How far has the Commission’s drive to strengthen its anti-cartel enforcement policy been aided by the ECJ and the CFI’s case-law on the meaning of “agreement” and “concerted practice” in Article 81 EC?

br CFI upheld the Commission 's conclusion . The CFI held that joint classification was permissible where the infringement included elements of an agreement and of a concerted practice , without the Commission having to prove that there was both an agreement and a concerted practice throughout the period of the infringement . The Commission adopted a joint classification approach in British Sugar , in Cartonboard and in Pre-Insulated Pipe Cartel

In Bayer AG v Commission of the European Communities it had transpired that between 1989 and 1993 the prices of Adalat , a drug used in

the treatment of cardio vascular disease , was about 40 lower in cost in Spain and France than in the United Kingdom . This made wholesalers in those countries to export the product to the United Kingdom . The Bayer Group , envisaging a huge loss of revenue , discontinued the fulfilment of the increasingly large s placed by wholesalers in France and Spain and accepted s only for volumes corresponding to the quantities traditionally sold in their home territories . The Commission alleged that there was an agreement between Bayer and the French and Spanish wholesalers to restrict exports to the United Kingdom . The Court of First Instance set aside this decision of the European Commission because the Commission had not proved the existence of an agreement to restrict exports between Bayer and its distribution network

The court further said that proof of an agreement must be founded upon the direct or indirect finding of the existence of the subjective element that characterises the very concept of an agreement , that is to say of a concurrence of wills between economic operators on the implementation of a policy , the pursuit of an objective or the adoption of a given line of conduct on the market

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Section 4 The Concept of A Single...