Confederación Española de Empresarios de Estaciones de Servicio v Compañía Española de Petróleos SA.
Date: 2006-12-14
16. As a preliminary point, it must be observed that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, in particular, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59, Case C‑28/95 Leur-Bloem  [1997] ECR I‑4161, paragraph 24, and Case C‑306/99 BIAO  [2003] ECR I‑1, paragraph 88).
17. Where questions submitted by national courts concern the interpretation of a provision of Community law, the Court of Justice is bound, in principle, to give a ruling unless it is obvious that the request for a preliminary ruling is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of Community law requested bears no relation to the actual facts of the main action or its purpose, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, BIAO , paragraph 89 and the case-law cited).
19. The Court has already held that neither the wording of Article 234 EC nor the aim of the procedure established by that article indicates that the Treaty makers intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State ( Leur-Bloem , paragraph 25).
20. Therefore, where, in regulating internal situations, domestic legislation adopts the same solutions as those adopted in Community law in order, as in the case in the main proceedings, to avoid any distortion of competition, it is clearly in the Community interest that, in order to forestall a risk of future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, in particular, Case C‑28/95 Leur-Bloem , paragraph 32, and Case C‑3/04 Poseidon Chartering  [2006] ECR I‑2505, paragraph 16).
21. Furthermore, contrary to CEPSA’s submissions, the circumstances in the case in the main proceedings are different from those in Case C‑346/93 Kleinwort Benson  [1995] ECR I‑615. In that judgment, the Court held that it had no jurisdiction to interpret national legislation which did not make a direct and unconditional reference to Community law, but which merely took the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 1) as a model and did not wholly reproduce the terms thereof. It is apparent from paragraph 18 of that judgment that express provision was made in that legislation for the national authorities to adopt modifications ‘designed to produce divergence’ between any provision of that legislation and a corresponding provision of the Convention. Moreover, that legislation distinguished between the provisions applicable to Community situations and those applicable to domestic situations.
22. As far as concerns this reference for a preliminary ruling, although Article 1(1)(b) of Royal Decree No 157/1992 makes express reference to Regulation No 1984/83 only in order to determine the rules applicable to domestic situations, the fact remains that, by means of a reference to the provisions of Regulation No 1984/83, the national legislature decided to apply the same treatment to domestic and to Community situations. It follows that where there is a reference to an act of Community law in national legislation, such as there is in the case in the main proceedings, the Court has jurisdiction to interpret that act.
26. It must be observed in that regard that, according to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Case C‑72/03 Carbonati Apuani  [2004] ECR I‑8027, paragraph 10, and Case C‑134/03 Viacom Outdoor  [2005] ECR I‑1167, paragraph 22).
28. Accordingly, a question referred for a preliminary ruling by a national court is inadmissible where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see to that effect, inter alia, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 39, and Case C‑390/99 Canal Satélite Digital  [2002] ECR I‑607, paragraph 19).
29. In order to ascertain whether the information supplied by the Tribunal Supremo satisfies those requirements, the nature and scope of the question raised have to be taken into consideration. In so far as the need for precision with regard to the factual context applies especially in the area of competition, which is characterised by complex factual and legal situations, the Court must examine whether the order for reference supplies sufficient information to enable it to give a useful answer to that question (see, to that effect, Viacom Outdoor , paragraph 23).
37. In that connection, it must be recalled that, according to settled case-law, agreements between traders at different levels in the economic process, namely ‘vertical agreements’, may constitute agreements within the meaning of Article 85(1) of the Treaty and be prohibited by that provision (see, to that effect, Joined Cases 56/64 and 58/64 Consten and Grundig  v Commission  [1966] ECR 299, 338, and Case C‑266/93 Volkswagen and VAG Leasing  [1995] ECR I‑3477, paragraph 17).
39. It is settled case-law that, in Community competition law, the definition of an ‘undertaking’ covers any entity engaged in an economic activity, regardless of the legal status of that entity and the way in which it is financed (Case C‑41/90 Höfner and Elser  [1991] ECR I‑1979, paragraph 21, and Case C‑205/03 P FENIN  v Commission [2006] ECR I‑0000, paragraph 25).
40. The Court has also stated that, in the same context, the term ‘undertaking’ must be understood as designating an economic unit for the purpose of the subject-matter of the agreement in question even if in law that economic unit consists of several persons, natural or legal (Case 170/83 Hydrotherm  [1984] ECR 2999, paragraph 11).
41. The Court has furthermore made clear that for the purposes of applying the rules on competition the formal separation between two parties resulting from their separate legal personality is not conclusive, the decisive test being the unity of their conduct on the market (see, to that effect, Case 48/69 ICI  v Commission  [1972] ECR 619, paragraph 140).
42. In certain circumstances, the relationship between a principal and his agent may be characterised by such economic unity (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others  v Commission [1975] ECR 1663, paragraph 480).
43. In that connection, it is clear, however, from the case-law that agents can lose their character as independent traders only if they do not bear any of the risks resulting from the contracts negotiated on behalf of the principal and they operate as auxiliary organs forming an integral part of the principal’s undertaking (see, to that effect, Volkswagen and VAG Leasing , paragraph 19).
44. Therefore where an intermediary, such as a service-station operator, while having separate legal personality, does not independently determine his conduct on the market since he depends entirely on his principal, such as a supplier of fuel, because the latter assumes the financial and commercial risks as regards the economic activity concerned, the prohibition laid down in Article 85(1) of the Treaty is not applicable to the relationship between that intermediary and the principal.
45. Conversely, where the agreements concluded between a principal and its intermediaries confer on or allow them functions which, from an economic point of view, are approximately the same as those carried out by an independent economic operator, because they make provision for those intermediaries to assume the financial and commercial risks linked to sales or the performance of contracts entered into with third parties, such intermediaries cannot be regarded as auxiliary organs forming an integral part of the principal’s undertaking, so that a clause restricting competition which they have entered into may be an agreement between undertakings for the purposes of Article 85 of the Treaty (see, to that effect, Suiker Unie , paragraphs 541 and 542).
49. In that context, it must be recalled that the Court has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters within the jurisdiction of the national court (see, in particular, Case 253/03 CLT‑UFA  [2006] ECR I‑1831, paragraph 36, and Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 69).