CELEX: 62007CO0506
Language: en
Date: 2009-09-03 00:00:00
Title: Order of the Court (Seventh Chamber) of 3 September 2009. # Lubricantes y Carburantes Galaicos SL v GALP Energía España SAU. # Reference for a preliminary ruling: Audiencia provincial de La Coruña - Spain. # The first subparagraph of Article 104(3) of the Rules of Procedure - Competition - Agreements, decisions and concerted practices - Article 81 EC - Exclusive supply contract for motor vehicle and other fuel between a supplier and a service station operator - Exemption - Agreement of minor importance - Regulation (EEC) No 1984/83 - Article 12(2) - Regulation (EC) No 2790/1999 - Articles 4(a) and 5(a) - Duration of the exclusive rights - Fixing of the retail price. # Case C-506/07.

Order of the Court (Seventh Chamber) of 3 September 2009 – Lubricantes y Carburantes Galaicos v GALP Energía España
      (Case C‑506/07)
      The first subparagraph of Article 104(3) of the Rules of Procedure – Competition – Agreements, decisions and concerted practices – Article 81 EC – Exclusive supply contract for motor vehicle and other fuel between a supplier and a service station operator – Exemption – Agreement of minor importance – Regulation (EEC) No 1984/83 – Article 12(2) – Regulation (EC) No 2790/1999 – Articles 4(a) and 5(a) – Duration of the exclusive rights – Fixing of the retail price
      1.                     Competition – Agreements, decisions and concerted practices – Prohibition – Conditions – Effect on trade between Member States
            – Adverse effect on competition – Appreciable effect – Exclusive distribution agreement for motor vehicle and other fuel between
            a supplier and a service station operator ineligible for the block exemption (Art. 81(1) EC) (see paras 22-26, 33, operative
            part 1)
      2.                     Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Exclusive purchasing agreements
            – Criteria for assessment – Accessibility of the market (Art. 81(1) EC) (see paras 28-32)
      3.                     Competition – Agreements, decisions and concerted practices – Prohibition – Block exemption – Exclusive purchasing agreements
            – Regulation No 1984/83 – Exclusive distribution agreement for motor vehicle and other fuel between a supplier and a service
            station operator – Maximum duration – Derogation (Art. 81(3) EC; Commission Regulation No 1984/83, as amended by Regulation
            No 1582/97, Art. 12(2)) (see paras 34-41, operative part 2)
      4.                     Competition – Agreements, decisions and concerted practices – Prohibition – Block exemption – Vertical agreements – Regulation
            No 2790/1999 –  Exclusive distribution agreement for motor vehicle and other fuel between a supplier and a service station
            operator – Maximum duration – Derogation (Art. 81(3), EC; Commission Regulation No 2790/1999, Art. 5(a)) (see paras 42-47,
            operative part 3)
      5.                     Competition – Agreements, decisions and concerted practices – Prohibition – Block exemption – Exclusive purchasing agreements
            – Regulation No 1984/83 – Vertical agreements – Regulation No 2790/1999 – Fixing of a recommended sale price (Commission Regulations
            No 1984/83, as amended by Regulation No 1582/97, Art. 11, and No 2790/1999, Art. 4(a)) (see paras 49-56, operative part 4)
      Re: 
      
         
               Reference for a preliminary ruling – Audiencia Provincial de La Coruña – Interpretation of Article 81(1)(a) EC, the eighth
                  recital in the preamble to, and Articles 10 and 12(1)(c) and 12(2) of, 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) and
                  Articles 4(a) and 5 of 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) – Exclusive distribution agreement
                  for motor vehicle and other fuel between a supplier and a service station operator – Service station built by the supplier
                  under a surface right granted by the reseller for a period of 25 years over a piece of the land and granted to the reseller
                  to use for the same period of time.
               
            Operative part: 
      
         
                  1.
               
               
                  
               
               
                  	A contract, such as that at issue in the main proceedings, which provides for the creation of a right in rem, called a ‘surface
                     right’, in favour of a supplier of petroleum products for a period of 25 years and authorises the latter to build a service
                     station and to let that service station to the owner of the land for the same period as the duration of that right, and which
                     contains clauses relating to the fixing of the retail price of goods and/or an exclusive purchasing obligation or a non-compete
                     clause whose duration of application exceeds the time limitations laid down 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 agreements, as amended
                     by Commission Regulation (EC) No 1582/97 of 30 July 1997 and by 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, does not fall
                     within the prohibition laid down in Article 81(1) EC provided that it is not likely to affect trade between the Member States
                     and that it is not its purpose or effect to restrict competition appreciably. It is the task of the national court to determine
                     whether that is the case by taking account, in particular, of the economic and legal context within which that contract is
                     situated.
                  
               
            
         
                  2.
               
               
                  
               
               
                  	Article 12(2) of Regulation No 1984/83, as amended by Regulation No 1582/97, must be interpreted as not precluding, for the
                     purposes of the implementation of the derogation set out therein, the duration of an exclusive rights agreement from exceeding
                     the time limitations laid down in that regulation, when the owner of a plot of land has granted to a supplier a surface right
                     for a period of 25 years and the latter is required to build a service station to be let to the owner of the land so that
                     he can operate that service station for the same period as the duration of that right.
                  
               
            
         
                  3.
               
               
                  
               
               
                  	Article 5(a) of Regulation No 2790/1999 must be interpreted as precluding, for the purposes of the implementation of the derogation
                     set out therein, the duration of an exclusive rights agreement from exceeding the time limitations laid down in that regulation,
                     when the owner of a plot of land has granted to a supplier a surface right for a period of 25 years and the latter is required
                     to build a service station to be let to the owner of the land so that he can operate that service station for the same period
                     as the duration of that right.
                  
               
            
         
                  4.
               
               
                  
               
               
                  	Contractual clauses relating to the retail price of goods, such as those at issue in the main proceedings, are eligible for
                     the block exemption under Regulation No 1984/83, as amended by Regulation No 1582/97, and Regulation No 2790/1999 when the
                     supplier does no more than impose a maximum sale price or recommend a sale price and when, therefore, it is genuinely possible
                     for the reseller to determine that retail price. On the other hand, such clauses are ineligible for those exemptions where
                     they lead, directly or by indirect or concealed means, to the fixing of a retail price or the imposition of a minimum sale
                     price by the supplier. It is for the national court to determine whether such obligations constrain the reseller, taking account
                     of all of the contractual obligations in their economic and legal context, and of the conduct of the parties to the main proceedings.