Enforcement of the export prohibition by Ortho UK Agreements between undertakings Account has been taken of the principles of equity and proportionality. Ortho UK’s intention, to restrict competition within the common market, appears clearly from its efforts to discover, at the request and with the assistance of Cilag Alsbach, the dealers supplying Gravindex pregnancy tests to the German importer Eurim Pharm. Direct or indirect sale to other countries, free ports included, is not allowed.
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After the date of Cilag Schaffhausen’s letter of 22 March to Dr Fuller see point 18the group continued to operate the policy of partitioning the common market.
EUR-Lex Access to European Union law
The prohibition on exports by British dealers to other EEC Member States prevented the Gravindex products from the United Kingdom, where the prices were the lowest in the EEC, having an influence on the higher price levels up to 3 times higher in other Member States. In determining the gravity of the infringement it must be taken into account that Ortho UK and Cilag Alsbach sought to prevent exports by chemists in a determined and vigorous manner and continued to do this even after the formal export prohibitions were removed from Ortho’s terms of trading.
Would you like to keep them? Article 85 1 of the EEC Treaty prohibits as incompatible with the common market all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market. A second possibility was to raise the UK price to a level close to that of the European selling price again quoting “but our pricing laws in the UK will not allow us to do this”.
In order to avoid any misunderstandings resulting from former prohibition clauses the undertakings concerned must be required under Article 3 of Regulation No 17 to bring to the notice of their dealers that exports to other Member States of the EEC are not prohibited and duly to satisfy the Commission that this has been done.
Of these enterprises Organon is the most important, next is Burroughs Wellcome, and Ortho UK takes the third place with a market share of about On the facts set out above, the Commission has reached the conclusion that the parties knew, or at the very least should have known, that the export prohibitions had restrictive effects on competition and were likely to affect trade between Member States.
At least since 1 January and until Januaryall the firm’s “UK trade price lists” intended for sales to pharmaceutical dealers included, under “terms of trading”, the following condition:.
The fact that Ortho UK imposed the export prohibition and that Cilag Alsbach insisted on its application, shows that the object of their combined actions was to maintain the separation of, in particular, the United Kingdom and German markets and the wide difference between the prices in the UK and elsewhere. Cilag Alsbach for its part ceased its efforts to stop imports of Gravindex products in Julyrecognizing expressly that, since the decision of the Court of Justice of May in the Centrafarm case, they were aware that it is unlawful to prohibit or hinder “parallel imports” see Cilag Alsbach internal note of 21 July Need more search options?
grundib The Commission shall be informed within three months of the way in which this notice has been given. Effect upon trade between Member States Mohringer joined the firm in Octobermerging with it his own importing firm “Mohringer Pharmazeutika”, formed in April Having regard to Council Regulation No 17 of 6 February 1and in particular Articles 3 and 15 thereof.
In the Federal Republic of Germany, laboratory tests are mainly sold directly to doctors ; in Great Britain, to hospitals, but also to pharmaceutical dealers. These proceedings are confined to examining, in respect of the Gravindex slide tests only, the export prohibitions contained in the “UK trade price lists”, the “Preislisten” and elsewhere, the enforcement of the UK export prohibitions and the conduct of both Ortho UK and Cilag Alsbach.
It had been informed of the “very unpleasant and important problem” of parallel imports and nevertheless did not stop the policy of its affiliates of preventing such parallel imports, which would have influenced the price differences. We would like that you contact now all responsibles to find at least a strategy for further actions.
In the UK trade price lists, applied by Ortho UK until Januarya provision was embodied prohibiting export from the United Kingdom except by prior arrangement.
If the various companies in the group had really been accustomed to operating independently of each other, Ortho UK would be unlikely to have imposed an export prohibition at all, and it would certainly not have devoted a considerable amount of management effort to enforcing it, when the only result of such actions, from Ortho UK’s point of view, would be a reduction in its own sales potential.
Moreover, price control has been a feature of the United Kingdom market for many years for Ortho UK’s products as well as for others, and the prices fixed under it provide a fair return, including a reasonable profit, on the overall activities of the undertakings concerned.
Each Gravindex test consists of two bottles, containing respectively 2 mg jb antigen and 2 mg of antiserum. They were aimed at preventing buyers in the United Kingdom and Germany from reselling the products of Ortho UK and Cilag Alsbach to other countries including the common market countries and thus from competing in those countries. In fixing the amount of the fine, regard shall be had to both the gravity and the duration of the infringement.
None of the enforcement measures taken by the various companies and described at points 15 to 22 above is explicable otherwise than in the context of a general group policy of maintaining separate national markets with different prices.
The “Preislisten” applied by Cilag Alsbach until 28 February contained a provision prohibiting direct or indirect resale to other countries. Ortho UK receives the active ingredients directly from Ortho Diagnostics ready for filling and packaging in the United Kingdom. Article 5 This Decision is addressed to the following undertakings: N the other hand it is taken into account that the export prohibitions imposed on the German dealers had little practical significance since prices in other markets were and continued to be lower and exports therefore of no interest.
However, this finding does not affect the amount of the fine.
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It made and carried out threats to withhold or delay supplies, and also instituted a system of checks on dealers. For the purpose of determining the applicability of Article 85 1the facts that it was not in the dealers’ interests to observe the prohibition and that some of them did not do so, are irrelevant ; that Article extends to any distribution system whose object is to restrict competition, whether or not it is successful in doing so.
The disadvantage of the longer time taken for the tube test is compensated by the advantage of its being able to confirm a suspected pregnancy a full nv earlier than the slide test. The same letter made it clear that Ortho UK’s export prohibition was aimed principally at “Europe” which in this context must be taken substantially to mean other EEC countries.