Abuse of Economic Dependence - The Centre for European Policy ...

The Gap in the Application of Article 82 65
A Commission’s case which can be identified as a ‘gap’ case 61 is Bayer
(Adalat). 62 Owing to wide price differentials for the product between Spain
and France on the one hand and the United Kingdom on the other, there
was a surge in parallel trade. In response, Bayer began to restrict supplies
to its Spanish and French distributors with the goal of allowing them sufficient
stock only for their national markets. Although distributors were still
entitled to export the stock which they received, the reduced supplies taken
together with the distributors’ obligations to supply the national market
reduced the scope for parallel exports.
This case concerned Adalat, a product belonging to a category of medicinal
products known as calcium antagonists, suitable for treating certain
cardiovascular diseases (coronary heart disease, arterial hypertension and
congestive heart failure). The scope of the decision was limited to two products
in the Adalat range, namely the 10 mg capsule (marketed in the United
Kingdom and Spain under the name Adalat and in France under the name
Adalate) and the 20 mg modified-release tablet (marketed in the United
Kingdom and Spain under the name Adalat-Retard and in France under the
name Adalate 20 mg LP).
As regards the geographical market, the Commission held that the relevant
markets in this case were the national markets, taking account of the
fact that the business of the pharmaceutical industry took place in an essentially
national context, marketing authorization for a medicinal product
falling exclusively within the competence of the Member States. Moreover,
the sale of medicines was influenced by the administrative, and particularly
the purchase policies adopted in Member States, especially in France and
Spain, where prices were directly set by the competent national authority.
Finally, the Commission argued that differences in price-fixing methods and
refund arrangements meant that there were wide disparities in the prices of
medicinal products in Member States.
As regards the product market, the Commission argued that it is defined
by reference to the criterion of identical therapeutic uses for the various
competing products. The relevant market was defined as follows:
• Primarily, as far as coronary heart disease and hypertension were
concerned, the United Kingdom was deemed to be the major relevant
61 The Commission does not publish detailed decisions where it states that an abuse has not
been substantiated. Although following Regulation 1/2003, the Commission can publish such
decisions.
62 Commission Decision 96/478 Adalat [1996] OJ L201/1 (January 10, 1996); Case T-
41/96 R Bayer AG v Commission [1996] ECR II-381 (Order of June 3, 1996), [2000] ECR II-
3383 (Judgment of October 26, 2000); Joined Cases C-2/01 P and C-3/01 P Bundesverband
der Arzneimittel-Importeure eV and Commission v Bayer AG (Advocate General Opinion of
May 22, 2003, ECJ Judgment of January 6, 2004).