CELEX: C2001/079/26
Language: en
Date: 2001-03-10 00:00:00
Title: 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.

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-
      parable to cases of selective distribution systems. As in           —     Excessively restrictive interpretation of the concept of an
      those cases, where continuous business relations exist the                agreement to prohibit exports within the meaning of
      imposition of quotas is generally capable of hindering the                Article 85(1) of the Treaty, in that, in this case, the Court
      free movement of goods inside the European Communi-                       saw the requirements for an intended prohibition on
      ties and adversely affecting competition in the Member                    exports by the manufacturer as being fulfilled only if the
      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 Bundesver-
band 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
The appellant claims that the Court should:                                     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
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 Com-
      mission 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.