Pedro IV Servicios SL v Total España SA.
Date: 2009-04-02
28. In that regard, it should be borne in mind 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 (Case C‑306/99 BIAO [2003] ECR I‑1, paragraph 88, and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987 (‘ CEEES’ ), paragraph 16 and the case‑law cited).
29. Also 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; Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, paragraph 22; and CEEES , paragraph 26).
31. The reference for a preliminary ruling, likewise, cannot be held inadmissible because the answers to the questions referred are clear, as Total alleges, from existing well-established Community and national case‑law. Even assuming that the questions referred are materially identical to questions which have already been ruled upon in the context of a reference for a preliminary ruling in an analogous case, that circumstance in no way prevents the national court from referring questions to the Court for a preliminary ruling and does not result in the Court lacking jurisdiction to rule on those questions (see, to that effect, Case 283/81 CILFIT and Others [1982] ECR 3415, paragraphs 13 and 15). However, in such a case, the Court may, pursuant to Article 104(3) of its Rules of Procedure, after hearing the Advocate General, at any time give its decision by reasoned order in which reference is made to its previous judgment or to the relevant case-law.
32. Furthermore, the preliminary ruling procedure established by Article 234 EC has as its objective, inter alia, to ensure the proper application and uniform interpretation of Community law in all the Member States and to prevent a body of national case-law that is not in accordance with the rules of Community law from coming into existence in any Member State (see Case C‑495/03 Intermodal Transports [2005] ECR I‑8151, paragraph 38, and Case C‑458/06 Gourmet Classic [2008] ECR I-4207, paragraph 32).
36. While it is indeed true that the block exemption regulations apply in so far as agreements contain restrictions on competition caught by Article 81(1) EC, it is nevertheless often more practical to ascertain first whether those regulations apply to a given agreement, in order to avoid – if those regulations do apply – a complex economic and legal assessment to determine whether the conditions for the application of Article 81(1) EC are met. In any event, it is clear from the line of case‑law established in CILFIT and Others  that a referring court, the decisions of which are not subject to appeal in the internal legal order, and which has to apply a provision of Community law to a dispute before it, is not bound to ask the Court for an interpretation of that provision if the point of law at issue has been resolved by established case-law of the Court, whatever the nature of the proceedings which have given rise to that case-law, even if the issues in dispute are not strictly identical.
68. However, where an agreement does not satisfy all the conditions provided for by an exempting regulation, it will be caught by the prohibition laid down in Article 81(1) EC only if its object or effect is perceptibly to restrict competition within the common market and it is capable of affecting trade between Member States. In that latter case, and in the absence of individual exemption pursuant to Article 81(3) EC, that agreement would be automatically void under Article 81(2) EC (see, to that effect, Case C‑230/96 Cabour [1998] ECR I‑2055, paragraph 48, and CEPSA , paragraph 72).
78. As regards the retail price, it is clear from the very wording of the second contractual clause that that price is not imposed, but recommended by the supplier, without a maximum sale price even being stipulated. The method for calculating the recommended sale price is, in that regard, irrelevant, provided that a degree of freedom is left to the reseller enabling him actually to determine the sale price. However, there would be no such freedom in the event that the supplier imposed a fixed distribution margin on the reseller from which he could not depart.
79. In the light of the division of jurisdiction between the national courts and the Court of Justice in the context of the cooperation established by Article 234 EC, it is for the referring court, which alone has direct knowledge of the dispute before it, to assess the manner in which the retail price was fixed in the case in the main proceedings. It is for it, in particular, to ascertain, account being taken of all the contractual obligations in their commercial and legal context, and if the conduct of the parties to the main proceedings, whether the retail price recommended by the supplier constitutes, in reality, a fixed or minimum sale price (see, to that effect, CEPSA , paragraphs 67 and 70).