CELEX: 62001CJ0002
Language: en
Date: 2004-01-06
Title: Judgment of the Court (Full Court) of 6 January 2004. # Bundesverband der Arzneimittel-Importeure eV and Commission of the European Communities v Bayer AG. # Appeals - Competition - Parallel imports - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Meaning of agreement between undertakings - Proof of the existence of an agreement - Market in pharmaceutical products. # Joined cases C-2/01 P and C-3/01 P.

Joined Cases C-2/01 P and C-3/01 P Bundesverband der Arzneimittel-Importeure eV andCommission of the European CommunitiesvBayer AG
            «(Appeals – Competition – Parallel imports – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Meaning of agreement between undertakings – Proof of the existence of an agreement – Market in pharmaceutical products)»
            
               
                  Opinion of Advocate General Tizzano delivered on 22 May 2003 
                     
                
               
            
                   
               
               
            
               
                  Judgment of the Court, 6 January 2004  
                     
                
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  1..
                  Appeals – Pleas in law – Erroneous assessment of the facts – Inadmissible – Dismissed  (Art. 225 EC; Statute of the Court of Justice, Art. 58) 
         
                  2..
                  Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement on the Commission  (EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
         
                  3..
                  Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Agreement designed to hinder parallel imports – Agreement may exist without a system of subsequent monitoring and penalties  (EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
         
                  4..
                  Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Meaning – Unilateral conduct – Not included – Conclusion by tacit acceptance – Need for an invitation to fulfil anti-competitive goals jointly  (EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
         
                  5..
                  Competition – Agreements, decisions and concerted practices – Unilateral conduct restricting competition within the context of continuous business relations – No prohibited agreement  (EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
         
         1.
          Under Article 225 EC and Article 58 of the Statute of the Court of Justice, whereby an appeal before the Court of Justice
         is limited to points of law, the Court of First Instance has exclusive jurisdiction, first, to establish the facts except
         where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those
         facts, save where the evidence has been misinterpreted. When the Court of First Instance has established or assessed the facts,
         the Court of Justice has jurisdiction under Article 225 EC only to review the legal characterisation of those facts by the
         Court of First Instance and the legal conclusions it has drawn from them. see para. 47
         
         2.
          Where there is a dispute as to the existence of an infringement of the competition rules, it is for the Commission to prove
         the infringement which it claims to have found and to adduce evidence capable of demonstrating to the requisite legal standard
         the existence of circumstances constituting such an infringement. see para. 62
         
         3.
          For there to be an agreement designed to hinder parallel imports, prohibited by Article 85(1) of the Treaty (now Article 81(1)
         EC), it is not necessary for there to be a system of subsequent monitoring and penalties, although the establishment of such
         a system may nevertheless constitute an indicator of the existence of such an agreement. see para. 83
         
         4.
          To hold that an agreement prohibited by Article 85(1) of the Treaty (now Article 81(1) EC) may be established simply on the
         basis of the expression of a unilateral policy aimed at preventing parallel imports would have the effect of confusing the
         scope of that provision with that of Article 86 of the Treaty (now Article 82 EC). For an agreement within the meaning of Article 85(1) of the Treaty to be capable of being regarded as having been concluded
         by tacit acceptance, it is necessary that the manifestation of the wish of one of the contracting parties to achieve an anti-competitive
         goal constitute an invitation to the other party, whether express or implied, to fulfil that goal jointly, and that applies
         all the more where, as in this case, such an agreement is not at first sight in the interests of the other party, namely the
         wholesalers. see paras 101-102
         
         5.
          The mere concomitant existence of an agreement which is in itself neutral and a measure restricting competition that has been
         imposed unilaterally does not amount to an agreement prohibited by Article 85(1) of the Treaty (now Article 81(1) EC). Thus,
         the mere fact that a measure adopted by a manufacturer, which has the object or effect of restricting competition, falls within
         the context of continuous business relations between the manufacturer and its wholesalers is not sufficient for a finding
         that such an agreement exists. see para. 141
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT6 January 2004 (1)
         
         
            
         
               ((Appeals – Competition – Parallel imports – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Meaning of agreement between undertakings – Proof of the existence of an agreement – Market in pharmaceutical products))
               
             In Joined Cases C-2/01 P and C-3/01 P, 
            
            
            Bundesverband der Arzneimittel-Importeure eV, established in Mülheim an der Ruhr (Germany), represented by  U. Zinsmeister and W.A. Rehmann, Rechtsanwälte, with an address
            for service in Luxembourg,
            
            
            appellant,  supported byEuropean Association of Euro Pharmaceutical Companies (EAEPC), established in Brussels (Belgium), represented by  M. Epping and M. Lienemeyer, Rechtsanwälte, with an address for service
            in Luxembourg,intervener at the appeal stage, Commission of the European Communities, represented by K. Wiedner and W. Wils, acting as Agents, assisted by  H.-J. Freund, Rechtsanwalt, with an address for service
            in Luxembourg,appellant, supported byKingdom of Sweden, represented by A. Kruse, acting as Agent, with an address for service in Luxembourg,and byEuropean Association of Euro Pharmaceutical Companies (EAEPC),
            interveners at the appeal stage, 
            
             TWO APPEALS against the judgment of the Court of First Instance of the European Communities (Fifth Chamber, Extended Composition)
            of 26 October 2000 in Case T-41/96  
            Bayer v  
            Commission  [2000] ECR II-3383, seeking to have that judgment set aside,
            
             the other parties to the proceedings being: 
            Bayer AG, established in Leverkusen (Germany), represented by  J. Sedemund, Rechtsanwalt, with an address for service in Luxembourg,applicant at first instance, andEuropean Federation of Pharmaceutical Industries' Associations, established in Geneva (Switzerland), represented by A. Woodgate, solicitor, with an address for service in Luxembourg,
            
            intervener at first instance, 
            
            THE COURT,,
            
             composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans and J.N. Cunha Rodrigues (Presidents of Chambers), D.A.O. Edward (Rapporteur), A. La Pergola, J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges, 
            
             Advocate General: A. Tizzano, Registrar: H.A. Rühl, Principal Administrator, 
            
            
            having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 12 November 2002, at which the Bundesverband der Arzneimittelimporteure
            eV was represented by W.A. Rehmann, the Commission by K. Wiedner, assisted by H.-J. Freund, the European Association of Euro
            Pharmaceutical Companies (EAEPC) by A. Martin-Ehlers, Rechtsanwalt, Bayer AG by J. Sedemund, and the European Federation of
            Pharmaceutical Industries' Associations by A. Woodgate,
            
            after hearing the Opinion of the Advocate General at the sitting on 22 May 2003, 
         gives the following
         
         
         Judgment
         1
            
          By two applications lodged at the Court Registry on 5 January 2001, the Bundesverband der Arzneimittel-Importeure eV (
         BAI) and the Commission of the European Communities lodged an appeal under Article 49 of the EC Statute of the Court of Justice
         against the judgment of the Court of First Instance of 26 October 2000 in Case T-41/96  
         Bayer v  
         Commission [2000] ECR II-3383 (
         the judgment under appeal) by which the Court annulled Commission Decision 96/478/EC of 10 January 1996 relating to a proceeding under Article 85 of
         the EC Treaty (Case IV/34.279/F3 ─ ADALAT) (OJ 1996 L 201, p. 1;  
         the contested decision). 
         
            
               Background to the dispute
             Facts
         
         
         2
            
          The facts underlying the dispute are set out in the judgment under appeal as follows: 
         
         1
            
          The applicant, Bayer AG (hereinafter  
         Bayer or  
         the Bayer Group), is the parent company of one of the main European chemical and pharmaceutical groups and has a presence through its national
         subsidiaries in all the Member States of the Community.  For many years, it has manufactured and marketed under the trade
         name  
         Adalat or  
         Adalate a range of medicinal preparations whose active ingredient is nifedipine, designed to treat cardio-vascular disease. 
         
         
         2
            
          In most Member States, the price of Adalat is directly or indirectly fixed by the national health authorities.  Between 1989
         and 1993, the prices fixed by the Spanish and French health services were, on average, 40% lower than prices in the United
         Kingdom. 
         
         
         3
            
          Because of those price differences, wholesalers in Spain exported Adalat to the United Kingdom from 1989 onwards.  French
         wholesalers followed suit as from 1991.  According to Bayer, sales of Adalat by its British subsidiary, Bayer UK, fell by
         almost half between 1989 and 1993 on account of the parallel imports, entailing a loss in turnover of DEM 230 million for
         the British subsidiary, representing a loss of revenue to Bayer of DEM 100 million. 
         
         
         4
            
          Faced with that situation, the Bayer Group changed its delivery policy, and began to cease fulfilling all of the increasingly
         large orders placed by wholesalers in Spain and France with its Spanish and French subsidiaries. That change took place in
         1989 for orders received by Bayer Spain and in the fourth quarter of 1991 for those received by Bayer France.
         
          The contested decision
         
         
         3
            
          Following complaints by some of the wholesalers concerned, the Commission started an administrative investigation procedure
         concerning alleged infringements of Article 85(1) of the EC Treaty (now Article 81(1) EC) by the subsidiaries of Bayer in
         France (
         Bayer France) and Spain (
         Bayer Spain).  On 10 January 1996, the Commission adopted the contested decision. 
         
         
         4
            
          According to the Commission, Bayer France and Bayer Spain infringed Article 85(1) of the Treaty by imposing an export ban
         as part of their commercial relations with their respective wholesalers.  It maintains that such an agreement constituted
         an appreciable restriction of competition and had an equally appreciable effect on trade between Member States (points 155
         to 199 of the contested decision). 
         
         
         5
            
          More particularly, the Commission has deduced the existence of that export ban from its analysis of Bayer's conduct, and especially
         from the existence of a system of identifying exporting wholesalers and applying successive reductions in the volumes delivered
         to them by Bayer France and Bayer Spain if the wholesalers concerned were exporting all or part of the medicinal products
         supplied to them. 
         
         
         6
            
          According to the Commission's analysis, delivery of the volumes which Bayer France and Bayer Spain had agreed to supply was
         subject to compliance with an export ban.  Bayer France and Bayer Spain adjusted the volumes delivered by reference to the
         wholesalers' conduct in response to the export ban. If they infringed it, wholesalers faced a further automatic reduction
         in the supplies of medicinal products. 
         
         
         7
            
          In the light of those considerations, the Commission concluded, in recital 170 of the contested decision, that Bayer France
         and Bayer Spain had subjected their wholesalers to a permanent threat of reducing the quantities supplied, a threat which
         was repeatedly carried out if they did not comply with the export ban. 
         
         
         8
            
          The Commission held that the conduct of the wholesalers showed that they had not only understood that an export ban applied
         to the goods supplied, but also that they had aligned their conduct on that ban.  They had thereby demonstrated, at least
         in appearance in relation to Bayer France and Bayer Spain, their acceptance of the export ban imposed by their supplier as
         part of the continuous commercial relations which the wholesalers had with that supplier.  In that respect, the Commission
         explains in points 182 and 183 of the contested decision: (182) By using various devices in order to obtain supplies, in particular that of spreading orders intended for export among
         ... various agencies ... and [placing orders] with other  
         non-supervised wholesalers ... , the wholesalers adjusted the way in which their orders were presented so as to bring them into line with
         Bayer France and Bayer Spain's requirement that export of the product was to be prohibited.(183) They began to present their orders to their supplier, Bayer France or Bayer Spain, in such a way as to suggest that
         the orders were intended to cover only domestic requirements. Once the two companies had seen through this initial ploy, the
         wholesalers even began to comply with the national  
         quotas imposed by their supplier, negotiating as far as they could to increase them to the maximum, thus bowing to the strict application
         of and compliance with the figures regarded by Bayer France and Bayer Spain as normal for the supplying of the domestic market.
         
         
         9
            
          The Commission concludes, in recital 184 of the contested decision, that that behaviour demonstrated the wholesalers' compliance
         with the export ban which was incorporated into the continuous commercial relations between Bayer France and Bayer Spain and
         their wholesalers.  In its view, therefore, there was an agreement within the meaning of Article 85(1) of the Treaty. 
         
         
         10
            
          The Commission therefore held, in Article 1 of the contested decision, that  
         the prohibition on the exportation to other Member States of the products Adalate and Adalate 20 mg LP from France and on
         that of the products Adalat and Adalat-Retard from Spain, as has been agreed as part of their ongoing business relations,
         between Bayer France and its wholesalers since 1991, and between Bayer Spain and its wholesalers since at least 1989, constitutes
         an infringement of Article 85(1) of the Treaty on the part of Bayer AG. 
         
         
         11
            
          In the words of Article 2 of the contested decision: Bayer AG shall bring the infringement to an end and shall in particular:─ send, within two months of notification of this decision, a circular to the wholesalers in France and in Spain stating that
         exports are allowed within the Community and are not penalised,─ include this clarification, within two months of notification of this decision, in the general terms and conditions of sale
         for France and Spain.
         
         
         12
            
          Article 3 of the contested decision imposed a fine of ECU 3 million on Bayer, and Article 4 imposed a periodic penalty payment
         of ECU 1 000 in respect of each day of delay in carrying out the requirements specifically set out in Article 2, following
         the expiry of the two-month time-limit specified for their implementation. 
          The procedure before the Court of First Instance and the judgment under appeal
         
         
         13
            
          By application lodged at the Registry of the Court of First Instance on 22 March 1996, Bayer brought an action for the annulment
         of the contested decision.  By separate document lodged at the Court Registry on the same day, it also applied for suspension
         of the operation of Article 2 of that decision.  By order of the President of the Court of First Instance of 3 June 1996,
         suspension of the operation of Article 2 of the contested decision was granted and costs were reserved. 
         
         
         14
            
          On 1 August 1996, a German association of importers of medicinal products, the Bundesverband der Arzneimittel-Importeure eV
         (
         BAI) applied for leave to intervene in support of the Commission.  On 26 August 1996, the European Federation of Pharmaceutical
         Industries' Associations (
         EFPIA), a trade association representing the interests of 16 national trade associations in the medicinal products industry, applied
         for leave to intervene in support of Bayer.  By orders of 8 November 1996, the President of the Fifth Chamber (Extended Composition)
         of the Court of First Instance granted the two associations leave to intervene. 
         
         
         15
            
          On hearing the report of the Judge-Rapporteur, the Court of First Instance decided to open the oral proceedings and, by way
         of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure, to put a series of questions in
         writing to Bayer and the Commission, requesting them to reply at the hearing.  The parties presented oral argument and replied
         to the written and oral questions of the Court of First Instance at the hearing on 28 October 1999. 
         
         
         16
            
          In the judgment now under appeal, the Court of First Instance annulled the contested decision and ordered the Commission to
         pay Bayer's costs on the ground that it had incorrectly assessed the facts of the case and made an error in the legal assessment
         of those facts by holding it to be established that there was a meeting of minds between Bayer and the wholesalers referred
         to in that decision, which justified the conclusion that there was an agreement within the meaning of Article 85(1) of the
         Treaty, designed to prevent or limit exports of Adalat from France and Spain to the United Kingdom. 
         
         
         17
            
          In reaching that conclusion, the Court of First Instance began by summarising, in paragraphs 66 to 72 of the judgment under
         appeal, the case-law concerning the concept of an  
         agreement within the meaning of Article 85(1) of the Treaty, especially where such an agreement is found to exist on the strength of
         apparently unilateral conduct of the manufacturer.  In that regard, the Court emphasised in particular that,  
         where a decision on the part of a manufacturer constitutes unilateral conduct of the undertaking, that decision escapes the
         prohibition in Article 85(1) of the Treaty (paragraph 66).  It continued by stating that  
         a distinction should be drawn between cases in which an undertaking has adopted a genuinely unilateral measure, and thus without
         the express or implied participation of another undertaking, and those in which the unilateral character of the measure is
         merely apparent.  Whilst the former do not fall within Article 85(1) of the Treaty, the latter must be regarded as revealing
         an agreement between undertakings and may therefore fall within the scope of that article.  That is the case, in particular,
         with practices and measures in restraint of competition which, though apparently adopted unilaterally by the manufacturer
         in the context of its contractual relations with its dealers, nevertheless receive at least the tacit acquiescence of those
         dealers (paragraph 71). 
         
         
         18
            
          In that context, and faced with the statement by Bayer that, although it had introduced a unilateral policy designed to reduce
         parallel imports, it had never planned or imposed an export ban, the Court of First Instance took the view that  
         in order to determine whether the Commission [had] established to the requisite legal standard the existence of a concurrence
         of wills between the parties concerning the limitation of parallel exports, it [was] necessary to consider whether, as [Bayer]
         maintains, the Commission [had] wrongly assessed the respective intentions of Bayer and the wholesalers (paragraph 77 of the judgment under appeal). 
         
         
         19
            
          As for the alleged intention of Bayer to impose an export ban, the Court held, in paragraph 109 of the judgment under appeal,
         that the Commission had not proved to the requisite legal standard either that Bayer France and Bayer Spain imposed an export
         ban on their respective wholesalers, or that Bayer established a systematic monitoring of the actual final destination of
         the packets of Adalat supplied after the adoption of its new supply policy, or that [Bayer] applied a policy of threats and
         penalties against exporting wholesalers, or that it made supplies of that product conditional on compliance with the alleged
         export ban.  Nor, in the Court's view, did the documents reproduced in the contested decision show that Bayer sought to obtain
         any form of agreement from the wholesalers concerning the implementation of its policy designed to reduce parallel imports.
          In its judgment, the documents relied upon by the Commission did not provide any evidence in support of the assertion that
         the applicant made its supply policy for each wholesaler conditional upon the actual conduct of the latter in relation to
         the final destination of the products supplied. 
         
         
         20
            
          The Court of First Instance then examined, in paragraphs 111 to 157 of the judgment under appeal, the attitude and the actual
         conduct of the wholesalers in order to determine whether there was an agreement within the meaning of Article 85(1) of the
         Treaty.  It concluded, first of all, that the Commission's finding that the wholesalers had aligned their conduct in accordance
         with the alleged export ban failed on factual grounds, particularly because the Commission had not sufficiently established
         in law that Bayer had imposed an export ban on its wholesalers, or that supplies were made conditional on compliance with
         that alleged export ban (paragraphs 119 and 122 of the judgment under appeal). 
         
         
         21
            
          The Court therefore examined whether, having regard to the actual conduct of the wholesalers following the adoption by Bayer
         of its new policy of restricting supplies, the Commission could legitimately conclude that they acquiesced in that policy
         (paragraph 124).  Having taking into consideration the documents referred to in the contested decision, it determined as follows:
         
         
         151
            
          Examination of the attitude and actual conduct of the wholesalers shows that the Commission has no foundation for claiming
         that they aligned themselves on [Bayer's] policy designed to reduce parallel imports. 
         
         
         152
            
          The argument based on the fact that the wholesalers concerned had reduced their orders to a given level in order to give Bayer
         the impression that they were complying with its declared intention thereby to cover only the needs of their traditional market,
         and that they acted in that way in order to avoid penalties, must be rejected, because the Commission has failed to prove
         that [Bayer] demanded or negotiated the adoption of any particular line of conduct on the part of the wholesalers concerning
         the destination for export of the packets of Adalat which it had supplied, and that it penalised the exporting wholesalers
         or threatened to do so. 
         
         
         153
            
          For the same reasons, the Commission cannot claim that the reduction in orders could be understood by Bayer only as a sign
         that the wholesalers had accepted its requirements, or maintain that it is because they satisfied [Bayer's] requirements that
         they had to procure extra quantities destined for export from wholesalers who were not  
         suspect in Bayer's eyes and whose higher orders were therefore fulfilled without difficulty. 
         
         
         154
            
          Moreover, it is obvious from the recitals of the [contested decision] examined above that the wholesalers continued to try
         to obtain packets of Adalat for export and persisted in that line of activity, even if, for that purpose, they considered
         it more productive to use different systems to obtain supplies, namely the system of distributing orders intended for export
         among the various agencies on the one hand, and that of placing orders indirectly through small wholesalers on the other.
          In those circumstances, the fact that the wholesalers changed their policy on orders and established various systems for
         breaking them down or diversifying them, by placing them through indirect means, cannot be construed as evidence of their
         intention to satisfy Bayer or as a response to any request from Bayer.  On the contrary, that fact could be regarded as demonstrating
         the firm intention on the part of the wholesalers to continue carrying on parallel exports of Adalat. 
         
         
         155
            
          In the absence of evidence of any requirement on the part of [Bayer] as to the conduct of the wholesalers concerning exports
         of the packets of Adalat supplied, the fact that they adopted measures to obtain extra quantities can be construed only as
         a negation of their alleged acquiescence.  For the same reasons, the Court must also reject the Commission's argument that,
         in the circumstances of the case, it is normal that certain wholesalers should have tried to obtain extra supplies by circuitous
         means since they had to undertake to Bayer not to export and thus to order reduced quantities, not capable of being exported.
         
         
         
         156
            
          Nor, finally, has the Commission proved that the wholesalers wished to pursue Bayer's objectives or wished to make Bayer believe
         that they did.  On the contrary, the documents examined above demonstrate that the wholesalers adopted a line of conduct designed
         to circumvent Bayer's new policy of restricting supplies to the level of traditional orders. 
         
         
         157
            
          The Commission was therefore wrong in holding that the actual conduct of the wholesalers constitutes sufficient proof in law
         of their acquiescence in [Bayer's] policy designed to prevent parallel imports.
         
         
         
         22
            
          The Court of First Instance pursued its reasoning with an analysis of the case-law precedents cited by the Commission in order
         to establish the existence in this case of an agreement within the meaning of Article 85(1) of the Treaty, before concluding,
         in paragraph 171 of the judgment under appeal, that the Commission could not successfully rely on those precedents in order
         to call into question the analysis which had led the Court to conclude that, in this case, the wholesalers' acquiescence in
         Bayer's new policy had not been established and that, therefore, the Commission had failed to prove the existence of such
         an agreement. 
         
         
         23
            
          Concerning the judgment in Case C-277/87  
         Sandoz Prodotti Farmaceutici v  
         Commission [1990] ECR I-45, the Court of First Instance held: 
         
         161
            
          That case concerned the penalty imposed by the Commission on a subsidiary of a multinational pharmaceutical company, Sandoz,
         which was guilty of inserting into invoices which it sent to customers (wholesalers, pharmacies and hospitals) the express
         words  
         export prohibited.  Sandoz had not denied the presence of those words in its invoices, but had disputed that there was an agreement within
         the meaning of Article 85(1) of the Treaty.  The Court of Justice dismissed the action after replying to each of the applicant's
         arguments.  It considered that the sending of invoices with those words did not constitute unilateral conduct, but, on the
         contrary, formed part of the general framework of commercial relations which the undertaking maintained with its customers.
          It reached that conclusion after examining the way in which the undertaking proceeded before authorising a new customer to
         market its products and taking into account the practices repeated and applied uniformly and systematically at each sales
         operation (paragraph 10 of the judgment).  It was at that stage in its reasoning that the Court of Justice dealt with the
         question of the acquiescence of the commercial partners in the export ban, mentioned in the invoice, in the following terms:
         It should also be noted that the customers of Sandoz PF were sent the same standard invoice after each individual order or,
         as the case may be, after the delivery of the products.  The repeated orders of the products and the successive payments without
         protest by the customer of the prices indicated on the invoices, bearing the words  
         export prohibited, constituted a tacit acquiescence on the part of the latter in the clauses stipulated in the invoice and the type of commercial
         relations underlying the business relations between Sandoz PF and its clientele.  The approval initially given by Sandoz PF
         was thus based on the tacit acceptance on the part of the customers of the line of conduct adopted by Sandoz PF towards them.
         
         
         162
            
          It was only after those findings that the Court of Justice concluded that the Commission was entitled to take the view that
          
         the whole of the continuous commercial relations, of which the  
         export prohibited clause formed an integral part, established between Sandoz PF and its customers, were governed by a pre-established general
         agreement applicable to the innumerable individual orders for Sandoz products.  Such an agreement is covered by the provisions
         of Article 85(1) of the Treaty. 
         
         
         163
            
          Although the two cases resemble each other in that they concern attitudes of pharmaceutical groups designed to prevent parallel
         imports of medicinal products, the concrete circumstances characterising them are very different.  In the first place, unlike
         the situation in the present case, the manufacturer in  
         Sandoz had expressly introduced into all its invoices a clause restraining competition, which, by appearing repeatedly in documents
         concerning all transactions, formed an integral part of the contractual relations between Sandoz and its wholesalers.  Second,
         the actual conduct of the wholesalers in relation to the clause, which they complied with  
         de facto and without discussion, demonstrated their tacit acquiescence in that clause and the type of commercial relations underlying
         it.  On the facts of the present case, however, neither of the two principal features of  
         Sandoz is to be found; there is no formal clause prohibiting export and no conduct of non-contention or acquiescence, either in
         form or in reality.
         
         
         
         24
            
          Concerning the judgment in Case C-279/87  
         Tipp-Ex v  
         Commission [1990] ECR I-261, also cited by the Commission, in which the Court of Justice confirmed a Commission decision penalising
         an agreement designed to prevent exports and in which, unlike the situation in  
         Sandoz, there had not been a written stipulation concerning the export ban, the Court of First Instance held: 
         
         165
            
          That case concerned an exclusive distribution agreement between Tipp-Ex and its French distributor, DMI, which had complied
         with the manufacturer's demand that the prices charged to a customer should be raised so far as was necessary to eliminate
         any economic interest on his part in parallel imports.  Moreover, it had been established that the manufacturer carried out
         subsequent checks so as to give the exclusive distributor an incentive actually to adopt that conduct (recital 58 of Commission
         Decision 87/406/EEC of 10 July 1987 relating to a proceeding under Article 85 of the EEC Treaty (OJ 1987 L 222, p. 1).  Paragraphs
         18 to 21 of the judgment show the reasoning followed by the Court of Justice, which, after finding the existence of a verbal
         exclusive distribution agreement for France between Tipp-Ex and DMI and recalling the principal facts, wished to examine the
         reaction of and, therefore, the conduct adopted by the distributor following the penalising conduct adopted by the manufacturer.
          The Court of Justice then found that the distributor  
         reacted by raising by between 10 and 20% the prices charged only to the undertaking ISA France.  After the interruption of
         ISA France's purchases from DMI during the whole of 1980, DMI refused at the beginning of 1981 itself to supply Tipp-Ex products
         to ISA France.  It was only after those findings with regard to the conduct of the manufacturer and the distributor that the Court of Justice
         arrived at its conclusion as to the existence of an agreement within the meaning of Article 85(1) of the Treaty: It is therefore established that DMI acted upon the request of Tipp-Ex not to sell to customers who resell Tipp-Ex products
         in other Member States (paragraph 21 of the judgment). 
         
         
         166
            
         
         
         In
            
         Tipp-Ex, therefore, unlike the situation in the present case, there was no doubt as to the fact that the policy of preventing parallel
         exports was established by the manufacturer with the cooperation of the distributors.  As indicated in that judgment, that
         intention was already manifest in the oral and written contracts existing between the two parties (see paragraphs 19 and 20
         concerning the distributor DMI and 22 and 23 concerning the distributor Beiersdorf) and, if there were any remaining doubt,
         analysis of the behaviour of the distributors, pressed by the manufacturer, showed very clearly their acquiescence in the
         intentions of Tipp-Ex in restriction of competition.  The Commission had proved not only that the distributors had reacted
         to threats and pressure on the part of the manufacturer, but also the fact that at least one of them had sent the manufacturer
         proof of its cooperation.  Finally, the Commission itself observes in this case that, in  
         Tipp-Ex, in order to determine whether an agreement existed, the Court of Justice took the approach of analysing the reaction of
         the distributors to the conduct of the manufacturer running counter to parallel exports and that it was in assessing that
         reaction of the distributor that it concluded that there must be an agreement in existence between it and Tipp-Ex designed
         to prevent parallel exports. 
         
         
         
         167
            
          It follows that that judgment, like  
         Sandoz, merely confirms the case-law to the effect that, although apparently unilateral conduct by a manufacturer may lie at the
         root of an agreement between undertakings within the meaning of Article 85(1) of the Treaty, this is on condition that the
         subsequent conduct of the wholesalers or customers may be interpreted as  
         de facto acquiescence.  As that condition is not fulfilled in this case, the Commission cannot rely on the alleged similarity between
         these two cases in support of its argument that acquiescence existed in this case.
         
         
         
         25
            
          In relation to the judgments in Case 107/82  
         AEG v  
         Commission [1983] ECR 3151 and Joined Cases 25/84 and 26/84  
         Ford v  
         Commission [1985] ECR 2725, the Court of First Instance held: 
         
         170
            
         
         
         In
            
         AEG, in which the respective intentions of the manufacturer and the distributors do not appear clearly and in which the applicant
         expressly relied on the unilateral nature of its conduct, the Court of Justice considered that, in the context of a selective
         distribution system, a practice whereby the manufacturer, with a view to maintaining a high level of prices or to excluding
         certain modern channels of distribution, refused to approve distributors who satisfied the qualitative criteria of the system
         did  
         not constitute, on the part of the undertaking, unilateral conduct which, as AEG claims, would be exempt from the prohibition
         contained in Article 85(1) of the Treaty. On the contrary, it forms part of the contractual relations between the undertaking
         and resellers (paragraph 38).  The Court of Justice then sought to determine the existence of acquiescence by the distributors by stating:
          
         Indeed, in the case of the admission of a distributor, approval is based on the acceptance, tacit or express, by the contracting
         parties of the policy pursued by AEG which requires inter alia the exclusion from the network of all distributors who are
         qualified for admission but are not prepared to adhere to that policy (paragraph 38).  That approach has been confirmed in the other selective-distribution cases decided by the Court of Justice
         [Joined Cases 25/84 and 26/84  
         Ford and Ford Europe v  
         Commission [1985] ECR 2725, paragraph 21; Case 75/84  
         Metro v  
         Commission (
         Metro II) [1986] ECR 3021, paragraphs 72 and 73; Case C-70/93  
         BMW v  
         ALD [1995] ECR I-3439, paragraphs 16 and 17]
         
         . 
         
         
         26
            
          In relation to the judgment in Joined Cases 32/78 and 36/78 to 82/78  
         BMW Belgium and Others v  
         Commission [1979] ECR 2435, the Court of First Instance held: 
         
         169
            
         
         
         In
            
         BMW Belgium, in order to determine whether there was an agreement within the meaning of Article 85(1) of the Treaty between BMW and its
         Belgian dealers, the Court of Justice examined the measures capable of demonstrating the existence of an agreement, in that
         case circulars sent to BMW dealers,  
         according to their tenor and in relation to the legal and factual context in which they [were] set, and concluded that the circulars in question  
         indicate[d] an intention to put an end to all exports of new BMW vehicles from Belgium (paragraph 28).  It added that  
         in sending those circulars to all the Belgian dealers, BMW Belgium played the leading role in the conclusion with those dealers
         of an agreement designed to halt such exports completely (paragraph 29).  Paragraph 30 of that judgment shows that the Court of Justice intended to confirm the existence of acquiescence
         by the dealers.
         
         
         
         
         27
            
          The Court of First Instance also dismissed, in paragraphs 173 to 181 of the judgment under appeal, the Commission's argument
         that the mere finding of fact that the wholesalers did not interrupt their business relations with Bayer after the latter
         established its new policy designed to restrain exports gave sufficient grounds for a finding that the existence of an agreement
         between undertakings within the meaning of Article 85(1) of the Treaty was established.  On the contrary, it held that the
         proof of an agreement between undertakings within the meaning of that provision must be based upon the direct or indirect
         finding of the existence of the subjective element that characterises the very concept of an agreement, that is to say a meeting
         of minds between economic operators. 
         
         
         28
            
          More particularly, in paragraphs 179 to 182 of the judgment under appeal, the Court of First Instance complains that the Commission
         is trying to widen the scope of the  
         Rules applying to undertakings in Section 1 of Chapter 1 of Title V of the Treaty. 
         
         
         29
            
          As a result, the Court of First Instance annulled the contested decision without examining Bayer's alternative pleas, alleging
         erroneous application of Article 85(1) of the Treaty to conduct that was legitimate under Article 47 of the Act concerning
         the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985
         L 302, p. 23), and misapplication of Article 15 of Council Regulation No 17 of 6 February 1962 (First Regulation implementing
         Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87) in imposing a fine on Bayer. 
         Procedure and forms of order sought
         
         30
            
          By order of the President of the Court of Justice of 28 March 2001, Cases C-2/01 P and C-3/01 P were joined for the purposes
         of the written procedure, the oral procedure and the judgment. 
         
         
         31
            
          On 9 April 2001, the European Association of Euro Pharmaceutical Companies (
         EAEPC), an association representing the interests of European pharmaceutical companies, applied for leave to intervene in support
         of BAI and the Commission.  By order of 26 September 2001, the President of the Court of Justice allowed the intervention
         of EAEPC. 
         
         
         32
            
          On 23 April 2001, pursuant to the first paragraph of Article 37 of the EC Statute of the Court of Justice, the Kingdom of
         Sweden applied for leave to intervene in support of the Commission.  By order of 25 June 2001, the President of the Court
         of Justice allowed the intervention of the Kingdom of Sweden. 
         
         
         33
            
          BAI claims that the Court should: 
         
         
         ─
             annul the judgment under appeal and dismiss the claims of Bayer at first instance; 
          annul the judgment under appeal and dismiss the claims of Bayer at first instance; 
         
         
         
         ─
             in the alternative, refer the matter back before the Court of First Instance; 
          in the alternative, refer the matter back before the Court of First Instance; 
         
         
         
         ─
             order Bayer to pay the costs, including those incurred by BAI in connection with its intervention at first instance. 
          order Bayer to pay the costs, including those incurred by BAI in connection with its intervention at first instance. 
         
         
         
         
         34
            
          The Commission claims that the Court should: 
         
         
         ─
             annul the judgment under appeal and dismiss Bayer's action against the contested decision; 
          annul the judgment under appeal and dismiss Bayer's action against the contested decision; 
         
         
         
         ─
             order Bayer, in its capacity as respondent and as applicant, to pay the costs of the cases before the Court of Justice and
            the Court of First Instance. 
          order Bayer, in its capacity as respondent and as applicant, to pay the costs of the cases before the Court of Justice and
         the Court of First Instance. 
         
         
         
         
         35
            
          Bayer, the applicant at first instance, contends that the Court should: 
         
         
         ─
             dismiss the Commission's appeal in its entirety; 
          dismiss the Commission's appeal in its entirety; 
         
         
         
         ─
             order the Commission to pay the costs of the appeal. 
          order the Commission to pay the costs of the appeal. 
         
         
         
         
         36
            
          EFPIA, the intervener in support of Bayer at first instance, contends that the Court should: 
         
         
         ─
             dismiss the appeal of the Commission and BAI; 
          dismiss the appeal of the Commission and BAI; 
         
         
         
         ─
             order the Commission to reimburse to EFPIA the costs which it has incurred. 
          order the Commission to reimburse to EFPIA the costs which it has incurred. 
         
         
         
         
         37
            
          The Kingdom of Sweden, intervening in support of the Commission, contends that the judgment under appeal should be annulled.
         
         
         
         38
            
          EAEPC, intervening in support of BAI and the Commission, contends that the Court should: 
         
         
         ─
             annul the judgment under appeal and dismiss Bayer's application at first instance; 
          annul the judgment under appeal and dismiss Bayer's application at first instance; 
         
         
         
         ─
             in the alternative, refer the matter back before the Court of First Instance; 
          in the alternative, refer the matter back before the Court of First Instance; 
         
         
         
         ─
             order Bayer to pay the costs. 
          order Bayer to pay the costs. 
         
         
         Summary of the parties' pleas
         
         39
            
          BAI advances three pleas in law in support of its appeal, arguing, first, that the Court of First Instance failed fully to
         take into account the facts on which the contested decision was based, second, that it made an erroneous assessment of the
         evidence in breach of the rules on the burden of proof, and, third, that it erred in law as to the legal criteria used to
         determine the existence of an agreement within the meaning of Article 85(1) of the Treaty. 
         
         
         40
            
          The Commission makes a general criticism of the restrictive approach of the Court of First Instance in applying Article 85(1)
         of the Treaty to export restrictions, before advancing five more precise pleas in law, essentially arguing that the Court
         of First Instance used too restrictive an interpretation of the concept of an  
         agreement within the meaning of that provision, that it erred in law as to the application of Article 85(1), and that it misinterpreted
         the evidence. 
         
         
         41
            
          The pleas in law concerning the legal assessment by the Court of First Instance in relation to the concept of an  
         agreement within the meaning of Article 85(1) of the Treaty generally raise the question whether the Court accepted an excessively
         restrictive interpretation of that provision, excluding the possibility that an agreement including an export ban might be
         considered to have been concluded in a situation such as that under examination in the present case. 
         Preliminary observation
         
         42
            
          Before examining the pleas in law which have been advanced, it should be noted that, in the contested decision, the Commission
         confined itself strictly to the examination of one complaint, alleging the existence of an  
         agreement within the meaning of Article 85(1) of the Treaty between Bayer and its wholesalers, and that it did so in the context of
         a market defined by reference to the main therapeutic indications for the product in question, namely Adalat.  It should be
         made clear, therefore, that neither the possible application of other aspects of Article 85, nor Article 86 of the EC Treaty
         (now Article 82 EC), nor any other possible definitions of the relevant market are at issue in these proceedings. 
         The pleas concerning the factual findings
         
         43
            
          Both BAI and the Commission challenge the factual findings of the Court of First Instance, arguing that it failed to take
         full account of the facts on which the Commission based its decision, concerning, respectively, the checks allegedly carried
         out by Bayer as to the final destination of the products ordered and the intention of the wholesalers to make Bayer believe
         that they would henceforth place orders only for the needs of their national market. 
          The checks allegedly carried out by Bayer
         
         
         44
            
          In its first plea, BAI challenges the accuracy of the finding of the Court of First Instance, in paragraph 109 of the judgment
         under appeal, that the Commission failed to establish that Bayer instituted monitoring of the final destination of the products
         delivered to Spanish and French wholesalers.  The Court of First Instance therefore reached an erroneous legal assessment,
         its conclusion that there was no agreement within the meaning of Article 85(1) of the Treaty having been reached by overlooking
         relevant evidence on the file. 
         
         
         45
            
          Relying on the documents referred to by the Commission in recitals 140 and 80 of the contested decision, BAI argues that Bayer
         had managed to trace back as far as Spanish wholesalers by means of the serial numbers of consignments found in the United
         Kingdom.  Contrary to the finding of the Court of First Instance, BAI argues that those documents show that such checks took
         place, even if they concerned only a limited number of consignments. 
         
         
         46
            
          Both Bayer and EFPIA argue that this plea is inadmissible, since it seeks only to challenge the assessment of the facts by
         the Court of First Instance in paragraphs 105, 108 and 109 of the judgment under appeal.  Bayer adds that this plea is based
         on an erroneous version of the facts since, even if serial numbers  
         may lead to exporting wholesalers, they do not prove that such checks actually took place.  In any event, Bayer denies that serial
         numbers enable given operators to be identified, since a given number is normally found on consignments sent to several wholesalers.
         
          Findings of the Court
         
         
         47
            
          Under Article 225 EC and Article 58 of the Statute of the Court of Justice, whereby an appeal before the Court of Justice
         is limited to points of law, the Court of First Instance has exclusive jurisdiction, first, to establish the facts except
         where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those
         facts, save where the evidence has been misinterpreted. When the Court of First Instance has established or assessed the facts,
         the Court of Justice has jurisdiction under Article 225 EC only to review the legal characterisation of those facts by the
         Court of First Instance and the legal conclusions it has drawn from them (Case C-7/95 P  
         Deere v  
         Commission [1998] ECR I-3111, paragraph 21). 
         
         
         48
            
          Here, in its first plea, BAI is challenging only the assessment of the facts by the Court of First Instance and, in particular,
         the fact that the Court, while taking the documents referred to in the contested decision into consideration, concluded that
         the Commission had not proved to the requisite legal standard that there was  
         systematic monitoring by Bayer of the final destination of the consignments of Adalat delivered to wholesalers after the adoption of its new policy
         on the supply of medicinal products.  Therefore, the objection of inadmissibility raised by Bayer and EFPIA is well founded,
         and BAI's first plea must be dismissed. 
          The wholesalers' intention to make Bayer believe that they would henceforth place orders only for the needs of their national
         market
          Arguments of the parties
         
         
         49
            
          In its third plea, the Commission argues that the Court of First Instance failed to take into account, or misinterpreted,
         several pieces of evidence when it held in paragraph 126 of the judgment under appeal that the documents relied on by the
         Commission in the contested decision did not demonstrate that the wholesalers wished to give Bayer the impression that they
         were following its new commercial policy. 
         
         
         50
            
          The Commission argues, first, that the Court of First Instance did not take account of the fact that the local branches of
         wholesalers, amongst whom orders intended for export were spread, were urged to show discretion after Bayer France had refused
         to honour orders openly intended for export, and, secondly, that the Court of First Instance did not take into consideration
         the fact that that distribution of desired quantities amongst local branches could have had no object other than to deceive
         Bayer as to their export plans. 
         
         
         51
            
          The Commission further emphasises both the intention of the wholesalers to deceive Bayer as to the level of national market
         needs, as demonstrated by the letters referred to in the contested decision, and the necessity of such an approach, given,
         on the one hand, the intention of the wholesalers to continue exporting medicinal products and, on the other, Bayer's policy
         of delivering such products only to meet the needs of the national market. 
         
         
         52
            
          Bayer and EFPIA reply that the complaint alleging failure to take certain evidence into account should be dismissed at the
         outset, since in the judgment under appeal the Court of First Instance examined, and took detailed account of, all the documents
         mentioned by the Commission in the contested decision, with the result that this plea is directed only against the facts found
         by the Court of First Instance.  As for the complaint that the evidence was misinterpreted, they argue, first, that the Court
         of First Instance expressly determined, in paragraphs 125, 128, 131 and 143 to 152 of the contested judgment, that certain
         undertakings feigned greater needs for the national market and, secondly, that the Commission did not even attempt to demonstrate
         that the Court of First Instance, in taking allegedly  
         misrepresented evidence into account, reached a different assessment.  In reality, they submit, the Commission is seeking once again to
         challenge the factual findings of the Court of First Instance. 
          Findings of the Court
         
         
         53
            
          The Court notes first that, in its examination as to whether, in the absence of proof of an attempt by Bayer to obtain wholesalers'
         agreement to, or acquiescence in, its new commercial policy, the actual conduct of those wholesalers may lead to the conclusion
         that they acquiesced in that policy, the Court of First Instance took into account all the documents referred to by the Commission
         in the contested decision. 
         
         
         54
            
          In that regard, the Court of First Instance did not in any way find that the wholesalers did not intend to deceive Bayer as
         to their export intentions.  It merely held that the documents to which the Commission had referred did not establish that
         the wholesalers had wished to give Bayer the impression that, in compliance with its declared intention, they were willing
         to reduce their orders to a given level. 
         
         
         55
            
          Secondly, concerning the alleged misinterpretation of the evidence, the Court of First Instance has, on the one hand, nowhere
         denied that, in response to Bayer's policy, certain wholesalers preferred to place orders by distributing them around their
         local branches under the pretext of an increase in orders officially destined for the national market. 
         
         
         56
            
          The Court of First Instance also expressly recognised that the wholesalers had conducted difficult negotiations with Bayer
         in order to persuade it that their customary national needs had grown and needed to be satisfied.  However, it concluded that
         that fact could not be used to demonstrate that the wholesalers had acquiesced in Bayer's policy. 
         
         
         57
            
          The Commission's third plea in law must therefore be dismissed as unfounded. 
         The burden of proof as to the existence of an agreement within the meaning of Article 85(1) of the Treaty Arguments of the parties
         
         
         58
            
          In its second plea in law, BAI accuses the Court of First Instance of committing an error of law by accepting the principle
         that the burden of proof of an agreement within the meaning of Article 85(1) of the Treaty between Bayer and the wholesalers
         concerned rests exclusively with the Commission (paragraphs 119 to 121 of the contested decision).  By so doing, the Court
         of First Instance disregarded the principle recognised by the Court of Justice in Case C-49/92 P  
         Commission v  
         Anic Partecipazioni [1999] ECR I-4125, paragraph 96, that, where the evidence gathered by the Commission is prima facie sufficient to establish
         the existence of an agreement, it is for the undertaking concerned to prove that there was no meeting of minds between itself
         and its distributors. 
         
         
         59
            
          In that regard, BAI argues that, according to the facts found by the Commission and not challenged by Bayer, there were dialogues
         between Bayer and the wholesalers on the occasion of the export restrictions introduced by Bayer.  In the course of those
         dialogues, Bayer clearly demonstrated its intention to prevent parallel imports by applying sales quotas.  That intention
         was, moreover, understood by the wholesalers, who ended by accepting such a limitation.  Although the Court of First Instance
         correctly set out all those facts, it failed to draw the correct legal conclusions.  BAI submits that, by virtue of the judgment
         in  
         Anic Partecipazioni, the Court of First Instance should have held that the existence of an agreement within the meaning of Article 85(1) of the
         Treaty was prima facie established, placing on Bayer the onus of proving that there was no meeting of minds.  The judgment
         under appeal was thus also based on that erroneous application of law. 
         
         
         60
            
          In reply, both Bayer and EFPIA argue that the judgment in  
         Anic Partecipazioni, concerning facts which were different from those in this case, is in no way applicable here.  Bayer, supported by EFPIA,
         maintains that, in reality, this complaint is directed against the factual finding of the Court of First Instance that the
         Commission did not produce proof of the existence of an agreement within the meaning of that provision, and that it is therefore
         inadmissible or unfounded. 
          Findings of the Court
         
         
         61
            
          Concerning the objection of inadmissibility raised by Bayer and EFPIA, it is sufficient to note that the question of the allocation
         of the burden of proof, although it may have an impact on the findings of fact by the Court of First Instance, is a question
         of law.  Therefore, this objection of inadmissibility is unfounded.  
         
         
         62
            
          As to the merits, it should be noted that, in  
         Anic Partecipazioni, contrary to what BAI is suggesting, the Court of Justice did not modify the principle that, where there is a dispute as
         to the existence of an infringement of the competition rules, it is for the Commission to prove the infringement which it
         has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting
         an infringement. 
         
         
         63
            
          In  
         Anic Partecipazioni, it was established that an  
         agreement, within the meaning of Article 85(1) of the Treaty, had been concluded at a meeting between various participants.  The Court
         therefore held that an undertaking which had participated in that meeting had to bear the burden of proof if it subsequently
         wished to argue that it did not intend to participate in the implementation of the agreement thus established.  It follows
         that the reversal of the burden of proof in that case took place after the existence of an agreement formed at a meeting between
         three undertakings had been established.  Moreover, the possibility open to the undertaking concerned, which bore the burden
         of proof, was to withdraw from the agreement which had been established and not to deny its very existence.  Therefore, BAI
         cannot validly rely on the judgment in  
         Anic Partecipazioni   in support of its second plea, which is unfounded and must therefore be dismissed. 
         The pleas in law concerning the concept of an  
            agreement within the meaning of Article 85(1) of the Treaty
         
         64
            
          Both BAI and the Commission criticise the excessively restrictive legal assessment on the basis of which the Court of First
         Instance held that there was no agreement concerning an export ban falling within the scope of Article 85(1) of the Treaty.
         
          General observations on the approach of the Court of First Instance to the concept of an  
         agreement within the meaning of Article 85(1) of the Treaty
         
         
         65
            
          The Commission maintains that the judgment under appeal departs from the case-law precedents concerning the concept of an
          
         agreement within the meaning of Article 85(1) of the Treaty, and that, by doing so, it redefines the criteria required in order to
         prove the existence of an export ban and the existence of an agreement in the matter.  It argues that the restrictive interpretation
         of those concepts, together with the stricter requirements concerning proof of the conclusion of an agreement between a manufacturer
         and a wholesaler envisaging an export ban, call into question the policy pursued by the Commission in fighting restrictions
         of competition based upon a system of hindrances to parallel imports.  
         
         
         66
            
          In that respect, EAEPC maintains that parallel commerce is a corollary of the achievement of the internal market.  The Kingdom
         of Sweden makes similar arguments, emphasising that, since the medicinal products sector has not been the subject of full
         harmonisation at European level, it is important to encourage parallel imports so as to prevent the market, which is already
         vulnerable to unfair conduct aimed at maintaining price differences between the Member States, from being further hindered.
         
         
         
         67
            
          Recalling that Member States are prohibited from in any way restricting the free movement of goods in so far as it is not
         justified by the Treaty, EAEPC argues that State restrictions should not be replaced by restrictions imposed by private parties.
         
         
         
         68
            
          According to Bayer, supported by EFPIA, the allegations concerning the scope of Article 85(1) of the Treaty are clearly unfounded.
          The decisions and the case-law concerning the application of that provision to export bans exclusively concerned cases in
         which a manufacturer had previously, expressly or tacitly, concluded an agreement with distributors concerning such a ban,
         in the context of which it subsequently monitored whether that export ban was complied with and imposed penalties on undertakings
         not complying with the terms of that agreement.  That was not the case in the present proceedings, and the precedents cannot
         therefore be applied to them. 
         
         
         69
            
          The Commission's true objective, Bayer argues, is to enlarge the scope of Article 85(1) of the Treaty and arrange matters
         in such a way that  
         hindrance to parallel imports, falling within the principle of the free movement of goods referred to in Article 30 of the EC Treaty (now, after amendment,
         Article 28 EC), is established in practice as being in itself an infringement of Article 85(1) of the Treaty.  In this case,
         the Commission is expressly seeking a harmonisation of the price of medicinal products, through the application of that provision,
         without carrying out a harmonisation of the legislation of the Member States, even though that legislation is the cause of
         the price differences.  It is, Bayer argues, the Member States and not the pharmaceutical industry which are responsible for
         different prices being fixed for the same medicinal product in Member States.  Those distortions of competition can be eliminated
         only by applying Article 30 of the Treaty and by a harmonisation of the national provisions on the determination of the prices
         for medicinal products. 
         
         
         70
            
          The attempt to use Article 85(1) of the Treaty to penalise an undertaking not in a dominant position which decides to refuse
         deliveries to wholesalers, in order to prevent them from making parallel exports, clearly disregards the necessary conditions
         for applying Article 85 and the general system of the Treaty.  Under that system, measures adopted by a Member State which
         prevent parallel exports are indeed prohibited by Article 30 of the Treaty, but unilateral measures taken by private undertakings
         are subject to restrictions, by virtue of the principles of that Treaty, only if the undertaking in question occupies a dominant
         position on the market, within the meaning of Article 86 of the Treaty, which is not the case here. 
         
         
         71
            
          It is in that context that the Court must examine the various pleas alleging an unduly restrictive interpretation by the Court
         of First Instance of the concept of an  
         agreement within the meaning of Article 85(1) of the Treaty. 
          The need for a system of monitoring and penalties as a precondition for finding an agreement concerning an export ban
          Arguments of the parties
         
         
         72
            
          BAI, in its third plea, first part, subparagraph (i), and the Commission, in its first plea, supported by the Kingdom of Sweden,
         accuse the Court of First Instance of interpreting Article 85(1) of the Treaty in an excessively restrictive way, in that
         it wrongly held the existence of a system for monitoring the final destination of consignments of Adalat delivered to exporting
         wholesalers and for penalising the latter to constitute a necessary condition for an agreement concerning an export ban to
         be regarded as having been concluded.  
         
         
         73
            
          BAI argues that, although such a system of monitoring and penalties may be evidence of the existence of an agreement prohibited
         by Article 85(1) of the Treaty, in so far as it may have the effect of obliging the commercial partners concerned to keep
         their promises, that does not mean that the absence of such a system ipso facto excludes the possibility that an agreement
         has been concluded.  BAI refers in that respect to the judgments in  
         Sandoz   and  
         Ford, in which the Court established the existence of an anti-competitive agreement where there was no such monitoring.  The requirement
         that such a system of monitoring and penalties be established as cumulative preconditions for establishing the existence of
         an agreement concerning an export ban prohibited by Article 85(1) therefore constituted an error in applying the law.  
         
         
         74
            
          The Commission accuses the Court of First Instance, more particularly, of holding that an agreement concerning an export ban
         exists only where a system of subsequent controls of the actual final destination of the products ordered is established and
         penalties are applied to ensure that the products are not exported.  In its argument, such an agreement exists in a case,
         such as the present, where a more subtle, preventive, technique is implemented, placing restrictions on supplies once there
         is sufficient evidence to suggest the existence of exports.  With such a supply policy, direct prohibition following a particular
         delivery is replaced by an indirect prohibition imposed at the time when orders are placed. 
         
         
         75
            
          In that respect, both the Kingdom of Sweden and EAEPC observe that, instead of imposing export prohibitions that are manifestly
         contrary to Community law, Bayer is henceforth placing subtle limitations on supply which, combined with the need to hold
         a sufficiently large quantity of medicinal products permanently in stock, produce the same effect as an export ban.  Therefore,
         they submit, the absence of proof of a system of subsequent controls is not decisive. 
         
         
         76
            
          In reply, Bayer and EFPIA maintain that this plea is in reality concerned only with the finding of facts by the Court of First
         Instance, and is therefore inadmissible.  Moreover, the appellants' argument concerns an interpretation of Article 85(1) of
         the Treaty which does not appear in the judgment under appeal.  Maintaining that the Court of First Instance did no more than
         verify the factual argument raised by the Commission that Bayer carried out subsequent monitoring of the destination of the
         goods delivered, Bayer, supported by EFPIA, argues that, in the judgment under appeal, it is not established that there cannot
         be an  
         agreement on an export ban unless the manufacturer subsequently monitors whether the wholesaler has exported the goods delivered and,
         if it has, penalises that exporter by reducing supplies or refusing to deliver medicinal products. 
         
         
         77
            
          In addition, concerning the alleged misinterpretation of the case-law on the matter, Bayer states in its reply that, by contrast
         with the circumstances in this case, in all the cases cited by the Commission, and in all those on which the Court has had
         to rule hitherto, the manufacturer was trying rather to prevent export of the quantities delivered, whether quotas had been
         placed on them in advance or not, by means of express or implied import bans. 
          Findings of the Court
         
         
         78
            
          In these pleas, the appellants argue that the Court of First Instance was wrong to hold that, as a necessary condition for
         there to be an agreement within the meaning of Article 85(1) of the Treaty, Bayer had to have implemented a system for monitoring
         the final destination of consignments of Adalat and penalising exporting wholesalers. 
         
         
         79
            
          However, it does not in any way appear from the judgment under appeal that the Court of First Instance did hold that there
         could not be an  
         agreement on an export ban unless there were such a system of monitoring and penalties on wholesalers. 
         
         
         80
            
          In examining the alleged intention of Bayer to impose an export ban, the Court of First Instance held, on the one hand, that
          
         the Commission has not proved to the requisite legal standard either that Bayer France and Bayer Spain imposed an export ban
         on their respective wholesalers, or that Bayer established a systematic monitoring of the actual final destination of the
         packets of Adalat supplied after the adoption of its new supply policy ... or that it made supplies of this product conditional
         on compliance with the alleged export ban (paragraph 109 of the judgment under appeal). 
         
         
         81
            
          Moreover, in its further examination as to whether, as alleged, the wholesalers intended to adhere to Bayer's policy, the
         Court recalled, referring to what it had just held, that  
         the Commission has not sufficiently established in law that Bayer adopted a systematic policy of monitoring the final destination
         of the packets of Adalat supplied, that it applied a policy of threats and penalties against wholesalers who had exported
         them, that, therefore, Bayer France and Bayer Spain imposed an export ban on their respective wholesalers, or, finally, that
         supplies were made conditional on compliance with the alleged export ban (paragraph 119 of the judgment under appeal). 
         
         
         82
            
          It is clear from that judgment that, in holding that there was no system of subsequent monitoring and penalties established
         by Bayer, the Court's intention was, first, to reply to the factual argument raised by the Commission that Bayer had imposed
         an export ban on the wholesalers which was put in place by identifying the exporting wholesalers and applying successive reductions
         in the volumes of medicinal products delivered to them if it became apparent that they were exporting all or part of those
         products. 
         
         
         83
            
          Secondly, the Court of First Instance did not in any event consider that the absence of a system of subsequent monitoring
         and penalties in itself implied the absence of an agreement prohibited by Article 85(1) of the Treaty.  On the other hand,
         such an absence was regarded as one of the relevant factors in the analysis concerning Bayer's alleged intention to impose
         an export ban and, therefore, the existence of an agreement in this case.  In that regard, although the existence of an agreement
         does not necessarily follow from the fact that there is a system of subsequent monitoring and penalties, the establishment
         of such a system may nevertheless constitute an indicator of the existence of an agreement. 
         
         
         84
            
          Concerning the complaints of alleged misinterpretation of the judgments in  
         Sandoz and  
         Ford, on the ground that, in those judgments, the Court of Justice did not examine whether there was a system of subsequent monitoring
         and penalties before holding that there was an agreement prohibited by Article 85(1) of the Treaty, it should be reiterated
         that verification of the existence of such a system is not necessary in all cases for an agreement contrary to that provision
         to be considered to have been concluded. 
         
         
         85
            
          In  
         Sandoz, the manufacturer had sent invoices to its suppliers carrying the express words  
         export prohibited, which had been tacitly accepted by the suppliers (see paragraph 23 of this judgment).  The Court could therefore hold that
         there was an agreement prohibited by Article 85(1), without being required to seek proof of that in the existence of a system
         of subsequent monitoring. 
         
         
         86
            
          In  
         Ford, the Court of Justice assimilated to an agreement the decision of a motor manufacturer not to supply right-hand drive vehicles
         to German dealers in order to remove the possibility of them exporting those cars to the United Kingdom market.  It is sufficient
         to note, in the context of the present plea, that, in this case, there was a simple refusal to sell and not a sale allegedly
         subject to certain conditions imposed on distributors and that, therefore, a system of subsequent monitoring would in any
         event have been superfluous.  
         
         
         87
            
          As for the arguments of the Commission, the Kingdom of Sweden and EAEPC, to the effect that a system of subsequent controls
         was required by the system preventing supply established by Bayer, it should be noted that those arguments tend to underline
         the unilateral character of the latter's actions as regards the restriction of parallel imports. 
         
         
         88
            
          The mere fact that the unilateral policy of quotas implemented by Bayer, combined with the national requirements on the wholesalers
         to offer a full product range, produces the same effect as an export ban does not mean either that the manufacturer imposed
         such a ban or that there was an agreement prohibited by Article 85(1) of the Treaty. 
         
         
         89
            
          Therefore, in holding that the Commission had not established to the requisite legal standard the existence of a system of
         subsequent monitoring and penalties on wholesalers, the Court of First Instance has not erred in law.  The Court must therefore
         dismiss the plea by BAI and the Commission arguing that such a system of subsequent controls and penalties on wholesalers
         is not a precondition for the existence of an agreement within the meaning of Article 85(1) of the Treaty. 
          The plea in law concerning the need for the manufacturer to require a particular line of conduct from the wholesalers or to
         seek to obtain their adherence to its policy
          Arguments of the parties
         
         
         90
            
          BAI, in subparagraph (ii) of the first part of its third plea, and the Commission, in its second plea, accuse the Court of
         First Instance of interpreting Article 85(1) of the Treaty in an excessively restrictive manner, in that it wrongly held that
         an agreement concerning an export ban could not be considered to have been concluded unless the manufacturer requires a particular
         line of conduct from wholesalers or seeks to obtain their adherence to its policy seeking to prevent parallel imports.  More
         particularly, they argue that it was not necessary to prove that Bayer imposed an express export ban on wholesalers in order
         to establish the existence of an agreement prohibited by Article 85(1) of the Treaty. 
         
         
         91
            
          BAI, referring in particular to the judgments in  
         Sandoz and  
         Ford, argues that an agreement within the meaning of Article 85(1) of the Treaty must be regarded as having been concluded simply
         because wholesalers are continuing to obtain supplies from a manufacturer which has manifested its intention to prevent parallel
         imports, since, by doing so, they accept, de facto, the commercial policy of that manufacturer.  
         
         
         92
            
          Similarly, the Commission emphasises that, for there to be an agreement within the meaning of Article 85(1) of the Treaty,
         it is sufficient for the undertakings in question to have expressed their common intention to behave on the market in a given
         way.  It accuses the Court of First Instance of failing to take into consideration the fact that, in this case, Bayer had
         expressed sufficiently clearly its wish to see the wholesalers change their method of ordering and delivery and that, therefore,
         that fact taken in combination with the change in the wholesalers' conduct was capable of expressing a common intention between
         Bayer and the wholesalers.  The Commission refers in that regard to the judgments in  
         AEG and  
         Ford, in which the Court did not examine whether the manufacturer had required a given line of conduct from those with whom it
         was dealing, or had tried to obtain their acquiescence to the measures which it had adopted. 
         
         
         93
            
          BAI, EAEPC and the Kingdom of Sweden argue that, where a producer places quotas on wholesalers by reference to the needs of
         the national market which they supply, that may constitute a hindrance to exports where it is combined with an additional
         obligation to give priority to supplying a particular market.  No express prohibition was necessary.  Such a restriction on
         supplies inescapably has the effect of an export ban and thus an artificial partitioning of markets, since supplies are no
         longer sufficient to allow exports.  The Kingdom of Sweden further observes that, in accordance with Community case-law, particularly
         the judgment in  
         Ford, Bayer's conduct could be described as a partial refusal to sell, applied uniformly and systematically in relation to all
         wholesalers established in France and Spain, such conduct being capable of being regarded as a contractual provision contrary
         to Article 85(1) of the Treaty. 
         
         
         94
            
          Bayer and EFPIA maintain that this plea should be dismissed because it stems from an incorrect reading of the judgment under
         appeal.  The Court of First Instance did not in any way make the existence of an  
         agreement on an export ban subject to the question whether Bayer had  
         demanded or actively  
         attempted to obtain the adherence of the wholesalers to an export ban.  Furthermore, they argue, this plea does not, in reality, raise
         any argument of law but challenges a finding of fact, made by the Court of First Instance in paragraph 157 of the judgment
         under appeal in order to dismiss a factual allegation made by the Commission itself, according to which the actual conduct
         of the wholesalers did not constitute sufficient proof to establish that they had tolerated the policy designed to hinder
         parallel exports.  Therefore, they argue, this plea is inadmissible. 
         
         
         95
            
          Concerning the alleged misinterpretation of the judgments in  
         AEG and  
         Ford, which was examined by the Court of First Instance, both Bayer and EFPIA argue that the situation in this case is different
         from that in those cases and they therefore deny that the Court of First Instance departed from that case-law. 
          Findings of the Court
         
         
         96
            
          It does not appear from the judgment under appeal that the Court of First Instance took the view that an agreement within
         the meaning of Article 85(1) of the Treaty could not exist unless one business partner demands a particular line of conduct
         from the other. 
         
         
         97
            
          On the contrary, in paragraph 69 of the judgment under appeal, the Court of First Instance set out from the principle that
         the concept of an agreement within the meaning of Article 85(1) of the Treaty  
         centres around the existence of a concurrence of wills between at least two parties, the form in which it is manifested being
         unimportant so long as it constitutes the faithful expression of the parties' intention.  The Court further recalled, in paragraph 67 of the same judgment, that for there to be an agreement within the meaning
         of Article 85(1) of the Treaty it is sufficient that the undertakings in question should have expressed their common intention
         to conduct themselves on the market in a specific way. 
         
         
         98
            
          Since, however, the question arising in this case is whether a measure adopted or imposed apparently unilaterally by a manufacturer
         in the context of the continuous relations which it maintains with its wholesalers constitutes an agreement within the meaning
         of Article 85(1) of the Treaty, the Court of First Instance examined the Commission's arguments, as set out in recital 155
         of the contested decision, to the effect that Bayer infringed that article by imposing  
         an export ban as part of the ... continuous commercial relations [of Bayer France and Bayer Spain] with their customers, and that the wholesalers' subsequent conduct reflected  
         an implicit acquiescence in that ban (paragraph 74 of the judgment under appeal). 
         
         
         99
            
          Concerning the argument that the Court of First Instance wrongly considered it necessary to prove an express export ban on
         the part of Bayer, it is clear from the Court's analysis concerning the system for monitoring the distribution of the consignments
         of Adalat delivered (see paragraphs 44 to 48 of this judgment) that it did not in any way require proof of an express ban.
         
         
         
         100
            
          Concerning the appellants' arguments that the Court of First Instance should have acknowledged that the manifestation of Bayer's
         intention to restrict parallel imports could constitute the basis of an agreement prohibited by Article 85(1) of the Treaty,
         it is true that the existence of an agreement within the meaning of that provision can be deduced from the conduct of the
         parties concerned. 
         
         
         101
            
          However, such an agreement cannot be based on what is only the expression of a unilateral policy of one of the contracting
         parties, which can be put into effect without the assistance of others.  To hold that an agreement prohibited by Article 85(1)
         of the Treaty may be established simply on the basis of the expression of a unilateral policy aimed at preventing parallel
         imports would have the effect of confusing the scope of that provision with that of Article 86 of the Treaty. 
         
         
         102
            
          For an agreement within the meaning of Article 85(1) of the Treaty to be capable of being regarded as having been concluded
         by tacit acceptance, it is necessary that the manifestation of the wish of one of the contracting parties to achieve an anti-competitive
         goal constitute an invitation to the other party, whether express or implied, to fulfil that goal jointly, and that applies
         all the more where, as in this case, such an agreement is not at first sight in the interests of the other party, namely the
         wholesalers.  
         
         
         103
            
          Therefore, the Court of First Instance was right to examine whether Bayer's conduct supported the conclusion that the latter
         had required of the wholesalers, as a condition of their future contractual relations, that they should comply with its new
         commercial policy. 
         
         
         104
            
          Concerning the judgment in  
         Sandoz, relied upon by the appellants, it is undisputed that, in that case, the manufacturer had sought the cooperation of wholesalers
         in order to eliminate or reduce parallel imports, their cooperation being necessary, in the circumstances of that case, in
         order to attain that objective.  In such a context, the insertion by the manufacturer of the words  
         export prohibited on invoices amounted to a demand for a particular line of conduct on the part of the wholesalers.  That is not the case here.
         
         
         
         105
            
          The appellants have also relied on the judgments in  
         AEG   and  
         Ford, arguing that, in those judgments, in the context of apparently unilateral measures adopted by the manufacturer in relation
         to its distributors, the Court held that there was an agreement within the meaning of Article 85(1) of the Treaty without
         enquiring as to the existence of a demand on the part of that manufacturer. 
         
         
         106
            
          However, the need to demonstrate the conclusion of an agreement within the meaning of Article 85(1) of the Treaty did not
         arise in those cases.  The question there was whether the measures adopted by the manufacturers formed part of the selective
         distribution agreements previously concluded between the manufacturers and their distributors and, therefore, whether those
         measures had to be taken into account in order to assess the compatibility of those agreements with the competition rules.
         
         
         
         107
            
          In  
         AEG, the manufacturer had, in applying a selective distribution agreement which had previously been adjudged compatible with
         Article 85(1) of the Treaty, begun to refuse to approve distributors who met the qualitative criteria of that agreement, and
         did so in order to maintain a high level of prices or to exclude certain modern channels of distribution.  It was thus a question
         of establishing whether the Commission could base its investigation on the conduct adopted by the manufacturer when applying
         a selective distribution agreement in order to determine whether that agreement, as applied in a particular case, was contrary
         to Article 85(1) of the Treaty. 
         
         
         108
            
          In  
         Ford, the Court stated in paragraph 12 of its judgment that  
         [t]he applicants and the Commission all agree that the main issue in this case is whether the Commission was entitled to refuse
         an exemption under Article 85(3) of the Treaty for Ford AG's main dealer agreement by reason of the fact that that undertaking
         had discontinued supplies of right-hand-drive cars to its German distributors. 
         
         
         109
            
          Therefore, the existence of an agreement capable of infringing Article 85(1) of the Treaty having already been established,
         the Court was able to confine itself in those cases to examining the question whether measures subsequently adopted by the
         manufacturer formed part of the agreement in question and whether they ought, therefore, to be taken into account when examining
         the compatibility of that agreement with Article 85(1).  Such a question does not therefore correspond to that raised in this
         case, which is whether the very existence of an anti-competitive agreement has been established.  The appellants cannot therefore
         rely on  
         AEG and  
         Ford in support of their argument that an agreement prohibited by Article 85(1) of the Treaty has come into existence. 
         
         
         110
            
          As for the arguments of the Kingdom of Sweden and EAEPC, who argue that a demand arises from the combined effect of Bayer's
         quota policy and the obligation which wholesalers are under to maintain national stocks, without there being any need for
         an express demand that exports be limited, it is sufficient to note that such an argument merely serves to demonstrate the
         unilateral nature of Bayer's commercial policy, which could be carried out without the cooperation of the wholesalers.  As
         it has already been established that the judgments in  
         AEG and  
         Ford do not apply to this case, the interveners cannot rely on them in support of their arguments either.  Therefore, the mere
         fact that there is a hindrance to parallel imports is not sufficient to demonstrate the existence of an agreement prohibited
         by Article 85(1) of the Treaty. 
         
         
         111
            
          In the light of the above, the argument based on the need for the manufacturer to require a particular line of conduct from
         the wholesalers must be rejected. 
          The plea in law that the Court of First Instance wrongly took the genuine wishes of the wholesalers into account
          Arguments of the parties
         
         
         112
            
          In its fourth plea, the Commission accuses the Court of First Instance of committing an error in law by holding that the conditions
         for a meeting of minds were not fulfilled because the declared intention of the wholesalers (to order medicinal products only
         for the needs of the domestic market) did not correspond to their real wishes (to order medicinal products for export also).
          As it referred only to the genuine wishes of the wholesalers, the Court of First Instance thus misinterpreted the concept
         of an agreement within the meaning of Article 85(1) of the Treaty. 
         
         
         113
            
          In that regard, the Commission argues in particular that, in  
         Sandoz, the Court of Justice attached no importance to genuine wishes or the possible  
         mental reservations of undertakings, given that, for the purposes of the conclusion of an agreement within the meaning of Article 85(1) of the
         Treaty, the only determinant factor was the declared intention of the undertakings concerned. 
         
         
         114
            
          Similarly, EAEPC and BAI, the latter in its third plea, first part, subparagraph (iii), maintain that the fact that the wholesalers
         were opposed to a policy that was against their interests is not legally capable of invalidating the fact that, in the final
         analysis, they adhered to that policy.  Although consistent legal practice presupposes a meeting of minds for it to be possible
         to make a finding of the existence of an agreement prohibited by Article 85(1) of the Treaty, it does not in any way require
         that the interests of the parties should correspond (see Commission Decision 80/1283/EEC of 25 November 1980 relating to a
         proceeding under Article 85 of the EEC Treaty (IV/29.702: Johnson & Johnson) (OJ 1980 L 377, p. 16, paragraph 28), Commission
         Decision 87/406/EEC of 10 July 1987 relating to a proceeding under Article 85 of the EEC Treaty (OJ 1987 L 222, p. 1) (recital
         49), and the judgment in  
         Ford).  EAEPC also refers to Case C-453/99  
         Courage and Crehan [2001] ECR I-6297, which, it maintains, demonstrates that an agreement exists within the meaning of Article 85(1) of the
         Treaty even if one of the parties to that agreement is forced to conclude it against its own wishes. 
         
         
         115
            
          Bayer and EFPIA argue that this plea is inadmissible in that, essentially, it calls into question the factual findings of
         the Court of First Instance.  By assimilating the declared wishes of the wholesalers to an instruction in accordance with
         which they ordered the medicinal products concerned only for the needs of the national market, the appellants are seeking
         to circumvent the findings of the Court of First Instance, in paragraphs 151 to 153 of the judgment under appeal, that the
         documents referred to in the contested decision did not establish any propensity on the part of the wholesalers to comply
         with Bayer's policy in one way or another. 
         
         
         116
            
          On the substance, Bayer argues that, where a party expressly declares its wishes, that alone is relevant, whereas wishes that
         have not been manifested or a  
         mental reservation, differing from the wishes expressly declared, play no part.  On the contrary, where, as in this case,  
         implied statements of a party's wishes are present, the only thing to be taken into consideration is the genuine wish of the party concerned, as expressed by its
         conduct. 
          Findings of the Court
         
         
         117
            
          Concerning the objection of inadmissibility raised by Bayer and EFPIA, the Court finds that the plea concerning absence of
         a meeting of minds does not in any way amount to calling into question the factual findings of the Court of First Instance.
          On the contrary, it seeks to challenge the legal value that the latter attributed to the genuine wishes of the wholesalers
         in spite of their purported declared intention.  Therefore, the objection of inadmissibility is unfounded.  
         
         
         118
            
          On the substance, it should be recalled that the Court of First Instance set out from the general principle that  
         in order for there to be an agreement within the meaning of Article 85(1) of the Treaty it is sufficient that the undertakings
         in question should have expressed their joint intention to conduct themselves on the market in a specific way (paragraph 67 of the judgment under appeal).  Having concluded, when examining the alleged intention of Bayer to impose an
         export ban, that the latter had not imposed such a ban, the Court of First Instance proceeded to make an analysis of the wholesalers'
         conduct in order to determine whether there was nevertheless an agreement prohibited by Article 85(1) of the Treaty. 
         
         
         119
            
          In that context, it first rejected the argument that an agreement was established by reason of a tacit acceptance by the wholesalers
         of the alleged export ban, since, as it had just held, the Commission had not sufficiently established in law either that
         Bayer had imposed such a ban or that the supply of medicinal products was conditional on compliance with that alleged ban
         (see paragraphs 119 and 122 of the judgment under appeal). 
         
         
         120
            
          In those circumstances, the Court of First Instance went on to examine whether  
         having regard to the actual conduct of the wholesalers following the adoption by the applicant of its new policy of restricting
         supplies, the Commission could legitimately conclude that they acquiesced in that policy (paragraph 124 of the judgment under appeal). 
         
         
         121
            
          The Court of First Instance thus sought to determine whether, in the absence of an export ban, the wholesalers nevertheless
         shared the intention of Bayer to prevent parallel imports.  In the context of that analysis, the Court of First Instance did
         not make any error of law by referring to the  
         genuine wishes of the wholesalers to continue ordering medicinal products for export and for the needs of the national market. 
         
         
         122
            
          In any event, as the Advocate General points out in point 108 of his Opinion, the plea concerning the absence of a meeting
         of minds presupposes that there was a declared intention on the part of the wholesalers to join in with the intention of Bayer
         to prevent parallel imports.  However, as has been pointed out in paragraphs 52 and 53 of this judgment, the Court of First
         Instance held that the documents supplied by the Commission do not establish that the wholesalers wished to give Bayer the
         impression that, in response to its declared wish, they were proposing to reduce their orders to a given level. 
         
         
         123
            
          The wholesalers' strategy was, on the contrary, by distributing orders for export amongst the various branches, to make Bayer
         believe that the needs of the national markets had grown.  Far from establishing the existence of a meeting of minds, that
         strategy merely constituted an attempt by the wholesalers to turn to their advantage the application of Bayer's unilateral
         policy, the implementation of which did not depend on their cooperation. 
         
         
         124
            
          It follows that the Court must dismiss as unfounded the plea that the Court of First Instance was wrong to find a lack of
         concordance between the wishes of Bayer and the wishes of the wholesalers concerning Bayer's policy seeking to reduce parallel
         imports. 
          The need for subsequent acquiescence with measures forming part of continuous business relations governed by pre-established
         general agreements
          Arguments of the parties
         
         
         125
            
          In its fifth plea in law, the Commission, supported by EAEPC, accuses the Court of First Instance of erroneously applying
         Article 85(1) of the Treaty by requiring, contrary to the judgment in  
         Sandoz, that there be proof of the wholesalers' intention to align their conduct on the measures adopted by Bayer even where those
         measures formed part of continuous business relations between the wholesalers and the manufacturer.  The Commission further
         maintains that the Court of First Instance erred in law in refusing it the right to rely on the judgments in  
         AEG,  
         Ford and  
         BMW Belgium in order to interpret the conduct adopted by the wholesalers after the implementation of Bayer's new policy on supplies of
         medicinal products as a de facto acquiescence in that policy. 
         
         
         126
            
          Similarly, BAI, in subparagraph (iii) of the first part, and the second part of its third pleas, accuses the Court of First
         Instance of failing to check whether the measures adopted by Bayer were not unilateral in appearance only, given that they
         formed part of its permanent business relations with the wholesalers.  More particularly, it maintains that ordinary business
         relations in the wholesale pharmaceutical products sector are comparable with the selective distribution system that was at
         issue in  
         AEG,  
         Ford and  
         BMW Belgium, and therefore blames the Court of First Instance for holding those judgments inapplicable to this case. 
         
         
         127
            
          The Commission adopts a similar position, maintaining that the sale of medicinal products bears certain characteristics of
         selective distribution.  In that respect, the appellants maintain that the admission of a wholesaler to the distribution system
         concerned implies that it has given its consent to the manufacturer's instructions. 
         
         
         128
            
          In BAI's submission, wholesalers occupy a key position in supplying the medicinal products market similar to that of a reseller
         in a selective distribution system.  Emphasising the close interdependency of the business partners in the medicinal products
         market, BAI argues that the wholesalers are bound by the manufacturer's supply policy.  Whilst pointing out that wholesalers
         are dependent upon the manufacturers of pharmaceutical products because they cannot replace Adalat with other medicinal products,
         BAI argues, in its reply, that they are obliged to conclude a compromise in order to maintain their profits at a maximum level,
         even if in consequence third parties established outside the national territory served by the wholesalers concerned can no
         longer be supplied.  The wholesalers are therefore victims of the supply restrictions established by the manufacturer, and
         their consent to the anti-competitive agreement constitutes for them the means of ensuring the maintenance of their business
         relations. 
         
         
         129
            
          In the light of those considerations, BAI concludes that the consent of the wholesalers to the restriction on quantities supplied
         by the manufacturer is sufficient for a finding that there is an agreement aimed at artificially partitioning the markets
         and thus distorting competition within the common market in breach of Article 85(1) of the Treaty.  Had the Court of First
         Instance assessed the facts in a legally correct manner, it would necessarily have had to conclude that there was an agreement
         between Bayer France and Bayer Spain and the wholesalers concerned. 
         
         
         130
            
          EAEPC supports that position, arguing that actual conduct ─ namely compliance with the agreement by the wholesalers without
         challenge on their part ─ is not necessary according to the judgment in  
         Sandoz.  That judgment, contrary to the interpretation given to it by the Court of First Instance, merely held that continuing to
         place new orders, after the amendment of the conditions relating to them, is sufficient to establish tacit acquiescence by
         the wholesalers.  In this case, by continuing to place their orders, the wholesalers submitted to the wish of Bayer to limit
         supplies of Adalat.  That change in their behaviour was a clear indicator of their acquiescence in Bayer's new commercial
         policy. 
         
         
         131
            
          Moreover, in  
         Sandoz, a determination of the actual conduct of the wholesalers was not necessary because the Commission and the Court of Justice
         limited themselves to determining the objective of the clause prohibiting export of the products concerned and did not take
         the effects of such a clause into consideration.  In so far as the objective is already shown in the manufacturer's offer,
         tacit acquiescence in the decisive clause is sufficient because the wholesaler recognises that contractual condition also
         by placing a new order. 
         
         
         132
            
          Concerning the arguments alleging misinterpretation of the case-law, both Bayer and EFPIA argue that the Commission is trying
         to create the impression that the factual circumstances that gave rise to the judgments in  
         AEG,  
         Ford and Case C-70/93  
         BMW v  
         ALD [1995] ECR I-3439 are identical to those in the present case.  In those cases, however, the  
         apparently unilateral measures of the manufacturers fell in reality within the framework of long-standing and continuous distribution agreements,
         so that no express or tacit consent of the distributors was necessary.  EFPIA relies on that argument in pointing out that,
         in all those cases, selective distribution systems were at issue.  In the present dispute, such agreements do not exist; Bayer
         obviously does not use a distribution system of that kind.  Both Bayer and EFPIA further note that the statutory conditions
         of national law concerning the activities of wholesalers do not in any way constitute an extensive, pre-established and continuous
         contractual framework between the manufacturer and the wholesalers. 
         
         
         133
            
          In its reply, the Commission argues that, contrary to Bayer's argument that it supplied wholesalers only on an individual
         basis, business relations between Bayer and French wholesalers had existed for decades and Bayer would not in any way have
         been able to terminate them overnight. 
         
         
         134
            
          As for Bayer's objection concerning the incorporation of statutory conditions in its business relations with the wholesalers,
         as opposed to contractual conditions, the Commission argues that, according to the case-law of the Court of Justice, the admission
         of a wholesaler into a selective distribution system of long duration implies that that wholesaler acquiesces in certain measures
         of the manufacturer which, through that fact alone, lose their apparently unilateral character by forming part of existing
         contractual relations.  The same can apply not just in the context of selective distribution systems but also in the case
         of other contractual relations of long duration. 
         
         
         135
            
          In that respect, the Commission argues, it matters little whether what is at issue is compliance with contractual criteria
         or statutory requirements.  Compliance with the statutory obligation to supply lies at the root of all contractual relations
         between a manufacturer of medicinal products and a wholesaler in France or Spain given that the authorisation of the wholesaler
         depends upon it. 
         
         
         136
            
          The Commission bases its argument by analogy on the circumstances of  
         Ford.  Emphasising that contractual relations between Bayer and French wholesalers had existed for decades, it argues that agreements
         must necessarily reserve certain aspects of those relations, such as supply volumes which are subject to oscillations and
         cannot therefore be determined in advance, to a subsequent decision of the manufacturer.  
         
         
         137
            
          For that reason, the quantity supplied by the manufacturer of a given medicinal product, which has been ordered in the context
         of long-standing business relations which that manufacturer maintains with its wholesalers, does not therefore constitute
         a unilateral measure which may form the subject-matter of an agreement within the meaning of Article 85(1) of the Treaty.
          On the contrary, such a measure falls within such contractual relations. 
         
         
         138
            
          In its rejoinder, Bayer argues that, in its complaint that the case-law of the Court has been  
         circumvented, the Commission is really trying to argue that, even in the absence of such an  
         agreement, a prior unilateral imposition of quotas must, as a  
         preventive hindrance to parallel imports, be treated in the same way as a  
         repressive ban on exports. 
         
         
         139
            
          According to Bayer, that argument conceals an attempt to introduce into Community competition law a general prohibition on
         any  
         hindrance to parallel imports which is foreign to the system created by Articles 85 and 86 of the Treaty but appears to have to be based generally on the
         objective of achieving the internal market.  By contrast, the judgment under appeal held that, unlike a State measure adopted
         under Article 30 of the Treaty, unilateral preventative measures taken by a private undertaking, which, in the absence of
         an  
         agreement, do not fall within the scope of Article 85(1) of the Treaty, are not affected by the competition rules set out in the Treaty.
         
          Findings of the Court
         
         
         140
            
          By these pleas, the appellants are seeking to challenge the assessment by the Court of First Instance that the Commission
         could not effectively rely on the case-law precedents referred to in order to call into question the analysis which led the
         Court of First Instance to conclude that in this case acquiescence of the wholesalers in Bayer's new policy was not established
         (paragraph 159 of the judgment under appeal). 
         
         
         141
            
          In that respect, it is important to note that this case raises the question of the existence of an agreement prohibited by
         Article 85(1) of the Treaty.  The mere concomitant existence of an agreement which is in itself neutral and a measure restricting
         competition that has been imposed unilaterally does not amount to an agreement prohibited by that provision.  Thus, the mere
         fact that a measure adopted by a manufacturer, which has the object or effect of restricting competition, falls within the
         context of continuous business relations between the manufacturer and its wholesalers is not sufficient for a finding that
         such an agreement exists.  
         
         
         142
            
          The case of  
         Sandoz concerned an export ban imposed by a manufacturer in the context of continuous business relations with wholesalers.  The
         Court of Justice held that there was an agreement prohibited by Article 85(1) of the Treaty.  However, as the Court of First
         Instance points out in paragraphs 161 and 162 of the judgment under appeal, that conclusion was based upon the existence of
         an export ban imposed by the manufacturer which had been tacitly accepted by the wholesalers.  In that regard, at paragraph
         11 of the  
         Sandoz judgment, the Court of Justice held that  
         [t]he repeated orders of the products and the successive payments without protest by the customer of the prices indicated
         on the invoices, bearing the words  
         export prohibited, constituted a tacit acquiescence on the part of the latter in the clauses stipulated in the invoice and the type of commercial
         relations underlying the business relations between Sandoz PF and its clientele.  The existence of a prohibited agreement in that case therefore rested not on the simple fact that the wholesalers continued
         to obtain supplies from a manufacturer which had shown its intention to prevent exports, but on the fact that an export ban
         had been imposed by the manufacturer and tacitly accepted by the wholesalers.  Therefore, the appellants cannot usefully rely
         on the  
         Sandoz judgment in support of their plea that the Court of First Instance erred in law by requiring acquiescence of the wholesalers
         in the measures imposed by the manufacturer. 
         
         
         143
            
          Nor can the appellants rely on  
         AEG,  
         Ford and  
         BMW v  
         ALD, arguing that business relations in the wholesale trade in pharmaceutical products are comparable to a selective distribution
         system such as that which was at issue in those cases.  As has been stated in paragraph 141 of this judgment, the relevant
         question is that of the existence of an agreement within the meaning of Article 85(1) of the Treaty. 
         
         
         144
            
          As has been stated in paragraph 106 of this judgment, in the  
         AEG and  
         Ford judgments the need to demonstrate the existence of an agreement within the meaning of Article 85(1) of the Treaty was not
         at issue.  The existence of an agreement capable of infringing that provision having already been established, the question
         raised was whether the measures adopted by the manufacturer formed part of that agreement and therefore had to be taken into
         account when examining the compatibility of that agreement with Article 85(1).  In that regard, the Court of First Instance
         rightly pointed out that, in those judgments, the Court of Justice had held that, at the time of a distributor's admission,
         its authorisation was based on its adherence to the policy pursued by the manufacturer (see paragraph 170 of the judgment
         under appeal). 
         
         
         145
            
          A similar analysis must be drawn from the judgment in  
         BMW v  
         ALD, in which the question was whether  
         Article 85(1) of the EEC Treaty must be interpreted as [prohibiting] a motor vehicle manufacturer which sells its vehicles
         through a selective distribution system from agreeing with its authorised dealers that they are not to supply vehicles to
         independent leasing companies where, without granting an option to purchase, those companies make them available to lessees
         residing or having their seat outside the contract territory of the authorised dealer in question, or from calling on such
         dealers to act in such a way (paragraph 14). 
         
         
         146
            
          It follows that the Court of First Instance did not make any error in law by holding the case-law relied upon by BAI and the
         Commission inapplicable to the present case.  Therefore, the pleas alleging misapplication of Article 85(1) of the Treaty
         must be dismissed.  
         
         
         147
            
          Since all the pleas in law raised by BAI and the Commission have been rejected as inadmissible or unfounded, the appeals must
         be dismissed. 
         
         Costs
         148
            
          Under Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 118 of those Rules,
         the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings.
          Since, in Case C-3/01 P, Bayer and EFPIA have asked for the Commission to be ordered to pay the costs, it must be ordered
         to pay the costs relating to the appeal proceedings which it has brought. 
         
         
         149
            
          The first subparagraph of Article 69(4) of the Rules of Procedure, which also applies to the procedure on appeal by virtue
         of Article 118, provides that Member States and institutions which intervene in the proceedings are to bear their own costs.
         The Kingdom of Sweden must therefore be ordered to bear its own costs. 
         
         
         150
            
          Concerning the appeal proceedings brought by BAI (C-2/01 P), since neither Bayer nor EFPIA have asked for BAI to be ordered
         to pay the costs, each party must be ordered to bear its own costs in relation to these proceedings. 
         
         On those grounds, 
         
         
         
            
            THE COURT
         
         
          hereby:  
         
            
            1.
             Dismisses the appeals; 
            
            
            2.
             Orders the Bundesverband der Arzneimittel-Importeure eV, Bayer AG and the European Federation of Pharmaceutical Industries'
            Associations to bear their own costs in relation to Case C-2/01 P; 
            
            
            3.
             Orders the Commission of the European Communities to pay the costs in relation to Case C-3/01 P; 
            
            
            4.
             Orders the Kingdom of Sweden to bear its own costs. 
            
            
                  Skouris
               
               
                  Jann 
               
               
                  Timmermans 
               
            
                  Cunha Rodrigues
               
               
                  Edward 
               
               
                  La Pergola 
               
            
                  Puissochet
               
               
                  Schintgen 
               
               
                  Macken 
               
            
                  Colneric
               
               
                  von Bahr 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 6 January 2004. 
         
         
         
         
                  R. Grass 
               
               
                  V. Skouris  
               
            
         
         
         
                  Registrar
               
               
                   President
               
            
      
      
          1 –
            
             Language of the case: German.