Case concerned distinction between agreements and
unilateral actions.
unilateral actions.
B products available more cheaply in France and Spain
than they were in UK.
than they were in UK.
Thus parallel exports were being made from these
countries to UK.
countries to UK.
B limited supply to France and Spain wholesalers with
aim of preventing parallel exports to UK.
aim of preventing parallel exports to UK.
Commission alleged this was anti-competitive agreement
between B and wholesalers.
between B and wholesalers.
CFI held this not so, merely unilateral action on part
of B.
of B.
Must be ‘concurrence of wills between at least 2 parties’
for there to be agreement.
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.
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.
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.
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)]
dominant position)]
