«(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)»

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))

JUDGMENT OF THE COURT 6 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,

appellant, supported by

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

the other parties to the proceedings being:

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,

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

Facts

The contested decision

The procedure before the Court of First Instance and the judgment under appeal

.

The checks allegedly carried out by Bayer

Findings of the Court

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

Findings of the Court

Arguments of the parties

Findings of the Court

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

The need for a system of monitoring and penalties as a precondition for finding an agreement concerning an export ban

Arguments of the parties

Findings of the Court

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

Findings of the Court

The plea in law that the Court of First Instance wrongly took the genuine wishes of the wholesalers into account

Arguments of the parties

Findings of the Court

The need for subsequent acquiescence with measures forming part of continuous business relations governed by pre-established general agreements

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT

hereby:

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