Keywords
Summary

Keywords

1. Preliminary rulings – Jurisdiction of the Court – Limits

(Art. 234 EC)

2. Preliminary rulings – Admissibility

(Art. 234 EC)

3. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept

(Art. 85 and 85(1) of the EC Treaty (now Art. 81 EC and 81(1) EC))

4. Competition – Agreements, decisions and concerted practices – Not allowed – Group exemption – Exclusive purchasing agreements – Regulation No 1984/83

(Article 85(3) of the EC Treaty (now Article 81(3) EC); Commission Regulation No 1984/83, Arts 10 to 13)

Summary

1. 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.

Therefore, where, in regulating internal situations, domestic legislation adopts the same solutions as those adopted in Community law in order 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.

Thus, although the national provision at issue in the main proceedings makes express reference to an act of Community law only in order to determine the rules applicable to domestic situations, the fact remains that, by means of such a reference, the national legislature decided to apply the same treatment to domestic and to Community situations and the Court has jurisdiction to interpret that act.

(see paras 19-20, 22)

2. 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.

In order to ascertain whether the information supplied by the national court 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.

Where the order for reference does not contain certain information that would be relevant for the purposes of answering the question referred but, despite such gaps, does make it possible to determine the scope of that question, the Court has sufficient factual material to interpret the Community rules concerned and to give a useful answer to that question.

(see paras 28-31)

3. For the purposes of applying the rules on competition and, in particular, Article 85 of the EEC Treaty (subsequently 85 of the EC Treaty and now Article 81 EC), the formal separation between two parties resulting from their separate legal personality is not conclusive, the decisive test being the unity (or not) of their conduct on the market.

Although, in certain circumstances, the relationship between a principal and his agent may be characterised by such economic unity, agents can, however, 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.

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.

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.

It follows that the decisive factor for the purposes of determining whether a service-station operator is an independent economic operator is to be found in the agreement concluded with the principal and, in particular, in the clauses of that agreement, implied or express, relating to the assumption of the financial and commercial risks linked to sales of goods to third parties. That question of risk must be analysed on a case-by-case basis, taking account of the real economic situation rather than the legal classification of the contractual relationship in national law.

To that end, it is necessary to apply criteria such as ownership of the goods, the contribution to the costs linked to their distribution, their safe-keeping, liability for any damage caused to the goods or by the goods to third parties, and the making of investments specific to the sale of those goods.

However, the fact that the intermediary in reality bears only a negligible share of the risks does not render Article 85 of the Treaty applicable.

In such a case, only the obligations imposed on the intermediary in the context of the sale of the goods to third parties on behalf of the principal fall outside the scope of that article. An agency contract may contain clauses concerning the relationship between the agent and the principal to which that article applies, such as exclusivity and non-competition clauses. In that connection, in the context of such relationships, agents are, in principle, independent economic operators and such clauses are capable of infringing the competition rules in so far as they entail locking up the market concerned.

Article 85 of the Treaty thus applies to an agreement for the exclusive distribution of motor-vehicle and other fuels concluded between a supplier and a service-station operator where that operator assumes, to a non-negligible extent, one or more financial and commercial risks linked to the sale to third parties.

(see paras 41-46, 60-62, 65, operative part 1)

4. Article 11 of Regulation No 1984/83 on the application of Article 85(3) of the Treaty [now Article 81(1) EC] to categories of exclusive purchasing agreements lists the obligations that, apart from an exclusivity clause, may be imposed on a reseller, which do not include the imposition of the retail price. Consequently, stipulation of such a price constitutes a restriction on competition not covered by the exemption in Article 10 of that regulation.

Articles 10 to 13 of Regulation No 1984/83 must therefore be interpreted as not covering an agreement for the exclusive distribution of motor-vehicle and other fuels concluded between a supplier and a service-station operator in so far as it requires the service-station operator to charge the final retail price stipulated by the supplier.

(see paras 64, 66, operative part 2)