Case C-260/07: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 31 May 2007 — Pedro IV Servicios S.L. v Total España S.A.
Date: 2007-08-04
Institutions: Court of Justice
Subjects: distributive trades, exclusive purchasing agreement, fixing of prices, hiring, interpretation of the law, motor fuel, restriction on competition, selling price

4.8.2007

EN

Official Journal of the European Union

C 183/23

Pleas in law and main arguments

The period for implementation of
31 January 2006.

the Directive expired on

(1) OJ L 257, 1.10.2005, p. 127.
(2) OJ L 134, 30.4.2004, p. 1.
(3) OJ L 134, 30.4.2004, p. 114.

connected with the buyer, provided that the duration of the
non-compete obligation does not exceed the period of occu-
pancy of the premises and land by the buyer’, be interpreted,
where it mentions leasing, as referring to a situation in which
the supplier/lessor also initially owned the land and the installa-
tions, or on the contrary does the reference to the leasing of the
service station cover all those titles which may by operation of
law give the supplier a proprietary right in the service station
alone, with the consequence that the supplier can lease it to the
owner of the land without being required to comply with the
time limitations which the rules impose in respect of exclusive
purchasing agreements?

Reference for a preliminary ruling from the Audiencia
Provincial de Barcelona (Spain) lodged on 31 May 2007 —
Pedro IV Servicios S.L. v Total España S.A.

(Case C-260/07)

(2007/C 183/40)

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Applicant: Pedro IV Servicios S.L.

Defendant: Total España S.A.

Questions referred

of Commission Regulation

(EEC)
Must Article
12(2)
No 1984/83 (1), which provides that
‘where the agreement
relates to a service station which the supplier lets to the reseller,
or allows the reseller to occupy on some other basis, in law or
in facts, [then] exclusive purchasing obligations or prohibitions
of competition indicated in this Title may, notwithstanding Para-
graph 1(c), be imposed on the reseller for the whole period for
which the reseller in fact operates on the premises’, be inter-
preted as referring to the situation in which the supplier/lessor
initially owned the land and the installations, or on the contrary
does the reference to the ‘letting’ of the service station cover all
those titles which by operation of
law give the supplier a
proprietary right in the service station alone, with the conse-
quence that the supplier can lease it to the owner of the land
without being required to comply with the time limitations
which the rules impose in respect of exclusive purchasing agree-
ments?

(EC) No

2790/1999 (2)

If Commission Regulation
of
22 December 1999 is applicable to the present case, must the
provision in Article 5 that the exemption [in Article 2 of the
regulation] is not to apply if
the exclusive
purchasing agreement exceeds five years, although ‘the time
limitation of five years shall not apply where the contract goods
or services are sold by the buyer from premises and land owned
by the supplier or leased by the supplier from third parties not

the duration of

the indirect

the prohibition of

fixing of purchase or
Must
laid down in Article 81(1)(a) EC and the
selling prices
statement in recital 8 in the preamble to Commission Regu-
lation (EEC) No 1984/83 that ‘further restrictive obligations and
in particular those which limit the reseller's choice of customers
or his freedom to determine his prices and conditions of sale
cannot be exempted under this Regulation’ resale price fixing
not being among the other
restrictions on competition
permitted in Article 11 of that regulation, be interpreted as
including any form of restriction of the reseller's freedom to fix
the retail price, such as where the supplier fixes the distribution
margin of the operator of the service station, by fixing the price
of the fuel which he supplies to the reseller on the most advan-
tageous terms agreed with other service stations that may be
established in Barcelona, provided that the price will never be
higher than the average price fixed by other suppliers with a
significant presence on the market, then adding the minimum
margin which is thought appropriate and thus arriving at the
PVP (retail price), which the supplier does not expressly impose
but which it recommends be charged?

Must the prohibition of the indirect fixing of purchase or selling
prices laid down in Article 81(1)(a) EC, and the inclusion in
Article 4(a) of Commission Regulation (EC) No 2790/1999 of
22 December 1999 of resale price maintenance as a particularly
serious (‘hardcore’) restriction on competition, be interpreted as
including any form of restriction of the reseller's freedom to fix
the retail price, such as where the supplier fixes the distribution
margin of the operator of the service station, by fixing the price
of the fuel which he supplies to the reseller on the most advan-
tageous terms agreed with other service stations that may be
established in Barcelona, provided that the price will never be
higher than the average price fixed by other suppliers with a
significant presence on the market, then adding the minimum
margin which is thought appropriate and thus arriving at the
PVP (retail price), which the supplier does not expressly impose
but which it recommends be charged?

(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 1983 L 173, p. 5).

(2) 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 (OJ 1999 L 336, p. 21).