Source: EURLEX
Language: en
Format: md

C 79/14 EN Official Journal of the European Communities 10.3.2001

— —
(In the event that the Court considers that the concept of order the plaintiff to pay the costs of the proceedings,
aid as contained in Article 4(c) of the ECSC Treaty is the including those incurred by the Bundesverband der
same as that in Article 87 EC:) Arzneimittel-Importeure e.V. through its intervention,
but excluding the costs of the intervention of the
Non-existence of aid within the meaning of Article 87 European Federation of Pharmaceutical Industries’ AssociEC: it is characteristic of fiscal rules that they should be ations, which the latter should bear itself.
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 _Pleas in law and main arguments_
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 —
Failure to take full account of the facts as found by the
applying in certain Member States are not analogous to
Commission: The Court held that there was no agreement
those under consideration in the present case, the actual
because, as it found, Bayer did not carry out any
tax burden on taxable steelworks in Spain may be said to
monitoring of the final destination of the goods supplied
be lower than that in other Member States.
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**Appeal brought on 5 January 2001 by the Bundesverband** gard of the rules on the burden of proof: The Court of
**der Arzneimittel-Importeure e.V. against the judgment** First Instance wrongly perceived the burden of proof that
**delivered on 26 October 2000 by the Fifth Chamber,** an unlawful agreement came into being between Bayer
**Extended Composition, of the Court of First Instance of** and the wholesalers concerned in Spain and France as
**the European Communities in Case T-41/96 between** lying with the Commission. The wholesalers were aware
**Bayer AG, supported by the European Federation of** that Bayer’s intention was to impose quotas on quantities
**Pharmaceutical Industries’ Associations and the Com-** supplied with the aim of stopping exports. They were
**mission of the European Communities, supported by the** directly confronted with that demand for the imposition
**Bundesverband der Arzneimittel-Importeure e.V.** 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
**(Case C-2/01 P)**
for the purpose of hindering exports. On a proper legal
assessment, it follows from the undisputed facts that the
(2001/C 79/25) evidence collected by the Commission is already _prima_
_facie_ sufficient to prove the existence of a corresponding
agreement.
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 — Misapplication of the concept of an agreement: For an
of the European Communities, supported by the Bundesver- appraisal of Article 81 EC, it is sufficient that the
band der Arzneimittel-Importeure e.V. was brought before the wholesalers became involved in the demands of Bayer
Court of Justice of the European Communities on 5 January that exports be restricted.
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 mere fact that wholesalers initially refused to bend to
The appellant claims that the Court should: Bayer’s policy and made attempts to circumvent it, does
not, under the case-law of the Court of Justice, mean that
— set aside the decision of the Court of First Instance of there was no concordance of wills. Rather, the latter can
26 October 2000 in Case T-41/96 and dismiss the claim be inferred from the way in which the wholesalers
by the plaintiff at first instance, or in the alternative refer eventually behaved, which the Court established. The
the matter back to the Court of First Instance; 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 _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.