CELEX: C2001/079/25
Language: en
Date: 2001-03-10 00:00:00
Title: Case C-2/01 P: Appeal brought on 5 January 2001 by the Bundesverband der Arzneimittel-Importeure e.V. 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.

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’ Associ-
      EC: 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
                          (Case C-2/01 P)                                       any further proof by the Commission that that was done
                                                                                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.
 ---pagebreak--- 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.