Case C-279/06: Judgment of the Court (Third Chamber) of 11 September 2008 (reference for a preliminary ruling from the Audiencia Provincial de Madrid, Spain) — CEPSA Estaciones de Servicio SA v LV Tobar e Hijos SL (Competition — Agreements, decisions and concerted practices — Agreements between undertakings — Article 81 EC — Regulation (EEC) No 1984/83 — Articles 10 to 13 — Regulation No 2790/1999 — Article 4(a) — Exclusive supply contract for petroleum products between a service-station operator and an oil company — Exemption)
Date: 2008-09-11
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

C 285/4

EN

Official Journal of the European Union

8.11.2008

Montecchio Technologies Inc.
(FIAMM Technologies), Giorgio
Fedon & Figli SpA, Fedon America, Inc. (represented by: I. Van
Bael, A. Cevese, F. Di Gianni and R. Antonini, avocats)

Judgment of the Court (Third Chamber) of 11 September
2008 (reference for
a preliminary ruling from the
Audiencia Provincial de Madrid, Spain) — CEPSA
Estaciones de Servicio SA v LV Tobar e Hijos SL

Other parties to the proceedings: Council of the European Union
(represented by: A. Vitro, S. Marquardt and A. De Gregorio
Merino, acting as Agents), Commission of
the European
Communities (represented by: P.J. Kuijper, V. Di Bucci, C.
Brown and E. Righini, acting as Agents), Kingdom of Spain
(Case C-120/06 P) (represented by: E. Braquehais Conesa and M.
Muñoz Pérez, acting as Agents)

Intervener in support of the Council of the European Union and the
Commission of the European Communities: Kingdom of Spain (Case
C-121/06 P) (represented by: M. Muñoz Pérez, acting as Agent)

(Case C-279/06) (1)

(Competition — Agreements, decisions and concerted practices
— Agreements between undertakings — Article 81 EC —
Regulation (EEC) No 1984/83 — Articles 10 to 13 — Regu-
lation No 2790/1999 — Article 4(a) — Exclusive supply
contract for petroleum products between a service-station
operator and an oil company — Exemption)

(2008/C 285/05)

Language of the case: Spanish

Re:

Appeal against the judgment of
the Court of First Instance
(Grand Chamber) of 14 December 2005 in Case T-69/00
FIAMM and FIAMM Technologies v Council and Commission,
dismissing as unfounded an action for compensation for
damage allegedly suffered by the appellants as a result of retalia-
tory measures taken by the United States authorities in relation
to a series of Community goods, including batteries manufac-
tured and exported by the appellants,
in the context of the
dispute concerning the European regime governing the import
of bananas

Appeal against the judgment of
the Court of First Instance
(Grand Chamber) of 14 December 2005 in Case T-135/01
Fedon & Figli and Fedon America v Council and Commission,
dismissing as unfounded an action for compensation for
damage allegedly suffered by the appellants as a result of retalia-
tory measures taken by the United States authorities in relation
to a series of Community goods,
including spectacle cases
manufactured and exported by the appellants, in the context of
the dispute concerning the European regime governing the
import of bananas

Operative part of the judgment

The Court:

1. Dismisses the main appeals;

2. Dismisses the cross-appeals;

3. Orders Fabbrica italiana accumulatori motocarri Montecchio SpA,
Fabbrica italiana accumulatori motocarri Montecchio Technologies
LLC, Giorgio Fedon & Figli SpA and Fedon America, Inc. to bear
the costs incurred by the Council of the European Union and the
Commission of the European Communities;

4. Orders the Kingdom of Spain to bear its own costs.

(1) OJ C 108, 6.5.2006.

Referring court

Audiencia Provincial de Madrid

Parties to the main proceedings

Applicant: CEPSA Estaciones de Servicio SA

Defendant: LV Tobar e Hijos SL

Re:

Reference for a preliminary ruling — Audiencia Provincial de
Madrid — Interpretation of Article 81(1) EC and Articles 10
to 13 of Commission Regulation (EEC) No 1984/83 of 22 June
1983 on the application of Article 85(3) of the Treaty to cate-
gories of exclusive purchasing agreements (OJ 1983 L 173, p. 5)
— Exclusive distribution contracts for fuels classified as agency
or commission contracts but having certain specific features

Operative part of the judgment

1) An exclusive supply contract for motor-vehicle and other fuels, as
well as lubricants and other related products, is capable of falling
within the scope of Article 81(1) EC where the service station
operator assumes,
in a non-negligible proportion, one or more
financial and commercial risks linked to the sale of those products
to third parties and where that contract contains clauses capable of
infringing competition, such as that relating to the fixing of the
retail price. If the service-station operator does not assume such
risks or assumes only a negligible share of them, only the obliga-
tions imposed on the operator in the context of services as an inter-
mediary offered by the operator to the principal, such as the exclu-
sivity and non-competition clauses, are capable of falling within the
scope of that provision. It is for the referring court to ascertain,
moreover, whether the contract concluded on 7 February 1996
between CEPSA Estaciones de Servicio SA and LV Tobar e Hijos
SL has the effect of preventing, restricting or distorting competition
within the meaning of Article 81 EC.

2) An exclusive supply contract, such as that

referred to in the
preceding paragraph of this operative part, is capable of benefiting
from a block exemption provided for in Commission Regulation
(EEC) No 1984/83 of 22 June 1983 on the application of
Article [81](3) of the Treaty to categories of exclusive purchasing
(EC)
agreements,
No 1582/97 of 30 July 1997, if it complies with the maximum
duration of 10 years referred to in Article 12(1)(c) of that regu-
in
lation and if the supplier grants the service-station operator,

by Commission Regulation

amended

as

8.11.2008

EN

Official Journal of the European Union

C 285/5

return for exclusivity, substantial commercial advantages which
contribute to an improvement in distribution, facilitate the estab-
lishment or modernisation of
the service station and lower the
distribution costs. It is for the referring court to assess whether
those conditions are satisfied in the case in the main proceedings.

3) Articles 10 to 13 of Regulation No 1984/83, as amended by
Regulation No 1582/97, must be interpreted as precluding the
application of the block exemption to an exclusive supply contract
which provides for the fixing of the retail price by the supplier. It is
for the referring court to ascertain whether, under national law, the
contractual clause relating to that sale price can be amended by
unilateral authorisation of the supplier, such as that at issue in the
main proceedings, and whether a contract which is automatically
void may become valid following an amendment of that contractual
clause which has the effect of bringing that clause into line with
Article 81(1) EC.

4) The automatic nullity provided for in Article 81(2) EC affects a
contract in its entirety only if the clauses which are incompatible
with Article 81(1) EC are not severable from the contract itself.
Otherwise, the consequences of the nullity,
in respect of all the
other parts of the contract, are not a matter for Community law.

(1) OJ C 212, 2.9.2006.

Judgment of the Court (Fifth Chamber) of 11 September
the European Communities v
2008 — Commission of

Hellenic Republic

(Case C-305/06) (1)

(Failure of a Member State to fulfil obligations — Combined
transport of goods between the Member States — Directive
92/106/EEC — Final road haulage leg forming an integral
part of a combined transport operation — Nearest suitable
railway station)

(2008/C 285/06)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Zavvos and K. Simonsson, acting as Agents)

Defendant: Hellenic Republic (represented by: S. Chala, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement
of Articles 2 and 4 of Council Directive 92/106/EEC on the
establishment of common rules for certain types of combined
transport of goods between Member States (OJ 1992 L 368,
p. 38) — Final road haulage leg forming an integral part of a
combined transport operation — Requirement of a Greek road
transport authorisation

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs.

(1) OJ C 224, 16.9.2006.

Judgment of the Court (Fifth Chamber) of 11 September
the European Communities v
2008 — Commission of

Ireland

(Case C-316/06) (1)

(Failure of a Member State to fulfil obligations — Environ-
ment — Directive 91/271/EEC — Pollution and nuisance —
Treatment of urban waste water)

(2008/C 285/07)

Language of the case: English

Parties

Applicant: Commission of the European Communities (repre-
sented by: S. Pardo Quintillán and D. Lawunmi, Agents)

Defendant: Ireland (represented by: D. O'Hagan, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement
of Article 4(1) and (3) of Council Directive 91/271/EEC of
21 May 1991 concerning urban waste-water treatment (OJ 1991
L 135, p. 40) — Failure to ensure that the waste water from a
number of agglomerations is made subject to secondary treat-
treatment before entering collecting
ment or an equivalent
systems (agglomerations of Bray, Howth, Letterkenny, Shanga-
nagh, Sligo and Tramore, County Waterford)

Operative part of the judgment

The Court:

1. Declares that, by failing, first,

IE40, Shanganagh,

in respect of discharges from the
agglomerations known as IE22, Bray, IE31, Howth, IE34, Letter-
kenny,
IE41, Sligo, and IE45, Tramore,
County Waterford, to ensure that, before discharge, waste water
entering collecting systems was made subject to secondary treatment
or an equivalent treatment at the latest by 31 December 2000 and
by failing, second, to ensure that the discharge of that waste water
satisfied the relevant requirements of Annex I.B to Council Directive
91/271/EEC of 21 May 1991 concerning urban waste water
treatment by the said deadline, Ireland has failed to fulfil its obliga-
tions under Article 4(1) and (3) of that directive;

2. Orders Ireland to pay the costs.

(1) OJ C 224, 16.9.2006.