Bundesverband der Arzneimittel-Importeure eV and Commission v Bayer (2004) C-2/01 is an EU competition law case, concerning the boundaries of unlawful collusion.

Bayer AG, the parent of one of the largest European chemical and pharmaceutical groups, manufactured Adalat, used to treat cardio-vascular disease.

It does not appear from the judgment under appeal that the Court of First Instance took the view that an agreement within the meaning of Article 85(1) of the Treaty could not exist unless one business partner demands a particular line of conduct from the other.

The Court further recalled, in paragraph 67 of the same judgment, that for there to be an agreement within the meaning of Article 85(1) of the Treaty it is sufficient that the undertakings in question should have expressed their common intention to conduct themselves on the market in a specific way.

Since, however, the question arising in this case is whether a measure adopted or imposed apparently unilaterally by a manufacturer in the context of the continuous relations which it maintains with its wholesalers constitutes an agreement within the meaning of Article 85(1)[1] of the Treaty, the Court of First Instance examined the Commission's arguments, as set out in recital 155 of the contested decision, to the effect that Bayer infringed that article by imposing an export ban as part of the ... continuous commercial relations [of Bayer France and Bayer Spain] with their customers, and that the wholesalers' subsequent conduct reflected an implicit acquiescence in that ban (paragraph 74 of the judgment under appeal).

Therefore, the Court of First Instance was right to examine whether Bayer's conduct supported the conclusion that the latter had required of the wholesalers, as a condition of their future contractual relations, that they should comply with its new commercial policy.