Successful use of Article 81 of the EU Treaty defence - Calor Gas v Express Fuels

14 February 2008

Axiom's David Johnston QC and Almira Delibegovic-Broome acted for Express Fuels (Scotland) Limited and D Jamieson & Son Limited, former principal dealers of Calor Gas Limited and now dealers for Flogas UK Limited, in an action by Calor to enforce certain post-termination restrictions contained in the principal dealer agreement they had with the defenders. The action was primarily defended on the basis that Calor's principal dealer agreements were in breach of Article 81 of the EU Treaty, Calor having a significant market share, a nationwide network of principal dealers, and the length of the exclusive distribution obligation in the agreement in question being in excess of five years. The court accepted the defenders' argument, found the principal agreement in question void, and awarded the expenses of the action to the defenders.

A copy of the full decision may be found at http://www.scotcourts.gov.uk/opinions/2008csoh13.html