EN Official Journal of the European Union C 152/6

Final report of the Hearing Officer in case COMP/B1-38.348 — Repsol

(pursuant to Articles 15 and 16 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2006/C 152/06)

(Text with EEA relevance)

The draft Decision presented to the Commission under Article 9 of Regulation (EC) No 1/2003 concerns possible foreclosure of competitors in the market of distribution of motor fuel to service stations in Spain which might result from long term exclusive supply contracts used by the Spanish wholesale supplier Repsol commercial de productos petroliferos S.A. (‘REPSOL CPP’).

On 20 December 2001, REPSOL CPP notified in accordance with Articles 2 and 4 of Regulation No 17, the applicable law at the time, contracts and contract models that it uses for the distribution of fuels for motor vehicles with a view to obtaining negative clearance or, alternatively, an individual exemption under Article 81(3) of the EC Treaty.

On 19 March 2002, the Commission published a notice in the Official Journal of the European Community, inviting interested companies to transmit their potential observations on this notification. In response to this invitation, 69 observations of interested third parties were received (1).

As a result of the applicability as from 1 May 2004 of Regulation (EC) No 1/2003, the application made by REPSOL lapsed. On 16 June 2004, the Commission opened proceedings with a view to adopting a decision under Chapter III of Regulation (EC) No 1/2003.

On 18 June 2004, the Commission issued a preliminary assessment under Article 9 of Regulation (EC) No 1/2003 addressed to REPSOL. REPSOL was given the opportunity to comment within a month. Within this time-period, it submitted commitment proposals.

On 20 October 2004, the Commission published a notice according to Article 27(4) of Regulation (EC) No 1/2003 in the Official Journal of the European Union. The Notice informed the public of the Commission's perceived competition concerns, the corresponding remedies, and invited interested parties to submit comments (‘the market test’) (2).

In response to the Notice, the Commission received 25 observations from interested third parties. The effectiveness of the commitments proposed by REPSOL to remedy the market foreclosure was called into question. On 7 March 2005 the Commission informed REPSOL of these observations and handed over a non-confidential summary thereof. Subsequently, REPSOL submitted an amended commitment proposal, which it further revised several times.

The Commission has now come to the conclusion that, in view of the commitments proposed by REPSOL in response to the preliminary assessment and as finally amended to take account of the relevant observations by interested third parties, and without prejudice to Article 9(2) of Regulation (EC) No 1/2003, there are no longer grounds for action by the Commission.

In a Decision under Article 9 of Regulation (EC) No 1/2003, no violation of the Community competition rules is established, but the Parties accept to remedy the concerns expressed by the Commission in a preliminary assessment. Therefore, in several Decisions taken already by the Commission (3), it has been accepted that due process is satisfied when the Parties inform the Commission that they have received sufficient access to the information that they considered necessary to propose commitments in order to meet the concerns expressed by the Commission.

This case has also been dealt with in the same manner, REPSOL having submitted a Declaration to the Commission to this effect after having received the results of the market test.

In the light of the above, I consider that the right to be heard of REPSOL has been respected.

Brussels, 27 March 2006 Serge DURANDE

(1) OJ C 70, 19.3.2002, p. 29.

(2) OJ C 258, 20.10.2004, p. 7.

(3) Cf. decision of 22.6.2005 COMP/39.116 — Coca-Cola and decision of 19.1.2005 COMP/37.214 — DFB.