Case C-509/07: Reference for a preliminary ruling from the Tribunale di Bergamo (Italy) lodged on 21 November 2007 — Luigi Scarpelli v NEOS Banca SpA
Date: 2007-11-21
Institutions: Court of Justice
Subjects: consumer credit, consumer protection, credit institution, interpretation of the law

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.