Spain's Supreme Court has voided a contract including an exclusive-supply clause in favour of Repsol, following a judgment of the Court of Justice of the European Union ("ECJ") in which the ECJ confirmed that national courts are not precluded from assessing potentially anti-competitive agreements that had previously been subject to a commitments decision by the European Commission.
The dispute at stake concerned a lease agreement concluded between certain private individuals and Repsol with respect to a piece of land and a service station, which included a 25-year exclusive-supply obligation towards Repsol and the possibility for Repsol to set maximum retail prices. The contract in question was reviewed in 2006 by the European Commission, which concluded that the excessive duration of the exclusive-supply clause was restrictive of competition. Under the commitment decision adopted by the Commission, Repsol undertook to allow all service stations with which it had signed long-term supply contracts to terminate these contracts, subject to compensation payable to Repsol, and to refrain from concluding similar agreements in the future.
In 2008, and despite the commitments decision, the applicants brought several actions before the Spanish courts requesting the voidance of the contract, arguing that the long-term exclusive-supply obligation and Repsol's ability to set maximum retail prices were anti-competitive. The Supreme Court was ultimately seized of the case, upon which it referred a request for a preliminary ruling to the ECJ, asking, in essence, whether national courts can declare void an anti-competitive agreement when the Commission has previously accepted and declared binding a series of commitments relating to that same agreement.
The ECJ's ruling concluded that national courts have the final say concerning the anti-competitive character of an agreement, irrespective of whether commitments have been agreed upon with the Commission (see VBB on Competition Law, Volume 2017, No. 11, available at www.vbb.com).
Following this ruling, the Spanish Supreme Court, on 7 February 2018, partially upheld the applicants' claims and voided the controversial agreement, since it considered that the duration of the exclusive-supply clause was excessive. The judgment took into consideration the Commission's assessment in the commitment decision as evidence of the anti-competitiveness of Repsol's practices and found that the disproportionate duration of the exclusivity clauses foreclosed market entry and, hence, restricted competition.
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