WRITTEN QUESTION E-1731/01

by Isidoro Sánchez García (ELDR) to the Commission

(14 June 2001)

Subject: Liberalisation of the fuel sector

At a meeting of the Commission and the national competition authorities held on 29 September 2001, Commissioner Monti stated in relation to liberalisation of the fuel sector that competition law should leave retailers free to set prices.

Can the Commission supply a list of its measures or recommendations vis-à-vis the Member States or, where relevant, of actions already adopted by the Member States and the Commission in this sense?

Can the Commission provide information on the concrete measures being taken to enable new independent operators or non-integrated companies to enter the national fuel markets within the EU, in the interests of greater liberalisation and competition in this strategic sector?

Answer given by Mr Monti on behalf of the Commission

(3 September 2001)

Concerning the first question, the Commission has always considered resale price maintenance as a very serious restriction of competition falling under the scope of paragraph 1 of Article 81 (ex Article 85) of the EC Treaty. As a result, it does not grant and has not granted exemptions under paragraph 3 of Article 81 to this kind of conduct, either individually or in the context of a block exemption regulation concerning vertical agreements. This principle is stated in Article 4a) of Commission Regulation (EC) No 2790/1999 concerning vertical agreements(1) in which it is indicated that the [block] exemption shall 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 (a) 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. Paragraph 47 of Commission Notice Guidelines on vertical restraints describes in detail that resale price maintenance can be achieved by direct as well as indirect means(2).

Concerning the second question, it must first of all be recalled that, contrary to other energy markets where a gradual opening to competition is taking place, the motor fuels market is in principle open to competition in the Community. Therefore, independent operators or non-integrated companies are free to enter the different national motor fuel markets within the Community. The Commission has sent questionnaires to independent motor fuel companies in order to review

whether there are nevertheless barriers, either enacted by the State or by private parties, that might prevent independent or non-integrated companies to enter the national motor fuel markets within the Community. This review will be concluded in the near future. If evidence were found of infringements of Articles 81 and 82 (ex Article 86) of the EC Treaty or any other provision of the EC Treaty, the Commission would take action in order to bring the infringements to an end.

(1) Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the EC Treaty to categories of vertical agreements and concerted practices, OJ L 336, 29.12.1999. See also the eighth recital whereas of Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the EC Treaty to categories of exclusive purchasing agreements, OJ L 173, 30.6.1983.

(2) OJ C 291, 13.10.2000.