ZA and Others v Repsol Comercial de Productos Petrolíferos SA.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:298
• Date: 20 April 2023
• Docket Number: C-25/21
• Celex Number: 62021CJ0025
• Procedure Type: Reference for a preliminary ruling
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

20 April 2023 (*)

(Reference for a preliminary ruling – Competition – Vertical restrictions of competition – Article 101(1) and (2) TFEU – Principle of effectiveness – Regulation (EC) No 1/2003 – Article 2 – Directive 2014/104/EU – Article 9(1) – Binding effect of the final decisions of the national competition authorities finding an infringement of the competition law rules – Temporal and material application – Actions for damages and for a declaration of nullity for infringements of the EU competition law provisions)

In Case C‑25/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Mercantil No 2 de Madrid (Commercial Court No 2, Madrid, Spain), made by decision of 30 November 2020, received at the Court on 15 January 2021, in the proceedings

ZA,

AZ,

BX,

CV,

DU,

ET

v

Repsol Comercial de Productos Petolíferos SA,

THE COURT (First Chamber),

composed of A. Arabadjiev (Rapporteur), President of the Chamber, P.G. Xuereb, A. Kumin, N. Wahl and I. Ziemele, Judges,

Advocate General: G. Pitruzzella,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 19 May 2022,

after considering the observations submitted on behalf of:

– ZA, AZ, BX, CV, DU and ET, by A. Hernández Pardo, I. Sobrepera Millet and L. Ruiz Ezquerra, abogados,

– Repsol Comercial de Productos Petrolíferos SA, by M.P. Arévalo Nieto, Á. Requeijo Pascua and M. Villarrubia García, abogados,

– the Spanish Government, by L. Aguilera Ruiz, acting as Agent,

– the European Commission, by F. Jimeno Fernández and C. Urraca Caviedes, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 8 September 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 101(2) TFEU and Article 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1).

2 The request has been made in proceedings between ZA, AZ, BX, CV, DU and ET (together, ‘KN’s heirs’) and Repsol Comercial de Productos Petrolíferos SA (‘Repsol’) concerning actions brought by KN’s heirs seeking a declaration of nullity of the contracts concluded between them and Repsol as well as compensation for the harm allegedly caused by those contracts.

Legal context

European Union law

Regulation No 1/2003

3 Article 2 of Regulation No 1/2003, headed ‘Burden of proof’, provides:

‘In any national or Community proceedings for the application of Articles [101 and 102 TFEU], the burden of proving an infringement of Article [101](1) or of Article [102 TFEU] shall rest on the party or the authority alleging the infringement. The undertaking or association of undertakings claiming the benefit of Article [101(3) TFEU] shall bear the burden of proving that the conditions of that paragraph are fulfilled.’

Directive 2014/104/EU

4 Recital 34 of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1) states:

‘Ensuring the effective and consistent application of Articles 101 and 102 TFEU by the [European] Commission and the national competition authorities necessitates a common approach across the [European] Union on the effect of national competition authorities’ final infringement decisions on subsequent actions for damages. Such decisions are adopted only after the Commission has been informed of the decision envisaged or, in the absence thereof, of any other document indicating the proposed course of action pursuant to Article 11(4) of Regulation (EC) No 1/2003, and if the Commission has not relieved the national competition authority of its competence by initiating proceedings pursuant to Article 11(6) of that Regulation. The Commission should ensure the consistent application of Union competition law by providing, bilaterally and within the framework of the European Competition Network, guidance to the national competition authorities. To enhance legal certainty, to avoid inconsistency in the application of Articles 101 and 102 TFEU, to increase the effectiveness and procedural efficiency of actions for damages and to foster the functioning of the internal market for undertakings and consumers, the finding of an infringement of Article 101 or 102 TFEU in a final decision by a national competition authority or a review court should not be relitigated in subsequent actions for damages. Therefore, such a finding should be deemed to be irrefutably established in actions for damages brought in the Member State of the national competition authority or review court relating to that infringement. The effect of the finding should, however, cover only the nature of the infringement and its material, personal, temporal and territorial scope as determined by the competition authority or review court in the exercise of its jurisdiction. Where a decision has found that provisions of national competition law are infringed in cases where Union and national competition law are applied in the same case and in parallel, that infringement should also be deemed to be irrefutably established.’

5 Article 1 of that directive, entitled ‘Subject matter and scope’, provides:

‘1. This Directive sets out certain rules necessary to ensure that anyone who has suffered harm caused by an infringement of competition law by an undertaking or by an association of undertakings can effectively exercise the right to claim full compensation for that harm from that undertaking or association. It sets out rules fostering undistorted competition in the internal market and removing obstacles to its proper functioning, by ensuring equivalent protection throughout the Union for anyone who has suffered such harm.

2. This Directive sets out rules coordinating the enforcement of the competition rules by competition authorities and the enforcement of those rules in damages actions before national courts.’

6 Article 9 of the said directive, entitled ‘Effect of national decisions’, provides:

‘1. Member States shall ensure that an infringement of competition law found by a final decision of a national competition authority or by a review court is deemed to be irrefutably established for the purposes of an action for damages brought before their national courts under Article 101 or 102 TFEU or under national competition law.

2. Member States shall ensure that where a final decision referred to in paragraph 1 is taken in another Member State, that final decision may, in accordance with national law, be presented before their national courts as at least prima facie evidence that an infringement of competition law has occurred and, as appropriate, may be assessed along with any other evidence adduced by the parties.

3. This Article is without prejudice to the rights and obligations of national courts under Article 267 TFEU.’

7 Article 21 of the same directive, entitled ‘Transposition’, is worded, in paragraph 1 thereof, as follows:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 27 December 2016. They shall forthwith communicate to the Commission the text thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. Member States shall determine how such reference is to be made.’

8 Article 22 of that directive, entitled ‘Temporal application’, states:

‘1. Member States shall ensure that the national measures adopted pursuant to Article 21 in order to comply with substantive provisions of this Directive do not apply retroactively.

2. Member States shall ensure that any national measures adopted pursuant to Article 21, other than those referred to in paragraph 1, do not apply to actions for damages of which a national court was seized prior to 26 December 2014.’

Spanish law

9 Article 75(1) of Ley 15/2007 de Defensa de la Competencia (Law 15/2007 on the protection of competition) of 3 July 2007 (BOE No 159 of 4 July 2007, p. 28848), as amended by Real Decreto-ley 9/2017, por el que se transponen Directivas de la Unión Europea en los ámbitos financiero, mercantil y sanitario, y sobre el desplazamiento de trabajadores (Royal Decree-Law 9/2017 transposing European Union directives in the fields of finance, business and health, and on the posting of workers) of 26 May 2017 (BOE No 126 of 27 May 2017, p. 42820), provides:

‘An infringement of competition law found by a final decision of a Spanish competition authority or by a Spanish review court is deemed to be irrefutably established for the purposes of an action for damages brought before a Spanish court.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

10 KN’s heirs are the owners of a service station built by KN. During the period from 1987 to 2009, KN or KN’s heirs, on the one hand, and Repsol, on the other, concluded several exclusive contracts for the supply of fuel.

11 It is apparent from the order for reference that the first two contracts concluded on 1 July 1987 and 1 February 1996 were ‘resale contracts’, ownership of the fuel supplied by Repsol being transferred to KN or to KN’s heirs as soon as it was transferred into the tank of the service station concerned. Those contracts provided that the remuneration of the service station operator consisted of a commission which that operator could charge on the fuel retail price recommended by Repsol.

12 On 27 April 1999, the Asociación de Propietarios de Estaciones de Servicio y Unidades de Suministro de Andalucía (Association of Service Station...