Case C-3/01 P: Appeal brought on 5 January 2001 by the Commission of the European Communities 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: General Court (EU), action for annulment (EU), chemical industry, export restriction, patent law, pharmaceutical industry

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.