## Facts

- Viho Europe BV, a Netherlands wholesaler, sought to buy Parker writing instruments for resale but could not obtain supplies on terms comparable to those given to Parker’s subsidiaries and distributors.
- Parker Pen Ltd sold products in the EU through wholly owned subsidiaries in several Member States and through independent distributors elsewhere.
- Parker’s European sales/marketing and staffing were centrally controlled by an “area team” of three directors, including an Area Director who sat on the parent company’s board.
- Parker instructed its subsidiaries not to supply retailers outside their respective national territories, limiting cross-border sales and parallel trade.
- Viho complained to the European Commission, alleging that Parker’s territorial restrictions were agreements or concerted practices restricting competition under Article 85(1) EC (now Article 101(1) TFEU), and invoked Treaty objectives provisions as supporting context.
- The Commission rejected the complaint, reasoning that Parker and its wholly owned subsidiaries formed a single economic unit; therefore intra-group arrangements could not be an “agreement between undertakings” within Article 85(1).
- The Court of First Instance (CFI) dismissed Viho’s annulment action against the Commission decision; Viho appealed to the Court of Justice.

## Issues

1. Whether arrangements within a corporate group—between a parent and wholly controlled subsidiaries lacking real autonomy—can constitute “agreements between undertakings” under Article 85(1) EC when they allocate territories and affect third parties.
2. Whether an appeal is admissible when it largely repeats arguments made at first instance without specifying the legal errors in the lower court’s judgment.

## Decision

- The Court of Justice dismissed the appeal and left in place both the CFI judgment and the Commission’s rejection of the complaint.
- The Court held that Article 85(1) EC does not apply to internal arrangements between a parent company and wholly controlled, non-autonomous subsidiaries forming a single economic unit, even if the group’s territorial allocation affects third parties.
- The Court stated that such conduct may instead be assessed under Article 86 EC (now Article 102 TFEU) if dominance and abuse requirements are met.
- The Court reaffirmed that an appeal must identify specific alleged errors of law and supporting legal arguments; a filing that merely reproduces first-instance submissions effectively seeks rehearing on the facts and is outside appellate review.

## Legal Principles

- Article 85(1) EC applies only to coordination between independent undertakings; it does not cover internal measures within a single economic unit where subsidiaries do not enjoy real autonomy and implement the parent’s instructions.
- Market-partitioning effects on third parties do not convert unilateral intra-group policy into an “agreement” for Article 85(1) purposes; characterization turns on the existence of distinct undertakings, not solely on external effects.
- Unilateral intra-group conduct with exclusionary effects may fall under Article 86 EC (Article 102 TFEU) where the undertaking is dominant and the conduct is abusive.
- On appeal, the appellant must specify the contested parts of the lower court’s judgment and articulate concrete legal grounds; repeating prior pleadings without targeting legal errors does not satisfy appellate requirements.

## Conclusion

The Court of Justice held that territorial instructions imposed within a wholly controlled corporate group are not agreements between undertakings under Article 85(1) EC because the group functions as a single economic unit, and it emphasized that appellate review requires specific allegations of legal error rather than a re-argument of the first-instance case.


Viho Eur. BV v. Comm’n, Case C-73/95 P, 1996 E.C.R. I-5457 (Ct. Just. Oct. 24, 1996)