However, it concluded that that fact could not be used to demonstrate that the wholesalers had acquiesced in Bayer's policy. Languages and formats available. 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. 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 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.
The plea in law that the Court of First Instance wrongly took the genuine wishes of the wholesalers into account Arguments of the parties 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.
Nachweis einer konkludenten Kartellvereinbarung zur Unterbindung von Paralleleinfuhren in Vertriebsnetzen - Adalat. Sedemund, Rechtsanwalt, with an address for service in Luxembourg,applicant at first instance, and European Federation of Pharmaceutical Industries' Associations, established in Geneva Switzerlandrepresented by A. 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.
On 26 Augustthe European Federation of Pharmaceutical Industries' Associations EFPIAa trade association representing the interests of 16 national trade associations in the medicinal products industry, applied for leave to intervene in support of Bayer. The need for subsequent acquiescence with measures forming part of continuous business relations governed by pre-established general agreements Arguments of the parties 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 Sandozthat 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 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 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.
EuGH: Keine wettbewerbsbeschränkende "Vereinbarung"
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. BAI submits that, by virtue of the judgment in Anic Partecipazionithe 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.
French wholesalers followed suit as from 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.
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.
Treaty establishing the European Economic Community Select all documents mentioning this document Case affecting: Denn die Annahme, dass eine nach Art. InstitutionsPersonCommission Defendant: 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.
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. 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.
The Commission refers in that regard to the judgments in AEG and Fordin 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.
Confirms TJ Instruments cited in case law: It maintains that such an agreement constituted an appreciable restriction of competition and had an equally appreciable effect on trade between Member States points to of the contested decision.