Bayer v Commission (2000)

Case concerned distinction between agreements and
unilateral actions.
B products available more cheaply in France and Spain
than they were in UK.
Thus parallel exports were being made from these
countries to UK.
B limited supply to France and Spain wholesalers with
aim of preventing parallel exports to UK.
Commission alleged this was anti-competitive agreement
between B and wholesalers.
CFI held this not so, merely unilateral action on part
of B.
Must be ‘concurrence of wills between at least 2 parties’
for there to be agreement.
Here was no such concurrence –
No proof of either (i) B’s intention to prevent
parallel exports, or (ii) wholesalers’ acquiescence.
Lack of proof of (ii) especially clear –
Wholesalers had been complaining and even attempted to
trick B into supplying them more.
[Overall this is good decision –
Was not B’s fault that price for their goods was
higher in UK – due to NHS pricing policy.
These sorts of cases best dealt with under Article 82
(Although not option in present case as B not in
dominant position)]