The battle between service stations and oil companies intensifies. The association Affected by the Oil Companies together with the international litigation fund King Street are preparing a class action lawsuit to claim damages for what they have come to call the ‘Oil Companies Case’. This new legal action that Repsol, Moeve – formerly Cepsa – and BP would face would be added to the one already raised by the transporters for the fixing of fuel prices.
The lawsuit, according to sources consulted by elEconomista.es, would be divided, if won, 80% for the service stations and 20% for the fund that finances this legal action. The measure is adopted after a ruling that the Supreme Court handed down at the beginning of November, as reported by this newspaper, and which would give rise to service stations being able to claim compensation for these anti-competitive practices.
Specifically, the Civil Chamber of the Supreme Court, meeting in full, issued a ruling on November 6 declaring the nullity of the historical exclusive supply contracts signed by Repsol and Cepsa with their service stations for violating the regulations. of Competition.
The High Court brings to Spanish law the ruling of the Superior Court of Justice of the European Union (CJEU) of April 23, 2023, which recognized the prima facie value of a resolution of the former National Competition Commission of the year 2009. Through this ruling, it is established that the oil companies engaged in a prohibited practice of fixing sales prices to the public to the owners of service stations linked to them through commission contracts.
This resolution not only declares the aforementioned contracts null and void, but also opens the door to the recognition of the right of gas station owners to receive compensation for the damages caused by said illicit conduct.
Burden of proof
As this newspaper has already indicated, the Supreme Court has modified its doctrine and establishes the reversal of the burden of proof in Competition Law lawsuits, so from now on it must be the flagship company, and not the standard bearers, who must demonstrate that there have been no anti-competitive practices.
The oil companies, for their part, indicate that they have been adapting their contracts over time, which would leave out of any claim the firm purchase contracts referenced to the Platts stock index and the pure commission contracts without assumption of risks for the companies. gas stations.
Sources consulted by this newspaper assure that a million-dollar lawsuit could be opened because, although the average annual sales of a standard service station currently amount to 2 million liters compared to the 4 million liters annual average a few years ago, the number of contracts affected can be significant.
By virtue of its rulings, the Supreme Court establishes the violation of price fixing and its collusive effects in the market, establishing not only the right of service station owners to be compensated for the so-called volume effect, but also the right of consumers. and users to receive compensation to repair the damage caused.
The economic consequences of the prohibited practice are directed in two directions; on the one hand, the extra price paid by consumers and users and on the other, the volume effect with which service stations have been affected. The sum of both concepts would yield an amount of approximately 10 cents per liter (6 cents for damages and 4 cents for late payment interest).
The legal battle that both parties have been fighting is plagued by contradictory rulings.
According to Repsol, the Plenary Session of the Civil Chamber of the Supreme Court has annulled the compensation granted by the court of second instance to the manager of the supply point (HUSCO) who filed a claim for annulment against Repsol, considering that there is no compensable damage, so the sentence has no economic consequences.
In this regard, the Plenary of the Chamber reasons that the prohibition of fixing resale prices does not have the objective of protecting the distributor: “Its purpose is to protect the market, to avoid possible collusion between suppliers by increasing the transparency of the prices in the market, such as the elimination of intra-brand price competition”.
In this specific case, Repsol could only prove the existence of a single shared discount carried out by this supply point, so the Court considers that the indirect price fixing on which the plaintiff bases the nullity of the contract is not disproved. However, on November 7, the same Plenary Session of the Civil Chamber of the Supreme Court has issued another ruling in which it rejects the nullity of the litigated industrial lease and exclusive supply contract.
In this case, the Court understands that the discounts applied by the service station manager demonstrate that the price indicated as a maximum or recommended price has not behaved in practice as a fixed or minimum price. Furthermore, the High Court, which establishes jurisprudence, in this second ruling condemns the plaintiff to pay the costs incurred by Repsol.
From bp they assured that “we are defending our position in this process. In this sense, we want to state that the company is governed by compliance with current legislation and in accordance with market standards. At bp we are strongly committed to the rules of defense of “Competition and its due compliance is inexcusable for the company and all its employees.”
Moeve, consulted by this newspaper, did not want to comment.
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