EN Official Journal of the European Union C 141/3

Judgment of the Court (Third Chamber) of 2 April 2009 (Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain)) — Pedro IV Servicios SL v Total España SA

(Case C-260/07) (1)

(Competition - Agreements, decisions and concerted practices - Article 81 EC - Exclusive distribution agreement for motor-vehicle fuels and other fuels - Exemption - Regulation (EEC) No 1984/83 - Article 12(2) - Regulation (EC) No 2790/1999 - Articles 4(a) and 5(a) - Period of exclusivity - Retail price-fixing)

2009/C 141/04

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Applicant: Pedro IV Servicios SL

Defendant: Total España SA

Re:

Reference for a preliminary ruling — Audiencia Provincial de Barcelona — Interpretation of Article 81(1)(a) EC, of recital 8 in the preamble and of Articles 10 and 12(1)(c) and 12(2) of Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article [81](3) of the Treaty to categories of exclusive purchasing agreements (OJ 1983 L 173, p. 5) and of Articles 4(a) and 5 of Commission Regulation (EC) No 2790/99 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21) — Exclusive fuel distribution agreement between a supplier and the operator of a service-station — Whether the supplier must be the proprietor of the land and installations comprising the service-station or whether other legal titles which enable the supplier to lease the service-station to a reseller who is the proprietor of the land are sufficient — Restriction of the reseller’s freedom to determine his selling price

Operative part of the judgment

1. Article 12(2) of Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article [81](3) of the Treaty to categories of exclusive purchasing agreements, as amended by Commission Regulation (EC) No 1582/97 of 30 July 1997, must be interpreted as meaning that, for the purposes of applying the exception which it laid down, that provision did not require the supplier to be the owner of the land on which he had built the service station which he let to the reseller.

2. Article 5(a) of 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 must be interpreted as meaning that, for the purposes of applying the exception which it lays down, that provision requires that the supplier is the owner both of the service station which he lets to the reseller and of the land on which it is built, or, if he is not the owner, that he leases the land and service station from third parties not connected to the reseller.

3. Contractual clauses relating to the retail price, such as those at issue in the main proceedings, are eligible for the block exemptions under Regulation No 1984/83, as amended by Regulation No 1582/97, and Regulation No 2790/1999 where the supplier restricts himself to imposing a maximum sale price or to recommending a sale price and where, therefore, it is genuinely possible for the reseller to determine the retail price. On the other hand, such clauses are ineligible for those exemptions where they lead, directly or by indirect or concealed means, to the fixing of a retail price or the imposition of a minimum sale price by the supplier. It is for the national court to determine whether such obligations constrain the reseller, taking account of all of the contractual obligations in their economic and legal context, and of the conduct of the parties to the main proceedings.

(1) OJ C 183, 04.08.2007.