Case C-470/06: Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Konstantinos Xidias kai Sia OE v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton
Date: 2007-01-27
Institutions: Court of Justice
Subjects: dominant position, export, illicit trade, interpretation of the law, intervention policy, market intervention, pharmaceutical product, restriction on competition, trade regulations, wholesale trade

C 20/4

EN

Official Journal of the European Union

27.1.2007

2.

If the Court holds that limitation of parallel trade, for the
reasons set out above, does not constitute an abusive prac-
tice in every case where it is engaged in by an undertaking
holding a dominant position, how is possible abuse to be
assessed? In particular:

2.1 Do the percentage by which normal domestic consumption
is exceeded and/or the loss suffered by an undertaking
holding a dominant position compared with its total turn-
over and total profits constitute appropriate criteria? If so,
how are the level of that percentage and the level of that
loss determined (the latter as a percentage of turnover and
total profits), above which the conduct in question may be
abusive?

2.2 Is an approach entailing the balancing of interests appro-
priate, and, if so, what are the interests to be compared? In
particular:

(a) is the answer affected by the fact that the ultimate
consumer/patient derives limited financial advantage
from the parallel trade and

(b) is account to be taken, and to what extent, of the inter-
insurance bodies in cheaper medicinal

ests of social
products?

2.3 What other criteria and approaches are considered appro-

priate in the present case?

Reference for a preliminary ruling from the Efetio Athinon
(Greece) lodged on 21 November 2006 — Konstantinos
Xidias kai Sia OE v GlaxoSmithKline Anonimi Emporiki
Viomikhaniki Etairia Farmakeftikon Proionton

(Case C-470/06)

(2007/C 20/05)

Language of the case: Greek

Referring court

Efetio Athinon

Parties to the main proceedings

Claimant: Konstantinos Xidias kai Sia OE

Defendant: GlaxoSmithKline Anonimi Emporiki Viomikhaniki
Etairia Farmakeftikon Proionton

Questions referred:

1. Where the refusal of an undertaking holding a dominant
position to meet fully the orders sent to it by pharmaceu-
tical wholesalers is due to its intention to limit their export
activity and, thereby, the harm caused to it by parallel trade,
does the refusal constitute per se an abuse within the
meaning of Article 82 EC? Is the answer to that question
affected by the fact that the parallel trade is particularly
profitable for
the different
the wholesalers because of
prices, resulting from State intervention,
in the Member
States of the European Union, that is to say by the fact that
pure conditions of competition do not prevail in the phar-
maceuticals market, but a regime which is governed to a
large extent by State intervention? Is it ultimately the duty
of a national competition authority to apply Community
competition rules in the same way to markets which func-
tion competitively and those in which competition is
distorted by State intervention?

2.

If the Court holds that limitation of parallel trade, for the
reasons set out above, does not constitute an abusive prac-
tice in every case where it is engaged in by an undertaking
holding a dominant position, how is possible abuse to be
assessed? In particular:

2.1 Do the percentage by which normal domestic consumption
is exceeded and/or the loss suffered by an undertaking
holding a dominant position compared with its total turn-
over and total profits constitute appropriate criteria? If so,
how are the level of that percentage and the level of that
loss determined (the latter as a percentage of turnover and
total profits), above which the conduct in question may be
abusive?

2.2 Is an approach entailing the balancing of interests appro-
priate, and, if so, what are the interests to be compared? In
particular:

(a) is the answer affected by the fact that the ultimate
consumer/patient derives limited financial advantage
from the parallel trade and

(b) is account to be taken, and to what extent, of the inter-
insurance bodies in cheaper medicinal

ests of social
products?

2.3 What other criteria and approaches are considered appro-

priate in the present case?