Sot. Lélos kai Sia EE and Others v GlaxoSmithKline AEVE Farmakeftikon Proïonton, formerly Glaxowellcome AEVE.
Date: 2008-09-16
34. The established case-law of the Court shows that the refusal by an undertaking occupying a dominant position on the market of a given product to meet the orders of an existing customer constitutes abuse of that dominant position under Article 82 EC where, without any objective justification, that conduct is liable to eliminate a trading party as a competitor (see, to that effect, Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission  [1974] ECR 223, paragraph 25, and Case 27/76 United Brands and United Brands Continentaal v Commission  [1978] ECR 207, paragraph 183).
37. In respect of sectors other than that of pharmaceutical products, the Court has held that a practice by which an undertaking in a dominant position aims to restrict parallel trade in the products that it puts on the market constitutes abuse of that dominant position, particularly when such a practice has the effect of curbing parallel imports by neutralising the more favourable level of prices which may apply in other sales areas in the Community (see, to that effect, Case 26/75 General Motors Continental v Commission  [1975] ECR 1367, paragraph 12) or when it aims to create barriers to re-importations which come into competition with the distribution network of that undertaking (Case 226/84 British Leyland  v Commission  [1986] ECR 3263, paragraph 24). Indeed, parallel imports enjoy a certain amount of protection in Community law because they encourage trade and help reinforce competition (Case C‑373/90 X  [1992] ECR I‑131, paragraph 12).
39. In order to determine whether the refusal by a pharmaceuticals company to supply medicinal products to such wholesalers indeed falls within the prohibition laid down in Article 82 EC, in particular at point (b) of the second paragraph of that article, it must be examined whether, as GSK AEVE maintains, there are objective considerations based on which such a practice cannot be regarded as an abuse of the dominant position occupied by that undertaking (see, to that effect, United Brands and United Brands Continentaal v Commission , paragraph 184, and Case C‑95/04 P British Airways v Commission  [2007] ECR I‑2331, paragraph 69).
The abusive nature of the refusal to supply
49. It should be recalled that in paragraph 182 of its judgment in United Brands and United Brands Continentaal  v Commission  the Court held that an undertaking in a dominant position for the purpose of marketing a product – which cashes in on the reputation of a brand name known to and valued by consumers – cannot stop supplying a long-standing customer who abides by regular commercial practice, if the orders placed by that customer are in no way out of the ordinary. In paragraph 183 of the same judgment, the Court held that such conduct is inconsistent with the objectives laid down in Article 3(f) of the EEC Treaty (Article 3(g) of the EC Treaty, and now Article 3(1)(g) EC), which are set out in detail in Article 86 of the EEC Treaty (Article 86 of the EC Treaty, and now Article 82 EC), particularly in points (b) and (c) of the second paragraph of that article, since the refusal to sell would limit the markets to the prejudice of consumers and would amount to discrimination which might in the end eliminate a trading party from the relevant market.
50. In paragraph 189 of the judgment in United Brands and United Brands Continentaal  v Commission , the Court stated that, although the fact that an undertaking is in a dominant position cannot deprive it of its right to protect its own commercial interests if they are attacked, and that such an undertaking must be conceded the right to take such reasonable steps as it deems appropriate to protect those interests, such behaviour cannot be accepted if its purpose is specifically to strengthen that dominant position and abuse it.
58. Turning, next, to the argument based on the degree of regulation of the pharmaceuticals markets in the Community, it must first be examined whether State regulation of the prices of medicinal products has an impact on the assessment of whether a refusal to supply those products constitutes abuse.
65. In relation to the application of Article 85 of the EEC Treaty (Article 85 of the EC Treaty, now Article 81 EC), the Court has held that an agreement between producer and distributor which might tend to restore the national divisions in trade between Member States might be such as to frustrate the objective of the Treaty to achieve the integration of national markets through the establishment of a single market. Thus on a number of occasions the Court has held agreements aimed at partitioning national markets according to national borders or making the interpenetration of national markets more difficult, in particular those aimed at preventing or restricting parallel exports, to be agreements whose object is to restrict competition within the meaning of that Treaty article (see, for example, Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others  v Commission  [1983] ECR 3369, paragraphs 23 to 27; Case C‑306/96 Javico  [1998] ECR I‑1983, paragraphs 13 and 14; and Case C‑551/03 P General Motors  v Commission  [2006] ECR I‑3173, paragraphs 67 to 69).
68. Furthermore, in the light of the Treaty objectives to protect consumers by means of undistorted competition and the integration of national markets, the Community rules on competition are also incapable of being interpreted in such a way that, in order to defend its own commercial interests, the only choice left for a pharmaceuticals company in a dominant position is not to place its medicines on the market at all in a Member State where the prices of those products are set at a relatively low level.
70. In that respect, and without it being necessary to examine the argument raised by GSK AEVE that it is necessary for pharmaceuticals companies to limit parallel exports in order to avoid the risk of a reduction in their investments in the research and development of medicines, it is sufficient to state that, in order to appraise whether the refusal by a pharmaceuticals company to supply wholesalers involved in parallel exports constitutes a reasonable and proportionate measure in relation to the threat that those exports represent to its legitimate commercial interests, it must be ascertained whether the orders of the wholesalers are out of the ordinary (see, to that effect, United Brands and United Brands Continentaal  v Commission , paragraph 182).
73. In those circumstances, it is for the referring court to ascertain whether the abovementioned orders are ordinary in the light of both the previous business relations between the pharmaceuticals company holding a dominant position and the wholesalers concerned and the size of the orders in relation to the requirements of the market in the Member State concerned (see, to that effect, United Brands and United Brands Continentaal  v Commission , paragraph 182, and Case 77/77 Benzine en Petroleum Handelsmaatschappij and Others  v Commission  [1978] ECR 1513, paragraphs 30 to 32).