Case C-2/01 P: Appeal brought on 5 January 2001 by the Bundesverband der Arzneimittel-Importeure e.V. against the judgment delivered on 26 October 2000 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-41/96 between Bayer AG, supported by the European Federation of Pharmaceutical Industries' Associations and the Commission of the European Communities, supported by the Bundesverband der Arzneimittel-Importeure e.V.
Date: 2001-03-10
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), action for annulment (EU), chemical industry, patent law, pharmaceutical industry

C 79/14

EN

Official Journal of the European Communities

10.3.2001

— (In the event that the Court considers that the concept of
aid as contained in Article 4(c) of the ECSC Treaty is the
same as that in Article 87 EC:)

Non-existence of aid within the meaning of Article 87
EC: it is characteristic of fiscal rules that they should be
aimed at the achievement of general economic policy
objectives. The Spanish fiscal rules in issue are designed
to promote the internationalisation of undertakings. The
deductibility for tax purposes does not, however, depend
on the volume of exports; nor does it have any manifest
effect on pricing. Its effect, like that of the other tax
exemptions proposed, is limited to the actual amount of
the sum assessed to tax. Nor can it simply be said that the
taxable steelworks in Spain will be given an advantage
over those in other countries, since it is necessary to take
into account all factors which affect the actual taxation
of those liable to tax. Even assuming that the measures
applying in certain Member States are not analogous to
those under consideration in the present case, the actual
tax burden on taxable steelworks in Spain may be said to
be lower than that in other Member States.

Appeal brought on 5 January 2001 by the Bundesverband
der Arzneimittel-Importeure e.V. against the judgment
delivered on 26 October 2000 by the Fifth Chamber,
Extended Composition, of the Court of First Instance of
the European Communities in Case T-41/96 between
Bayer AG, supported by the European Federation of
Pharmaceutical Industries’ Associations and the Com-
mission of the European Communities, supported by the
Bundesverband der Arzneimittel-Importeure e.V.

(Case C-2/01 P)

(2001/C 79/25)

An appeal against the judgment delivered on 26 October 2000
by the Fifth Chamber, Extended Composition, of the Court of
First Instance of the European Communities in Case T-41/96 (1)
between Bayer AG, supported by the European Federation of
Pharmaceutical Industries’ Associations and the Commission
of the European Communities, supported by the Bundesver-
band der Arzneimittel-Importeure e.V. was brought before the
Court of Justice of the European Communities on 5 January
2001 by the Bundesverband der Arzneimittel-Importeure
e.V., represented by U. Zinsmeister and W.A. Rehmann,
Rechtsanwälte, with an address for service in Luxembourg.

The appellant claims that the Court should:

— set aside the decision of the Court of First Instance of
26 October 2000 in Case T-41/96 and dismiss the claim
by the plaintiff at first instance, or in the alternative refer
the matter back to the Court of First Instance;

— order the plaintiff to pay the costs of the proceedings,
including those incurred by the Bundesverband der
Arzneimittel-Importeure e.V. through its intervention,
but excluding the costs of
the
European Federation of Pharmaceutical Industries’ Associ-
ations, which the latter should bear itself.

the intervention of

Pleas in law and main arguments

— Failure to take full account of the facts as found by the
Commission: The Court held that there was no agreement
because, as it
found, Bayer did not carry out any
monitoring of the final destination of the goods supplied
to the French and Spanish wholesalers. In fact, however,
as is apparent from the documents submitted by the
Commission, such controls did take place, even if in some
cases only by way of spot checks.

— Erroneous assessment of the evidence owing to a disre-
gard of the rules on the burden of proof: The Court of
First Instance wrongly perceived the burden of proof that
an unlawful agreement came into being between Bayer
and the wholesalers concerned in Spain and France as
lying with the Commission. The wholesalers were aware
that Bayer’s intention was to impose quotas on quantities
supplied with the aim of stopping exports. They were
directly confronted with that demand for the imposition
of quotas. They then became involved in the imposition
of quotas on supply quantities. There was no need for
any further proof by the Commission that that was done
for the purpose of hindering exports. On a proper legal
assessment, it follows from the undisputed facts that the
evidence collected by the Commission is already prima
facie sufficient to prove the existence of a corresponding
agreement.

— Misapplication of the concept of an agreement: For an
appraisal of Article 81 EC,
the
wholesalers became involved in the demands of Bayer
that exports be restricted.

is sufficient

that

it

The mere fact that wholesalers initially refused to bend to
Bayer’s policy and made attempts to circumvent it, does
not, under the case-law of the Court of Justice, mean that
there was no concordance of wills. Rather, the latter can
be inferred from the way in which the wholesalers
eventually behaved, which the Court established. The
wholesalers accepted the quota measures.

10.3.2001

EN

Official Journal of the European Communities

C 79/15

Finally, the Court of First Instance took no account of
the fact that
the dependence of wholesalers on the
pharmaceutical manufacturers leads to a situation com-
parable to cases of selective distribution systems. As in
those cases, where continuous business relations exist the
imposition of quotas is generally capable of hindering the
free movement of goods inside the European Communi-
ties and adversely affecting competition in the Member
States.

(1) Not yet published in the Official Journal.

Appeal brought on 5 January 2001 by the Commission of
the European Communities against the judgment deliver-
ed on 26 October 2000 by the Fifth Chamber, Extended
Composition, of the Court of First Instance of the Euro-
pean Communities in Case T-41/96 between Bayer AG,
supported by the European Federation of Pharmaceutical
Industries’ Associations and the Commission of the Euro-
pean Communities, supported by the Bundesverband der
Arzneimittel-Importeure e.V.

(Case C-3/01 P)

(2001/C 79/26)

An appeal against the judgment delivered on 26 October 2000
by the Fifth Chamber, Extended Composition, of the Court of
First Instance of the European Communities in Case T-41/96 (1)
between Bayer AG, supported by the European Federation of
Pharmaceutical Industries’ Associations and the Commission
of the European Communities, supported by the Bundesver-
band der Arzneimittel-Importeure e.V. was brought before the
Court of Justice of the European Communities on 5 January
2001 by the Commission of the European Communities,
represented by K. Wiedner and W. Wils, acting as agents,
assisted by H.-J. Freund, Rechtsanwalt, with an address for
service in Luxembourg.

The appellant claims that the Court should:

1.

set aside in its entirety the judgment of the Court of First
Instance of 26 October 2000 in Case T-41/96 (1) and
dismiss the claim by Bayer for the annulment of Com-
mission Decision 96/478/EC of 10 January 1996 relating
to a proceeding under Article 85 of the EC Treaty (Case
IV/34.279/F3 — Adalat);

2.

order Bayer to pay the costs before the Court of Justice
and the Court of First Instance.

Pleas in law and main arguments

— Excessively restrictive interpretation of the concept of an
agreement to prohibit exports within the meaning of
Article 85(1) of the Treaty, in that, in this case, the Court
saw the requirements for an intended prohibition on
exports by the manufacturer as being fulfilled only if the
manufacturer subsequently monitored whether traders had
exported products and reduced supplies as a sanction in
that event (without taking account of the fact that, in this
case, Bayer applied the sanction of reducing supplies in
advance, as a preventive measure, when it appeared likely
that exports would take place).

— Excessively restrictive interpretation of the concept of an
agreement to prohibit exports within the meaning of
Article 85(1) of the Treaty, in that, in this case, the Court
saw the requirements for an intended prohibition on
exports by the manufacturer as being fulfilled only if the
manufacturer demanded a particular line of conduct from
its dealers or attempted to force their consent to the
implementation of its policy designed to reduce parallel
imports (without taking account of the fact that the
dealers understood and could only understand Bayer’s supply
behaviour as a demand for a certain line of conduct,
namely the placing of orders henceforward only in
respect of national needs).

— Distortion of evidence or failure to take it into account,
in that — although the opposite is immediately obvious
from the files — the Court held it unproven that the
wholesalers wished to pretend to Bayer that they were
henceforth ordering only in respect of national needs.

— Erroneous interpretation of the concept of an agreement
within the meaning of Article 85(1) of the EC Treaty in
that the Court saw the requirements for a concurrence of
wills as not being fulfilled because the declared will of the
wholesalers (ordering only for national needs) did not
correspond with the real will of the wholesalers (ordering
for export purposes also).

— Erroneous application of Article 85(1) of the Treaty, in
that — despite the fact that Bayer’s supply policy designed
to prevent parallel imports formed part of continuous
business relations in the context of general agreements
previously made, and despite clear parallels between the
distribution of pharmaceutical products in France and
Spain and selective distribution systems — the Court
additionally required that a subjective element on the part
of the dealers be established, having as its subject-matter
a concurrence of wills in relation to the implementation
of the policy referred to.

(1) Not yet published in the Official Journal.