On the probative force of CNMC’s final decisions for civil courts

Facts and background to the request for a preliminary ruling

Commercial Court No. 2 of Madrid submitted a request for a preliminary ruling in the context of civil proceedings against Repsol Comercial de Productos Petrolíferos, S.A. (“Repsol”). The applicants are individual owners of a service station by inheritance (“applicants”). They seek a declaration that certain supply contracts with that company are void for including vertical price fixing clauses contrary to article 101(1) of the Treaty on the Functioning of the European Union (“TFEU”). They also claim damages.

In order to prove the existence and unlawfulness of these practices before the court of first instance, the applicants rely on two final decisions of the Spanish competition authority sanctioning Repsol for vertical price fixing practices, both direct and indirect. According to the applicants, the allegedly void contracts fall within the scope of these decisions (sanctioned companies, type of contracts, territorial and temporal scope):

> Decision of the Spanish Competition Authority of July 11, 2001 (case 490/00 REPSOL). After analyzing a sample of different types of contracts entered into by Repsol, the Spanish Competition Authority sanctioned that company for directly setting fuel retail prices for independent distributors under a supposed commission basis. The Spanish Competition Authority ordered the companies to cease fixing prices in relation to the contracts subject to administrative review and those with similar characteristics.

> Decision of the Spanish Competition Authority of July 30, 2009 (case 652/07 REPSOL/CEPSA/BP), imposing a fine on REPSOL for turning the direct price fixing scheme into an indirect one, which also violated competition regulations.

In the monitoring procedure, the Spanish Competition Authority issued three decisions in 2013 (final), 2017 and 2020, concluding that Repsol continued the anticompetitive practice for more than 10 years.

Commercial Court No. 2 of Madrid requested a preliminary ruling based on a previous judgment of the Provincial Court of Madrid (judgment number 381/2020, of July 17, 2020), which in a similar case regarding stand-alone actions denied probative force to the referred decisions of the competition authority. According to the Provincial Court, in civil proceedings it is not sufficient to establish that the relevant contracts fall within the subjective and temporal scope of the decisions issued by the Competition Authority. Instead, it is necessary to provide the court with all the evidence that the allegedly void contracts are actually affected by the anticompetitive practices.

Among other arguments, the Provincial Court highlights the different nature of follow-on and stand-alone actions, as well as the different functions of competition authorities and commercial courts. The contractual relationships examined may provide a significant sample for the monitoring functions of national competition authorities, but it may not be sufficient in civil proceedings seeking nullity and damages. Instead of drawing general conclusions from the competition authority’s decisions on the operation of a commercial network, an individual analysis of the contractual relationship is required to prove that the applicant—and not another subject—has been the victim of the alleged anticompetitive practice.

Subject matter of the request for a preliminary ruling

 The request for a preliminary ruling submitted by the court of first instance consists of two questions. However, our interest is focused on the first one:

 > If the applicant establishes that its exclusive supply contract under a brand name with REPSOL falls within the territorial and temporal scope examined by the national competition authority, could it be understood that the contractual relationship was affected by the aforementioned decisions of the national competition authority of 2001 and 2009, thus fulfilling the burden of proof under Article 2 of EC Regulation No. 1/2003?

 Article 2 of this Regulation places the burden of proof on the party alleging an infringement of articles 101 and 102 TFEU. Therefore, the court of first instance basically asks the CJEU to determine whether such burden could be eased and met by merely establishing that the specific contractual relationship falls within the subjective scope of the national competition authority’s final decisions.

 As can be seen from the request for a preliminary ruling, the commercial court seems to be in favor of easing the burden based on the principle of effectiveness. Otherwise, the implementation of article 101 (and 102) TFEU could be undermined by rendering excessively difficult (i) any actions for nullity of contracts contrary to that provision (which would thus be maintained); and (ii) damage compensation to those affected by the prohibited practice.

 It remains to be seen whether the CJEU is as flexible as the referring court or whether it is more conservative, in line with the Provincial Court of Madrid. However, what seems rather clear in light of recent preliminary ruling requests (including this one) is that national courts will seek the assistance of the CJEU in the context of civil proceedings for damages arising from violations of EU competition law. Indeed, the increase in this type of litigation is and will keep raising issues not yet solved by existing legislation (in particular, Directive 2014/104/EU governing actions for damages for infringements of EU competition law).

The request for a preliminary ruling is available in the following link