The Pharmaceutical Journal
Vol 270 No 7251 p739
31 May 2003

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European Court stops EC fining Bayer on parallel imports

The European Commission is likely to lose its appeal against an order of the European Court quashing a €3m fine on Bayer for trying to prevent parallel imports of Adalat (nifedipine) to Britain from Spain and France (PJ, January 27, 1996, p121).

The court's advocate general has recommended rejection of the appeal in a case which has been running since 1996. The opinions of advocates general are usually accepted by the European Court.

Quashing the fine in 2000, the court ruled that the commission had failed to establish a case against Bayer, because its action was based on competition law, rather than single market rules. Because of this, the commission would have had to prove that there had been an agreement between Bayer and wholesalers to restrict the imports. This had not been the case (PJ, 11 November 2000, p706).

Instead, Bayer had limited Adalat sales to Spanish and French wholesalers to their national requirements. This had led to complaints being made to the commission by the wholesalers, which had launched a competition case and fined Bayer. Although the wholesalers still worked with Bayer, this was hardly an anti-competitive agreement, particularly when it was the wholesalers' complaints that led to the legal action being launched, the court ruled.