Source: EURLEX
Language: en
Format: md

10.3.2001 EN Official Journal of the European Communities C 79/15

Finally, the Court of First Instance took no account of _Pleas in law and main arguments_
the fact that the dependence of wholesalers on the
pharmaceutical manufacturers leads to a situation com- —
Excessively restrictive interpretation of the concept of an
parable to cases of selective distribution systems. As in
those cases, where continuous business relations exist the agreement to prohibit exports within the meaning of
Article 85(1) of the Treaty, in that, in this case, the Court
imposition of quotas is generally capable of hindering the
saw the requirements for an intended prohibition on
free movement of goods inside the European Communiexports by the manufacturer as being fulfilled only if the
ties and adversely affecting competition in the Member
States. 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
( [1] ) Not yet published in the Official Journal. 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
**Appeal brought on 5 January 2001 by the Commission of**
implementation of its policy designed to reduce parallel
**the European Communities against the judgment deliver-** imports (without taking account of the fact that the
**ed on 26 October 2000 by the Fifth Chamber, Extended** dealers _understood_ and _could only understand_ Bayer’s supply
**Composition, of the Court of First Instance of the Euro-** behaviour as a demand for a certain line of conduct,
**pean Communities in Case T-41/96 between Bayer AG,** namely the placing of orders henceforward only in
**supported by the European Federation of Pharmaceutical**
respect of national needs).
**Industries’ Associations and the Commission of the Euro-**
**pean Communities, supported by the Bundesverband der**

—
**Arzneimittel-Importeure e.V.** 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
**(Case C-3/01 P)** wholesalers wished to _pretend_ to Bayer that they were
henceforth ordering only in respect of national needs.

(2001/C 79/26)

—
Erroneous interpretation of the concept of an agreement
within the meaning of Article 85(1) of the EC Treaty in
An appeal against the judgment delivered on 26 October 2000 that the Court saw the requirements for a concurrence of
by the Fifth Chamber, Extended Composition, of the Court of wills as not being fulfilled because the _declared_ will of the
First Instance of the European Communities in Case T-41/96( [1] ) wholesalers (ordering only for national needs) did not
between Bayer AG, supported by the European Federation of correspond with the _real_ will of the wholesalers (ordering
Pharmaceutical Industries’ Associations and the Commission for export purposes also).
of the European Communities, supported by the Bundesverband der Arzneimittel-Importeure e.V. was brought before the —
Erroneous application of Article 85(1) of the Treaty, in
Court of Justice of the European Communities on 5 January
that — despite the fact that Bayer’s supply policy designed
2001 by the Commission of the European Communities,
to prevent parallel imports formed part of continuous
represented by K. Wiedner and W. Wils, acting as agents,
business relations in the context of general agreements
assisted by H.-J. Freund, Rechtsanwalt, with an address for
_previously_ made, and despite clear parallels between the
service in Luxembourg.
distribution of pharmaceutical products in France and
Spain and selective distribution systems — the Court
_additionally_ required that a subjective element on the part
The appellant claims that the Court should:
of the dealers be established, having as its subject-matter
a concurrence of wills in relation to the implementation
1. set aside in its entirety the judgment of the Court of First of the policy referred to.
Instance of 26 October 2000 in Case T-41/96( [1] ) and
dismiss the claim by Bayer for the annulment of Commission Decision 96/478/EC of 10 January 1996 relating
to a proceeding under Article 85 of the EC Treaty (Case ( [1] ) Not yet published in the Official Journal.
IV/34.279/F3 — Adalat);

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