The European Court of Justice (ECJ) has confirmed that a cartel fine imposed by a national competition authority constitutes refutable evidence of the nullity of a contractual provision (ECLI:EU:C:2023:298). It is up to the national courts to determine the contractual consequences. A contract is entirely void if the prohibited provisions cannot be separated from it.
The reason for this ECJ ruling is a dispute between a petrol station operator and Spanish oil company Repsol regarding an exclusive purchase agreement. The Spanish competition authority had previously issued two decisions in which it ruled that Repsol had violated the cartel prohibition by fixing retail prices for (other) petrol stations (resale price maintenance).
The contract between Repsol and the petrol station operator was not part of the agreements on which the competition authority had previously taken negative decisions. The petrol station operator argued that its exclusive purchase agreement should be annulled and that Repsol was liable for damages. The petrol station operator therefore brought an action before the Spanish court in which it relied on the earlier decisions.
The Spanish court was uncertain whether the claim fell within the scope of the earlier decisions of the Spanish competition authority. It therefore raised the question whether the agreement would be void by operation of law if the petrol station operator could demonstrate that its agreement was affected by the decisions. The Spanish court referred in that regard to the Damages Directive (2014/104/EU), which states that a sanction decision of a competition authority creates an irrefutable assumption of an infringement.
The ECJ noted that the Damages Directive applies only to claims for damages. It then subscribed to the opinion of Advocate General Pitruzzella (ECLI:EU:C:2022:659), who held that the enforcement of claims for damages on the grounds of infringement of Article 101 TFEU would be rendered excessively difficult if a competition authority’s decisions were to be accorded no effect whatsoever in the civil action for damages.
The ECJ found that an infringement of competition law established by a national competition authority constitutes refutable evidence in the context of both an action for damages and an action for annulment. However, it is important in this regard that the nature of the alleged infringement to which the claim relates and its material, personal, temporal and territorial scope coincide with the infringement established by the decision.
The ECJ also noted that agreements between undertakings that restrict competition are void by operation of law under Article 101(2) TFEU. This nullity affects only those provisions that come under the cartel prohibition. The consequences for all other provisions of an agreement must be assessed by the national courts. An agreement is void in its entirety only if the anti-competitive provisions cannot be separated from it.
This is in keeping with established Dutch case law and reminiscent of the BP/Benschop case (ECLI:NL:HR:2013:2123), in which the Dutch Supreme Court confirmed that a prohibited exclusive purchasing obligation for a petrol station operator does not automatically lead to nullity of the entire underlying agreement. However, that case was not based on a decision by a competition authority, which gives rise to the question whether this Spanish case has not been made unnecessarily complex.
This blog was also published in the Snelrecht section of the specialist journal Mr. Online
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