The Court of Justice opens the way to declare the nullity of multiple exclusive fuel supply contracts
On April 20, 2023 was published the Judgment of the Court of Justice of the European Union, which resolved the preliminary question raised by the Commercial Court No. 2 of Madrid, by which opens the door for multiple owners of service stations to exercise a nullity action with respect to the contracts that link them with the oil company as well as to request compensation for the damages caused by those contracts in which there is directly or indirectly an exclusive fixing of prices.
Its origin comes from the sanctions imposed by the competition authorities on July 11, 2001 and July 30, 2009 by which Repsol (among other oil companies) was sanctioned for directly or indirectly fixing the price of fuel sales to service stations. Specifically:
- They declared contrary to competition law any contractual clause in fuel supply contracts stipulating that the purchase price of fuel should refer to the maximum or recommended price, whether that of the service station itself or of competitors in the vicinity.
- They declared contrary to competition law any contractual clause in fuel supply contracts stating that the commissions/margins to be received shall be calculated at levels similar to those of the area where the service station covered by the contract is located.
Both sanctions were confirmed by the Supreme Court, acquiring therefore firmness, determining the infringement by Repsol, BP and CEPSA of Article 101 TFEU according to which: “All agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market and, in particular, those which consist in: directly or indirectly fixing purchase or selling prices or other trading conditions shall be incompatible with the internal market and shall be prohibited”.
The question referred for a preliminary ruling arises because, until now, according to national case law, in the context of a nullity action under Article 101 TFEU, no binding effect was attributed to a final decision of a national competition authority if it was not proven that the infringement found in that decision and the alleged infringement that was the subject of the nullity action were the same and that the plaintiff, and not another person, was the victim of that infringement. That is to say, it was not enough to provide such resolutions finding the infringement, but it was necessary to provide again all the probative value that was carried out at the time before the competition authorities in order to declare the nullity of the disputed contracts.
The above has been clarified by the Court of Justice of the European Union, which has established that the decisions of national competition authorities that have become final after having been confirmed by the courts must be deemed to be proven, shifting the burden of proof to the defendant.
In short, the infringement by the oil company has already been established once the decision issued by the competition authority has become final, unless there is evidence to the contrary, which in this case must be provided by the defendant, provided that the material, temporal and territorial scope of the nullity action and of its action for damages coincide with the scope of the final decisions alleged.
In turn, the Court of Justice of the European Union opens the way for the Court to declare null and void all contractual clauses incompatible with Article 101 TFEU, provided that an infringement of Article 101 TFEU is proven (in this case, in relation to the exclusive fixing of prices by the oil company to the service station), which is the subject of the action for nullity and damages.
Therefore, as a result of this ruling, it is possible for many service stations to declare null and void the fuel supply contracts that linked them to the oil companies. Special attention should be paid to:
- The clauses included in said contract, for which a detailed study of the same will be necessary.
- The coincidence between the material, temporal and territorial scope of the action brought and the final resolutions alleged.