Case C-506/07: Reference for a preliminary ruling from the Audiencia Provincial de la Coruña (Spain) lodged on 20 November 2007 — Lubricantes y Carburantes Galaicos, S.L. (Lubricarga) v Petrogal Española, S.A., now GALP Energía España SAU )
Date: 2007-11-20
Institutions: Court of Justice
Subjects: competition law, exclusive distribution agreement, interpretation of the law, motor fuel, restriction on competition, retail outlet, selling price

C 37/6

EN

Official Journal of the European Union

9.2.2008

Parties to the main proceedings

Applicant: Compañía Española de Comercialización de Aceite,
SA

Defendants: Asociación Española de la Industria y Comercio
Exportador de Aceite de Oliva (ASOLIVA), Asociación Nacional
de Industriales Envasadores y Refinadores de Aceites Comesti-
bles (ANIERAC) and Administración del Estado

Questions referred

1. Does

the reference to ‘bodies’ authorised to conclude
in Article 12a of
contracts for the storage of olive oil
Council Regulation (EEC) No 136/66 (1) of 22 September
1966 on the establishment of a common organisation of the
market in oils and fats, in the version introduced by Regu-
lation 1638/98 (2), cover a company whose shareholders
predominantly comprise producers, oil pressers and olive
growers' cooperatives, as well as financial institutions? Can a
company with these characteristics be considered equivalent
to producer groups and associations thereof
recognised
under Regulation (EC) 952/97 (3)?

2. In the event that the company falls within the description of
‘bodies’ capable of carrying out storage activities, can the
‘approval by the Member State’ which such bodies require by
virtue of Article 12a of Regulation 136/66, be obtained as
part of an application for a specific exemption (‘authori-
sation’) made to the national competition authorities?

in each case or, on the contrary,

3. Does Article 12a of Regulation 136/66 constitute an abso-
lute requirement that the Commission authorise the private
storage of olive oil
is it
compatible with the existence of a mechanism agreed
between producers for the privately financed acquisition and
storage of such olive oil, which would be activated exclu-
sively on the same terms and conditions which activate Com-
munity-financed private storage, with the aim of supple-
menting and speeding up such Community-financed storage
without going beyond it?

4. Can the reasoning given by the Court of Justice in Case
C-137/00 Milk Marque [2003] ECR I-7975 relating to the
application by domestic authorities of national competition
rules to producers' agreements which are capable, in prin-
ciple, of being covered by Article 2 of Council Regulation
No 26 (4) (applying certain rules of competition to produc-
tion of and trade in agricultural products) be extended to
the
agreements which, by their nature and by nature of
sector in question, could affect the Community market in
olive oil as a whole?

5. In the event that the national competition authorities are
competent
laws to the aforementioned
agreements which are capable of affecting the common orga-
nisation of the market in fats, can those authorities refuse

to apply national

absolutely to allow a company such as the appellant to make
use of the storage mechanisms for olive oil even in situations
of ‘serious disturbance’ as contemplated by Article 12a of
Regulation 136/66?

(1) OJ English Special Edition 1965-1966, p. 221.
(2) Council Regulation (EC) No 1638/98 of 20 July 1998 amending
Regulation No 136/66/EEC on the establishment of a common orga-
nisation of the markets in oils and fats (OJ 1998 L 210, p. 32).

(3) Council Regulation (EC) No 952/97 of 20 May 1997 on producer

groups and associations thereof (OJ 1997 L 142, p. 30).

(4) OJ English Special Edition 1959-1962, p. 129.

Reference for a preliminary ruling from the Audiencia
Provincial de la Coruña (Spain) lodged on 20 November
2007 — Lubricantes
S.L.
(Lubricarga) v Petrogal Española, S.A., now ‘GALP Energía
España SAU’)

y Carburantes Galaicos,

(Case C-506/07)

(2008/C 37/07)

Language of the case: Spanish

Referring court

Audiencia Provincial de la Coruña

Parties to the main proceedings

Applicant: Lubricantes y Carburantes Galaicos, S.L. (Lubricarga)

Defendant: Petrogal Española, S.A., now ‘GALP Energía España
SAU’

Questions referred

1. If

the contract concluded between Lubricarga S.L. and
Petrogal S.A. is de minimis, is it excluded in all cases from
Article [81] of the Treaty or, notwithstanding that classifica-
tion, will that article apply to the contract in the event that
the proprietor of the service station is obliged to observe the
final public selling price set by the supplier and/or that
exclusive purchasing obligations and prohibitions of compe-
tition are imposed on the reseller but are not made subject
to the time limitations laid down in Commission Regulation
(EEC) No 1984/83 (1) and Commission Regulation (EC)
No 2790/1999 (2)?

9.2.2008

EN

Official Journal of the European Union

C 37/7

2. In the event

that Regulation No 1984/83 is applicable,
where it prohibits exclusive vertical agreements relating to
service stations for an indefinite duration or for a period of
more than 10 years, subject to the derogation laid down in
Article 12(2) 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, exclusive purchasing obligations or prohi-
bitions of competition indicated in this title may … be
imposed on the reseller for the whole period for which the
reseller in fact operates the premises’, does that derogation
cover a case such as the one in issue where, pursuant to the
private contract of 27 July 1990 and the public deed dated
10 October 1995, Lubricarga, the owner of a plot of land,
granted Galp surface rights for a period of 25 years and the
latter undertook to build the service station, on the condition
that, once the construction had been completed, the facilities
would be assigned to Lubricarga which would operate them
for the same period of time, subject to the obligation to
purchase all motor-vehicle and other fuel exclusively from
the oil company?

3. In the event that Regulation No 2790/1999 is applicable,
where it provides in Article 5 that ‘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
connected with the buyer, provided that the duration of the
non-compete clause does not exceed the period of occupancy
of the premises and land by the buyer’, does that exemption
include a case such as the one in issue where, pursuant to
the private contract of 27 July 1990 and the public deed
dated 10 October 1995, Lubricarga, the owner of a plot of
land, granted Galp surface rights for a period of 25 years and
the latter undertook to build the service station, on the
condition that, once the construction had been completed,
the facilities would be assigned to Lubricarga which would
operate them for the same period of time, subject to the
obligation to purchase all motor-vehicle and other fuel exclu-
sively from the oil company?

the indirect

4. Having regard to the fact that Article [81](1)(a) of the EEC
Treaty refers to the prohibition of
fixing of
purchase or selling prices, and recital 8 in the preamble to
Regulation No 1984/83 states that ‘further restrictive obliga-
tions 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’,
does that prohibition apply to a contract such as the one in
issue, clause 10 and annex I of which refer to the obtaining
of competitive prices and state that ‘the discounts awarded to
the proprietor shall not be lower than the average commis-
sions received by the operators of the three [leading] under-
takings (in terms of turnover) operating in the geographical
area in which the Service Station is situated’, on the grounds
that the contract may restrict, in any event, the right of the
purchaser to determine the selling price?

serious restriction of competition, does that prohibition
apply to a contract such as the one in issue, clause 10 and
annex I of which refer to the obtaining of competitive prices
and state that ‘the discounts awarded to the proprietor shall
not be lower than the average commissions received by the
operators of the three [leading] undertakings (in terms of
turnover) operating in the geographical area in which the
Service Station is situated’, on the grounds that the contract
may restrict, in any event, the right of the purchaser to deter-
mine the selling price?

(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).

Reference for a preliminary ruling from the Tribunale di
Bergamo (Italy) lodged on 21 November 2007 — Luigi
Scarpelli v NEOS Banca SpA

(Case C-509/07)

(2008/C 37/08)

Language of the case: Italian

Referring court

Tribunale di Bergamo

Parties to the main proceedings

Applicant: Luigi Scarpelli

Defendant: NEOS Banca SpA

Question referred

‘Is Article 11(2) of Council Directive 102/87/EEC (1) to be inter-
preted as meaning that an agreement between a supplier and a
grantor of credit whereunder credit is made available exclusively
by that grantor of credit to customers of that supplier is a neces-
sary condition for the consumer's right
to pursue remedies
against the grantor of credit — where the supplier is in breach
of contract — even where that right is (a) only to termination
of the credit agreement; or (b) to termination of the agreement
and consequently to reimbursement of the sums paid to the
grantor of credit?’

5. Having regard to the fact that Article [81](1)(a) of the EEC
Treaty refers to the prohibition of
fixing of
purchase or selling prices, and Regulation No 2790/99
provides that retention of the resale price is a particularly

the indirect

(1) OJ L 42, p. 48.