Case C‑25/21
ZA and Others
v
Repsol Comercial de Productos Petolíferos SA
(Request for a preliminary ruling from the Juzgado de lo Mercantil No 2 de Madrid)
Judgment of the Court (First Chamber), 20 April 2023
(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)
1. Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Substantive scope – Action for a declaration of nullity under Article 101(2) TFEU – Precluded
(Art. 101(2) TFEU; European Parliament and Council Directive 2014/104, Arts 1 and 9(1))
(see paragraphs 30-32)
2. Competition – Actions for compensation for the harm caused by infringements of competition rules – Directive 2014/104 – Temporal application – Provision seeking to confer binding effect on the final decisions of the national competition authorities – Substantive provision – Late transposition of a directive – Decision of the national authority becoming final before the date of expiry of the time limit for transposition of the directive – Inapplicability of that provision to actions for damages brought following that final national decision
(European Parliament and Council Directive 2014/104, Arts 9(1) and 22(1))
(see paragraphs 33-46)
3. Agreements, decisions and concerted practices – Prohibition – Direct effect – Vertical infringements – Right of individuals to rely on the invalidity of a prohibited agreement and to claim compensation for the harm suffered – Detailed rules governing the exercise of the right to seek a declaration of nullity – Application of national law – Conditions – Compliance with the principle of effectiveness – Final decision of the national competition authority finding an infringement of competition law – Binding effect of the said decision in actions for a declaration of nullity brought under Article 101(2) TFEU and of actions for damages – Scope – Reversal of the burden of proof of the existence of the infringement of the competition rules
(Arts 101 and 102 TFEU; Council Regulation No 1/2003, Art. 2)
(see paragraphs 49-67, operative part 1)
4. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Vertical infringements– Automatic nullity – Effects in respect of the parts of the agreement compatible with Article 101(1) TFEU – Determination by the national court – Application of national law
(Art. 101(1) and (2) TFEU)
(see paragraphs 69-74, operative part 2)
Résumé
By decisions of 11 July 2001 and 30 July 2009, the Spanish competition authorities found, in essence, 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. (1) As the actions seeking to challenge those decisions were unsuccessful, the decisions became final.
Following the said decisions, the owners of a service station brought before the Juzgado de lo Mercantil No 2 de Madrid (Commercial Court No 2, Madrid, Spain; ‘the national court’), first, an action for a declaration of nullity of the exclusive supply contracts concluded with Repsol during the period from 1987 to 2009 in connection with the operation of that service station and, second, an action for damages seeking compensation for the harm allegedly caused by those contracts. To that end, they rely on those decisions to demonstrate the existence of the infringement concerned.
In those circumstances, the national court notes from the outset that, under Article 2 of Regulation No 1/2003, (2) the burden of proof of an infringement of Article 101 TFEU is to rest on the party alleging the infringement. It adds that, in principle, in accordance with Article 9(1) of Directive 2014/104, (3) 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. In that context, the national court raises the question of the binding effect of the decisions of the Spanish competition authorities as regards the existence, in the present case, of an infringement of the competition law rules. In addition, that court asks what consequences flow from the possible nullity of the exclusive supply contracts concluded between the service station owners and Repsol.
By its judgment, the Court answers the said questions and rules on the temporal and material applicability of Directive 2014/104.
Findings of the Court
In the first place, to the extent that the national court refers to Article 9(1) of Directive 2014/104, the Court states that that provision could be relevant to the outcome of the dispute in the main proceedings only if that dispute fell within its material and temporal scope.
In that regard, the Court notes at the outset that the material scope of Directive 2014/104 is limited solely to actions for damages brought for infringements of the competition rules and, therefore, does not extend to other types of action concerning infringements of the competition law provisions, such as actions for a declaration of nullity brought under Article 101(2) TFEU.
So far as concerns the temporal applicability of Article 9(1) of Directive 2014/104 to the action for damages brought by the owners of the service station at issue in the main proceedings, the Court notes that that provision establishes an irrefutable presumption as to the existence of an infringement of competition law and thus pertains to the existence of one of the constituent elements of civil liability for infringements of the competition law rules. In those circumstances, such a rule must be classified as a substantive rule within the meaning of Article 22 of that directive, which governs its temporal application. (4)
Taking into account the substantive nature of Article 9 of that directive and of the operational arrangements of that provision, the Court emphasises that the point in time at which it is necessary to determine whether the irrefutable presumption referred to in that provision is applicable ratione temporis is that corresponding to the date on which the decision of the national competition authority concerned became final. In the present case, however, Directive 2014/104 was not transposed into Spanish law within the time limit for its transposition. Thus, the decisions of the Spanish competition authorities having become final before the date of expiry of that time limit, the situations at issue in the main proceedings are therefore established. It follows that, in the case at hand, Article 9(1) of that directive is not applicable ratione temporis. In those circumstances, the Court considers that, in the present case, it is necessary to examine the national legislation in the light of Article 101 TFEU, as implemented by Article 2 of Regulation No 1/2003.
In the second place, the Court examines, as to the substance, the question of the binding effect of the final decisions of national competition authorities finding an infringement of the competition law rules in the context of an action for a declaration of nullity and an action for damages.
In that regard, it recalls that, although Article 2 of Regulation No 1/2003 expressly governs the burden of proof for an infringement of Article 101 TFEU, whether it be national proceedings or EU proceedings, the fact remains that that regulation does not contain any provisions relating to the effects of the final decisions of a national competition authority in the context of actions for a declaration of nullity under Article 101(2) TFEU and/or actions for damages for infringement of competition law.
Thus, in the absence of EU rules governing the matter that are applicable ratione materiae or ratione temporis, it is for the domestic legal system of each Member State to lay down the detailed rules governing the exercise of the right to seek a declaration of nullity of agreements or decisions under Article 102 TFEU and of the right to compensation for the harm resulting from an infringement of Article 101 TFEU, including those on the binding effects of final decisions of national competition authorities in the context of such types of action, provided that the principles of equivalence and effectiveness are observed.
The enforcement of claims for damages due to breaches of Article 101 TFEU would be rendered excessively difficult if the final decisions of a competition authority were to be accorded no effect whatsoever in civil actions for damages or in actions seeking to establish the invalidity of agreements or decisions prohibited under that article, brought following such final decisions and before a court of the same Member State as that in which that authority exercises its jurisdiction.
Thus, the Court considers that, in order to guarantee the effective application of Articles 101 and 102 TFEU in the context of those actions, the existence of an infringement of EU competition law found in such decisions must be deemed to be established by the applicant until proof to the contrary is adduced, thereby shifting the burden of proof defined by Article 2 of Regulation No 1/2003 to the defendant, provided that the nature and the material, personal, temporal and territorial scope of the alleged infringements that are the subject matter of the actions brought by the applicant correspond to those of the infringement found in those decisions. However, where the correspondence thus required is only partial, the findings in such a decision constitute an indication of the existence of the facts to which those findings relate.
In the third and last place, the Court considers that, provided that an applicant succeeds in establishing the existence of an infringement of Article 101 TFEU which is the subject of its action for a declaration of nullity brought under Article 101(2) TFEU and of its action for damages in respect of that infringement, it is for the national court to draw all the consequences from it and infer, inter alia, the automatic nullity of all those contractual provisions which are incompatible with Article 101(1) TFEU.