1.

Regulation (EC) No 1/2003, ( 2 ) which entered into force on 1 May 2004, made fundamental changes to many areas of the European system for the enforcement of antitrust law. Numerous aspects of that reform have already been the subject of extensive examination by the courts. The same is not true of the new provision contained in Article 9(1) of Regulation No 1/2003, which enables the European Commission for the first time to take official receipt of commitments made by undertakings to address competition concerns and, by way of a decision (the commitment decision), ( 3 ) to declare such commitments to be binding.

2.

In the present case, the Court is called upon to clarify the legal effects attendant upon such a commitment decision in domestic judicial proceedings. Does a national court still have jurisdiction at all to examine whether an agreement between undertakings within the meaning of Article 101(1) TFEU (formerly Article 81 EC) complies with the competition rules where that self-same agreement has been the subject of a commitment decision adopted by the Commission, or does that commitment decision have the blocking effect provided for in Article 16(1) of Regulation No 1/2003?

3.

These questions have arisen against the background of the Spanish service station agreements which the Court of Justice has already been called upon to examine on many occasions on account of the numerous issues they raise in relation to competition law. ( 4 ) Before the Spanish courts, the tenants of a petrol station are in dispute with the oil and gas company Repsol over whether a long-term exclusive purchasing agreement for fuel infringes Article 101 TFEU (formerly Article 81 EC) and how the lawfulness of that exclusive purchasing agreement is affected by a commitment decision adopted by the Commission.

4.

The present case is likely to show the way for how the decentralised system for the enforcement of antitrust law created by Regulation No 1/2003 works in practice in future. For the Court’s judgment will provide a more precise definition of both the scope of commitment decisions adopted by the Commission and the powers of the national courts in the application of the EU competition rules.

5.

The legal framework for this case is defined by Article 101 TFEU (formerly Article 81 EC) and Regulation No 1/2003.

6.

In Chapter I of Regulation No 1/2003 (‘Principles’), Article 1 contains the following provision on the application of Article 101 TFEU (formerly Article 81 EC):

‘1.   Agreements, decisions and concerted practices caught by Article 81(1) of the Treaty which do not satisfy the conditions of Article 81(3) of the Treaty shall be prohibited, no prior decision to that effect being required.

2.   Agreements, decisions and concerted practices caught by Article 81(1) of the Treaty which satisfy the conditions of Article 81(3) of the Treaty shall not be prohibited, no prior decision to that effect being required.

…’

7.

By way of explanation, recital 4 of Regulation No 1/2003 states:

‘The present system [of Regulation No 17] should … be replaced by a directly applicable exception system in which the competition authorities and courts of the Member States have the power to apply not only Article 81(1) and Article 82 of the Treaty, which have direct applicability by virtue of the case-law of the Court of Justice of the European Communities, but also Article 81(3) of the Treaty.’

8.

In Chapter II of Regulation No 1/2003 (‘Powers’), Article 6, under the heading ‘Powers of the national courts’, provides:

‘National courts shall have the power to apply Articles 81 and 82 of the Treaty.’

9.

Article 16(1) of Regulation No 1/2003, which is contained in Chapter IV (‘Cooperation’), appears under the heading ‘Uniform application of Community competition law’ and reads as follows:

‘When national courts rule on agreements, decisions or practices under Article 81 or Article 82 of the Treaty which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission …’

10.

Recital 22 of Regulation No 1/2003 contains the following clarifications in relation to that provision:

‘In order to ensure compliance with the principles of legal certainty and the uniform application of the Community competition rules in a system of parallel powers, conflicting decisions must be avoided. It is therefore necessary to clarify, in accordance with the case-law of the Court of Justice, the effects of Commission decisions and proceedings on courts and competition authorities of the Member States. Commitment decisions adopted by the Commission do not affect the power of the courts and the competition authorities of the Member States to apply Articles 81 and 82 of the Treaty.’

11.

Under the heading ‘Commitments’, Article 9(1) of Regulation No 1/2003, which forms part of Chapter III (‘Commission decisions’), provides:

‘Where the Commission intends to adopt a decision requiring that an infringement be brought to an end and the undertakings concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment, the Commission may by decision make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission.’

12.

Recital 13 of Regulation No 1/2003 contains some points of clarification in relation to that provision:

‘Where, in the course of proceedings which might lead to an agreement or practice being prohibited, undertakings offer the Commission commitments such as to meet its concerns, the Commission should be able to adopt decisions which make those commitments binding on the undertakings concerned. Commitment decisions should find that there are no longer grounds for action by the Commission without concluding whether or not there has been or still is an infringement. Commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States to make such a finding and decide upon the case. Commitment decisions are not appropriate in cases where the Commission intends to impose a fine.’

13.

Gasorba SL (Gasorba) operates a service station in the municipality of Orba, in the Spanish province of Alicante. Gasorba is owned by Ms Josefa Rico Gil, Mr Antonio Ferrándiz González and their two children.

14.

The service station is located on a plot of land over which Ms Rico Gil and Mr Ferrándiz González, by contract of 15 February 1993, granted a right of usufruct to Spain’s leading oil and gas company, Repsol Comercial de Productos Petrolíferos SA (Repsol). ( 5 ) In return, by a second contract concluded on the same day, Repsol leased back to Mr Ferrándiz González both the land and the service station for a term of 25 years. ( 6 ) Later, on 12 November 1994, Ms Rico Gil and Mr Ferrándiz González were replaced in both contracts by Gasorba, with Repsol’s consent.

15.

Under the lease agreement, Gasorba was required, throughout the term of the lease, to procure the fuel offered for sale in its service station from Repsol. Moreover, Repsol periodically communicated to it the maximum retail selling prices for the fuel. The tenant was, however, permitted to grant discounts for end users, provided that these were paid out of its commission and did not diminish Repsol’s receipts.

16.

At EU level, the contractual relationships between Repsol and its service station tenants (including that between Repsol and Gasorba) were the subject of antitrust proceedings under Regulation No 1/2003. ( 7 ) In those proceedings, the Commission, acting in its capacity as the EU competition authority, carried out a provisional assessment following which it expressed concerns with respect to the compatibility of the long-term supply agreements, incorporating non-compete obligations, between Repsol and certain service station tenants in Spain with Article 81 EC (now Article 101 TFEU). It feared that these would create significant market foreclosure effects on the Spanish market for the retail trade in fuel.

17.

Repsol then offered the Commission commitments whereby it indicated in particular its readiness to refrain in future from concluding long-term exclusivity agreements and to offer the service station tenants concerned a financial incentive to terminate their existing long-term supply agreements with Repsol prematurely. Repsol also undertook to refrain for a certain period of time from buying any independent service stations for which it does not act as supplier. ( 8 )

18.

The Commission began, in October 2004, by making Repsol’s commitments the subject of a notice under Article 27(4) of Council Regulation (EC) No 1/2003 ( 9 ) and then, on 12 April 2006, by Decision 2006/446/EC, ( 10 ) adopted pursuant to Article 9(1) of Council Regulation (EC) No 1/2003, declared them to be binding, while at the same time bringing to an end the antitrust proceedings against Repsol.

19.

The operative part of Decision 2006/446 is worded as follows:

‘Article 1

The commitments … shall be binding on [Repsol].

Article 2

The proceedings in the present case shall be brought to an end.

Article 3

The Decision shall apply from the date on which it is notified to [Repsol] until 31 December 2011.

Article 4

This Decision is addressed to:

[Repsol]

…’

20.

Following Decision 2006/446, Gasorba and Ms Rico Gil and Mr Ferrándiz González attempted to release themselves from their contractual relationship with Repsol and, on 17 April 2017, jointly brought an action against Repsol for a declaration as to the invalidity under Article 81(2) EC (now Article 101(2) TFEU) of the contracts concluded in 1993, and compensation. ( 11 ) In essence, they based their application, on the one hand, on Repsol’s fixing of retail prices and, on the other hand, on the long duration of the exclusive purchasing agreement, which exceeds what is allowed in Block Exemption Regulations (EEC) No 1984/93 ( 12 ) and (EC) No 2790/1999. ( 13 ) Their action was unsuccessful, however, both at first instance before the Juzgado Mercantil No 4 de Madrid ( 14 ) and at second instance before the Audiencia Provincial de Madrid. ( 15 )

21.

The dispute is now pending before the Spanish Tribunal Supremo (Supreme Court), the referring court. ( 16 ) It states that the contracts at issue do not qualify for a block exemption under Regulation No 2790/1999, as Repsol has a market share of more than 30%, or did so at the time when those contracts were concluded. The Tribunal Supremo (Supreme Court) is uncertain, however, whether Decision 2006/446 has the effect of exempting those contracts and precludes the national courts from examining their lawfulness.

22.

By order of 18 October 2016, received on 28 October 2016, the Tribunal Supremo (Civil Chamber) referred the following questions to the Court for a preliminary ruling under Article 267 TFEU:

23.

In the proceedings before the Court, written observations have been submitted by Gasorba, Repsol, the Spanish and German Governments and the European Commission.

24.

In its request for a preliminary ruling, the referring court raises the issue of the binding effect of decisions adopted by the Commission in its capacity as the EU competition authority on the courts of the Member States. That issue has recently prompted debate particularly in the area of the law on State aid. ( 17 ) As the present case shows, however, it may prove to be of practical significance in the enforcement of EU antitrust law too.

25.

The context of that issue, however, is somewhat different in the case of EU antitrust law, where, after all, there has always been a system of parallel powers ( 18 ) under which it falls both to the Commission and to the national competition authorities and courts to apply Articles 101 and 102 TFEU (formerly Article 81 and 82 EC). There is, moreover, a provision of EU law, in the form of Article 16 of Regulation No 1/2003, expressly intended to ensure the uniform application of EU antitrust law.

26.

In particular, the question to be answered in the present case is whether and, if so, to what extent the national courts can still make their own decisions for the enforcement of EU antitrust law where an agreement between undertakings is already the subject of a commitment decision adopted by the Commission. The answer to that question is to be found in the combined provisions of Article 9(1) and Article 16(1) of Regulation No 1/2003.

27.

The focus of interest in the present case is the first question, by which the Tribunal Supremo wishes to ascertain whether Article 16(1) of Regulation No 1/2003 prevents a national court from declaring an agreement between undertakings to be invalid under Article 101(2) TFEU where the Commission has previously accepted commitments in relation to the self-same agreement and declared these to be binding in a commitment decision under Article 9(1) of Regulation No 1/2003. The background to this question is Decision 2006/446, a commitment decision based on Article 9(1) of Regulation No 1/2003 and concerning Repsol’s relationship with Spanish service station operators.

28.

It is true that, technically, Commission decisions which (like Decision 2006/446) specify those to whom they are addressed are binding in their entirety only on them (second sentence of the fourth paragraph of Article 288 TFEU), and, therefore, in the present case, on Repsol (see Article 4 of that decision). However, in order to ensure the uniform application of EU antitrust law in a decentralised system, the first sentence of Article 16(1) of Regulation No 1/2003 further provides that national courts must not take any decisions on an agreement between undertakings within the meaning of Article 101(1) TFEU which run counter to a decision previously adopted by the Commission on that same agreement.

29.

It goes without saying that the prohibition on divergent decisions laid down in the first sentence of Article 16(1) also extends to commitment decisions adopted by the Commission under Article 9(1) of Regulation No 1/2003. After all, inasmuch as it is not limited to one particular type of decision, Article 16(1) covers all conceivable decisions that the Commission may have adopted on the basis of Regulation No 1/2003. ( 19 )

30.

However, the prohibition on divergent decisions contained in the first sentence of Article 16(1) of Regulation No 1/2003 can only ever be as extensive as the prescriptive content of the Commission decision in question.

31.

In the present case, the prescriptive content of Commission Decision 2006/446, to which the referring court alludes in its first question, consists only in declaring the commitments made by Repsol in connection with its relationship with Spanish service station operators to be binding for a certain period (see Articles 1 and 3 of that decision) and to bring to an end the antitrust proceedings being conducted against Repsol at that time (see Article 2 of the decision). At no point, however, does Decision 2006/446 contain any binding findings on the lawfulness of the exclusive purchasing agreements concluded between Repsol and its service station tenants.

32.

The prescriptive content of Decision 2006/446 may be explained by the background to the legal nature and function of a commitment decision within the scheme of Regulation No 1/2003. For one of the very features of such a commitment decision is that the Commission does not carry out in it an in-depth assessment of agreements between undertakings from the point of view of their conformity with competition law but, for the purposes of procedural economy, confines itself to a provisional assessment and, in particular, makes no finding as to whether Article 101 or 102 TFEU has been infringed. ( 20 )

33.

It follows that a decision under Article 9(1) of Regulation No 1/2003 such as Decision 2006/446, at issue here, does not prevent the national courts from conducting their own analysis as to the compatibility of the agreements between undertakings in question with the competition rules of EU antitrust law, or, therefore, from exercising their power to apply Articles 101 and 102 TFEU (see also in this regard Article 6 of Regulation No 1/2003). It is immaterial in this regard whether that examination concerns aspects of competition law which have already formed the subject of a summary analysis by the Commission in the commitment decision or relates to entirely new matters which the Commission has not yet addressed at all.

34.

That conclusion is also confirmed by the preamble to Regulation No 1/2003. It follows both from the third sentence of recital 13 and from the last sentence of recital 22 thereof that a commitment decision adopted by the Commission does not in any way preclude the competition authorities and courts of the Member States from deciding upon the case, for which purpose they are permitted to apply Article 101 and 102 TFEU and, where appropriate, to find that an infringement has been committed.

35.

None of which means that a Commission decision under Article 9(1) of Regulation No 1/2003 has no legal effect before the national courts. For, on the one hand, such a commitment decision serves to declare undertakings’ commitments to be binding, thus enabling interested third parties, where appropriate, to take legal action to ensure that they are honoured. On the other hand, the provisional assessment of an agreement between undertakings within the meaning of Article 101(1) TFEU which the Commission carries out, in the light of competition law, in the commitment decision cannot be disregarded by the national courts. ( 21 ) On the contrary, the principle of sincere cooperation (Article 4(3) TEU) and the general objective of applying EU antitrust law as effectively and uniformly as possible require the national court to regard the assessment carried out by the Commission as a strong indication, if not prima facie evidence, of the anticompetitive nature of the agreement between undertakings in question, to take due account of that assessment and to consult the Commission in so far as it intends to depart from the latter’s evaluation. ( 22 ) On account of its summary and provisional nature, however, the assessment of conformity with antitrust law carried out by the Commission in a decision under Article 9(1) of Regulation No 1/2003 cannot ultimately prevent the national court from reaching a conclusion which, in the light of further investigations and a more detailed examination, deviates in full or in part from that reached in the commitment decision in the same case.

36.

Repsol raises the objection that it is contrary to the principle of legal certainty for the Commission to terminate on the basis of commitments given to it antitrust proceedings it has brought in relation to an agreement between undertakings only for a national court nonetheless to be able to regard that same agreement as being anticompetitive and, therefore, invalid within the meaning of Article 101(2) TFEU.

37.

That objection is unconvincing, however. Repsol fails to take into account the difference between a decision under Article 9(1) of Regulation No 1/2003, which, primarily for reasons of efficiency, is based only on a summary examination by the Commission, and a decision under Article 7(1) of Regulation No 1/2003, which is based on a detailed analysis of conformity with competition law and is delivered at the end of full antitrust proceedings. The Court of Justice spelled out that fundamental difference in Alrosa and expressly rejected the different assessment arrived at in this regard by the General Court, on which Repsol relies here. ( 23 )

38.

The mere fact that the Commission accepts an undertaking’s commitments in a decision under Article 9(1) of Regulation No 1/2003 and declares those commitments to be binding does not in any way mean that the EU competition authority endorses the previous market behaviour of the undertaking concerned and considers it to be in conformity with the competition rules. On the contrary, by adopting such a commitment decision (and Decision 2006/446, at issue here, is no exception in this regard), the Commission declares only that its concerns have been met and it sees no grounds for action at the present time. ( 24 )

39.

It is true that the commitments offered by an undertaking and accepted by the Commission under Article 9(1) of Regulation No 1/2003 are intended to mitigate against or even to remedy any anticompetitive effects of that undertaking’s market behaviour. It cannot be concluded from this, however, that the commitment decision adopted by the Commission operates to ‘legalise’ the market behaviour of the undertaking concerned, certainly not retroactively.

40.

Article 9(1) of Regulation No 1/2003 serves a twofold purpose, and it is for this reason, moreover, that it is attractive to the practitioners of EU antitrust law. First, it enables the Commission, as the competition authority, to carry out its tasks, in accordance with the principle of discretionary prosecution, as efficiently and economically as possible. Secondly, it gives undertakings an opportunity to avoid a finding by the Commission that they have infringed the competition rules, which would be detrimental to them, and to avert any imminent fine, by offering commitments to the Commission. ( 25 )

41.

Otherwise, however, the responsibility of each undertaking for its own market behaviour, which forms the central plank of the entire scheme provided for in Regulation No 1/2003, continues to apply. Not even a commitment decision adopted by the Commission can relieve the undertaking of that responsibility.

42.

In summary, it may therefore be concluded with respect to the interpretation of Article 16(1) of Regulation No 1/2003 that a commitment decision adopted by the Commission under Article 9(1) of that regulation in relation to specific agreements between undertakings does not preclude the national courts from examining the conformity of those self-same agreements with the competition rules and, if appropriate, declaring them to be invalid under Article 101(2) TFEU.

43.

By its second question, the referring court wishes to ascertain, in essence, whether Decision 2006/446 (a commitment decision within the meaning of Article 9(1) of Regulation No 1/2003) has the effects of an individual exemption within the meaning of Article 101(3) TFEU (formerly Article 81(3) EC) in relation to the long-term exclusive purchasing agreements with which it deals.

44.

This question is raised only in the event that the first question is answered in the affirmative. However, since, as I have already said, I am assuming that the first question must be answered in the negative, I shall consider the second question below only in the alternative and in an effort to provide the referring court with any guidance that will help it to arrive at an appropriate resolution of the dispute in the main proceedings.

45.

At no point does Decision 2006/446 expressly state that the Commission, acting in accordance with Article 101(3) TFEU, is granting an individual exemption for the long-term exclusive purchasing agreements concluded between Repsol and its service station tenants. In that decision, the Commission, rather, simply declares certain commitments given by Repsol up to 31 December 2011 to be binding and terminates the antitrust proceedings being conducted against Repsol at that time.

46.

Nor can the present case be said to involve an individual exemption which has been implicitly granted. For, as most of the parties to the proceedings have rightly pointed out, in order for an individual exemption of any variety to be granted under Article 101(3) TFEU, a restriction of competition prohibited under Article 101 TFEU would of necessity have to be found to exist first. ( 26 ) However, Decision 2006/446 does not contain any such finding in relation to the long-term exclusive purchasing agreements concluded with Repsol service station tenants in Spain.

47.

What is more, it is only to be expected that the commitment decision does not contain any findings on the existence of anticompetitive behaviour. After all, as I have already said, it is in the very nature of decisions under Article 9(1) of Regulation No 1/2003, of which the contested Decision 2006/446 is one, for the Commission to carry out in them only a provisional assessment of the competitive situation, without adopting a definitive position on the existence of an infringement of Article 101(1) TFEU. ( 27 )

48.

It must be borne in mind, moreover, that one of the key objectives of the reform introduced by Regulation No 1/2003 was to abolish the administrative grant of individual exemptions by the Commission. Thus, on the effective date of 1 May 2004, the EU switched to a directly applicable exception system which no longer made any provision for the adoption of individual decisions by the Commission under Article 101(3) TFEU (see in this regard Article 1(1) and (2), Article 6 and recital 4 of Regulation No 1/2003).

49.

It is only very exceptionally now, and only in the context of a decision under Article 10 of Regulation No 1/2003 (‘Finding of inapplicability’), that the Commission adopts an individual decision containing a purely declaratory finding that the conditions laid down in Article 101(3) TFEU are fulfilled, ( 28 ) but not in a decision under Article 9(1) of Regulation No 1/2003 such as that at issue in the present case.

50.

On balance, therefore, it cannot be assumed that Decision 2006/446 has the effects of an individual exemption within the meaning of Article 101(3) TFEU in relation to long-term exclusive purchasing agreements between Repsol and its Spanish service station tenants.

51.

In the light of the foregoing considerations, I propose that the Court’s answer to the questions referred for a preliminary ruling by the Tribunal Supremo (Supreme Court, Spain) should be as follows:

Article 16(1) of Regulation (EC) No 1/2003 must be interpreted as meaning that a commitment decision adopted by the European Commission under Article 9(1) of that regulation in relation to specific agreements between undertakings does not preclude the national courts from examining the conformity of those self-same agreements with the competition rules and, if appropriate, declaring them to be invalid under Article 101(2) TFEU.