There’s a lot in the judgment and quite some procedural issues arose: Just about everyone appealed and cross-appealed the Court of First Instance’s judgment in Case T-168/01 GlaxoSmithKline Services v. Commission [2006] ECR II-2969 turning the procedure into a bit of a saloon bar brawl.
We’ll just concentrate on one aspect for now: What comprises a restriction of competition by object.
That's a popular subject these days as you can see from our posts here and here.
But first a bit of background. The Court of First Instance in its judgment in Case T-168/01 annulled parts of a Commission decision finding that Glaxo Wellcome SA, a subsidiary of GSK, had infringed Article 81§1 EC by agreeing with Spanish wholesalers operating a distinction between prices charged to wholesalers in the case of domestic resale of reimbursable drugs to pharmacies or hospitals and higher prices charged in the case of exports of medicines to any other member State. The Commission also decided that the arrangement did not qualify for an exemption under Article 81§3 EC. For our posts on that judgment see here and here.
The Court of First Instance had upheld the Commission’s finding the arrangements were prohibited by Article 81 §1 EC but annulled the Commission decision because it considered that the Commission had not carried out a proper examination of GSK’s request for an exemption under Article 81 §3 EC.
Now to the issue of whether the agreement had as its object to restrict competition.
In deciding whether the agreement breached Article 81 §1, the Court of First Instance held, in paragraph 121, that while parallel trade must be given a certain protection, it should be given protection in so far as it favors the development of trade, on the one hand, and the strengthening of competition, on the other hand and thus in so far as it gives final consumers the advantages of effective competition in terms of supply or price. Consequently, held the Court of First Instance, while it is accepted that an agreement intended to limit parallel trade must in principle be considered to have as its object the restriction of competition, that applies in so far as the agreement may be presumed to deprive final consumers of those advantages.
Notwithstanding that qualification, the Court of First Instance held that the arrangements were in fact caught by Article 81 §1 EC because they had the effect of restricting competition.
On appeal, the Court of Justice took exception to that statement of the Court of First Instance.
As regards the Court of First Instance’s statement that, while it is accepted that an agreement intended to limit parallel trade must in principle be considered to have as its object the restriction of competition, that applies in so far as it may be presumed to deprive final consumers of the advantages of effective competition in terms of supply or price, the Court of Justice held that neither the wording of Article 81 §1 EC nor the case-law lend support to such a position.
It stated firstly that there is nothing in Article 81 §1 EC to indicate that only those agreements which deprive consumers of certain advantages may have an anti-competitive object. Secondly the Court recalled that, like other antitrust rules in the Treaty, Article 81 EC aims to protect not only the interests of competitors or of consumers, but also the structure of the market and, in so doing, competition as such. Consequently, for a finding that an agreement has an anti-competitive object, it is not necessary that final consumers be deprived of the advantages of effective competition in terms of supply or price (by analogy, Case C-8/08 T-Mobile Netherlands and Others [2009] ECR I0000 paragraphs 38 and 39 - see our post on that case here).
It follows according to the Court of Justice that, by requiring proof that the agreement entails disadvantages for final consumers as a prerequisite for a finding of anti-competitive object and by not finding that that agreement had such an object, the Court of First Instance committed an error of law.
Nevertheless, the Court of Justice did not overturn the judgment of the Court of First Instance. It held that where the grounds of a judgment of the Court of First Instance are contrary to EC law, that judgment need not be set aside if the operative part of the judgment appears to be well founded on other legal grounds (Case C-30/91 P Lestelle v. Commission [1992] ECR I-3755, paragraph 28, and Case C-294/95 P Ojha v. Commission [1996] ECR I-5863, paragraph 52).
That was the case here. In point 2 of the operative part of the judgment under appeal, the Court of First Instance confirmed Article 1 of the contested decision, by which the Commission had found that the agreement infringed Article 81 §1 EC. It was thus unnecessary to set aside point 2 of the operative part of the Court of First Instance’s judgment under appeal.
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Can anyone help advance a tracing request, in confidence, for an EU child kidnapped - so brutally grown Americans, males, were crying and could not look me, his mother, in the face - whose torture and duress I was forced to endure, after I elevated out of the US intel community in 2002, the first of the rendition tactics and flights? I was one of the few females, to do so. There were very very few of us who dared to say anything, then. The result for me was repeated assault, of myself and my young child, who was eventually disappeared from me. With follow-up threats for years to "find your kid" and "hang" or rape or kill him. I can do nothing - I am kept so focused on survival, here in California, I can barely keep myself safe. If I try to move, even to another city, there is stalking, abuse, threats, threats at job interviews, constant reminders of past violence, and no help with searching for my child. Other children assaulted in front of me. Law enforcement stalking me into Catholic mass. Into funerals. Into intensive care wards, where a friend was almost dead, on one occasion, with "911" or rendition or "CAT" threats. Or threats to my child. Or how I could "complain."
I am not allowed to leave the country. To cross any US border. I could not even go into Canada for a business trip by a former employer, nor can I cross into mexico, nor board any US domestic flight. I am not given my birth certificate nor EU passport back ... and if I attempt to enter ANY EU embassy or consulate, there are threats, incl. tapes of my child or other children, in duress, or under apparent assault. Repetitions of prior assault statements, or tapes, against myself or my child played back to me, to keep me "in line." Or to force me to "play ball." Or to attempt to extort.
I have no help in finding my child in the US - and if I were to find him, he would almost instantly become a repeat target of American violence or death. I cannot leave the US - AS AN EU CITIZEN - or "travel freely" - because there are constant State Dept threats, and "warnings" such as "this administration does not like "bad news' or 'baggage." My child and my rendition testimony, and the assaults used to control both of us - actually, the CAT and Geneva violations used, sometimes under oclour of law, by american officials, sometimes by american civilians - are "baggage." Both to the Bush administration, and to the current administration. I live in Calif, Leon Panetta's home state, and the home state of John Yoo. I have had references to both of these individuals, the past year, and threats to "shut up." "just shut up."
If I "shut up," there is no hope for my child, either if he is living, or for justice, if he is dead. Justice would include the incarceration and hopeful execution, of all perpretrators involved. Including those who only obstructed me, in finding my child. And in fully elevating the material fact that these Americans are so afraid of having elevated, that they must constrain within their borders, one Catholic female rendition witness. One former Us intel contributor. One mother.
If Italy had been aware of more civilian harm - or gone after civilian abuse such as the use of dogs on females and children, or other abuses detailed in last month's cia report on offenses, released in DC - the verdict would have been quicker, the scope broader, and the world even more horrified. I elevated in 2002+. and this has been substantiated by US Senate sources, and in other documenation, in communications with the Oval Office directly, and other entities at the Executive Level - the use of same or similar tactics to those used at Gitmo, on females and children. Teens. The teen the BBC taped, crying to "kill me," at age 14, and age 13, brutalized by Americans and Canadians ... was the mildest by far, of any rendition child or teen victim. Very few of these have been elevated.
If I do not "shut up," there is retaliation incl. violence, broken bones, no medical care, no work, no housing. No food. No shelter. Repeated assaults. That does not help find my child, either. That does almost more harm, to a missing child's cause, by rendering the mother / witness completely unable to elevate - to even have access to phone or web access and communication outside of the US, to the outside world.
If anyone can help me, as an EU citizen, to leave the US and repatriate back to my HOME, (MY home, not Americans' homes), which has not assaulted me, or my child - Italians, Germans, Frence, Arabs, did not assault us, or torture us; Americans did, and American civilians have repeatedly joined in the 'fun," or extortion, since 2001 - that would serve the common good by allowing me to testify freely against these offenses, under neutral and stronger international law and treaty; and it would allow me to search for my child, outside of the offending official venue. And, it would allow me to - if my child is miraculously still alive, after many years .... rescue and nurture him in a safe, non-US environment, as we are both EU citizens, away from open flagging as "cia" or "agent, agent," or "torture" or assault victims, or witnesses. Away from Americans whose only interest is purient, greed, or self-protection. These are insane people, after 911. They are cowards. Anyone who watched even one minute of any of the rendition tapes, whether they included torture and rape and assault and degradation and terrorizing (typically, while the American adults LAUGHED, as they did with my child), would be nauseous, and would agree, these are only acts of cowards. They are very similar to Nazi acts. While the offenses and torture are similar to those practiced under Pinochet, or in Uganda, or in some other situations, the sense of "humour" and "fun" and sickness, are more Nazi, in outlook. In Chile, or Cambodia, or Iraq, the violence and brutality and torture was typically used merely to achieve an end. In America, as in Nazi Germany, the perpretrators were acting with self enjoyment, satisfaction, sexual motivation in many cases, and often laughing. Not many Pinochet guards laughed. There are no pictures I am aware of, of Chilean torturers laughing. They are merely immune to victim suffering and acting impartially. They did not deny God, nor mock God, nor deny the religious rights of prisoners. They did often disappear children, in Chile, to threaten the parent, but they did not mock God, nor typically engage in rape or sexual satisfaction, particularly with children, or gay assaults. In Nazi Germany, as with the rendition cases, there was denial of religion and God - Hitler hated the Catholic faith, being a Catholic; he hated God, and he hated Churches, as well as Synagogues. In the US rendition applications, and assaults, as with many of the US civilian assaults or threats or incidents I continue to endure, there is a persistent theme of mocking God, mocking religion, and sexual rape or degradation, typically of a homosexual nature, often involving boys or teens. And like the Nazis, the US guards are often pictured (on tapes, not all of which are yet destroyed, and in other media) laughing. This is a uniquely American trait - to mock God (!) - which most of the world would be horrified by. Which half of the world has condemned.
Who would not wish to repatriate out of a country such as this? These people are monsters, who tortured, assaulted, disappeared and most likely killed my son. And assaulted me, to the point of severe bodily damage, many times. Not once, but many times. And continue to invade privacy, to mock rape or assault of children, to harm. Were I in Europe, my child and I would still have human rights; he would not have been harmed at all; and once he was harmed, I would not be focused on survival, with the only goal of earning enough to buy my way, most likely illegally, out of the offending venue, to safety, and eventual testimony and prosecution of killers of my child ... but would have ongoing and aggressive help in finding him. EU and international law and values and morals are very, very different, than those of the US. And most Americans.
When I have submitted tracing requests for my child to the ICRC in past, I met with immediate retaliation. Jobs evaporated. Clients disappeared. There was no work. No income. No housing. No medical care. Tapes of raped or harmed children. Threats to me. Assaults to me. "Cia" or "agent" or "CAT" or "Torture" threats. Repetitions to me by strangers, of prior rape scene statements. Unreal nightmare life. All such activity precludes me escaping to Geneva, or anywhere, from which I might elevate in person significant details, toward rescue of my child, or recovery of his body. Crime prosecution does not move forward well, under such conditions. It kills and destroys witnesses and victims, under such conditions. And harms other victims, by example.
My child deserves justice. I deserve, under EU Charter and international law, the ability to have a completely private, safe, undamaged life ... and to travel freely, and to live in whatever country - under Shengen or EU charter, my citizenship entitles me to live in. Not to live like a prisoner, barely surviving, unable to search freely or with any assistance for a kidnapped child, in the US. Because I elevated, out of the intelligence community here, tactics that the entire world - even the UN, and the Vatican - would condemn the US for, years later. My judgment and value system is correct. I merely lack the means, due to American interference and retaliation, to exercise the rights I am endowed with under UN and international treaty, so that I might escape to a venue which believes, as I do, that torture and privacy invasion and sexual assault, are wrong; and that it is critical and it is important and it is significant, and it is worth it, to search for a kidnapped child. And to prosecute. Regardless of who the assailants of that child are. Whether a grandmother, or a CIA or DIA operative. It does not matter, under international law. If I know my assailant, or I do not, is insignificant. An assailant is an assailant. Assault is assault. Whether these americans like me, or do not, is insignificant, under international law. I exercised my duty, as a human, to elevate torture and abuse. In return, the same tactics were used on my child and I, and nothing was or has been done to protect us, to find him, to move us to a place of safety and privacy.
I do not know if my son is alive or dead. If alive, where he is. What condition he is in. I know I will meet with repeated retaliation and threat - I can not even go for a walk in peace, regardless of community in the US, in almost 9 years now, because Americans behave inexplicably, as the EU and world would view this. I need help finding my child, but there is no help, and no privacy. There are only warnings by the US Dept of State, within its DC headquarters - under 3 Secretaries now - and constant civilian abuse. Even ONE repetition of a prior assault statement, or even mocking statements such as "do you know what children taste like?" or "the pedophile won," or "do you want to see your child hang?" or much worse, would have been seriously prosecuted, in the EU, or under Shariah law. Nothing is done here.
I cannot wait forever, as a mother, for a child brutalized and missing YEARS now, to be rescued. IF alive. That violates his humanitarian rights. Under international law. IT is inhumane, to expect a mother and child, to endure treatment like this; inhumane to expect a child to endure it, in isolation and fear, and separation from his mother, while even Gitmo detainees are put in contact, after years of ICRC intervention and EU pleas, with their families. Please elevate in confidence, to the ICRC chapter in your area(s), and to other human rights leadership, in your area(s). I cannot even obtain a birth certificate. Or passport. And this is not because I have committed an offense, it is because "this oval office does not like 'baggage.'" Political retaliation. To force me to "play ball." And to "give them what they want." I am forced to pretend to like these Americans. To walk among them with courtesy and politeness. As a mother, out of honour to my son, this is very difficult.
I would be blessed, as a Catholic, to find assistance in leaving this country - whatever my background or "story," this is my right as an EU CITIZEN - and to have, in the meantime, any assistance possible in elevating my child's plight OUTSIDE of the US. To media. To ICRC. To justice authorties outside of the US. To whomever, as long as our privacy is protected (what protects the mother/witness, and her privacy and safety, protects the disappeared child's privacy and safety, as a sexual assault, kidnap, torture victim. What endangers me, endangers my missing child. I cannot make these American civilians, understand this.)
Thank you,
lc
"To: oscar.alarcon@coe.int
Subject: Urgent Stateless Travel Doc Request
Date: Thu, 2 Apr 2009 00:33:10 -0700
I elevated specific US flights, operations, personnel, etc, from 2002 on.…
I wish very strongly to leave this country. And go back to the EU, where I might testify under international law and protection. And UN treaty. Please assist. The US will not grant citizenship documentation, so that I might leave this country. The UK will not grant citizenship documentation,- so that I might leave this country. So I -meet 2009 UN definition of "stateless." …
Please provide a confidential poc through which to pursue stateless travel certification, so that I might begin the process of leaving. It has been 8 years of almost daily violence, harm, abuse, privacy invasion, stalking, assault of children, threats to "hang" or harm children, horrible tapes, of children in duress, or very evil things, by Americans, since 2001….
To: otp.informationdesk@icc-cpi.int
I was one of the first in America, in 2002, to elevate the use of certain tactics, and certain flights, and specific UK and US personnel involved, in violation of Geneva, CAT, UN Universal. Not many females were privvy to this infomation; and my early executive-level communications may be substantiated. ..."
I submitted a tracing request, as a former US intelligence contributor and disappeared child's mother, in spring 2009. In accordance with the International Convention on Forced Disappearance. As an EU citizen. One of the two children was an EU citizen, whose repeated duress and torture I was forcibly exposed to. The other child, one of several assaulted in my presence to coerce or constrain my behavior, as a former intelligence contributor, is also most likely dead. "
worte33@gmail.com
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