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DECISION OF THE COMMISSION of 10 January 1996 in proceedings under Article 85 of the EC Treaty (Case IV / 34.279 / F3 - ADALAT) (Only the German text is binding) (96/478 / EC)

DISCLOSURE OF THE DECISION

CHAPTER I FACTS

Section I The product

1. Type of product

2. Markets in which ADALAT is represented

2.1. Coronary insufficiency

2.2. Arterial hypertension

2.3. Angina pectoris

3. Importance of the product

3.1. A main product for Bayer

a) For the group

b) A key product in the sales strategy of the subsidiaries in the different Member States

3.2. Market shares

a) In France

b) In Spain

c) In the UK

d) In the European Union (of the Twelve)

e) Conclusion

3.3. Parallel imports from ADALAT

a) Large price differences between the individual Member States that favor parallel imports

b) Importance of parallel imports

c) costs of parallel imports

3.4. Outlook: In the future, ADALAT will remain a key product for Bayer

Section II Bayer

Section III Pharmaceutical Wholesalers

1. General

2. The situation in France

2.1. The wholesalers active in the market (1990)

2.2. Legislation applicable to wholesalers / distributors

3. The situation in Spain

3.1. The wholesalers active in the market (1990)

3.2. Legislation applicable to wholesalers

Section IV Ongoing business relationships between Bayer France / Bayer Spain and their wholesale customers

1. In France

1.1. Start of business relationships

1.2. The framework of normal business relationships

1.3. The bills

1.4. Procedure for delivery problems

2. In Spain

Section V Barriers to ADALAT Parallel Exports to the United Kingdom

I. CONDUCT WITHIN THE BAYER GROUP

1. Parallel exports: a constant problem for Bayer

1.1. A common problem for many years

1.2. Studies and research on the problem of parallel exports

2. Complete information system on parallel imports within the Bayer Group

2.1. Constant exchange of information about parallel imports between the various Bayer companies

2.2. Centralization of information in Leverkusen

2.3. Other ways of information about parallel imports

3. Formal decisions within the group to reduce parallel exports to the United Kingdom

II. SPECIFICATION OF THIS STRATEGY WITHIN THE GROUP IN FRANCE AND SPAIN

1. The case of France

1.1. Identification of exporting customers by Bayer France

1.2. Delivery stop for these identified customers

1.3. The official argument from Bayer France: insufficient stocks

1.4. Wholesalers' reaction to Bayer France's behavior

1.5. Results

2. The case of Spain

2.1. Identification of exporting customers by Bayer Spain

2.2. Delivery stop for the identified customers

2.3. Reaction from wholesalers to opposition from Bayer Spain

2.4. Results

3. The UK case: identification of the origin of the parallel imports arriving in the UK

4. Results

4.1. Complaints from wholesalers not supplied

4.2. Results registered by Bayer

CHAPTER II LEGAL ASSESSMENT

Section I Determination of Relevant Market

1. Geographic market

2. Product market

3. Relevant market

Section II Article 85 (1)

1. Agreement

1.1. Export ban

a) System for tracking exporting wholesalers

b) Successive reductions in the quantities supplied to Bayer France and Bayer Spain if the wholesalers export all or part of these products

c) Conclusions

1.2. The export ban as part of the ongoing relationship between Bayer France and Bayer Spain and their respective wholesalers

a) The Sandoz precedent

b) Ongoing business relationships

c) Introduction of the export ban as part of these ongoing business relationships

1.3. General conclusion

2. Restriction of competition

2.1. The restriction of competition as a purpose and effect

2.2. Noticeable restriction of competition

3. Noticeable impact on trade between Member States

4. Conclusions

Section III Bayer's counter-arguments

1. The argument of insufficient stocks

2. The argument that there is a legal obligation to supply the national market

3. The argument of the existence of patent protection with regard to ADALAT-RETARD

Section IV Article 85 Paragraph 3

Section V Duration of Violation

1. In the case of Spain

2. In the case of France

Section VI Article 3 of Regulation No. 17

Section VII addressee of this decision

Section VIII Article 15 of Regulation No. 17

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

based on the Treaty establishing the European Community,

Having regard to Regulation No. 17 of the Council of 6 February 1962 - First Regulation implementing Articles 85 and 86 of the EEC Treaty (1) - as last amended by the Act of Accession of Finland, Austria and Sweden, in particular the Articles 3, 15 paragraph 2 and 16 paragraph 1,

Having regard to the decision of the Commission of 26 September 1994 to initiate proceedings in this case,

after the companies involved were given the opportunity to be heard in accordance with Article 19 paragraph 1 of Regulation No. 17 in conjunction with Regulation No. 99/63 / EEC of 25 July 1963 on the hearing in accordance with Article 19 paragraphs 1 and 2 of the Regulation Comment No 17 of the Council (2) on the objections considered by the Commission,

After hearing the Advisory Committee on Antitrust and Monopoly Issues, considering the following reasons:

CHAPTER I.

FACTS (3)

SECTION I.

The product

1. Type of product

(1) ADALAT (in France ADALATE) is the name of a series of drugs with the active ingredient nifedipine. This substance has remarkable pharmacological properties.

(2) The individual products of the ADALAT product range are offered in the following form:

- capsules (5 mg, 10 mg, 20 mg),

- tablets (20 mg),

- prolonged-release tablets (10 mg, 20 mg, 5 + 15 mg),

- Tablets (single daily dose) (30 mg, 60 mg).

(3) These products are marketed in Germany, the United Kingdom, France and Spain as follows:

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