11 Colum. J. Eur. L. 437 (2005)

Silke Brammer. Researcher, Katholieke Universiteit Leuven.

This case concerns two appeals lodged by the Commission and the Bundesverband der Arzneimittel-lmporteure e.V. (“BAr’) against the judgment of the Court of First Instance (CFI) of 26 October 2000 in case T-41/96 Bayer v. Commission’ by which the CFI had annulled the ADALAT decision of the Commission. The latter had fined Bayer for infringement of Article 81 EC.’ The European Court of Justice (ECJ) upheld the judgment of the CFI. This ruling is of particular relevance as it confirms the clarifications of the term ‘agreement’ within the meaning of Article 81 EC enunciated by the CFI and its demarcation from unilateral conduct falling outside the scope of that provision. More precisely, the ECJ fully supports the CFI’s conclusion that for an agreement to be established, there must be a true “concurrence of wills” between at least two economic operators. However, the fact that a customer does not interrupt pre-existing commercial relations with its supplier, but continues to place orders with him after the latter has adopted a supply policy designed to prevent or restrict parallel trade is not, in itself, sufficient proof of the customer’s (tacit) acquiescence in that policy. For this reason, no anti-competitive agreement had been established in the case at hand.