Bayer AG vs Euro Commission decision: implications for parallel imports

The European Federation of Pharmaceutical Industries and Associationshas welcomed the European Court of First Instance's ruling in late October, which overturned a European Commission Decision that Bayer AG and its wholesalers in France and Spain had entered into a "concerted agreement" to prevent imports of lower-priced Adalat (nifedipine) into the UK. This judgement recognizes "the freedom of contract of private economic operators," says the EFPIA.

Following complaints from other wholesalers, the Commission had decided to investigate the imports of Adalat into the UK from France and Spain where, during 1989-93, the drug was on average 40% cheaper than in the UK. On completion of its investigation, it adopted, on January 10, 1996, Decision 96/478/EC, which ruled that Bayer's subsidiaries in France and Spain had infringed Article 85(1) - now Article 81(1) - of the Treaty of Rome by establishing an export ban with their wholesalers, with the latter's knowledge and acquiescence. A fine of 3 million ECU was imposed.

On June 3, 1996, Bayer obtained a suspension of the operative part of the Decision. It also brought an action to get it annulled, which the Court of First Instance has now done, in Bayer AG vs Commission: Case T-41/96, on the grounds that the Commission's Decision was based on an incorrect assessment of the facts. Also, the Courtsaid, the Commission had erred in its legal assessment of the facts by holding that there was a common interest between Bayer and its wholesalers, which justified the conclusion that there was an agreement within the meaning of Article 85(1), designed to prevent or limit the exports of Adalat to the UK.