CEPSA Estaciones de Servicio SA v LV Tobar e Hijos SL.
Date: 2008-09-11
28. It must be recalled that under Article 234 EC, which is based on a clear separation of functions between national courts and tribunals and the Court of Justice, the latter is empowered to rule on the interpretation or validity of Community provisions only on the basis of the facts which the national court or tribunal puts before it, and that it is, however, for the national court or tribunal to apply the rules of Community law to a specific case. Consequently, the Court has no jurisdiction to give a ruling on the facts in the main proceedings or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court or tribunal (see, inter alia, Case C‑318/98 Fornasar and Others  [2000] ECR I‑4785, paragraph 32, and Case C‑421/01 Traunfellner [2003] ECR I‑11941, paragraph 21).
30. In this respect, it must also be recalled that, within the framework of proceedings under Article 234 EC, the Court cannot resolve a dispute concerning the facts. Such a dispute, like any other assessment of the facts involved, is within the province of the national court (see Case 36/79 Denkavit Futtermittel  [1979] ECR 3439, paragraph 12, and Joined Cases C‑211/03, C‑299/03 and C‑316/03 to C‑318/03 HLH Warenvertrieb and Orthica [2005] ECR I‑5141, paragraph 96).
31. However, it is for the Court to provide the referring court with an answer which will be of use to it and enable it to determine the case before it (see, inter alia, Case C‑98/06 Freeport  [2007] ECR I‑8319, paragraph 31).
42. If an examination of the risks leads to the conclusion that there is an agreement between undertakings within the meaning of Article 81 EC, as regards the sale of goods to third parties, the fixing of the retail price of those goods constitutes a restriction of competition expressly provided for in Article 81(1)(a) EC which brings that agreement within the scope of the prohibition laid down in that provision to the extent to which all the other conditions for the application of that provision are satisfied, namely that that agreement has as its object or effect to restrict appreciably competition within the common market and is capable of affecting trade between Member States (see, to that effect, Case C‑230/96 Cabour  [1998] ECR I‑2055, paragraph 48).
43. Moreover, as regards in particular exclusive purchasing agreements, the case‑law of the Court of Justice should be recalled, according to which, even if those agreements do not have as their object the restriction of competition within the meaning of Article 81 EC, it is nevertheless necessary to ascertain whether they have the effect of preventing, restricting or distorting competition. The effects of an exclusive purchasing agreement have to be assessed in the economic and legal context in which the agreement occurs and where it may combine with other agreements to have a cumulative effect on competition. It is therefore necessary to analyse the effects of such an agreement, taken together with other agreements of the same type, on the opportunities of national competitors or those from other Member States to gain access to the relevant market or to increase their market share (see Case C‑234/89 Delimitis  [1991] ECR I‑935, paragraphs 13 to 15, and Case C‑214/99 Neste  [2000] ECR I‑11121, paragraph 25).
50. It should be noted that the Spanish version of that article 10 did not specify the nature of those commercial or financial advantages, unlike all the other language versions, which used the term ‘specific’ or ‘special’ to describe those advantages. However, according to settled case‑law, the different language versions of a provision of Community law must be uniformly interpreted and, in the case of divergence between those versions, the relevant provision must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see Case C‑1/02 Borgmann  [2004] ECR I‑3219, paragraph 25; Case C‑227/01 Commission v Spain  [2004] ECR I‑8253, paragraph 45, and judgment of 16 March 2006 in Case C‑332/04 Commission v Spain , not published in the ECR, paragraph 52).
72. If the referring court were to conclude that Tobar was, in reality, required to charge the fixed or minimum sale price imposed by CEPSA, that contract could not qualify for the block exemption established by Regulation No 2790/1999. However, where an agreement does not satisfy all the conditions provided for by an exempting regulation, it will be caught by the prohibition provided for in Article 81(1) EC only if its object or effect is to restrict appreciably competition within the common market and it is capable of affecting trade between Member States (see, to that effect, Cabour , cited above, paragraph 48). In that latter case, and in the absence of individual exemption pursuant to Article 81(3) EC, the price agreement would be automatically void under Article 81(2) EC.
74. It follows from settled case‑law that, once the conditions for the application of Article 81(1) EC are met and so long as the agreement concerned does not justify the grant of an exemption under Article 81(3) EC, the nullity referred to in Article 81(2) EC can be relied on by anyone. Since that nullity is absolute, it is capable of having a bearing on all the effects, either past or future, of the agreement concerned (Joined Cases C‑295/04 to C‑298/04 Manfredi and Others  [2006] ECR I‑6619, paragraph 57 and the case‑law cited).
79. If those parts are severable from the agreement, the consequences, for all other parts of the agreement or for other obligations flowing from it, of the nullity are not a matter for Community law. It is therefore for the referring court to determine, in accordance with the national law applicable, the extent and consequences, for the contractual relation as a whole, of the nullity of certain contractual clauses under Article 81(2) EC (see, inter alia, Case 10/86 VAG France  [1986] ECR 4071, paragraphs 14 and 15; Cabour , cited above, paragraph 51, and Joined Cases C‑376/05 and C‑377/05 Brünsteiner and Autohaus Hilgert  [2006] ECR I‑11383, paragraph 48).