Luxembourg, 19/12/2006 (Agence Europe) - The Confederactión Española de Estaciones de Servicio has made an appeal to the Spanish courts. It believes that the agreements concluded at the end of 1992 between CEPSA (oil company sector) and a number of firms using service stations are guilty of restricting trade. These agreements stipulate that the owners of the station services exclusively sell suppliers' petrol and fuel while respecting public sales prices and the conditions and sales practices set out by the given supplier.
The Tribunal Supremo sought an interpretation from the Court of Justice on the general ban on agreements, as contained in the treaty and regulation on exclusive purchasing agreements that establish exemptions per category for these kinds of vertical agreements.
The Court of Justice indicated that the agreements in question constitute vertical agreements between companies because the owner of a service station is considered an independent economic operator. It is now up to the national appeals court to decide on this case but the Court of Justice provided a number of directives to be taken into consideration when making a decision (C-217/05).
In brief, the owner is independent if his activities “assume…the financial and commercial risks linked to the sale of goods with third parties”. If this is the case, it does in fact involve an agreement with two independent entities and Article 85 of the treaty on vertical agreements applies. Consequently, the supplier is not allowed to set the resale prices because this condition does not figure in the exemptions included in this Article.
On the other hand, if the owner assumes the risk, he can clearly be considered as an agent of the supplier. In this situation, it is allowed and even quite normal, that the supplier determines the price displayed by the reseller, if only to avoid competition from different dependent agents.
The case has now been sent to the Tribunal Supremo to apply this interpretation of the law to the case in question. (cd)