Case C-331/21, EDP — Energias de Portugal and Others: Judgment of the Court (Third Chamber) of 26 October 2023 (request for a preliminary ruling from the Tribunal da Relação de Lisboa — Portugal) — EDP — Energias de Portugal SA, EDP Comercial — Comercialização de Energia SA, MC retail SGPS SA, formerly Sonae MC SGPS SA, Modelo Continente Hipermercados SA v Autoridade da Concorrência (Reference for a preliminary ruling — Article 101 TFEU — Agreements, decisions and concerted practices — Prohibition of agreements, decisions and concerted practices — Agreements between undertakings — Distinction between a vertical and a horizontal agreement — Potential competition — Restriction of competition by object or by effect — Agreement between a supplier of electricity and a retailer of consumer products operating hypermarkets and supermarkets — Non-compete clause — Regulation (EU) No 330/2010 — Agency contract — Liberalisation of the market for the supply of electricity)
Date: 2023-10-26
Institutions: Court of Justice
Subjects: Portugal, competition law, distribution cost, electricity supply, energy supply, price agreement, retail selling, supermarket, vertical agreement








C_202301101EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2023/1101


4.12.2023





Judgment of the Court (Third Chamber) of 26 October 2023 (request for a preliminary ruling from the Tribunal da Relação de Lisboa — Portugal) — EDP — Energias de Portugal SA, EDP Comercial — Comercialização de Energia SA, MC retail SGPS SA, formerly Sonae MC SGPS SA, Modelo Continente Hipermercados SA v Autoridade da Concorrência
(Case C-331/21, (1) EDP — Energias de Portugal and Others)
(Reference for a preliminary ruling - Article 101 TFEU - Agreements, decisions and concerted practices - Prohibition of agreements, decisions and concerted practices - Agreements between undertakings - Distinction between a vertical and a horizontal agreement - Potential competition - Restriction of competition by object or by effect - Agreement between a supplier of electricity and a retailer of consumer products operating hypermarkets and supermarkets - Non-compete clause - Regulation (EU) No 330/2010 - Agency contract - Liberalisation of the market for the supply of electricity)
(C/2023/1101)
Language of the case: Portuguese

Referring court

Tribunal da Relação de Lisboa

Parties to the main proceedings


Applicants: EDP — Energias de Portugal SA, EDP Comercial — Comercialização de Energia SA, MC retail SGPS SA, formerly Sonae MC SGPS SA, Modelo Continente Hipermercados SA

Defendant: Autoridade da Concorrência

Intervening party: Ministério Público

Operative part of the judgment







1.


Article 101(1) TFEU
must be interpreted as meaning that
an undertaking managing a network of consumer product retailers must be regarded as being, on the electricity market, a potential competitor of an electricity supplier with which it has concluded an association agreement containing a non-compete clause, even though that undertaking is not active on that product market at the time when that agreement is concluded, in so far as it is demonstrated, on the basis of a body of consistent facts taking into account the structure of the market and the economic and legal context within which it operates, that there are real and concrete possibilities for that undertaking to enter that market and compete with that supplier..










2.


Article 101(3) TFEU, read in conjunction with Article 1(1)(a) of Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices,
must be interpreted as meaning that
a commercial association agreement concluded between two undertakings active on different product markets which are not upstream or downstream of each other, does not fall within the category of a ‘vertical agreement’ and an ‘agency agreement’ where that agreement consists of promoting the development of sales of the products of those two undertakings through a promotion and cross-discount mechanism, where each of those undertakings bears a part of the costs relating to the implementation of that association.










3.


Article 101(1) TFEU
must be interpreted as meaning that
a non-compete clause contained in a commercial association agreement concluded between two undertakings active on different product markets and intended to promote the development of sales of the products of those two undertakings by means of a promotion and cross-discount mechanism cannot be regarded as a restriction ancillary to that association agreement unless the restriction to which that clause gives rise is objectively necessary for the implementation of that association agreement and proportionate to its objectives.










4.


Article 101(1) TFEU
must be interpreted as meaning that
a non-compete clause consisting, in particular, in the context of a commercial association agreement, in prohibiting one of the parties to that agreement from entering the national market for the supply of electricity on which the other party to that agreement is a major player, at the time of the final stages of the liberalisation of that market, constitutes an agreement which has as its object the prevention, restriction or distortion of competition, even if consumers derive certain benefits from that agreement and that non-compete clause is limited in time, in so far as it is apparent from an analysis of the content of that clause and its economic and legal context that that clause displays a sufficient degree of harm to competition for the view to be taken that it is not necessary to assess its effects.






(1)  
            OJ C 452, 8.11.2021.


ELI: http://data.europa.eu/eli/C/2023/1101/oj
ISSN 1977-091X (electronic edition)