20 April 2023 (*1)

(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,

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

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).

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

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.’

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.’

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.

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.

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.’

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.

Spanish law

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

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.

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.

On 27 April 1999, the Asociación de Propietarios de Estaciones de Servicio y Unidades de Suministro de Andalucía (Association of Service Station and Supply Unit Proprietors of Andalusia, Spain) lodged a complaint with the competent authorities against several refining companies, Repsol among them, alleging breach of national and Community competition law.

By decision of 11 July 2001 (‘the 2001 decision’), the Tribunal de Defensa de la Competencia (Competition Court, Spain) found that, by having fixed, in the context of its contractual relations with certain Spanish service stations, fuel retail prices, Repsol had infringed the competition law rules. That court ordered Repsol to bring that infringement to an end.

That decision, the validity of which was challenged by Repsol, was confirmed by a judgment of the Audiencia Nacional (National High Court, Spain) of 11 July 2007. That judgment was appealed by Repsol to the Tribunal Supremo (Supreme Court, Spain), which, by its judgment of 17 November 2010, dismissed that appeal. As a result, the 2001 decision became final.

On 22 February 2001, 22 February 2006 and 17 July 2009, KN’s heirs concluded three further contracts with Repsol. Those contracts, which were also resale contracts, contained an exclusive supply obligation in favour of that company.

Following an investigation by the Comisión Nacional de la Competencia (National Competition Commission, Spain), that authority, on 30 July 2009, adopted a decision (‘the 2009 decision’) by which it penalised certain refining companies, including Repsol, for having indirectly fixed the fuel retail prices charged by the service stations concerned. The said authority found that Repsol had infringed Article 81(1) EC (now Article 101(1) TFEU) and Article 1 of Ley 16/1989 de Defensa de la Competencia (Law 16/1989 on competition) of 17 July 1989 (BOE No 170 of 18 July 1989, p. 22747).

The 2009 decision, against which an action for annulment had been brought, was upheld by the judgments of the Tribunal Supremo (Supreme Court) of 22 May and 2 June 2015 and became final.

In the context of a supervisory procedure, the National Competition Commission delivered three decisions in which it found that Repsol had continued to disregard the competition law rules until 2019.

In those circumstances, pursuant to Article 101(2) TFEU, KN’s heirs, in the wake of the decisions of 2001 and 2009, brought before the Juzgado de lo Mercantil No 2 de Madrid (Commercial Court No 2, Madrid, Spain) – the referring court – first, an action for a declaration of nullity of the contracts concluded with Repsol, on the ground that, in breach of Article 101(1) TFEU, that company had fixed the retail price of the fuels at issue and, second, an action for damages for the harm allegedly caused by those contracts. In order to demonstrate the existence of the infringement concerned, KN’s heirs rely, in those actions, on the 2001 and 2009 decisions.

The referring court recalls, first, that, under Article 2 of Regulation No 1/2003, the burden of proof of an infringement of Article 101 TFEU is to rest on the party alleging the infringement.

Second, it observes that, in principle, in accordance with Article 9(1) of Directive 2014/104, in an action for damages brought following a decision of a national competition authority which has become final, the applicant concerned may be able to discharge its burden of proof concerning the existence of an infringement by demonstrating that that decision relates specifically to the contractual relationship at issue.

According to national case-law, however, in an action for a declaration of nullity under Article 101(2) TFEU, such as that brought by KN’s heirs, no binding effect is conferred on a final decision of a national competition authority unless it is shown that the infringement found in that decision and the alleged infringement against which that action has been brought are the same and that it is the applicant and not another person who is the victim of that infringement.