‘Must Articles 10 to 13 of Regulation [No 1984/83] be interpreted as meaning that they include within their scope contracts for the exclusive distribution of motorvehicle and other fuels which are nominally classified as commission or agency contracts and which contain the following clauses:
- the service-station operator undertakes to sell the supplier’s motor-vehicle and other fuels in accordance with the retail prices, conditions, and sales and business methods stipulated by the supplier;
- the service-station operator assumes the risk associated with the products as soon as he receives them from the supplier in the storage tanks at the service station;
- once he has received the products, the service-station operator assumes the obligation to keep the products in the conditions necessary to ensure that they undergo no loss or deterioration and is liable, where applicable, both to the supplier and to third parties for any loss, contamination or adulteration which may affect the products and for any damage arising as a result thereof;
- the service-station operator is required to pay the supplier the cost of the motor-vehicle and other fuels nine days after the date of their delivery to the service station?’
In its judgment of 14 December 2006 (Confederación Española de Empresarios de Estaciones de Servicio v. Compañía Española de Petroleos SA), after having dismissed CEPSA’s contention on the lack of jurisdiction, the Court examined first of all whether the agreements at issue in the main proceedings fell within the scope of Article 81 of the EC Treaty.
To that aim, the Court referred to settled case-law on «true» and «untrue» agency agreements and stated that the national court should examine the allocation of the financial and commercial risks between the service-station operator and the supplier of fuel, on the basis of some specific 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.
Then the Court decided that, if the national court were to conclude that there was an agreement between undertakings within the meaning of Article 81 of the Treaty, the exemption provided by Articles 10 to 13 of Regulation 1984/83 would not have been applicable, since those Articles did not cover an agreement which required the service-station operator to charge the final retail price stipulated by the supplier.
The text of this judgments, together with the other most important decisions on this subject-matter, can be found in the database of the European decisions, in the EU section of the IDI website. An analysis of the European case-law on antitrust rules applicable to agency and distribution contracts is contained in the IDI Antitrust report, that can be downloaded from the Reports section of the website.
IDI Editorial Board