Opinion of the Advocate-General



Opinion of the Advocate-General

Table of contents

I – Legal framework

II – The background to the dispute, the contested decision and the judgment under appeal

III – Procedure before the Court of Justice and forms of order sought by the parties

A – Forms of order sought by the parties in the individual cases

1. Case C‑501/06 P (GSK’s appeal)

2. Case C‑513/06 P (the Commission’s appeal)

3. Case C‑515/06 P (EAEPC’s appeal)

4. Case C‑519/06 P (Aseprofar’s appeal)

B – Joinder and hearing

IV – Admissibility

A – Admissibility of the submissions by the Commission and Aseprofar regarding the restriction of competition by object in their appeals (C‑513/06 P and C‑519/06 P)

B – Admissibility of the Commission’s submissions in Case C‑501/06 P in response to GSK’s appeal which are described as a ‘cross‑appeal’

1. The Commission’s submissions regarding the restriction of competition by object

a) Inadmissibility in the context of a cross‑appeal

b) Admissibility in the context of a response seeking to dismiss an appeal

c) Ability to take the submissions into account

d) The substantive identity of the Commission’s submissions in Cases C‑513/06 P and C‑501/06 P

2. The Commission’s submissions regarding the restriction of competition by effect

3. Admissibility of the Commission’s cross‑appeal contesting paragraph 1 of the operative part of the judgment under appeal

C – Conclusion

V – GSK’s appeal in Case C‑501/06 P

A – Errors of law made by the Court of First Instance in the part of its reasoning relating to the restrictive object of the General Sales Conditions

1. The part of the grounds of the judgment under appeal relating to the restrictive object of the General Sales Conditions

2. The notion of restriction of competition by object

3. Errors of law

a) Legally erroneous interpretation of the notion of restriction of competition by object

i) The finding that an agreement which seeks to restrict parallel trade can only in principle be regarded as a restriction of competition by object

ii) Presumption of a restrictive effect

iii) Taking into account of detriment to the final consumer

iv) Limited account taken of the benefits of parallel trade for the final consumer

v) Conclusion

b) Account taken of the legal and economic context

i) The assumption that intermediaries may keep the advantage in terms of price which parallel trade may entail, in which case that advantage will not be passed on to the final consumers

ii) The other assumptions and findings

4. Conclusion

B – Replacement of grounds

1. The facts of the case established by the Court of First Instance

2. Upholding of the Commission’s reasoning that the General Sales Conditions have a restrictive object

a) Standardised approach

b) Presumption of a restriction of competition

c) Interim conclusion

3. Conclusion

C – The finding by the Court of First Instance that the Commission was entitled to consider that the General Sales Conditions had a restrictive effect

D – Conclusion

VI – The appeals of the Commission, Aseprofar and EAEPC

A – The part of the grounds of the judgment under appeal

B – The Commission’s appeal in Case C‑513/06 P and its cross‑appeal in Case C‑501/06 P

1. The first condition laid down by Article 81(3) EC

a) Distortion of the legal and economic context

b) The concept of promoting technical progress, the allocation of the burden of proof and the standard of proof

i) Application of a test from merger control

ii) The threshold as from which gains in efficiency can be assumed

iii) Significance of the structural nature of the price differentials

iv) Currency fluctuations

v) The relationship between the extra financial resources for GSK and promoting technical progress

vi) Conclusion

c) Distortion of the contested decision and absence of consideration of events in the past in the prospective analysis

i) Distortion of the contested decision

– Distortion of the content of the contested decision

– Replacement of grounds

– Conclusion

ii) Consideration of events in the past

iii) Taking into account of data that did not exist at the time when the contested decision was adopted

iv) Conclusion

d) Misapplication of the standard of review

i) Creation of a new ground for annulment

ii) Exceeding of jurisdiction by the Court of First Instance

e) Error of reasoning on account of a terse assessment of the evidence and unexplained assumptions by the Court of First Instance

i) Assessment of the evidence submitted by GSK

ii) Failure to explain why research and development would have been impossible without the General Sales Conditions

2. The further conditions laid down by Article 81(3) EC

3. Conclusion

C – EAEPC’s appeal in Case C‑515/06 P

1. The role and function of Article 81(3) EC

2. Burden of proof

3. Erroneous assessment of, or failure to take into account, evidence

a) Shifting of the burden of proof

b) Erroneous assessment or non‑consideration of facts which are apparent from the file

c) Taking into account of incorrect facts

4. Conclusion

D – Aseprofar’s appeal in Case C-519/06 P

1. The first condition laid down by Article 81(3) EC

2. The further conditions laid down by Article 81(3) EC

a) Allowing consumers a fair share of the benefit

b) Indispensability

c) The possibility of eliminating competition

3. Conclusion

E – Conclusion

VII – Summary

VIII – Conclusion

1. These appeals give the Court an opportunity, following its judgment in Sot. Lélos kai Sia (2) which concerned the assessment of unilateral measures to restrict parallel trade in medicines under Article 82 EC, to take a view on the compatibility of agreements having such an object with Article 81 EC.

2. The subject‑matter of these appeals is the assessment under Article 81 EC of general business conditions (‘the General Sales Conditions’) of the producer of medicines GlaxoSmithKline Services Unlimited (‘GSK’). Under the General Sales Conditions, GSK charged intermediaries established in Spain to whom it sold medicines (‘the Spanish intermediaries’) different prices for certain medicines, depending on whether the Spanish intermediaries sold them in Spain or other Member States.

3. The purpose of the General Sales Conditions was to restrict parallel trade in GSK’s medicines between Spain and other Member States, in which the Spanish intermediaries were engaging on account of the price differentials between Member States. In GSK’s view, the parallel trade primarily benefits the intermediaries while a restriction of parallel trade is beneficial to the final consumers. GSK argues that the additional resources which it, or the group to which it belongs, (3) obtains through the restriction of parallel trade can be invested by it in the research and development of new medicines.

4. GSK notified the General Sales Conditions to the Commission. In its decision of 8 May 2001 (4) (‘the contested decision’), the Commission found that the General Sales Conditions infringed Article 81(1) EC and could not be exempted under Article 81(3) EC. Ruling on GSK’s action by judgment of 27 September 2006 in Case T‑168/01 (5) (‘the judgment under appeal’), the Court of First Instance upheld the contested decision in so far as the Commission found that the General Sales Conditions infringed Article 81(1) EC, but annulled it in so far as the Commission rejected the request for exemption of the General Sales Conditions under Article 81(3) EC.

5. By its appeal in Case C‑501/06 P, GSK, on the one hand, contests the judgment under appeal in so far as it upheld the Commission’s finding that the General Sales Conditions infringe Article 81(1) EC. On the other hand, the Commission (supported by the Republic of Poland as intervener), the Asociación de exportadores españoles de productos farmacéuticos (‘Aseprofar’) and the European Association of Euro Pharmaceutical Companies (‘EAEPC’) by their appeals in Cases C‑513/06 P, C‑515/06 P and C‑519/06 P, and the Commission and Aseprofar by their cross‑appeals in Case C‑501/06 P, contest the judgment under appeal in so far as it annulled the Commission’s decision to reject GSK’s request for exemption of the General Sales Conditions under Article 81(3) EC.

I – Legal framework

6. Article 3(1)(g) EC provides that the activities of the Community are to include a system ensuring that competition in the internal market is not distorted.

7. Article 81 EC provides:

‘1. The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

2. Any agreements or decisions prohibited pursuant to this article shall be automatically void.

3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:

– any agreement or category of agreements between undertakings,

– any decision or category of decisions by associations of undertakings,

– any concerted practice or category of concerted practices,

which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:

(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.’

8. Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of national health insurance systems (6) lays down requirements intended to make it possible to verify that such measures do not constitute quantitative restrictions on imports or exports or measures having equivalent effect.

9. At the time of notification of the General Sales Conditions, the Member States had different national regulations on the prices of medicines (‘national price regulations’). They included inter alia regulations on the setting of selling prices of medicines, on the setting of rates of reimbursement for medicines or on the profits of the producers of medicines.

II – The background to the dispute, the contested decision and the judgment under appeal

10. The group to which GSK belongs is one of the world’s main producers of medicines. GSK agreed (7) with 89 Spanish intermediaries, with whom it had commercial relations outside any distribution network, on the applicability of the General Sales Conditions which entered into force on 9 March 1998. Under the General Sales Conditions, two different prices, known as the Clause 4A price and the Clause 4B price, were fixed for 82 medicines.

11. The Clause 4A price was in no event to exceed the maximum industrial price established by the Spanish health authorities. It was charged when, firstly , the medicines were financed by the funds of the Spanish social security or by Spanish public funds and, secondly , the acquired medicines were subsequently marketed through Spanish pharmacies and hospitals.

12. In all other cases, the Clause 4B price was charged. The General Sales Conditions provided that the Clause 4B price was to be fixed according to real, objective and non-discriminatory economic criteria and completely irrespective of the destination of the product determined by the purchasing warehouse. In particular, the price – updated where appropriate – which GSK had proposed to the Spanish health authorities at the beginning of the negotiations during the Spanish pricing procedure was to be applied.

13. The medicines concerned included Beconase, Becloforte, Becotide, Flixotide, Serevent, Ventolin, Lamictal and Imigran, which were prime candidates for parallel trade between Spain and the United Kingdom on account of the price differentials.

14. By letter of 6 March 1998, GSK submitted an application under Article 2 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81] and [82] of the Treaty (8) (‘Regulation No 17’) for a certificate that the General Sales Conditions did not infringe Article 81(1) EC (negative clearance) and, in the alternative, an application under Article 4 of Regulation No 17 for exemption of the General Sales Conditions under Article 81(3) EC. The Commission did not grant those applications. In Article 1 of the contested decision, it found that the General Sales Conditions infringed Article 81(1) EC. It based its finding on the ground that the General Sales Conditions had both the object and the effect of restricting competition. In Article 2 of the contested decision, it rejected the request for an exemption of the General Sales Conditions pursuant to Article 81(3) EC.

15. GSK brought an action for annulment of the contested decision before the Court of First Instance. In the judgment under appeal of 27 September 2006, the Court of First Instance granted GSK’s application only in part. In so far as the application was directed against the finding in Article 1 of the contested decision that the General Sales Conditions infringe Article 81(1) EC, the Court of First Instance dismissed the application in paragraph 2 of the operative part. The Court of First Instance did find that the Commission should not have considered that the General Sales Conditions had the object of restricting competition. However, it dismissed the challenge to Article 1 of the contested decision because it ultimately upheld the Commission’s reasoning in respect of the restrictive effects of the General Sales Conditions. In so far as the application was directed against the rejection in Article 2 of the contested decision of the request for exemption, the Court of First Instance granted it in paragraph 1 of the operative part of the judgment under appeal. (9) In paragraphs 3 to 5 of the operative part, the Court of First Instance made orders as to costs.

III – Procedure before the Court of Justice and forms of order sought by the parties

A – Forms of order sought by the parties in the individual cases

1. Case C‑501/06 P (GSK’s appeal)

16. By document lodged at the Court Registry on 11 December 2006, GSK brought an appeal against the judgment under appeal. That case was registered under number C‑501/06 P.

17. In its appeal, GSK claims that the Court should:

– set aside the judgment under appeal in so far as it rejected GSK’s application for annulment of Article 1 of the contested decision;

– take such other action as justice may require;

– order the Commission to pay the costs.

18. In response to GSK’s appeal, the Commission contends in this case that the Court should:

– dismiss GSK’s appeal in its entirety;

– set aside paragraphs 1 and 3 to 5 of the operative part of the judgment under appeal;

– give final judgment in the matter by dismissing the application in the proceedings at first instance as unfounded;

– order GSK to pay the Commission’s costs arising from the proceedings in Case T-168/01 and from this appeal.

19. In response to that form of order sought by the Commission, GSK contends that the Court should:

– dismiss the Commission’s cross‑appeal as inadmissible and unfounded;

– order the Commission to pay the costs.

20. In response to GSK’s appeal, EAEPC contends in this case that the Court should:

– dismiss GSK’s appeal in its entirety.

21. In response to GSK’s appeal, Aseprofar contends in this case that the Court should:

– dismiss GSK’s appeal in its entirety;

– set aside paragraph 1 of the operative part of the judgment under appeal;

– give final judgment on the application at first instance and substitute the reasoning of the judgment under appeal in paragraphs 91 to 195 as regards the existence of a restriction of competition within the meaning of Article 81(1) EC;

– set aside paragraphs 3, 4 and 5 of the operative part of the judgment under appeal relating to costs and order GSK to pay the entire costs of the proceedings at first instance and the present proceedings.

22. The Republic of Poland was granted leave to intervene in support of the Commission and contends that the Court should:

– dismiss the appeal in its entirety;

– set aside paragraphs 1 and 3 to 5 of the operative part of the judgment under appeal;

– give final judgment in the case at first instance and dismiss GSK’s application for annulment.

23. In response to the form of order sought by the Republic of Poland, GSK maintains the form of order sought by it and, in addition, contends that the Court should:

– find the statement in intervention of the Republic of Poland inadmissible in part;

– award GSK the costs.

2. Case C‑513/06 P (the Commission’s appeal)

24. By document lodged at the Court Registry on 11 December 2006, the Commission brought an appeal against the judgment under appeal. That case was registered under number C‑513/06 P.

25. In its appeal, the Commission claims that the Court should:

– set aside paragraphs 1 and 3 to 5 of the operative part of the judgment under appeal;

– give final judgment in the matter by dismissing the application at first instance;

– order GSK to pay the Commission’s costs arising from the proceedings at first instance and from the appeal.

26. EAEPC supports the form of order sought by the Commission.

27. In response to the Commission’s appeal, GSK contends in this case that the Court should:

– dismiss the Commission’s appeal as inadmissible or unfounded;

– order the Commission to pay the costs.

28. The Republic of Poland was granted leave to intervene in support of the Commission and claims that the Court should:

– set aside paragraphs 1 and 3 to 5 of the operative part of the judgment under appeal;

– give final judgment in the case at first instance and dismiss GSK’s application for annulment.

29. In response to the form of order sought by the Republic of Poland, GSK maintains the form of order sought by it and, in addition, contends that the Court should:

– find the statement in intervention of the Republic of Poland inadmissible in part;

– award GSK the costs.

3. Case C‑515/06 P (EAEPC’s appeal)

30. By document lodged at the Court Registry on 18 December 2006, EAEPC brought an appeal against the judgment under appeal. This case was registered under number C‑515/06 P.

31. In its appeal, EAEPC claims that the Court should:

– set aside the judgment under appeal to the extent that it annulled the contested Commission decision;

– order GSK to pay the costs.

32. The Commission supports the form of order sought by EAEPC.

33. In response to EAEPC’s appeal, GSK contends that the Court should:

– dismiss the appeal as inadmissible or unfounded;

– order EAEPC to pay the costs.

4. Case C‑519/06 P (Aseprofar’s appeal)

34. By document lodged at the Court Registry on 13 December 2006, Aseprofar brought an appeal against the judgment under appeal. This case was registered under number C‑519/06 P.

35. In its appeal, Aseprofar claims that the Court should:

– set aside paragraph 1 of the operative part of the judgment under appeal;

– give final judgment in the case at first instance by dismissing GSK’s application and confirming the contested decision;

– set aside paragraphs 3, 4 and 5 of the operative part of the judgment under appeal regarding costs and order GSK to pay the entire costs of the proceedings before the Court of First Instance and of the appeal.

36. The Commission and EAEPC support the form of order sought by Aseprofar.

37. In response to Aseprofar’s appeal, GSK contends that the Court should:

– dismiss the appeal as inadmissible and unfounded;

– order Aseprofar to pay the costs.

B – Joinder and hearing

38. By order of 17 December 2008, Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P were joined for the purposes of the oral procedure and the judgment.

39. A hearing was held on 18 March 2009 involving the participation of representatives of GSK, the Commission, EAEPC, Aseprofar and the Government of the Republic of Poland, who supplemented their submissions and answered questions.

IV – Admissibility

40. GSK has submitted that the forms of order sought and submissions made by the Commission and Aseprofar are partly inadmissible. Since GSK bases its objections as to admissibility, in part, on the overall relationship of the forms of order sought by the parties in the individual cases, those objections must be examined first.

41. The objections as to admissibility are directed, first, against the submissions by the Commission and Aseprofar in their appeals in Cases C‑513/06 P and C‑519/06 P alleging errors of law in the reasoning of the Court of First Instance in respect of the restriction of competition by object (A). Secondly, GSK claims, in Case C‑501/06 P, that part of the form of order sought and submissions made by the Commission in response to its appeal should be rejected as inadmissible (B).

A – Admissibility of the submissions by the Commission and Aseprofar regarding the restriction of competition by object in their appeals (C‑513/06 P and C‑519/06 P)

42. The claims of the Commission and Aseprofar in their appeals in Cases C‑513/06 P and C‑519/06 P that paragraph 1 of the operative part of the judgment under appeal should be set aside are admissible. The Commission and Aseprofar are adversely affected by paragraph 1 of the operative part of the judgment under appeal and submit reasons why, in their view, paragraph 1 of the operative part should be set aside.

43. GSK doubts the admissibility of the submissions in which the Commission and Aseprofar allege errors of law in the part of the grounds of the judgment under appeal which forms the basis of paragraph 2 of the operative part.

44. GSK rightly objects that those arguments cannot be taken into account as autonomous pleas in law. The Commission and Aseprofar do not claim that the second paragraph of the operative part of the judgment under appeal should be set aside, but that it should be upheld, though with replacement of the grounds of the judgment under appeal. Such a request is inadmissible in the context of a notice of appeal. (10) According to settled case‑law, appellants may in principle seek a review of a part of the grounds of a judgment only where an error of law in that part of the grounds may call into question the operative part of the judgment under appeal. (11) In principle, therefore, no legal interest exists in raising pleas which are not directed against the operative part but merely against the grounds of the judgment under appeal. (12)

45. The Commission and Aseprofar argue, in favour of the admissibility of their submissions, that the reasoning of the Court of First Instance regarding the restrictive object of the General Sales Conditions under Article 81(1) EC influenced its reasoning on the eligibility of the General Sales Conditions for exemption under Article 81(3) EC.

46. Even if those submissions are correct, that cannot, for the aforementioned reasons, lead to an appellant being granted a legal interest in bringing an extensive application for replacement of the grounds of a judgment. In such a case, the submissions may be taken into account only in so far as they are capable of calling into question the part of the operative part of the judgment under appeal which adversely affects the appellant.

47. In the Commission’s and Aseprofar’s appeals in Cases C‑513/06 P and C‑519/06 P, therefore, the submissions directed against the part of the grounds relating to the restrictive object of the General Sales Conditions cannot be taken into account as autonomous pleas against that part of the judgment. They can be taken into account only in the context of the claim in their appeals that paragraph 1 of the operative part of the judgment under appeal should be set aside, that is to say, to the extent to which they are directed at the reasoning of the Court of First Instance under Article 81(3) EC.

B – Admissibility of the Commission’s submissions in Case C‑501/06 P in response to GSK’s appeal which are described as a ‘cross‑appeal’

48. In Case C‑501/06 P, the Commission responded as follows to GSK’s appeal:

– Firstly, under the heading ‘Response’, it responded to the pleas in law by which GSK contested, with the aim of having paragraph 2 of the operative part of the judgment under appeal set aside, the grounds of the judgment relating to the restrictive effect of the General Sales Conditions.

– Secondly, under the heading ‘Cross-appeal’, it put forward reasons for which the Court of First Instance should have based paragraph 2 of the operative part of the judgment under appeal simply on the finding that the Commission correctly considered that the General Sales Conditions had a restrictive object.

– Thirdly, likewise under the heading ‘Cross‑appeal’, it alleged errors of law by the Court of First Instance in its reasoning relating to the restrictive effect of the General Sales Conditions. It thus alleged errors of law in the grounds of the judgment under appeal on the basis of which the Court of First Instance ultimately upheld the Commission’s finding in the contested decision that the General Sales Conditions infringed Article 81(1) EC.

– Fourthly, as a ‘cross‑appeal’, it claimed that paragraph 1 of the operative part of the judgment under appeal should be set aside. It based this on the ground that the Court of First Instance wrongly annulled Article 2 of the contested decision, in which the Commission had rejected the request for an exemption pursuant to Article 81(3) EC.

49. It should first be noted that the Commission’s reply to GSK’s pleas in law which is referred to in the first indent of the preceding point is admissible without any problems as a response seeking to dismiss the appeal, within the meaning of Article 116(1), first indent, first alternative, of the Rules of Procedure. I shall therefore confine myself below to examining the form of order sought, and submissions made, by the Commission which the latter has identified as a ‘cross‑appeal’.

1. The Commission’s submissions regarding the restriction of competition by object

50. In response to GSK’s appeal, the Commission alleges errors of law in the reasoning of the Court of First Instance on the basis of which it held that the Commission should not have considered that the General Sales Conditions had a restrictive object. GSK maintains that these submissions are inadmissible.

a) Inadmissibility in the context of a cross‑appeal

51. First, GSK must be concurred with when it states that these submissions are inadmissible in the context of a cross‑appeal under Article 116(1), first indent, second alternative, of the Rules of Procedure. As in the context of an appeal, so also, in principle, in the context of a cross‑appeal, it is not permissible to challenge only the grounds of the judgment under appeal. (13)

b) Admissibility in the context of a response seeking to dismiss an appeal

52. However, it must be borne in mind that the Commission has stated in the course of the proceedings that, by these submissions, it was primarily seeking to respond to GSK’s appeal. It therefore does not intend its submissions to be construed as a cross‑appeal under Article 116(1), first indent, second alternative, of the Rules of Procedure, but as a response seeking to dismiss GSK’s appeal, within the meaning of Article 116(1), first indent, first alternative, of the Rules of Procedure.

53. It should, firstly, be noted in this connection that such submissions can certainly be taken into account in the context of a response seeking to dismiss the appeal under Article 116(1), first indent, first alternative, of the Rules of Procedure, unlike in the context of an appeal under Article 113(1), first indent, of the Rules of Procedure or of a cross‑appeal under Article 116(1), first indent, second alternative, of the Rules of Procedure.

54. A response seeking to dismiss the appeal can be based on a request for replacement of the grounds of the judgment under appeal. The Court does not in fact dismiss appeals only where it confirms the grounds of the judgment under appeal as being free from errors of law. It also dismisses appeals where it can replace legally erroneous reasoning of the Court of First Instance by reasoning which is free from errors of law and the latter reasoning supports the part of the operative part contested by the appeal. (14)

55. Secondly, it must be pointed out that such a situation exists in this case. Article 81(1) EC lays down as a condition, in the form of an alternative , the existence of a restriction of competition either by object or by effect. (15) The Commission based the finding in Article 1 of the contested decision of an infringement of Article 81(1) EC both on the ground that the General Sales Conditions had a restriction of competition as their object and on the ground that they had such a restriction as their effect.

56. Although the Court of First Instance did not regard the Commission’s reasoning regarding the restriction of competition by object as sufficient, it nevertheless dismissed GSK’s action because it ultimately upheld the Commission’s reasoning regarding the restrictive effect. In paragraph 2 of the operative part of the judgment under appeal, the Court of First Instance therefore upheld Article 1 of the contested decision.

57. The Commission would therefore be entitled, in a response to GSK’s appeal, which is directed against paragraph 2 of the operative part of the judgment under appeal, to base a claim seeking dismissal of the appeal on the ground that the Court of First Instance should already have upheld the Commission’s reasoning regarding the restrictive object of the General Sales Conditions.

c) Ability to take the submissions into account

58. The question therefore arises, first, whether the Commission’s submissions identified as a ‘cross‑appeal’ can be construed as a claim seeking dismissal of the appeal.

59. Contrary to GSK’s submissions, this question cannot hinge solely on the words chosen; what matters is the discernable intention of the Commission. It is true that the limit of such an interpretation or reclassification based on the party’s intention is reached at the point where the other party’s right to a fair hearing is impaired. This is likely to be the case, in particular, where the intention has not been sufficiently clearly expressed for the other party. However, since the part identified as the ‘cross‑appeal’ manifestly sought dismissal of GSK’s appeal, with replacement of the grounds of the judgment under appeal, such interpretation or reclassification appears to me to be justifiable. In addition, I cannot see that this would impair GSK’s right to a fair hearing. GSK has fully expressed its views on the reasoning of the Court of First Instance regarding the restrictive object of the General Sales Conditions.

60. Irrespective of whether it is considered permissible to interpret or reclassify the ‘cross‑appeal’ as a response seeking dismissal of the appeal, substantive consideration of the Commission’s submissions on the restrictive object of the General Sales Conditions seems to me to be possible. The Court’s jurisdiction to replace grounds ought not to be dependent on a corresponding claim by the party opposing the appeal.

61. It is true that replacement of the grounds of a judgment of the Court of First Instance cannot take place irrespective of whether the occasion arises, that is to say, outside of an appeal. However, where an appeal challenges the part of the operative part which the Court of First Instance has based on the part of the grounds in question, replacement of the grounds in question cannot be dependent on an appropriate request being expressed or specific alternative grounds being proposed by a party opposing the appeal. Such an approach does not seem to me to be compatible with the role of the Court of Justice under Article 220 EC. Under that provision, the Court of Justice, within its jurisdiction (which is invoked by the lodging of an appeal), is to ensure that in the interpretation and application of the Treaty the law is observed. It seems to me that the only approach compatible with that is one whereby the Court, in the context of an appeal, can replace legally erroneous reasoning of the Court of First Instance whether or not a corresponding request is made by a party opposing the appeal. I consider my view of the law to be confirmed by the fact that, in the cases cited in footnote 14, the Court appears also to have undertaken the replacement of grounds of its own motion.

62. Since the Court’s jurisdiction to replace grounds is therefore not dependent on an application by the parties, the Commission’s submissions on the anti-competitive object of the General Sales Conditions can be taken into account when examining GSK’s appeal, even if the Commission’s submissions described as a ‘cross‑appeal’ are not capable of being interpreted or reclassified as a claim seeking dismissal of the appeal.

d) The substantive identity of the Commission’s submissions in Cases C‑513/06 P and C‑501/06 P

63. Finally, GSK’s objection that the fact that the Commission’s submissions in its appeal in Case C‑513/06 P and in response to GSK’s appeal in Case C‑501/06 P are substantively identical constitutes an abuse of process must also be rejected.

64. Firstly, it should be pointed out that, despite being joined, both cases must still be regarded as separate proceedings. Secondly, GSK cannot in any event succeed in its objection because the relevant submissions by the Commission in the context of its appeal in Case C‑513/06 P must be rejected as inadmissible. (16) The situation of repeated advancing of the same appeal objected to by GSK as an abuse of process therefore does not exist. Thirdly, in Case C‑501/06 P, the Commission cannot, for the aforementioned reasons, be denied an interest in the consideration of its submissions. (17)

2. The Commission’s submissions regarding the restriction of competition by effect

65. As set out above, (18) in Case C‑501/06 P the Commission, in response to GSK’s appeal, put forward further reasons concerning why the Court of First Instance made errors of law in its reasoning regarding the restrictive effect under Article 81(1) EC, and referred to these likewise under the term ‘cross‑appeal’.

66. In so far as GSK also objects to the admissibility of these submissions, reference may be made to the above reasoning. (19) As a cross‑appeal, these submissions would have to be rejected as inadmissible. So far as concerns the ability to take these submissions by the Commission into account, their interpretation or reclassification as a claim seeking dismissal of the appeal is admittedly a less obvious solution than in the case of the submissions discussed previously, regarding the restrictive object. That is because, in this context, the Commission has merely alleged errors of law on the part of the Court of First Instance without addressing the question of by what alternative reasoning the reasoning regarded as legally erroneous should be replaced. However, the fact that the thrust of these submissions is primarily directed only against the reasoning of the Court of First Instance, but not at dismissal of the appeal, can be overcome by the assumption that the Commission is seeking replacement of the grounds regarded by it as legally erroneous with grounds which uphold its reasoning in the contested decision on the restrictive effect of the General Sales Conditions. In any event, the Commission’s submissions regarding the restriction of competition by effect can also be taken into account by virtue of the Court’s jurisdiction to replace grounds of its own motion, as explained above, (20) without any need for a decision to be made as to whether the submissions described under the term ‘cross‑appeal’ can be interpreted or reclassified as a claim seeking dismissal of the appeal.

3. Admissibility of the Commission’s cross‑appeal contesting paragraph 1 of the operative part of the judgment under appeal

67. As set out above, (21) the Commission has also sought under the heading ‘cross-appeal’ to have paragraph 1 of the operative part of the judgment under appeal set aside. In this instance, this is in fact a cross‑appeal as referred to in Article 116(1), first indent, second alternative, of the Rules of Procedure.

68. GSK submits that this cross‑appeal is inadmissible, since the Commission, by its appeal in Case C‑513/06 P, has already sought to have paragraph 1 of the operative part of the judgment under appeal set aside. In its view, the remedies of lodging an appeal and a cross‑appeal cannot both be exercised. The Commission, on the other hand, invokes, in particular, the separate status of the procedures and the fact that a party who has himself lodged an appeal may, in addition, also intervene in other appeal proceedings against the judgment under appeal.

69. The Commission’s cross‑appeal in Case C‑501/06 P is admissible.

70. Firstly, it must be pointed out that, despite their being joined, Cases C‑501/06 P and C‑513/06 P have not lost their character as separate proceedings. On the contrary, the allegations put forward must be examined in each individual case.

71. Secondly, contrary to GSK’s submission, the taking into account of considerations of procedural economy cannot, in principle, mean that the exercise of a legal remedy provided for in the Rules of Procedure is to be viewed as an abuse of process.

72. Thirdly, I cannot infer from the wording of Article 116(1), first indent, second alternative, of the Rules of Procedure any limitation to the effect that a cross‑appeal may be lodged only if the party concerned has not yet lodged an appeal. Admittedly, the possibility of lodging a cross‑appeal might well play a practical role particularly in cases where one party wishes to wait first before lodging an appeal, in order to see whether another party contests the judgment. However, that is not a requirement of Article 116(1), first indent, second alternative, of the Rules of Procedure. It should further be pointed out that a party may decide initially to lodge only an appeal limited to certain grounds, and lodge a more extensive cross‑appeal only when another party appeals. Such a course of action ought to be compatible with the wording and purpose of Article 116(1), first indent, second alternative, of the Rules of Procedure.

73. Fourthly, contrary to GSK’s submission, neither the principle of concentration of proceedings nor the principle under which new pleas in law are not to be raised after the expiry of the time‑limit for appeals militates against the lodging of both an appeal and a cross‑appeal. Under Article 116(1), first indent, second alternative, of the Rules of Procedure, even where the time‑limit for lodging an appeal has already expired, a party may still seek to have the judgment entirely set aside by means of a cross‑appeal. (22) If the Rules of Procedure grant a party the right still to challenge a judgment in its entirety by means of a cross‑appeal, despite the expiry of the time‑limit for appeals, it can, in my view, be inferred a fortiori from this that the taking into account of the principle of concentration of proceedings and the principle under which new pleas in law are not to be raised cannot prevent a party who has already lodged an appeal from lodging a cross‑appeal.

74. Finally, in so far as GSK also views the fact that the Commission’s appeal in Case C‑513/06 P and its cross‑appeal in Case C‑501/06 P are largely identical in substance as an abuse of process, this objection to admissibility must also be rejected. In this connection also, the separate status of the individual cases should be noted. (23)

C – Conclusion

75. As a result of the examination of admissibility, I conclude that the Commission’s and Aseprofar’s submissions in Cases C‑513/06 P and C‑519/06 P regarding the restrictive object of the General Sales Conditions should be disregarded as inadmissible in so far as they seek by those submissions merely to replace the grounds of the judgment under appeal.

76. On the other hand, the Commission’s submissions regarding the reasoning of the Court of First Instance on the restrictive object and effect of the General Sales Conditions can be taken fully into account in the context of the examination of GSK’s appeal in Case C‑501/06 P. That also applies to the corresponding submissions of Aseprofar, (24) EAEPC and Poland in that case.

77. Finally, the lodging of the Commission’s appeal in Case C‑513/06 P does not result in the inadmissibility of its cross‑appeal in Case C-501/06 P.

V – GSK’s appeal in Case C‑501/06 P

78. GSK’s appeal in Case C‑501/06 P is essentially directed against paragraph 2 of the operative part of the judgment under appeal. In that paragraph, the Court of First Instance dismissed GSK’s application in so far as it sought the annulment of Article 1 of the contested decision. In Article 1 of the contested decision, the Commission found that GSK’s General Sales Conditions infringed Article 81(1) EC.

79. Before I start examining the appeal, I would first draw attention to the particular circumstance that the Commission, Aseprofar, EAEPC and the Republic of Poland seek replacement of the grounds of the judgment regarding the restrictive object of the General Sales Conditions. They thus seek, in Case C‑501/06 P, the dismissal of GSK’s appeal with replacement of the grounds of the judgment relating to the restrictive object of the General Sales Conditions. (25) Secondly, I would draw attention to the structure of Article 81(1) EC, in accordance with which it is first examined whether an agreement has a restrictive object, and only if that cannot be considered to be the case must the restrictive effects of the agreement be examined. (26)

80. I am of the view that those particular circumstances justify examining first whether the Court of First Instance made an error of law in its reasoning regarding the restrictive object of the General Sales Conditions and whether that entails replacing the grounds. This is because if the reasoning of the Court of First Instance that the Commission was not entitled to regard the General Sales Conditions as having a restrictive object is replaced by reasoning according to which the Commission was right to regard the General Sales Conditions as having a restrictive object, GSK’s appeal would have to be dismissed for that reason alone, (27) as GSK could then no longer be successful with its pleas in law directed against the grounds of the judgment under appeal regarding the restrictive effect of the General Sales Conditions.

81. For those reasons, I shall first examine whether the reasoning of the Court of First Instance regarding the restrictive object of the General Sales Conditions is vitiated by errors of law (A). Should that be the case, I shall further examine whether the Court of Justice can, in the exercise of its jurisdiction in appeal proceedings, replace that legally erroneous reasoning of the Court of First Instance with reasoning confirming that the Commission was entitled to regard the General Sales Conditions as having a restrictive object (B). Should the conditions for such a replacement of the grounds regarding the restrictive object of the General Sales Conditions be met, GSK’s pleas in law contesting the reasoning of the Court of First Instance on the restrictive effect of the General Sales Conditions would no longer be relevant, since they could no longer call into question paragraph 2 of the operative part of the judgment under appeal (C).

A – Errors of law made by the Court of First Instance in the part of its reasoning relating to the restrictive object of the General Sales Conditions

82. The Commission, Aseprofar, EAEPC and the Republic of Poland assert that the Court of First Instance made errors of law in the part of its reasoning relating to the restrictive object of the General Sales Conditions. I shall therefore deal briefly first with the relevant part of the grounds of the judgment under appeal (1) and the concept of a restriction of competition by object (2). Based on that, I shall examine by what errors of law the relevant part of the judgment under appeal is vitiated (3).

1. The part of the grounds of the judgment under appeal relating to the restrictive object of the General Sales Conditions

83. In paragraphs 114 to 147 of the judgment under appeal, the Court of First Instance examined whether the Commission was entitled to regard the General Sales Conditions as having the object of restricting competition. First, the Court of First Instance found that GSK used the General Sales Conditions to pursue the object of restricting parallel trade and that, in the case of agreements which have as their object a restriction of parallel trade, a restriction of competition by object must, in principle, be considered to exist. (28)

84. However, in the present case, the Court of First Instance did not regard the object of restricting parallel trade as a sufficient basis for finding a restriction of competition by object. Instead, it observed that the application of Article 81(1) EC cannot depend solely on the fact that parallel trade is limited and that therefore trade is affected. The present case requires, in addition, an analysis designed to determine whether the General Sales Conditions have as their object or effect the restriction of competition on the relevant market, to the detriment of the final consumer. (29) A restriction of competition by object as the result of a restriction of parallel trade can be assumed to exist only if final consumers may be presumed to be deprived of the advantages of effective competition. (30)

85. The Court of First Instance then stated that, if account is taken of the legal and economic context of the present case, it cannot be presumed that the General Sales Conditions deprive the final consumers of the advantages of competition. (31)

86. In this connection, the Court of First Instance first observed that the Spanish intermediaries may keep the advantage in terms of price which parallel trade may entail, in which case that advantage will not be passed on to the final consumers. (32)

87. Also, the Court of First Instance criticised the Commission for at no point examining the specific and essential characteristic of the medicines sector, which relates to the fact that the prices of the products in question, which are subject to control by the Member States, which fix them directly or indirectly at what they deem to be the appropriate level, are determined at structurally different levels in the Community and, unlike the prices of other consumer goods, are in any event to a significant extent shielded from the free play of supply and demand. (33) That circumstance, the Court of First Instance continued, means that it cannot be presumed that parallel trade has an impact on the prices charged to the final consumers of medicines reimbursed by the national sickness insurance scheme and thus confers on them an appreciable advantage analogous to that which it would confer if those prices were determined by the play of supply and demand. (34)

88. On the basis of those findings, the Court of First Instance concluded that the principal conclusion reached by the Commission, namely that the General Sales Conditions have as their object the restriction of competition, could not be upheld. According to the Court of First Instance, as the prices of the medicines concerned are to a large extent shielded from the free play of supply and demand owing to the applicable regulations and are set or controlled by the public authorities, it cannot be taken for granted at the outset that parallel trade tends to reduce those prices and thus to increase the welfare of final consumers. An analysis of the terms of the General Sales Conditions, carried out in that context, therefore does not permit the presumption that a limitation of parallel trade tends to diminish the welfare of final consumers. In that largely unprecedented situation, it cannot be inferred merely from a reading of the terms of that agreement, in its context, that the agreement is restrictive of competition, and it is therefore necessary to consider the effects of the agreement, if only to ascertain what the regulatory authority was able to apprehend on the basis of such a reading. (35)

2. The notion of restriction of competition by object

89. According to the case‑law, the alternatives under Article 81(1) EC of having the object or the effect of restricting competition imply a two‑stage examination. If the restrictive object of an agreement is proven, no further evidence of its restrictive effects needs to be produced. (36) There is no need to take account of the actual effects of an agreement once it appears that its aim is to restrict competition. (37) Such an agreement falls under Article 81(1) EC even in the absence of restrictive effects on the market. (38) It is therefore clear that, so far as the alternative requirement of restriction of competition by object in Article 81(1) EC is concerned, it is a form of inchoate offence. (39)

90. A restrictive object must be considered to exist where agreements are by their very nature liable to restrict competition. That can be assumed to be the case where an agreement, having regard to its legal and economic context, has the specific capability and the tendency to have a negative impact on competition. (40)

91. In this connection, regard must be had, in particular, to existing experience according to which, in all probability, certain types of agreement have a negative impact in the market and jeopardise the objectives pursued by the Community’s competition legislation. Under this approach, the character of the restriction of competition by object as a form of inchoate offence becomes particularly clear, since certain types of agreement (such as price‑fixing agreements, customer sharing or resale price maintenance) are classified, on the basis of existing experience, as restrictions of competition by object, without any specific analysis of their effects. This standardised approach certainly creates legal certainty. However, it is always subject to the proviso that the legal and economic context of the agreement to be examined does not preclude application of this standardised assessment. (41)

92. The notion of restriction of competition by object is nevertheless not confined solely to certain types of agreement. It also covers agreements where a sufficiently deleterious effect on competition may be presumed on the basis of economic analysis. (42) Such an assessment of an agreement presupposes that it is appraised in its legal and economic context. That situation therefore retains a certain closeness in content to examination of the restrictive effects of the agreement. (43) However, the difference compared with an examination of the restrictive effects of the agreement lies in the fact that, with a restriction of competition by object, the negative interference with market conditions is so clear that the agreement can be presumed, without any detailed market analysis, to have a restrictive effect.

93. In determining whether an agreement has a restrictive object, account must be taken, in particular, of the agreement’s content, the objective aims pursued by the agreement, the agreement’s legal and economic context and the conduct of the parties. The intention of the parties may also be taken into account as a circumstantial factor. (44)

94. If the agreement does not have a restrictive object, it is then prohibited under Article 81(1) EC only if it is argued and proved, on the basis of an analysis of the actual and/or potential effects of the agreement on the relevant market(s), that the agreement has the effect of restricting competition. (45)

3. Errors of law

95. The Commission, Aseprofar, EAEPC and the Republic of Poland assert numerous errors of law which relate, in particular, to the interpretation of the notion of restriction of competition by object (a) and to the taking into account of the legal and economic context (b).

a) Legally erroneous interpretation of the notion of restriction of competition by object

i) The finding that an agreement which seeks to restrict parallel trade can only in principle be regarded as a restriction of competition by object

96. The Commission, Aseprofar und EAEPC object to the finding by the Court of First Instance, in particular in paragraphs 115, 116 and 121 of the judgment under appeal, that an agreement which seeks to restrict parallel trade must only in principle be regarded as a restriction of competition by object.

97. This objection must be rejected.

98. It is true that, according to the Court of Justice’s case‑law, agreements which limit parallel trade are typically agreements which have as their object a restriction of competition. (46) It is, however, as explained above, (47) always necessary to take into account the legal and economic context of an agreement. In so far as that proviso is expressed in the words ‘in principle’, the Court of First Instance cannot therefore be accused of making an error of law.

ii) Presumption of a restrictive effect

99. The Commission, Aseprofar and EAEPC complain that, in particular in paragraphs 121, 122 and 134 of the judgment under appeal, the Court of First Instance made the existence of a restriction of c ompetition by object dependent on the condition that the restrictive effects of the agreement must be capable of being presumed .

100. That finding by the Court of First Instance also contains no errors of law.

101. In view of the consequences which may result for an undertaking from an infringement of Article 81(1) EC, the notion of an anti-competitive object must not be interpreted excessively broadly. (48) That requirement is expressed in the condition requiring a presumption of restriction of competition. Moreover, I can see no fundamental difference between the criterion discussed above, as to whether, on the basis of existing experience, an agreement has the potential to have a negative impact on competition, (49) and the criterion used by the Court of First Instance, according to which it must be ascertained whether the restrictive effects of the agreement may be presumed. So long as no proof of potential effects is required in connection with the presumption, no error of law therefore lies in the use of that criterion.

iii) Taking into account of detriment to the final consumer

102. Aseprofar and the Commission further object to the findings of the Court of First Instance in paragraphs 118, 119, 133, 134 and 147 of the judgment under appeal. In those paragraphs, the Court of First Instance found, in essence, that, in order for a restriction of competition by object to be assumed in the present case, an analysis is required to determine whether the General Sales Conditions have as their object or effect a restriction of competition on the relevant market to the detriment of the final consumer . The Commission was therefore not entitled to consider that the General Sales Conditions had as their object a restriction of competition, because it could not presume without an examination of the effects of the General Sales Conditions that they restricted competition to the detriment of the final consumer. The Court of First Instance relied on the fact that, in view of the circumstance that the prices of medicines are to a large extent shielded from the free play of supply and demand owing to the national price regulations and are set and controlled by the public authorities, it cannot be taken for granted at the outset that parallel trade tends to reduce the prices charged to the final consumer.

103. Aseprofar and the Commission rightly criticise the findings and conclusions of the Court of First Instance in the aforementioned paragraphs of the judgment under appeal. In so far as those paragraphs require an analysis of the disadvantages for the final consumers, that is based on a legally erroneous interpretation of the notion of restriction of competition by object.

104. Firstly , it should be noted that, according to its wording, Article 81(1) EC requires only that the agreement have as its object or effect the prevention, restriction or distortion of competition. There is therefore no support in the wording for the finding that, over and above the existence of a restriction of competition, there needs to be an analysis of whether the agreement has as its object or effect a disadvantage for the final consumers. (50)

105. Moreover , as Aseprofar rightly submits, from a systemic point of view regard must be had to the structure of Article 81 EC. Under Article 81(1) EC, agreements which have as their object a restriction of competition are in principle prohibited. Under Article 81(3) EC, such agreements may be exempted from the prohibition under Article 81(1) EC only if four conditions are all satisfied. Those conditions comprise, firstly , that the agreement results in a benefit in terms of improving the distribution of goods or promoting technical or economic progress, secondly , that consumers are allowed a fair share of that benefit, thirdly , that no restrictions which are not indispensable to the attainment of those objectives are imposed on the undertakings concerned and, fourthly , that no possibility of eliminating competition in respect of a substantial part of the products in question is afforded.

106. According to the general scheme of Article 81 EC, the consumers’ share of the benefit of an agreement is thus a condition which must be taken into account under Article 81(3) EC. Moreover, it follows from Article 81(3) EC that even agreements which allow consumers a fair share of the benefit are exempted only if the further conditions laid down by Article 81(3) EC are also satisfied. Against that background, it does not seem to me to be compatible with the scheme of the provisions of Article 81 EC to make the existence of a restriction of competition by object dependent on proof of harmfulness to consumers. (51)

107. That does not mean that the effects of an agreement on the final consumer cannot be taken into account at all under Article 81(1) EC. However, this must involve aspects which cast doubt on the very existence of a restriction of competition. (52) It should be pointed out in this connection that the benefits which may accrue to final consumers from the fact that GSK, by restricting parallel trade, has greater financial resources at its disposal and may, as the case may be, spend these on research and development of new medicines, are not capable of casting doubt on the existence of a restriction of competition within the meaning of Article 81(1) EC. On the contrary, such benefits, even though they may strengthen competition between producers of medicines, are to be taken into account not under Article 81(1) EC but under Article 81(3) EC. (53)

108. For that reason, GSK’s submission that a restriction of competition by object cannot be assumed to exist if the General Sales Conditions cannot be presumed to be an agreement harmful to consumers must also be rejected. The notion of restriction of competition by object presupposes that the agreement has the potential and tendency to produce a sufficient impact on competition, but not, on the other hand, that that agreement must be characterised in an overall assessment as harmful to consumers. In examining whether an agreement has as its object a restriction of competition, a comparative assessment of the harmfulness to consumers of agreements which restrict parallel trade in medicines and agreements which have as their object serious restrictions of competition which are not, as a rule, justifiable under Article 81(3) EC is therefore not pertinent. Such an interpretation is incompatible with the structure of Article 81 EC. The notion of restriction of competition by object cannot be confined to particularly serious restrictions of competition or core offences. (54)

109. Contrary to GSK’s submissions, an unqualified treatment of restrictions of competition by object under Article 81(1) EC as equivalent to per se prohibitions within the meaning of United States antitrust law must also be rejected on account of the structure of Article 81 EC. (55)

110. In my view, caution is also called for as regards the transferability of assessments from judgments delivered on the basis of Article 82 EC. Admittedly, such judgments may provide, in particular, indications as to whether and to what extent the limitation of parallel trade is capable of restricting competition. (56) However, it is not automatically possible to conclude from the assessment that unilateral conduct limiting parallel trade in medicines on the part of a dominant undertaking should not, under certain conditions, be classified as an abuse that an agreement between undertakings which limits parallel trade in medicines does not constitute a restriction of competition by object for the purposes of Article 81(1) EC. Firstly, the assessment as to whether unilateral conduct constitutes an abuse under Article 82 EC is subject to different criteria from the examination of whether an agreement is compatible with Article 81 EC. Secondly, it should be pointed out that the assessment of abuse under Article 82 EC is the result of a full examination, whereas the assessment of whether an agreement has as its object a restriction of competition constitutes only a first step in the examination under Article 81 EC.

111. Furthermore , while it is certainly true that the system of undistorted competition, as intended by the EC Treaty pursuant to Article 3(1)(g) EC, has the objective of the best possible supply to consumers by preventing harmful private restrictions of competition, that does not mean that account must necessarily be taken, at the stage of examining whether an agreement has as its object the restriction of competition, of whether the agreement gives rise to actual disadvantages for the final consumer.

112. On the contrary, a restriction of competition by object must be assumed to exist where, having regard to its legal and economic context, the agreement has the potential and tendency to produce a sufficiently negative impact on competition. (57) Article 81(1) EC protects competition at all levels of the market. (58) In the present case, therefore, the intrabrand competition which arises from the fact that the direct customers for the medicines, that is to say, hospitals and pharmacies, have the option of obtaining supplies of GSK medicines not only from the intermediaries in the countries of destination, but also from the Spanish intermediaries by way of parallel trade, is protected. That is because not only the restriction of competition in a market in which the final consumer acts as the customer, but also the restriction of competition at an upstream market level, is in principle capable of adversely affecting the final consumer.

113. Benefits which arise from competition at an upstream market level may in fact be passed on to the final consumer. This is true in particular where effective competition exists at the downstream levels of the market. In my view, moreover, the mere fact that no, or insufficient, competition exists at the downstream levels of the market does not mean that a restriction of competition upstream is not caught by Article 81(1) EC. The problem that the benefits resulting from competition at an upstream market level are not passed on to the final consumer due to a lack of competition at a downstream market level must in fact be solved at the market level at which the problem exists. However, the fact that the benefits resulting from competition at the upstream market level are not passed on to the final consumer due to lack of competition at the downstream market level may be taken into account in assessing the agreement in question under Article 81(3) EC.

114. In addition , it may be argued against the approach adopted by the Court of First Instance that it would deprive restriction of competition by object as one of the alternative criteria under Article 81(1) EC of part of its practical effectiveness. Admittedly, cases where competition is affected in a market in which the consumer directly asks for the product concerned could still be caught by the notion of restriction of competition by object. However, under the approach adopted by the Court of First Instance, if the restriction of competition takes place at an upstream market level, it will probably be appreciably more difficult to consider that there is a restriction of competition by object.

115. That is because, as the distance from the market level at which the final consumer asks for the end product increases, the analysis of whether the restriction of competition at the upstream market level has an appreciable adverse effect on the final consumer would probably also be more difficult. Beyond a certain distance, such an analysis would probably be barely feasible without carrying out a market analysis. With a market analysis, however, the dividing line between restriction of competition by object and restriction of competition by effect would be crossed.

116. The approach of the Court of First Instance would thus mean that, in the case of agreements which take place at a market level at a certain distance from the market level at which the final consumer asks for the end product, restrictions of competition by object would then hardly be possible, but only restrictions by effect.

117. Furthermore , this legally erroneous interpretation by the Court of First Instance also finds no support in the case‑law to which it referred in paragraph 118 of the judgment under appeal. Thus, in paragraph 115 of the judgment in Österreichische Postsparkasse v Commission , (59) the Court of First Instance merely held that the ultimate purpose pursued by means of Article 81 EC is to increase the well-being of consumers, and in that context mentioned, in connection with Article 81(3) EC, allowing consumers a share of the benefit of the agreement concerned. Nor can an interpretation of the notion of restriction of competition by object corresponding to the interpretation taken by the Court of First Instance as its basis in the judgment under appeal be inferred from Consten and Grundig v Commission . (60)

118. The Court of First Instance thus gave a legally erroneous interpretation to the notion of restriction of competition by object in finding that, in order for a restriction of competition by object to be assumed in the present case, an analysis is required to determine whether the agreement has as its object or effect a restriction of competition on the relevant market to the detriment of the final consumer.

iv) Limited account taken of the benefits of parallel trade for the final consumer

119. Merely for the sake of completeness, I would point out that, even if, taking as a basis what is, in my view, the legally erroneous approach of the Court of First Instance, an analysis of the disadvantages for the final consumer is required, a further error of law would lie in the fact that its approach is based on too restrictive an understanding of the advantages for final consumers which are protected under Article 81(1) EC.

120. Aseprofar and the Commission allege that the Court of First Instance should not have confined itself to taking into account only the effects of parallel trade on the prices charged to final consumers. They argue that other advantages for final consumers must also be regarded as protected by Article 81 EC. They indicate in this connection inter alia that sickness insurance schemes could reduce the costs of medicines by virtue of parallel trade.

121. Contrary to GSK’s view, this submission should not be rejected as a submission of fact which is inadmissible on appeal. That is because Aseprofar and the Commission are thereby alleging primarily that the Court of First Instance has too restrictive an understanding of the benefits for final consumers which are protected under Article 81 EC, and thus adopts a legally erroneous interpretation of Article 81 EC. Their complaint is also well founded. Under Article 81 EC, all benefits which may result for final consumers from a system of undistorted competition, that is to say, all direct and indirect price advantages and all other direct and indirect benefits which are not price‑related, are in fact covered.

122. By only taking into account, in paragraphs 133, 134 and 147 of the judgment under appeal, the effects of the General Sales Conditions on the prices charged to final consumers and by regarding the Commission’s reasoning as vitiated by errors of law simply because it did not take that aspect into account, the Court of First Instance misconstrued the extent of the benefits for final consumers which are protected under Article 81 EC.

v) Conclusion

123. In conclusion, it must be found that the Court of First Instance interpreted the notion of restriction of competition by object in a legally erroneous manner.

124. Since the aforementioned errors of law alone seem to me to be capable of resulting in replacement of the grounds stated by the Court of First Instance on the restrictive object of the General Sales Conditions, I shall in principle dispense with an examination of the further complaints. However, it should be noted that, when replacing grounds, the Court of Justice must act on the basis of the facts found by the Court of First Instance. (61) I shall therefore still deal below with the complaints made regarding the account taken by the Court of First Instance of the legal and economic context of the General Sales Conditions.

b) Account taken of the legal and economic context

125. The Commission, Aseprofar, EAEPC and the Republic of Poland allege errors by the Court of First Instance when taking into account the legal and economic context of the General Sales Conditions. A fundamental point of those allegations is that, in its reasoning on the restrictive object of the General Sales Conditions, the Court of First Instance took as its starting point a different legal and economic context from that postulated in its reasoning on the restrictive effect of the General Sales Conditions. In that connection, an erroneous understanding of the legal and economic context, distortion of the facts and contradictions in the reasoning are alleged in particular. GSK, on the other hand, objects that those complaints are largely inadmissible in the context of an appeal, since they seek a review of the findings of fact made by the Court of First Instance. Moreover, GSK makes the same allegations in reverse, that is to say, it alleges that the Court of First Instance made the errors not in the part of the judgment relating to the restrictive object of the General Sales Conditions, but in the part relating to their restrictive effect.

126. First, the complaint that the Court of First Instance had a legally erroneous understanding of the notion of legal and economic context, because it postulated that the legal and economic context for the purpose of examining the restrictive object could be a different one from that for the purpose of examining the restrictive effect, must be rejected. As is apparent from paragraph 110 of the judgment under appeal, the Court of First Instance correctly postulated that the same legal and economic context must be taken into account both for the examination of the restrictive object of an agreement and for the examination of its restrictive effect. (62)

127. In the case of the remaining complaints, a distinction must be made between the assumption by the Court of First Instance in the second sentence of paragraph 122 of the judgment under appeal that intermediaries may keep the advantage in terms of price which parallel trade may entail, in which case that advantage will not be passed on to the final consumers (i), and the other findings by the Court of First Instance (ii).

i) The assumption that intermediaries may keep the advantage in terms of price which parallel trade may entail, in which case that advantage will not be passed on to the final consumers

128. The Commission, Aseprofar, EAEPC and the Republic of Poland rightly object to the assumption in the second sentence of paragraph 122 of the judgment under appeal that intermediaries trading in medicines may keep the advantage in terms of price which parallel trade may entail, in which case that advantage will not be passed on to the final consumers. That finding is vitiated by errors of law.

129. Firstly , that finding constitutes a distortion of the clear sense of the evidence. It is true that the findings of fact made by the Court of First Instance may not, in principle, be called into question in appeal proceedings, since appeals to the Court of Justice are limited to points of law. (63) However, an exception applies where the substantive inaccuracy of the findings made by the Court of First Instance is apparent from the documents in the case‑file. (64)

130. That is indeed the case here. As is apparent from the documents in the file, the assumption by the Court of First Instance in the second sentence of paragraph 122 of the judgment under appeal that intermediaries trading in medicines may keep the advantage in terms of price which parallel trade may entail, in which case that advantage will not be passed on to the final consumers, finds no basis in the documents in the file, but is, on the contrary, refuted by them.

131. It must first be stated that this is the Court of First Instance’s own assumption . That is apparent, in particular, from a comparison between the first and second sentences of paragraph 122 of the judgment under appeal. In the first sentence, the Court of First Instance made a finding as to what the Commission was entitled to presume if account was taken of the legal and economic context. That is not the Court of First Instance’s own assumption . In the second sentence, on the other hand, the Court of First Instance made an assumption of its own that intermediaries may keep the advantage in terms of price which parallel trade may entail, in which case that advantage will not be passed on to the final consumers. That sentence cannot be construed as anything other than the Court of First Instance’s own assumption.

132. Furthermore, that assumption has no basis in the file. In this connection, it should be pointed out in particular that GSK did not submit in the proceedings before the Court of First Instance that the Spanish intermediaries did not undercut the prices in the countries of destination and that advantages were not passed on to the patients. (65) GSK merely expressed the view that the extent of the undercutting and the size of the advantage to the final consumers were very small. Although the parties to the proceedings disagree as to the extent of the undercutting and the size of the advantage, they do not disagree on the fundamental question of whether such a divergence exists at all.

133. The assumption by the Court of First Instance in the second sentence of paragraph 122 of the judgment under appeal that the intermediaries may keep the (entire) advantage in terms of price which parallel trade entails, in which case that advantage is not passed on to the final consumers, therefore constitutes a distortion of facts which is to be taken into account in the context of an appeal.

134. Secondly , the assumption in the second sentence of paragraph 122 of the judgment under appeal is vitiated by an error of law in the form of contradictory grounds. (66) It is contradictory for the Court of First Instance, on the one hand, to make its own assumption in the second sentence of paragraph 122 of the judgment under appeal that the intermediaries may keep the advantage in terms of price which parallel trade entails, but to rely, on the other hand, in the context of assessing the restrictive effect, in particular in paragraphs 185, 187 and 189 of the judgment under appeal, on the fact that the Spanish intermediaries which export medicines to a country of destination undercut (even if only marginally) the price charged by the intermediaries in that country of destination.

ii) The other assumptions and findings

135. In so far as the Commission, Aseprofar, EAEPC and the Republic of Poland allege further distortions of facts or contradictions in the reasoning of the Court of First Instance, in particular as regards the effects of the national price regulations in the medicines sector on intrabrand competition, those allegations must be rejected.

136. Without there being any need to examine their admissibility, it seems to me that those allegations should be rejected simply because the Court of First Instance, in the part of its reasoning relating to the restrictive object of the General Sales Conditions, did not make any further assumptions of its own which conflict with the findings which it made in the part of its reasoning relating to the restrictive effect. In so far as the Court of First Instance examined, on the basis of the legal and economic context established in paragraphs 124 to 131 of the judgment under appeal, what the Commission was entitled to presume in the examination of the restrictive object of the General Sales Conditions and in so far as, in that respect, the Court of First Instance came to different conclusions from those reached when examining the restrictive effect, the result of that examination seems to me to be primarily attributable to the errors of law in the interpretation of the notion of restrictive object which have been dealt with above, and not to an erroneous understanding of the legal and economic context.

4. Conclusion

137. In summary, I conclude that the Court of First Instance interpreted the notion of restriction of competition by object in a legally erroneous manner. In addition, the assumption by the Court of First Instance in the second sentence of paragraph 122 of the judgment under appeal that intermediaries may keep the advantage in terms of price which parallel trade may entail, in which case that advantage will not be passed on to the final consumers, is vitiated by errors of law.

B – Replacement of grounds

138. GSK’s appeal would have to be dismissed if the reasoning of the Court of First Instance which is vitiated by errors of law were to be replaced by reasoning according to which the Commission correctly considered that the General Sales Conditions have a restrictive object.

139. Since, when replacing the reasoning of the Court of First Instance, the Court of Justice may rely only on the facts established by the former, I should like to deal, first, with the facts of the case established by the Court of First Instance (1). I shall then deal with the reasoning which should replace the legally erroneous reasoning of the Court of First Instance (2).

1. The facts of the case established by the Court of First Instance

140. In the context of an appeal, the Court of Justice is not entitled, in principle, to make findings of fact. Replacement of the reasoning of the Court of First Instance is therefore permissible only where the Court of Justice is able to base the reasoning on facts which the Court of First Instance found. (67)

141. Problems in this connection lie in the contradictory assumptions made by the Court of First Instance in the second sentence of paragraph 122 of the judgment under appeal, on the one hand, and in paragraphs 185, 187 and 189 of the judgment under appeal, on the other. On the one hand, the Court of First Instance assumed, in the second sentence of paragraph 122 of the judgment under appeal, that intermediaries trading in medicines may keep the advantage in terms of price which parallel trade may entail, in which case that advantage will not be passed on to the final consumers. On the other hand, in paragraphs 185, 187 and 189 of the judgment under appeal, the Court of First Instance assumed that the Spanish intermediaries who export medicines to a country of destination would undercut (even if only marginally) the price charged by the intermediaries in that country of destination.

142. Despite that contradiction, it can, in my view, be accepted that the Court of First Instance takes as its starting point a factual situation in which the Spanish intermediaries who export medicines to a country of destination undercut (even if only marginally) the price charged by the intermediaries in that country of destination.

143. It can be argued in favour of that, firstly , that the second sentence of paragraph 122 merely expressed an assumption by the Court of First Instance which it revised in a more detailed examination in paragraphs 185, 187 and 189.

144. Secondly , the assumption in the second sentence of paragraph 122 should probably be viewed in conjunction with the (legally erroneous) view that disadvantages for the final consumer must be taken into account in the context of the restriction of competition by object and may be taken into account only in the form of an adverse effect on the prices charged to the final consumers.

145. Thirdly , it must be borne in mind that the case before the Court here is a special one. The Court of First Instance did not fail to make a finding of fact. On the contrary, the Court of First Instance made two contradictory findings regarding an element of the facts of the case and it is apparent from the documents in the file that one of those findings is incorrect and the other, by contrast, correct. In my view, in such a case the Court of Justice would not be exceeding its jurisdiction in appeal proceedings by taking as its starting point the finding of the Court of First Instance which is consistent with the content of the documents in the file.

146. In conclusion , I am of the opinion that, on a sound appraisal of the judgment under appeal, the Court of Justice can take as its basis the finding of the Court of First Instance in paragraph 185 of the judgment under appeal that the Spanish intermediaries who export medicines to a country of destination undercut the price charged by the intermediaries in that country of destination.

2. Upholding of the Commission’s reasoning that the General Sales Conditions have a restrictive object

147. It must also be examined whether, having regard to those facts of the case and taking as a basis the correct interpretation of the notion of a restrictive object, (68) the grounds of the judgment under appeal should be replaced, to the effect that the Commission correctly assumed in the contested decision that the General Sales Conditions have a restrictive object.

148. It should be pointed out in this connection that, in an action for annulment under Article 230 EC, the Court of First Instance is to review the reasoning set out in the Commission’s decision for errors of law, but must not substitute its own reasoning for that of the Commission. (69) That case‑law applies mutatis mutandis to the Court of Justice where, in an appeal, it replaces the reasoning of the Court of First Instance. In this case, it must therefore be examined whether the Commission’s finding that the General Sales Conditions have as their object a restriction of competition has a sufficient basis in the reasoning set out in the contested decision.

149. As set out above, an agreement can be considered to have a restrictive object when, having regard to its legal and economic context, it has the potential and the tendency to produce a sufficiently negative impact on competition. (70) In this connection, both existing experience, by way of a standardised approach, and economic analysis, on the basis of which the occurrence of such an impact can be presumed, may be taken into account.

a) Standardised approach

150. First and foremost, the Commission based its finding that the General Sales Conditions had a restriction of competition as their object on the fact that they were aimed at limiting parallel trade and for that reason had as their object a restriction of competition. (71) The Commission thus based its reasoning primarily on the standardised approach, which can be summed up in the words ‘restriction of parallel trade, therefore restriction of competition by object’.

151. I can see no error of law in that reasoning.

152. First, it should be pointed out that such a standardised approach is compatible with the character of a restriction of competition by object as a form of inchoate offence. (72)

153. Moreover, when taking into account existing experience by way of a standardised approach, recourse must be had, in particular, to the case‑law of the Court. This shows that an agreement which is aimed at limiti ng parallel trade constitutes one of the typical cases of restriction of competition by object. (73)

154. Furthermore, while the standardised approach is always subject to the proviso that the legal and economic context of the agreement to be examined does not preclude application of that standardised assessment, (74) that cannot be considered to be the case here.

155. Firstly , according to my understanding, it follows from paragraphs 65 and 66 of the judgment delivered by the Grand Chamber in Sot. Lélos kai Sia (75) that, notwithstanding the particular legal and economic characteristics of the medicinal products sector, it too is subject to the principle that an agreement to limit parallel trade is to be regarded as a restriction of competition by object. Even though that judgment arose from a question referred for a preliminary ruling concerning the interpretation of Article 82 EC, the Court expressly referred in that case to the notion of restriction of competition by object under Article 81 EC.

156. Secondly , none of the particular characteristics of the medicines sector on which GSK relies is such as to cast doubt on the assessment derived from experience that agreements which are aimed at limiting parallel trade have as their object restriction of competition.

157. It should first be noted that, in accordance with the legal and economic context ascertained by the Commission, it could not be assumed that the national price regulations in the individual Member States excluded all scope for competition. (76)

158. In addition, the existence of differing national price regulations in the Member States does not militate per se against assuming that there is a restriction of competition by object. As the Commission and EAEPC rightly explain, competition within the European internal market regularly takes place under conditions which differ at national level. This is because, despite a certain degree of harmonisation, the European internal market is still characterised by the different ways in which the legal and economic systems of the Member States have developed. Competition subject to absolutely identical conditions is thus non‑existent from the outset. However, that does not mean that Article 81(1) EC does not apply. (77)

159. Furthermore, contrary to GSK’s view, it is immaterial in this context that Member States wish to limit the validity of national provisions to their national territory. Rather, the exploitation of favourable conditions offered by a Member State specifically constitutes one of the fundamental benefits of the internal market.

160. Finally, it must be borne in mind that Article 81 EC also serves the purpose of strengthening the integration of the national markets. (78) Admittedly, to some extent I share the scepticism of the Court of First Instance as to whether application of the competition rules in the medicinal products sector does in fact achieve market integration in the sense that the prices for final consumers become aligned. However, it at least cannot be ruled out that partitioning the national markets may impair market integration at other market levels.

161. In the final analysis, I do not believe that the objective of market integration is of crucial importance in this case. It is true that competition within the meaning of Article 81(1) EC is referred to as a means of achieving the objectives of the Treaty, that is to say, it is also placed in the service of the Community in order to achieve progressive integration of the market. (79) However, it does not take effect only within that objective. Article 81(1) EC protects competition even when the latter leads in only limited measure to market integration.

162. In the end, therefore, it must be concluded that no reason arose from the legal and economic context for the Commission to depart from the standardised assessment of ‘limitation of parallel trade, therefore restriction of competition by object’.

b) Presumption of a restriction of competition

163. For the sake of completeness, I would point out that, even though the Commission based its reasoning primarily on a standardised approach, the reasoning set out in the contested decision contains at least elements which justify a presumption of a restriction of competition.

164. Thus, firstly , it is apparent, from recital 116 of the contested decision that the General Sales Conditions were intended to restrict a source of supply for medicines and that, due to the price differential between Spain and other Member States, the Spanish intermediaries had both the opportunity and the incentive to undercut the prices charged by the intermediaries established in the country of destination.

165. Secondly , in its reasoning on the restrictive object of the General Sales Conditions, the Commission admittedly did not expressly discuss what role patents play in terms of competition within the medicines sector. In its reasoning on the restriction of competition by object, it did not expressly draw attention to the significance of parallel trade, which consists in the fact that, until the patent expires, competition on price by parallel trade constitutes the predominant form of competition in this area. (80) However, in recital 122 of the contested decision, it made reference to this phenomenon by noting the increasing competitive pressure for a GSK medicinal product as a result of expiry of patent protection. Consequently, this aspect too is at least touched upon in its reasoning.

166. Thirdly , the Commission cannot be criticised in this connection for not taking into account the fact that Member States can set prices and thus reduce the costs of medicines. In so far as national law allows scope for competition, the competition within that scope is protected by Article 81 EC.

167. Fourthly , the Commission correctly noted that restriction of parallel trade also necessarily strengthens the bargaining position of a producer of medicines in negotiations in the Member States where the selling prices or reimbursement rates for medicines are set by the public authorities. (81) That is because, even if the procedure between the authorities and the producers of medicines cannot be equated with contract negotiations between two private undertakings, a multitude of factors will nevertheless play a part, including the possibility of obtaining medicines from a source of supply at favourable prices. (82) This aspect cannot be disregarded in the context of Article 81(1) EC.

168. The Commission’s conclusion that the General Sales Conditions had as their object a restriction of competition was therefore founded not only on the reasoning that a restriction of competition by object could be assumed to exist on the basis of a standardised approach simply because they had as their object a limitation of parallel trade. On the contrary, the Commission’s reasoning also contained at least elements on the basis of which it could be presumed, without a detailed market analysis, that the General Sales Conditions would lead to an impairment of competition.

c) Interim conclusion

169. In conclusion , therefore, the Commission correctly found in the contested decision that the General Sales Conditions had as their object a restriction of competition.

3. Conclusion

170. The grounds of the judgment under appeal must therefore be replaced to the effect that the Commission was entitled to consider that the General Sales Conditions had as their object a restriction of competition. The Court of First Instance should have upheld Article 1 of the contested decision simply because the Commission was entitled to postulate that the General Sales Conditions had a restrictive object.

C – The finding by the Court of First Instance that the Commission was entitled to consider that the General Sales Conditions had a restrictive effect

171. Since the Court of First Instance wrongly held that the Commission was not entitled to consider that the General Sales Conditions had a restrictive object, and since the grounds of the judgment under appeal must be replaced accordingly, (83) GSK’s pleas in law which are directed against the grounds of the judgment under appeal relating to the restrictive effect of the General Sales Conditions must be rejected as irrelevant. Those pleas in law cannot call into question paragraph 2 of the operative part of the judgment under appeal. That paragraph already finds sufficient support in the replacement grounds relating to the restrictive object.

D – Conclusion

172. For the aforementioned reasons, I propose that GSK’s appeal in Case C‑501/06 P should be dismissed, with replacement of the grounds of the judgment under appeal relating to the restrictive object of the General Sales Conditions.

VI – The appeals of the Commission, Aseprofar and EAEPC

173. Before I deal with the appeals of the Commission (B), Aseprofar (C) and EAEPC (D), I should like to deal briefly with the part of the judgment under appeal which is contested by those parties (A).

A – The part of the grounds of the judgment under appeal

174. In paragraphs 233 to 320 of the judgment under appeal, the Court of First Instance examined the reasoning on which the Commission based the rejection of GSK’s request for exemption of the General Sales Conditions under Article 81(3) EC. First, the Court of First Instance noted that a person who relies on Article 81(3) EC must demonstrate that the conditions laid down in Article 81(3) EC are satisfied, by means of convincing arguments and evidence. (84) The Commission has the task of examining and assessing the arguments and evidence adequately. (85)

175. The Court of First Instance then states that assessment of an agreement under Article 81(3) EC involves complex economic assessments. The review by it in the context of an action for annulment is therefore confined to verifying whether the Commission has accurately stated the facts, whether it has made any manifest errors of appraisal and whether it has deduced the correct legal consequences from those facts. (86) The Court of First Instance added that this also involved establishing whether the evidence put forward by GSK contained all the relevant information and whether it was capable of substantiating the conclusions drawn from it. (87) However, the Court of First Instance must not substitute its own reasoning for that of the Commission. (88)

176. In paragraphs 247 to 308 of the judgment under appeal, the Court of First Instance first examined the Commission’s reasoning regarding the first condition laid down by Article 81(3) EC. The Court of First Instance noted that a finding of promotion of technical progress within the meaning of Article 81(3) EC requires an appreciable objective advantage which is not identified with all the subjective advantages which the participating undertakings derive from the agreement. (89) The examination of whether such an advantage exists may entail a prospective analysis. In that case, it is appropriate to ascertain whether, in the light of the arguments and evidence put forward by the undertaking, it is more likely that the agreement makes it possible to obtain objective advantages or not. (90) If it is so, it is for the Commission, in the second place, to evaluate whether those appreciable objective advantages are of such a kind as to offset the disadvantages for competition. (91)

177. In reviewing the Commission’s reasoning, the Court of First Instance proceeded as follows. First it set out the factual arguments and the evidence on which GSK based its request for exemption, and examined and affirmed their relevance. (92) It then verified whether the Commission took those arguments and that evidence adequately into consideration in examining whether there was an appreciable objective advantage. (93) The Court ultimately concluded that the Commission’s reasoning was vitiated by a failure to carry out a proper examination, as the Commission did not adequately take into account and refute all the factual arguments and the evidence relevantly submitted by GSK. (94) Consequently, the Commission was not able lawfully to conclude that GSK had not demonstrated that the first condition laid down by Article 81(3) EC was satisfied. (95)

178. Finally, the Court of First Instance stated that the Commission had based its conclusions regarding the three further conditions laid down in Article 81(3) EC essentially on its conclusion regarding the first condition. Since the conclusion regarding the first condition was vitiated by a failure to carry out a proper examination and the rest of the reasoning regarding the further conditions was also inadequate, the Commission was not lawfully entitled to draw the conclusion that the three further conditions were not satisfied. (96)

B – The Commission’s appeal in Case C‑513/06 P and its cross‑appeal in Case C‑501/06 P

179. In its appeal in Case C‑513/06 P and in its cross‑appeal in Case C‑501/06 P, the Commission objects, firstly, by five plea s in law, to the reasoning of the Court of First Instance regarding the first condition laid down in Article 81(3) EC (1) and, secondly, by one plea in law, to the reasoning of the Court of First Instance regarding the further conditions laid down in Article 81(3) EC (2). Since the Commission’s appeal and its cross‑appeal are largely identical in substance, they will be examined together.

1. The first condition laid down by Article 81(3) EC

180. Regarding the first condition, the Commission raises a multitude of different complaints which it has grouped into five pleas in law.

a) Distortion of the legal and economic context

181. In its first plea, the Commission complains first that the Court of First Instance distorted the legal and economic context of the General Sales Conditions. Since the Commission does not identify the contested part of the judgment, this complaint must be rejected as inadmissible pursuant to Article 22