This case (LJN: BX0258) dealt with an operating agreement, which stipulated that the operator of a petrol station was obliged to exclusively purchase fuels from BP during a twenty year period. A few years after the agreement had been concluded, the operator did not agree anymore with this exclusive purchase clause and the matter ended up at the Court of Appeal Arnhem.
The Court first of all considered that the Notice on agreements of minor importance (de minimis Notice of 22 December 2001, the "Notice") is not decisive when interpreting national competition law, as the legislator is not bound by the Notice. Next, the Court ruled that the exclusive purchase clause appreciably restricted the competition on the relevant market because of:
- the long duration of the exclusive purchase clause (i.e. 20 years);
- the market share of BP on the relevant market (i.e.11-12%);
- the fact that BP used the exclusive purchase clause in virtually all its contracts;
- the fact that BP's competitors on the relevant market also regularly made use of similar exclusive purchase clauses (leading to so-called "network effects").
BP tried to counter this conclusion by referring to the unrelated Heineken case (case reference 2036), in which the Netherlands Competition Authority decided that operating agreements between Heineken and pub owners were reconcilable with competition law. However, in that case the pub owners were entitled to terminate the agreement by giving two months' notice. In the present case, the operating agreement with BP could not be terminated early, which led the Court to reject the comparison.
In sum, the Court declared the exclusive purchase clause void. BP was ordered to pay an advance for the damages of €0.02 per litre of fuel purchased by the operator since 1 January 2004.