The Commission has not proved the existence of an agreement between Bayer and its Spanish and French wholesalers. The fine of 3 million ecus is annulled. The continuance of commercial relations between, on the one hand, a manufacturer who unilaterally changes his distribution policy and, on the other, wholesalers who are clearly opposed to that new practice, does not amount to an acquiescence by the wholesalers in that policy, and is therefore not in itself sufficient to establish the existence of an agreement prohibited by Community competition law.
The Bayer Group is one of the main European chemical and pharmaceutical groups, represented in all Member States by national subsidiaries. It produces and markets a range of medicinal products for treating cardio-vascular disease under the trade name `Adalat' or `Adalate'.
In most Member States, the price of medicinal products is fixed, directly or indirectly, by the competent national authorities. Between 1989 and 1993, the price of Adalat in France and Spain was much lower than that in the United Kingdom. Those price differences of about 40% caused Spanish wholesalers (from 1989) and then French wholesalers (from 1991) to export that medicinal product in large quantities to the United Kingdom.
That practice of parallel imports caused a loss of turnover of DEM 230 million for Bayer's British subsidiary.
The Bayer Group then unilaterally changed its supply policy so as to fulfil orders from Spanish and French wholesalers only at the level of their habitual needs
On 10 January 1996, following complaints by some of the wholesalers concerned, the Commission adopted a decision requiring Bayer to amend its practice, which the Commission held to be contrary to Community competition law, and fined it 3 million ecus.
The Court of First Instance has today annulled that decision, following an action brought by Bayer against it.
The Court considers that the Commission has not proved that Bayer and its Spanish and French wholesalers made an agreement to limit parallel exports of Adalat to the United Kingdom.
In the eyes of the Court, neither the conduct of the Bayer Group nor the attitudes of the wholesalers constitute elements of an agreement between undertakings. None of the documents submitted by the Commission contain evidence of an intention by Bayer to prohibit exports by wholesalers or evidence that it sought to obtain their agreement to its new supply policy designed to limit parallel exports. Nor has the Commission demonstrated that the wholesalers adhered to that policy, their reaction indicating, on the contrary, an attitude of opposition.
The Commission has therefore not proved the existence of acquiescence by the wholesalers, express or implied, in the attitude adopted by the manufacturer.
Finally, the Court of First Instance rejects the argument that the Commission may legitimately consider it sufficient, for the purposes of proving the existence of an agreement, to find that the parties have continued to maintain their commercial relations, and points out that the very concept of an agreement is based on a concurrence of wills between economic operators.
NB: An appeal against the judgment of the Court of First Instance, limited to points of law, may be lodged with the Court of Justice of the European Communities within two months of notification of the contested judgment.
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