Case C-279/06: Reference for a preliminary ruling from the Audiencia Provincial de Madrid (Spain) lodged on 27 June 2006 — CEPSA, Estaciones de Servicio SA v LV Tobar e Hijos SL
Date: 2006-09-02
Institutions: Court of Justice
Subjects: competition law, contract, exclusive distribution agreement, exclusive purchasing agreement, interpretation of the law, motor fuel, petroleum product, restrictive trade practice, supply

2.9.2006

EN

Official Journal of the European Union

C 212/21

Question(s) referred

Is Article 7(2) of Council Regulation (EEC) No 3950/92 of 28
December 1992 (1), as amended by Council Regulation (EC) No
1256/1999 of 17 May 1999 (2), to be interpreted as meaning
that on expiry of rural leases on a milk-production holding or
a milk-production area the attached reference quantities can
revert to the lessor even if that lessor is not, or is not about to
become, a producer himself, insofar as he transfers the refer-
ence quantity as soon as possible through a State sales office to
a third party who has that status?

(1) OJ 1992 L 405, p. 1.
(2) OJ 1999 L 160, p. 73.

Reference for a preliminary ruling from the Audiencia
Provincial de Madrid (Spain) lodged on 27 June 2006 —
CEPSA, Estaciones de Servicio SA v LV Tobar e Hijos SL

(Case C-279/06)

(2006/C 212/36)

Language of the case: Spanish

Referring court

Audiencia Provincial de Madrid

Parties to the main proceedings

Applicant: CEPSA, Estaciones de Servicio SA

Defendant: LV Tobar e Hijos SL

Questions referred

1 (a) Is Article 81(1) EC to be construed as meaning that a
exclusive supply contract under a brand name concluded
in 1996 by a distributor of petroleum products and the
proprietor 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
81(1) EC, is it possible to claim the benefit of exemption

from the prohibition if it satisfies the requirements of
Regulation No 1984/83 (1), 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 considera-
tion for the granting of commercial or financial advan-
tages by the supplier to the service station proprietor,
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 proprietor 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 proprietor has provided
in favour of the supplier?

(d) If that exemption should not be applicable, does the
automatic nullity provided for by Article 81(2) EC affect
the contract in its entirety?

2 (a) Is Article 81(1) EC be interpreted as meaning that a an
exclusive supply contract under a brand name, in so far
as it provides that the service station proprietor 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 restric-
tion of competition because it fixes sale prices, taking
account of its economic significance and in particular of
the risks assumed by the service-station proprietor 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:

(1) The service-station proprietor 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 busi-
ness 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.

(2) The service-station proprietor assumes the risk asso-
ciated 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 proprietor 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, contamina-
tion or adulteration which may affect the products
and for any damage arising as a result thereof.

C 212/22

EN

Official Journal of the European Union

2.9.2006

the

enforce

(3) The service-station proprietor 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 presentation on the date of the
first supply of a bank guarantee for the total price of
the supply, equivalent to 15 days. If it should fail to
pay, apart
the supplier
from the possibility that
might
the guarantee presented by the
latter would be
service-station proprietor,
required to pay for supplies before they were deliv-
ered to the service station. Payment is made by the
service-station
by
deducting from the price of sale to the public fixed
by the distributor,
including VAT, the amount of
‘commission’ due to the service-station proprietor,
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
(the appellant in these proceedings). The distributor
debits or
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.

proprietor

supplier

service

credits

the

the

to

the use of

(4) The proprietor of the service station guarantees and
is responsible for those customers who have signed
up for
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.

(5) 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 proprietor of
the service
station may not use, without the supplier's authorisa-
tion in writing, to sell products not supplied by that
supplier, and which are valued precisely at
the
the service
the bank guarantee that
amount of
station proprietor has presented in favour of the
supplier?

(b) If so, on a proper construction of Commission Regu-
lation (EEC) No 1984/83 of 22 June 1983, and in par-
ticular 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 81(1) of
the EC Treaty is not applicable if the contract satisfies
the requirements for exemption contained in those arti-
cles of the regulation?

(c) In that case,

is Article 11 of

that regulation to be
construed as meaning that, if the contract 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 distribution company to the service station to lower

its sale price without affecting the distributor's receipts,
which took place in November 2001, make it possible to
regard the contract as valid?

(1) 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 (OJ L 173, p. 5).

Reference for a preliminary ruling from the Prague
Regional Court lodged on 28 June 2006 — Ochranný Svaz
Autorský pro Práva k Dilům Hudebním (OSA) v Miloslav
Lev

(Case C-282/06)

(2006/C 212/37)

Language of the case: Czech

Referring court

Prague Regional Court (Krajský Soud v Praze)

Parties to the main proceedings

Applicant(s): Ochranný Svaz Autorský pro Práva k Dilům
Hudebním (OSA)

Defendant(s): Miloslav Lev

Question(s) referred

1. In accordance with European Union law — Directive EC
2001/29 — does an author have a right to remuneration in
the case of the playing of a work on radio or television by
an operator of an establishment used in connection with
accommodation, even where the television or radio receiver
is situated in a private part of the premises used for accom-
modation (in a room)?

2. Does §23 of the Copyright Law No 121/2000 Coll., as
amended by Law No 81/2005 Coll., conflict with Com-
munity law?