Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 31 May 2007 — Pedro IV Servicios S.L. v Total España S.A.

(Case C-260/07)

(2007/C 183/40)

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Applicant: Pedro IV Servicios S.L.

Defendant: Total España S.A.

Questions referred

Must Article 12(2) of Commission Regulation (EEC) No 1984/83 (1), which provides that ‘where the agreement relates to a service station which the supplier lets to the reseller, or allows the reseller to occupy on some other basis, in law or in facts, [then] exclusive purchasing obligations or prohibitions of competition indicated in this Title may, notwithstanding Paragraph 1(c), be imposed on the reseller for the whole period for which the reseller in fact operates on the premises’, be interpreted as referring to the situation in which the supplier/lessor initially owned the land and the installations, or on the contrary does the reference to the ‘letting’ of the service station cover all those titles which by operation of law give the supplier a proprietary right in the service station alone, with the consequence that the supplier can lease it to the owner of the land without being required to comply with the time limitations which the rules impose in respect of exclusive purchasing agreements?

If Commission Regulation (EC) No 2790/1999 (2) of 22 December 1999 is applicable to the present case, must the provision in Article 5 that the exemption [in Article 2 of the regulation] is not to apply if the duration of the exclusive purchasing agreement exceeds five years, although ‘the time limitation of five years shall not apply where the contract goods or services are sold by the buyer from premises and land owned by the supplier or leased by the supplier from third parties not connected with the buyer, provided that the duration of the non-compete obligation does not exceed the period of occupancy of the premises and land by the buyer’, be interpreted, where it mentions leasing, as referring to a situation in which the supplier/lessor also initially owned the land and the installations, or on the contrary does the reference to the leasing of the service station cover all those titles which may by operation of law give the supplier a proprietary right in the service station alone, with the consequence that the supplier can lease it to the owner of the land without being required to comply with the time limitations which the rules impose in respect of exclusive purchasing agreements?

Must the prohibition of the indirect fixing of purchase or selling prices laid down in Article 81(1)(a) EC and the statement in recital 8 in the preamble to Commission Regulation (EEC) No 1984/83 that ‘further restrictive obligations and in particular those which limit the reseller's choice of customers or his freedom to determine his prices and conditions of sale cannot be exempted under this Regulation’ resale price fixing not being among the other restrictions on competition permitted in Article 11 of that regulation, be interpreted as including any form of restriction of the reseller's freedom to fix the retail price, such as where the supplier fixes the distribution margin of the operator of the service station, by fixing the price of the fuel which he supplies to the reseller on the most advantageous terms agreed with other service stations that may be established in Barcelona, provided that the price will never be higher than the average price fixed by other suppliers with a significant presence on the market, then adding the minimum margin which is thought appropriate and thus arriving at the PVP (retail price), which the supplier does not expressly impose but which it recommends be charged?

Must the prohibition of the indirect fixing of purchase or selling prices laid down in Article 81(1)(a) EC, and the inclusion in Article 4(a) of Commission Regulation (EC) No 2790/1999 of 22 December 1999 of resale price maintenance as a particularly serious (‘hardcore’) restriction on competition, be interpreted as including any form of restriction of the reseller's freedom to fix the retail price, such as where the supplier fixes the distribution margin of the operator of the service station, by fixing the price of the fuel which he supplies to the reseller on the most advantageous terms agreed with other service stations that may be established in Barcelona, provided that the price will never be higher than the average price fixed by other suppliers with a significant presence on the market, then adding the minimum margin which is thought appropriate and thus arriving at the PVP (retail price), which the supplier does not expressly impose but which it recommends be charged?

(1)  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).

(2)  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).