matter of facilitating, as the Commission has contended, access to the retail distribution market and a rapid expansion of the distribution network by making the supplier bear the great majority of the costs and the relationship‑specific investments. (35) Under Article 85(3) of the Treaty, of which Regulation No 1984/83 is only a specific application, the indispensable nature of the restriction on competition constituted by the extended duration of the exclusivity of supply seems to be understandable only if it is highly unlikely that, without the commercial and financial advantages accorded by the supplier, the operator could gain access to the market, in this instance, in the case of a commercial agent, to the market for the services of an intermediary entrusted with the marketing of fuels. In other words, since the extended duration of the exclusivity of supply entered into by the operator is a decisive factor in the market‑sealing effect, (36) that restriction cannot properly be compensated for unless the advantages conferred by the supplier are, at the very least, substantial. (37)
69. That is why, as is explained, in essence, in recitals 12 and 13 in the preamble to Regulation No 1984/83, the adoption of special exemption rules in favour of service‑station agreements is justified in so far as those agreements are generally characterised by ‘special’ commercial or financial advantages conferred by the supplier, in consideration for which the reseller enters into, in particular, a long‑term exclusive purchasing obligation.
70. Admittedly, the detail added in recital 13 in the preamble to Regulation No 1984/83, to the effect that the advantages conferred are particularly significant (in French: ‘particulièrement importants’), appears only in certain language versions of that text, (38) the others reproducing the adjective which they use in Article 10 of that regulation. (39) However, that circumstance does not seem to be decisive, in the light, on the one hand, of the purpose, described above, pursued by the legislation in question, and, on the other, of the fact that the examples of investments listed in recital 13 in the preamble to Regulation No 1984/83, in all of the language versions of that text, are of an undeniable commercial or financial significance. Those examples do, however, illustrate, in essence, the point that the advantages in question are, on the one hand, certainly ‘conferred’ by the supplier, that is to say, they are accorded asymmetrically, since the supplier invests more than the operator and, on the other, that they are provided on a long-term basis and the cost of the investments cannot be recouped in the short run. (40)
71. It follows that, in the case in the main proceedings, the referring court will need to assess whether the commercial or financial advantages conferred by CEPSA are of a significance such that they justify the exclusivity of supply entered into by Tobar being concluded for a duration not exceeding 10 years.
72. In that regard, apart from the fact that it is not a matter for the Court to assess the factual situation in the main proceedings, it is difficult to answer the referring court’s subordinate question as to whether particularly significant investments were conferred by CEPSA under the contract at issue, in the absence of sufficient information, in particular as to the amount of all the investments made by the supplier, their asymmetric nature and the period of their depreciation.
73. If, in the light of the foregoing considerations, the referring court should form the view that the advantages conferred by CEPSA can justify the stipulation of an exclusive supply clause with a duration not exceeding 10 years, I am of the view that it will also need to take into account in its assessment an additional factor arising from the amendment of the Community legislation.
74. Since the exclusivity clause was concluded, in the main proceedings, in February 1996 for an (initial) duration of 10 years (that is, until February 2006), it must be pointed out that Regulation No 1984/83 was repealed by Regulation No 2790/1999 with effect from 1 June 2000. Under Article 12(1) of the latter regulation, a transitional period expiring on 31 December 2001 was, however, provided for in the case of agreements which were already in force on 31 May 2000 and which satisfied the conditions for exemption under Regulation No 1984/83, but not those under Regulation No 2790/1999. Consequently, as from 1 January 2002, agreements which had been concluded before 31 May 2000 and which satisfied the criteria of Regulation No 1984/83 were required, in order to qualify for block exemption under Regula tion No 2790/1999, to satisfy the conditions laid down by the latter.
75. If, on the other hand, those agreements did not satisfy the conditions for block exemption under Regulation No 1984/83, such agreements were required, in order to qualify for block exemption under Regulation No 2790/1999, to satisfy the conditions laid down by that regulation as from 1 June 2000.
76. Irrespective of the relevant date from which agreements may be authorised under Regulation No 2790/1999, the latter provides, in particular, in Article 5, that the block exemption does not apply to a direct or indirect non-compete obligation the duration of which is indefinite or exceeds five years (a non-compete obligation which is tacitly renewable beyond that period being deemed to have been concluded for an indefinite duration) and, under Article 3, if the market share held by the supplier exceeds 30% of the relevant market on which it sells the contract goods or services.
77. While the issues connected with the duration of the exclusivity clause would not arise if, in the case in the main proceedings, CEPSA’s market share exceeded 30% since it would be such as to preclude immediately application of the block exemption system under Regulation No 2790/1999, it is necessary, in the absence of any information provided by the referring court in this regard, to start from the assumption, which after all is not implausible, that CEPSA does not hold a market share of that size. (41)
78. As regards, therefore, in the case in the main proceedings, the duration of the exclusivity clause, if the latter did not qualify for a block exemption under Regulation No 1984/83, it was entitled to be authorised, under Regulation No 2790/1999, only until 1 June 2005, in accordance with Article 5 of the latter regulation, unless the contract is, as is mentioned in point 80 of this Opinion, deemed to have been concluded for an indefinite duration, in which case it could not benefit from the block exemption system provided for by Regulation No 2790/1999.
79. If, on the other hand, the clause qualified for a block exemption under Regulation No 1984/83 without satisfying the requirements of Regulation No 2790/1999, the conditions laid down by the latter thus applying as from, at the latest, 1 January 2002, that contractual clause would be eligible to benefit from the exemption system provided for by Regulation No 2790/1999 until the expiry of the original contract, unless the contract is deemed, pursuant to Article 5 of that regulation, to have been concluded for an indefinite duration.
80. In that regard, I observe with interest that it is apparent from the order for reference that the original contract concluded for a period of 10 years may be extended for successive periods each of five years by express agreement in writing on notice of at least six months. Although it is certainly for the referring court to determine the scope of that term under the relevant national law, the use of a period of notice is rather curious, particularly since it is not clear from the order for reference and from the proceedings before the Court whether that period of notice relates to the intention not to extend the contract (which necessarily implies that the contract must be extended in the absence of such notice and is therefore tacitly renewable) or to the intention to extend it (which implies that, if notice is properly given, the other party does not seem to be in a position to refuse the extension of the contract). In any event, if, following its examination of the clause in question, the referring court were to conclude that this is a form of tacit renewal, the exclusivity clause could not be covered either by the block exemption provided for by Regulation No 1984/83 or by that provided for by Regulation No 2790/1999, since it would have to be deemed to have been concluded for an indefinite duration within the meaning of, respectively, Article 12(1)(c) of Regulation No 1984/83 (42) and Article 5 of Regulation No 2790/1999. (43)
81. In the light of the foregoing observations, I propose that Question 1(b) and (c) submitted by the referring court be answered to the effect that, in the case of a genuine agency contract concluded between a fuel supplier and a service‑station operator, the exclusive purchasing clause may qualify for a block exemption under Regulation No 1984/83 provided that it satisfies the conditions laid down by that regulation, in particular that relating to the duration of such a clause. Against that background, the duration not exceeding 10 years of that clause, referred to in Article 12(1)(c) of Regulation No 1984/83, is justified if the financial and commercial advantages conferred by the supplier are of a significance such that, in their absence, it is highly unlikely that the operator could have gained access to the market for the services of an intermediary entrusted with the marketing of fuel. It is for the referring court to determine whether that is the situation in the case in the main proceedings, in the light, in particular, of the actual duration of the exclusive purchasing clause stipulated by the parties to the contract at issue, of the amount of the investments made by the supplier and the operator, and of their depreciation.
2. The hypothesis of the contractual relationship between two independent undertakings (distribution contract)
82. In the case of a contractual relationship of the type ‘distribution contract between two economically independent undertakings’, which could, in principle, qualify for application of the block exemption provided for by Regulation No 1984/83, it seems to me, along the lines of what the Commission has submitted, that the applicability of that regulation, in particular that of the condition relating to the duration of the agreement, depends on the compatibility with Article 85 of the Treaty of the clause relating to the obligation for the service‑station operator to sell the fuel at the price fixed by the supplier.
83. In that case, the clause relating to the imposition by the supplier of the retail price of the fuels constitutes a restriction on competition which falls within the scope of Article 85(1) of the Treaty and is not included among the obligations which, apart from the exclusivity clause provided for in Article 10 of Regulation No 1984/83, may be imposed on the operator under Article 11 of that regulation, with the result that an agreement requiring the operator to charge the retail price fixed by the supplier is not covered by Articles 10 to 13 of that regulation. (44) It follows that, in such a case, there is no need to rule on the permissible duration of the exclusive dealing agreement under Regulation No 1984/83.
84. By its Question 2(c), at the end, the referring court appears, moreover, to contemplate the possibility that the agreement, despite the fact that it cannot qualify for a block exemption under Regulation No 1984/83 in view of the obligation on the operator to charge the retail price fixed by the supplier, could regain its ‘validity’ by virtue of the fact that the supplier authorised the operator, in November 2001, to lower the selling price without affecting the supplier’s receipts.
85. In that regard, it is important first of all to point out that it is not a matter for the Court to establish the scope of the supplier’s decision affecting the contractual clause relating to the fixing, by the latter, of the retail price of the fuels. That question falls outside the jurisdiction of the Court in the context of a reference for a preliminary ruling and appears to me, as the Commission stated in its written observations, to be a matter for national law.
86. Assuming, therefore, that such a decision on the part of the fuel supplier is regarded as a ‘unilateral amendment’ to the contractual price clause (45) and that such an amendment is possible under Spanish domestic law, it would then be a question of ascertaining, on the one hand, whether that amendment actually has the effect of removing the restriction on competition which consists in the fixing, by the supplier, of the retail price of the fuels and, on the other, whether, if the answer to the previous question is in the affirmative, that amendment has retroactive or merely immediate effect.
87. Nevertheless, even if the view were to be taken that unilaterally bringing a clause requiring a distributor to resell a product the price of which is fixed by the supplier into line with Article 85 of the Treaty could have the effect of retroactively rendering such a clause valid, something which I doubt, (46) that consequence would nevertheless not render superfluous an examination of the compatibility of the clause relating to the exclusivity of supply with Article 85 of the Treaty, in particular as regards the duration of such exclusivity. Irrespective of whether or not the contractual relationship at issue in the main proceedings is a genuine agency relationship, the question of the compatibility of the exclusive supply clause with Article 85 of the Treaty would arise in any event and in terms, at the very least, similar to those set out in points 65 to 80 of this Opinion and, consequently, the unilateral amendment of the additional restriction relating to the fixing of the retail price by the supplier could not, ipso facto, result in the validity of the original contract.
88. That being the case, if the duration, not exceeding 10 years, of the exclusive supply obligation is regarded as justified in the case in the main proceedings, the referring court would be required, in the light of the matters of fact and of law in the main proceedings, to provide answers to the questions set out in point 86 of this Opinion.
89. I think it would be useful to make a few substantive observations in this connection.
90. As regards the issue of whether the alleged unilateral amendment by CEPSA of the contractual price clause has the effect of bringing that clause into line with Article 85 of the Treaty, the content of CEPSA’s decision of November 2001, as set out by the referring court, appears to grant the operator greater freedom, since the latter no longer appears to be compelled to charge the retail price fixed by the supplier and could therefore grant discounts to its customers, thereby fostering inter‑brand competition between distributors.
91. The fact nevertheless remains that, contrary to what CEPSA has claimed, a maximum sale price or one recommended by a supplier to its distributor, in so far as that is the case in the situation here at issue in the main proceedings following CEPSA’s decision in question, does not automatically qualify for the derogation from the prohibition laid down in Article 85(1) of the Treaty. As the wording of Article 4(a) of Regulation No 2790/1999 implies, the block exemption applicable to the vertical agreements governed by it may indeed apply in a situation where a supplier imposes a maximum sale price or recommends a sale price, but ‘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’. However, such a condition does not seem to be satisfied where, despite the indication of a maximum or recommended price, the distributor’s margin is fixed by the supplier, (47) with the result that the distributor is, in practice, unable to grant discounts to his customers with the aid of that margin and, what is more, where that distributor is obliged, at the same time, to provide the supplier with a constant level of income. In such a case, a fixed or minimum resale price would in reality be indirectly imposed on the distributor. Furthermore, it is conceivable that a maximum price or one recommended by the supplier could, having regard to the latter’s market position and/or the incentives or penalties available to that supplier where such a price is not observed, lead to a uniform application of that price by the operators, so that it would be difficult, if not impossible, to deviate from it in practice. (48)
92. Consequently, should the referring court find that the contractual relationship at issue in the main proceedings should be classified as a distribution relationship between two independent undertakings, it would be for that court to examine all the circumstances of the case in the main proceedings in order to determine whether, following CEPSA’s decision of November 2001, that undertaking imposed on Tobar, at the very least indirectly, observance of a fixed or minimum resale price.
93. If that is the case – and I come now to the second question referred to in point 86 of this Opinion – the price clause, as amended, and the agreement as a whole will not qualify for a block exemption under Regulation No 2790/1999. In the absence of individual exemption or of other grounds justifying application of the conditions for an exemption under Article 85(3) of the Treaty, (49) which are not relevant in this case, (50) that agreement will therefore be void, in accordance with Article 85(2) of the Treaty.
94. If, on the other hand, the unilateral amendment results in the compliance of the contractual price clause with Article 85 of the Treaty, and if the referring court also considers that the duration of the exclusive supply obligation qualifies for exemption under Regulation No 2790/1999, such compliance will not be able to result, in my opinion, in the retroactive validity of the agreement from the point of view of the block exemption under Regulation No 1984/83. An interpretation in the opposite sense would mean disregarding the mandatory nature of the automatic nullity under Article 85(2) of the Treaty of any agreement prohibited by Article 85 of the Treaty. (51) However, as I have already stated in point 83 of this Opinion, the fixing of the retail price of the fuels by the supplier does not serve to render the exclusive dealing agreement concluded between the supplier and the operator eligible for application of the relevant provisions of Regulation No 1984/83, with the result that, unless other grounds justify application of the conditions for exemption under Article 85(3) of the Treaty, that agreement should be regarded as void and could not regain a sudden ‘validity’ due to the occurrence of a possible unilateral amendment of the clause governing the fixing of that price.
95. In the light of those considerations, I suggest that Question 2(b) and (c) be answered to the effect that the terms of a distribution contract concluded between a fuel supplier and a service‑station operator, by which the latter undertakes to purchase exclusively from the supplier the fuels forming the subject‑matter of that contract, may qualify for a block exemption under Regulation No 1984/83. Articles 10 to 13 of Regulation No 1984/83 must be interpreted as meaning that such a contract is not covered by that regulation in so far as it requires that operator to charge the retail price fixed by the supplier. The bringing of a contractual clause relating to the fixing, by the supplier, of the retail price into line with Article 85 of the Treaty does not have the effect of correcting retroactively the nullity of the provisions of the contract which were contrary to that article before the date on which that clause was brought into line. Nor does that bringing into line exempt such a contract, in order to qualify for a block exemption under the provisions of Regulation No 1984/83 or, subsequently, under those of Regulation No 2790/1999, from complying with the conditions laid down in those regulations, in particular that relating to the permissible duration of the exclusive supply obligation.
C – The consequences of possible nullity of the contract (Question 1(d))
96. In the case of a genuine commercial‑agency relationship, and should the exclusive supply clause not qualify for a block exemption under Regulation No 1984/83, the referring court asks whether the automatic nullity provided for in Article 85(2) of the Treaty affects only that clause or the whole of the contract.
97. As a preliminary point, it is important to note that the nullity provided for in Article 85(2) of the Treaty can be relied on by anyone, and the courts are bound by it once the conditions for the application of Article 85(1) of the Treaty are met and so long as the agreement concerned does not justify the grant of an exemption under Article 85(3) of the Treaty. Since that nullity is absolute, an agreement which is void by virtue of that provision has no effect as between the contracting parties and cannot be invoked against third parties. Moreover, it is capable of having a bearing on all the effects, either past or future, of the agreement or decision concerned. (52)
98. However, the automatic nullity referred to in Article 85(2) of the Treaty does not automatically
affect the whole of the agreement concerned. That nullity applies only to those parts of the agreement that are affected by the prohibition laid down in Article 85(1) of the Treaty or to the agreement as a whole if it appears that those parts are not severable from the agreement itself. (53)
99. If the contractual clauses which are incompatible with Article 85(1) of the Treaty are severable from the agreement itself, the consequences of the fact that those clauses are automatically void for all other parts of the agreement or for other obligations flowing from it are not a matter for Community law, but must be determined in the light of national law. (54) It is therefore for the national court to determine, in accordance with national law, the extent and consequences, for the contractual relations as a whole at issue in the main proceedings, of the prohibition of certain clauses by virtue of Article 85 of the Treaty. (55)
100. Consequently, I propose that Question 1(d) be answered to the effect that the automatic nullity referred to in Article 85(2) of the Treaty affects the clauses of an agreement which infringe the prohibition referred to in Article 85(1) of the Treaty, without any exemption under Article 85(3) of the Treaty being applicable, unless the prohibited parts are not severable from that agreement, in which case the nullity would affect the agreement as a whole. Where the prohibited parts are severable from the other parts of the agreement, Community law does not govern the consequences, for the other parts of that agreement, of the fact that the prohibited clauses are void.
VI – Conclusion
101. In the light of the foregoing considerations, I propose that the Court reply as follows to the questions submitted to it for a preliminary ruling by the Audiencia Provincial de Madrid:
(1) So far as the market for the sale of goods to third parties is concerned, the clauses of an agency contract, including a clause relating to the fixing of the retail price, between a supplier of fuel and the operator of a service station, pursuant to which the latter assumes, at the very most, only a negligible share of the financial and commercial risks linked to the sale of those goods, do not constitute agreements between undertakings within the meaning of Article 85(1) of the EC Treaty (now Article 81(1) EC), even if that contract also contains a non-competition or exclusivity clause by which the operator undertakes to purchase supplies exclusively from the supplier.
The non‑competition or exclusivity clause present in such a contract, by which the operator undertakes to purchase supplies exclusively from the supplier and which relates to the market for agency services, constitutes an agreement between undertakings within the meaning of Article 85(1) of the Treaty.
Similarly, a distribution contract concluded between a fuel supplier and a service‑station operator constitutes an agreement between undertakings within the meaning of Article 85(1) of the Treaty where that operator assumes, in a non-negligible proportion, one or more financial or commercial risks linked to the sale of that fuel to third parties.
In order to determine whether Article 85(1) of the Treaty is applicable in the case in the main proceedings, it is for the national court to assess, in the light of the clauses of the contract at issue, the actual allocation of the financial and commercial risks between the service‑station operator and the supplier, taking into account the risks linked to the sale of the goods and those linked to the market‑specific investments. Against that background, and provided that the conditions for the application of Article 85(1) of the Treaty are satisfied, the obligation imposed on the operator to sell the fuel at a price fixed by the supplier appears to be incompatible with Article 85(1)(a) of the Treaty.
(2) In the case of a genuine commercial‑agency contract concluded between a fuel supplier and a service‑station operator, the clause by which the latter undertakes to purchase supplies exclusively from the supplier may qualify for a block exemption under Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements provided that it satisfies the conditions laid down by that regulation, in particular that relating to the permissible duration of such a clause.
Against that background, the duration not exceeding 10 years of that clause, referred to in Article 12(1)(c) of Regulation No 1984/83, is justified if the financial and commercial advantages conferred by the supplier are of a significance such that, in their absence, it is highly unlikely that the operator could have gained access to the market for the services of an intermediary entrusted with the marketing of fuel. It is for the referring court to determine whether that is the situation in the case in the main proceedings, in the light, in particular, of the actual duration of the exclusive purchasing clause stipulated by the parties to the contract at issue, of the amount of the investments made by the supplier and the operator, and of their depreciation.
(3) The terms of a distribution contract concluded between a fuel supplier and a service‑station operator, by which the latter undertakes to purchase supplies exclusively from the supplier, may qualify for a block exemption under Regulation No 1984/83. Articles 10 to 13 of Regulation No 1984/83 must be interpreted as meaning that such a contract is not covered by that regulation in so far as it requires that operator to charge the retail price fixed by the supplier. The bringing of a contractual clause relating to the fixing, by the supplier, of the retail price into line with Article 85 of the Treaty does not have the effect of correcting retroactively the nullity of the provisions of the contract which were contrary to that article before the date on which that clause was brought into line. Nor does that bringing into line exempt such a contract, in order to qualify for a block exemption under the provisions of Regulation No 1984/83 or, subsequently, under those of Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 85(3) of the Treaty to categories of vertical agreements and concerted practices, from complying with the conditions laid down in those regulations, in particular that relating to the permissible duration of the exclusive supply obligation.
(4) The consequences of the automatic nullity referred to in Article 85(2) of the Treaty affect the clauses of an agreement which infringe the prohibition referred to in Article 85(1) of the Treaty, without any exemption under Article 85(3) of the Treaty being applicable, unless the prohibited parts are not severable from that agreement, in which case the nullity would affect the agreement as a whole. Where the prohibited parts are severable from the other parts of the agreement, Community law does not govern the consequences, for the other parts of that agreement, of the fact that the prohibited clauses are void.
(1) .
(2)  –	OJ 1983 L 173, p. 5.
(3)  –	OJ 1999 L 336, p. 21.
(4)  –	The undifferentiated use of those two expressions by the referring court seems to be understandable in the light of the fact that, unlike exclusive purchasing contracts for other products, such as beer, an exclusive purchasing contract for motor-vehicle and other fuels is characterised, as a matter of fact, by the sale of only one brand in a particular service station (single branding). See, in that regard, Case C‑214/99 Neste
[2000] ECR I‑11121, paragraph 31.
(5)  –	Including the risk of losses due both to cases of force majeure and to discrepancies in volume between the product supplied and that sold, on account of changes in fuel temperature or for other reasons.
(6)
– 	See, in addition to the wording of Question 1(a), the first sentence of point 7 of the order for reference (p. 13 of the original version).
(7)  –	I note in this regard that, although the two questions submitted by the referring court refer only to the provisions of Regulation No 1984/83, the grounds of the order for reference also mention those of Regulation No 2790/1999, which is also relevant in the light of the facts of the case in the main proceedings.
(8)  –	Case C‑217/05 [2006] ECR I‑11987, paragraph 38.
(9)  –	See, inter alia, Case C‑205/03 P FENIN
v Commission
[2006] ECR I‑6295, paragraph 25.
(10)  –	See also, to that effect, point 43 of the Opinion of Advocate General Kokott in Confederación Española de Empresarios de Estaciones de Servicio .
(11)  –	Ibid., point 44. See also point 19 of the Commission notice ‘Guidelines on vertical restraints’ (OJ 2000 C 291, p. 1; ‘the Guidelines’).
(12)  –	See, to that effect, Confederación Española de Empresarios de Estaciones de Servicio, paragraphs 43 and 44.
(13)  –	From a factual point of view, I note that the referring court states that the clauses of the contract at issue appear to be identical to those of the agreements which lay behind the reference for a preliminary ruling in the Confederación Española de Empresarios de Estaciones de Servicio
case, which, according to paragraph 9 of the judgment in that case, applied to 95% of service stations in the CEPSA network.
(14)  –	Confederación Española de Empresarios de Estaciones de Servicio, paragraph 61.
(15)  –	Paragraph 62 (emphasis added).
(16)  –	See in particular, to that effect, Case C‑341/05 Laval un Partneri
[2007] ECR I‑11767, paragraph 45 and the case‑law cited.
(17)  –	See, to that effect, Confederación Española de Empresarios de Estaciones de Servicio, paragraph 49 and the case‑law cited.
(18)  –	Laval un Partneri, paragraph 47 and the case‑law cited.
(19)  –	See, to that effect, Confederación Española de Empresarios de Estaciones de Servicio, paragraph 50.
(20)  –	Ibid., paragraph 51.
(21)  –	Ibid., paragraphs 52 to 55.
(22)
–	Ibid., paragraph 56.
(23)  –	Ibid., paragraph 59.
(24)  –	Ibid., paragraphs 43 and 61.
(25)  –	See, to that effect, the Opinion of Advocate General Kokott, point 64.
(26)  –	See also, in that regard, the Guidelines, point 16.
(27)  –	In this regard, it should be recalled that, in order to assess whether an exclusive purchasing agreement has the object or effect of appreciably restricting competition in the internal market and is liable to affect trade between Member States, it is important to take into account the economic and legal context in which the agreement occurs and where it may combine with other agreements to have a cumulative effect on competition. That is why it is necessary to analyse the effects of such a contract, taken together with other contracts of the same type, on the opportunities of national competitors, or those from other Member States, to gain access to the relevant market or to increase their market share (see, in particular, Case C‑234/89 Delimitis
[1991] ECR I‑935, paragraphs 13 to 15, and Neste, paragraph 25).
(28)  –	See, to that effect, Confederación Española de Empresarios de Estaciones de Servicio, paragraph 63.
(29)  –	Idem.
(30)  –	Confederación Española de Empresarios de Estaciones de Servicio, paragraph 63. See also points 45 and 74 of the Opinion of Advocate General Kokott in that case.
(31)  –	See points 33 to 37 of this Opinion.
(32)  –	It should be noted that, under Article 12(2) of Regulation No 1984/83, where the agreement relates to a service station which the supplier lets to the reseller (operator), or allows the reseller to occupy on some other basis, in law or in fact, exclusive purchasing obligations or bans on dealing in competing products specified in Title III of the regulation (applicable to service‑station agreements) may be imposed on the reseller for the whole period for which the reseller in fact operates the premises. That question is not the subject of the interpretation requested by the referring court, since the latter does in fact point out that, in the case in the main proceedings, the operator of the service station is its owner.
(33)  –	Such as the German, English, Dutch, Finnish and Swedish versions.
(34)  –	Emphasis added.
(35)  –	See also, to that effect, the Guidelines, points 116(4) and 155.
(36)  –	See, to that effect, Neste, paragraphs 32 and 33.
(37)  –	It is worth noting that Neste, paragraph 34, stresses the onerous nature of the investments made by the supplier.
(38)  –	That is the case with the Spanish, French and Portuguese versions. The Italian version uses the word ‘cospicui’, which suggests that the advantages in question are at the very least significant, or even considerable, which makes it possible to include that version with those just mentioned.
(39)  –	See, consequently, the German, English, Dutch, Finnish and Swedish versions.
(40)  –	See also, to that effect, the Guidelines, point 116(4).
(41)
–	It is important to note that, in its written observations, the Commission states that CEPSA’s market share is below the threshold referred to in Article 3 of Regulation No 2790/1999. It is, of course, for the referring court to verify that assertion and, in the end, to ascertain CEPSA’s market share.
(42)  –	See, by analogy, as regards the interpretation of Article 3(d) of Regulation No 1984/83, Case T‑7/93 Langnese-Iglo
v Commission
[1995] ECR II‑1533, paragraph 138.
(43)  –	If, in the case in the main proceedings, the national court were to conclude, in the light of national law, that the exclusivity clause was concluded for a duration exceeding 10 years, the examination of the extent of the commercial or financial advantages conferred by CEPSA could ultimately prove irrelevant.
(44)  –	Confederación Española de Empresarios de Estaciones de Servicio, paragraph 64 and paragraph 2 of the operative part.
(45)  –	It should be noted that the parties to the main proceedings disagree on assigning such a classification to the authorisation granted by CEPSA.
(46)  –	In the light of the principle laid down in Article 85(2) of the Treaty that agreements prohibited by Article 85 of the Treaty are automatically void. See, on this question, points 94 to 98 of this Opinion.
(47)  –	See, to that effect, the Guidelines, point 47. It should be noted that, in its written observations, Tobar states that CEPSA fixes service‑station operators’ profit margin.
(48)  –	See, to that effect, the Guidelines, points 47 and 227.
(49)  –	The parties to such an agreement could also (theoretically in this case) request the Commission to adopt an individual decision declaring Article 85(1) of the Treaty inapplicable or contend that the conditions laid down in another regulation providing exemption in respect of other categories of agreements are satisfied, or even establish that the agreement in question is, on some other ground, not incompatible with Article 85(1) of the Treaty. See, in that regard, Case 10/86 VAG France
[1986] ECR 4071, paragraphs 12 and 13, and Delimitis, paragraph 41.
(50)  –	The possibilities mentioned in the previous footnote have neither been considered by the referring court nor invoked by the parties to the main proceedings.
(51)  –	See, in that regard, Joined Cases C‑295/04 to C‑298/04 Manfredi and Others
[2006] ECR I‑6619, paragraph 57 and the case‑law cited.
(52)  –	Idem.
(53)  –	Case 56/65 LTM
[1966] ECR 235 and Delimitis, paragraph 40.
(54)  –	See, inter alia, VAG France, paragraph 14; Case C‑230/96 Cabour
[1998] ECR I‑2055, paragraph 51; and Joined Cases C‑376/05 and C‑377/05 Brünsteiner and Hilgert
[2006] ECR I‑11383, paragraph 48.
(55)  –	Idem.