The value of decisions from national competition authorities in follow-on cases: Court of Justice of the European Union 20 April 2023, ECLI:EU:C:2023:298 (Repsol)

1. INTRODUCTION

Agreements and decisions from associations of undertakings that by their object or effect restrict competition are prohibited under competition law. Any agreement or decision that is prohibited under competition law is void.

Civil actions for competition law infringements require a complex factual and economic analysis and are characterised by a strong information asymmetry between the alleged cartelist and the claimant. These factors can cause individuals bringing such civil actions to be prevented from effectively exercising their rights. Against this background, the probative value of decisions of national competition authorities is relevant, especially for individuals seeking to substantiate their civil claim that competition law has been infringed.

In the Repsol judgment the Court of Justice of the European Union (“CJEU”) gave a preliminary ruling on the probative value of decisions taken by national competition authorities in civil actions for annulment of anti-competitive agreements or decisions by associations of undertakings.

2. FACTS OF THE CASE

A number of consecutive operators of a Spanish petrol station commenced proceedings against Spanish petrol station operator and Spanish oil and gas company Repsol (“Repsol”) regarding several exclusive purchase agreements concluded between 1978 and 2009.

The Spanish competition authority (Comisión Nacional de la Competencia) fined Repsol in 2019 for continuously indirectly fixing fuel retail prices, or, in other words, for resale price maintenance. The infringement started on 17 July 1989; Repsol was found to have fixed fuel retail prices in 2001 (confirmed in 2010), in 2009 (confirmed in 2015) and, as mentioned, in 2019. In its three 2019 decisions, the Spanish competition authority found that Repsol had continuously ignored competition rules.

The petrol station operators subsequently brought an action for annulment of the exclusive purchase agreements and to claim damages before the Spanish courts. The ground for nullity was infringement of Article 101(1) of the Treaty on the Functioning of the European Union (“TFEU”). In support of this, the claimants cited the 2001 and 2009 price fixing findings against Repsol.

Eventually the highest Spanish court (Juzgado de lo Mercantil no. 2 de Madrid) referred two questions to the Court of Justice of the European Union for a preliminary ruling. The referring court noted that the party claiming an infringement of Article 101 TFEU bears the burden of proof. Furthermore, it stated that a party may prove the infringement by showing that a decision of a competition authority relates to the infringement in question.

3. PRELIMINARY QUESTIONS

The two questions referred for a preliminary ruling can be summarised as follows:

1. The referring court wished to know whether, if a customer (operator) could demonstrate that the agreement in question falls within the temporal and territorial (material) scope of the cartel decision, the burden of proof for the infringement is thereby satisfied; and,
2. if so, the referring court asks whether the agreement as a whole is then automatically void.

4. JUDGMENT

In its ruling, the Court of Justice of the European Union partly followed the conclusion of Advocate General Pitruzzella (AG Opinion 8 September 2022, ECLI:EU:C:2022:659). The Court holds that an infringement of competition law established by a national competition authority, read in conjunction with the principle of effectiveness, constitutes rebuttable evidence for voidness. This places the burden of proof on the defendant to the extent that the nature of the alleged infringement to which the claim relates coincides with the temporal and material scope of the cited decision.

The material scope includes personal and territorial scope. The CJEU considers that if the infringer, the nature, legal qualification, duration and territorial scope of the infringement found in the decision only partially coincide with the alleged infringement in the civil proceedings, the infringement from the cartel decision is only indicative for the existence of the infringement.

In answer to the second question, the CJEU confirmed that agreements between undertakings which restrict competition are automatically void under Article 101(2) TFEU. It is for the national court to draw all the consequences from that and to infer from it the automatic nullity of contractual clauses incompatible with Article 101(1) TFEU. The CJEU further confirmed that a contract is void as a whole only if the anti-competitive clause(s) cannot be viewed in isolation.

5. PRACTICAL RELEVANCE

The present judgment is particularly relevant to the burden of proof in the case of a follow-on annulment action in relation to cartel activity. Citing a decision of a (national) competition authority essentially reverses the burden of proof. It is sufficient for the party bringing the action for annulment to refer to a cartel decision, provided that the infringement from the decision corresponds temporally and materially to the alleged infringement in question.

The defendant must either rebut that there is such an agreement or provide sufficient rebuttal evidence to refute the existence of a cartel. With this judgment, it is clearer for claimants what value is attributable to a cartel decision in an annulment action. After all, if it can be shown that the infringement in a cartel decision corresponds to the alleged infringement, the invalidity of the related provision is almost certain. It is more difficult if the infringement from the cartel decision only partially overlaps with the alleged infringement in question. In any case, the cartel decision may then act as an indication of a cartel.

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