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Document 62016CJ0547

Judgment of the Court (Third Chamber) of 23 November 2017.
Gasorba SL and Others v Repsol Comercial de Productos Petrolíferos SA.
Competition — Article 101 TFEU — Agreements between undertakings — Business relationships between service station operators and oil companies — Long-term exclusive supply agreement for fuel — European Commission decision making an undertaking’s commitments binding — Extent to which national courts are bound by a commitment decision adopted by the Commission — Articles 9(1) and 16(1) of Regulation (EC) No 1/2003.
Case C-547/16.

Judgment of the Court (Third Chamber) of 23 November 2017.
Gasorba SL and Others v Repsol Comercial de Productos Petrolíferos SA.
Request for a preliminary ruling from the Tribunal Supremo.
Competition — Article 101 TFEU — Agreements between undertakings — Business relationships between service station operators and oil companies — Long-term exclusive supply agreement for fuel — European Commission decision making an undertaking’s commitments binding — Extent to which national courts are bound by a commitment decision adopted by the Commission — Articles 9(1) and 16(1) of Regulation (EC) No 1/2003.
Case C-547/16.

Digital reports (Court Reports - general - 'Information on unpublished decisions' section)

Case C‑547/16

Gasorba SL and Others

v

Repsol Comercial de Productos Petrolíferos SA

(Request for a preliminary ruling from the Tribunal Supremo)

(Competition — Article 101 TFEU — Agreements between undertakings — Business relationships between service station operators and oil companies — Long-term exclusive supply agreement for fuel — European Commission decision making an undertaking’s commitments binding — Extent to which national courts are bound by a commitment decision adopted by the Commission — Articles 9(1) and 16(1) of Regulation (EC) No 1/2003)

Summary — Judgment of the Court (Third Chamber), 23 November 2017

  1. Competition—Administrative procedure—Bringing infringements to an end—Decision of the Commission making commitments entered into pursuant to Article 9 of Regulation No 1/2003 binding—Creation of a legitimate expectation in respect of the undertakings concerned as to whether their conduct complies with Article 101 TFEU—None

    (Art. 101 TFEU; Council Regulation No 1/2003, Art. 9(1))

  2. Competition—Administrative procedure—Bringing infringements to an end—Decision of the Commission making commitments entered into pursuant to Article 9 of Regulation No 1/2003 binding—Whether binding on national courts—Extent

    (Art. 4(3) TEU; Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, Recitals 13 to 22 and Arts 9(1) and 16(1))

  1.  It is apparent from the wording of Article 9(1) of Regulation No 1/2003 that a decision taken on the basis of that article has in particular the effect of making binding the commitments, proposed by undertakings, to meet the competition concerns identified by the Commission in its preliminary assessment. It must be found that such a decision does not certify that the practice, which was the subject of concern, complies with Article 101 TFEU. It follows that a decision taken on the basis of Article 9(1) of Regulation No 1/2003 cannot create a legitimate expectation in respect of the undertakings concerned as to whether their conduct complies with Article 101 TFEU.

    (see paras 25, 28)

  2.  Article 16(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] must be interpreted as meaning that a commitment decision concerning certain agreements between undertakings, adopted by the European Commission under Article 9(1) of that regulation, does not preclude national courts from examining whether those agreements comply with the competition rules and, if necessary, declaring those agreements void pursuant to Article 101(2) TFEU. In addition, recitals 13 and 22 of Regulation No 1/2003, read together, expressly state that commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States to decide on the case, and do not affect the power of the courts and the competition authorities of the Member States to apply Articles 101 and 102 TFEU.

    Nonetheless, national courts cannot overlook that type of decision. Such acts are, in any event, in the nature of a decision. In addition, both the principle of sincere cooperation laid down in Article 4(3) TEU and the objective of applying EU competition law effectively and uniformly require the national court to take into account the preliminary assessment carried out by the Commission and regard it as an indication, if not prima facie evidence, of the anticompetitive nature of the agreement at issue in the light of Article 101(1) TFEU. Since, as provided for in Article 9(1) of Regulation No 1/2003, read in the light of recital 13 of that regulation, the Commission may carry out a mere ‘preliminary assessment’ of the competition situation, without the commitment decision taken on the basis of that article subsequently establishing whether there has been or still is an infringement, it cannot be precluded that a national court may conclude that the practice which is the subject of the commitment decision infringes Article 101 TFEU and that, in so doing, it proposes, unlike the Commission, finding that an infringement of that article has been committed.

    (see paras 26, 27, 29, 30, operative part)

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