On the compatibility with Eu Law of the new Section 43 A of the Spanish Hydrocarbons Act (introduced by Act 11/2013 of July 26Th)

By means of Act 11/2013 of July 26th concerning measures to support entrepreneurship and stimulate growth and job creation, a number of amendments have been made to the Hydrocarbons Sector Act 34/1998 of October 7th (hereinafter the «Hydrocarbons Act») whose compatibility with EU competition law is, at the very least, controversial.Specifically, Act 11/2013 introduces a new section 43 a in the Hydrocarbons Act by virtue of which the usual and not always well settled exclusive distribution agreements in the Hydrocarbons industry are more strictly regulated. Thus, according to this new section, sale agreements within the sector «cannot contain exclusivity clauses which [ … ] set, recommend or affect, directly or indirectly, the retail price of fuel» and clauses which «determine the sale price of fuel with reference to a particular fixed, maximum or recommended price, or any others that contribute to indirect fixing of the sale price» (underlining added) shall be void and deemed deleted.

Thus, by means of this regulation the legislator prohibits not only fuel resale price fixing -something that, as we shall see, EU competition rules already prohibit under certain conditions- but also mere price recommendations.