Keywords

Summary



Keywords

1. Preliminary rulings – Reference to the Court

(Art. 234 EC; Rules of Procedure of the Court of Justice, Art. 104(3))

2. Competition – Agreements, decisions and concerted practices – Not allowed – Block exemption – Exclusive purchasing agreements – Regulation No 1984/83 – Exclusive distribution agreement for motor‑vehicle fuels and other fuels between a supplier and a service station operator – Maximum duration – Exception – Conditions

(Art. 81(3), EC; Commission Regulation No 1984/83, as amended by Regulation No 1582/97, Art. 12(2))

3. Competition – Agreements, decisions and concerted practices – Not allowed – Block exemption – Vertical Agreements – Regulation No 2790/1999 – Fixing the maximum period of exclusivity – Exception – Conditions

(Art. 81(3), EC ; Commission Regulation No 2790/1999, Art. 5(a))

4. Competition – Agreements, decisions and concerted practices – Not allowed – Block exemption – Exclusive purchasing agreements – Regulation No 1984/83 – Vertical agreements – Regulation No 2790/1999 – Fixing a recommended retail price – Conditions

(Commission Regulations No 1984/83, as amended by Regulation No 1582/97, and No 2790/1999)

Summary

1. A reference for a preliminary ruling cannot be held inadmissible because the answers to the questions referred are clear from existing well‑established Community and national case‑law. Even assuming that the questions referred are materially identical to questions which have already been ruled upon in the context of a reference for a preliminary ruling in an analogous case, that circumstance in no way prevents the national court from referring questions to the Court for a preliminary ruling and does not result in the Court lacking jurisdiction to rule on those questions. However, in such a case, the Court may, pursuant to Article 104(3) of its Rules of Procedure, after hearing the Advocate General, at any time give its decision by reasoned order in which reference is made to its previous judgment or to the relevant case-law.

(see para. 31)

2. Article 12(2) of Regulation No 1984/83 on the application of Article 85(3) of the Treaty (now Article 81(1) EC) to categories of exclusive purchasing agreements, as amended by Regulation No 1582/97 – according to which the application of the exception laid down in that regulation is possible in the case of a service station agreement, the duration of which exceeds 10 years, provided that the supplier has let the service station to the reseller, or has granted him, in law or in fact, occupancy of the service station – must be interpreted as meaning that, that provision does not require the supplier to be the owner of the land on which he has built the service station which he is letting to the reseller. The provisions at issue are drafted in a clear and unequivocal manner, since the double condition that the supplier must own both the service station and the land on which it was built appears neither in the body of the regulation itself, nor in its preamble.

(see paras 44, 51-52, 60, operative part 1)

3. It follows from the wording of Article 5(a) of Regulation no 2790/1999 on the application of Article 81(3) EC to categories of vertical agreements and concerted practices that the five‑year limit for the non‑compete obligation, which is required for the application of the block exemption, is not applicable in two situations, that is to say, the situation where the supplier is the owner of both the service station which he lets to the reseller, and the land on which it is built, and the situation where the supplier leases the land and the service station from third parties not connected with the reseller to sub‑let them to the latter.

(see paras 63-64, 69, operative part 2)

4. Contractual clauses relating to the retail price are eligible for the block exemptions under Regulation No 1984/83 on the application of Article 85(3) of the Treaty (now Article 81(1) EC) to categories of exclusive purchasing agreements, as amended by Regulation No 1582/97, and under Regulation No 2790/1999 on the application of Article 81(3) EC to categories of vertical agreements and concerted practices, 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 resale 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.

As regards a recommended sale price, the method for calculating it is irrelevant, provided that a degree of freedom is left to the reseller enabling him actually to determine the sale price. However, there would be no such freedom in the event that the supplier imposed a fixed distribution margin on the reseller from which he could not depart. It is for the national court, first, to ascertain, account being taken of all the contractual obligations in their commercial and legal context, and of the conduct of the parties to the main proceedings, whether the retail price recommended by the supplier, constitutes, in reality, a fixed or minimum sale price and, second, to examine whether it is genuinely possible for the reseller to reduce that recommended sale price. It must, inter alia, ascertain whether such a retail price is, in reality, fixed by indirect or concealed means, such as the fixing of the reseller’s margin or the maximum reduction he can make from the recommended sale price, threats, intimidation, warnings, penalties or incentives.

(see paras 78-80, 84, operative part 3)