In borderline cases, the notion of agreement cannot comfortably be
dissociated from the other conditions of application of article 101 TFEU. It is not enough to say that an “agreement” involves a “concurrence of wills”. In difficult cases, passing judgment on the existence of an “agreement” often requires a complete view on whose wills are involved and what has been agreed. These are in theory the domain of other conditions of Article 101: the notion of undertaking and the restriction of competition
This is why a spot transaction, for example where a seller agrees to provide a product and the buyer agrees to pay a given price, is typically outside the scope of Article 101. Such commercial transactions do not bind the parties in any manner as to their future market behaviour in dealing with others
“The type of co-ordination of behaviour or collusion between undertakings falling within the scope of Article (1) is that where at least one undertaking vis-à-vis another undertaking undertakes to adopt a certain conduct on the market or that as a result of contacts between them uncertainty as to their conduct on the market is eliminated or at least substantially reduced
What matters is that Bayer’s policy did not rest, for its implementation, on the wholesalers behaving in any particular way. Wholesalers were not required to refrain from exporting or to agree to limit their orders to national requirements. Bayer did not need any agreement or acquiescence from the wholesalers, and it can be taken for granted that the (exporting) wholesalers who saw their supply restricted would not, and did not, share Bayer’s desire to restrict exports. On these facts, their acquiescence or not with the goal of limiting parallel trade could not be relevant. In these conditions, it is right to demand serious evidence before finding a tacit agreement.
The mere concomitant existence of an agreement which is in itsef neutral and a measure restricting competition that has been imposed unilaterally does not amount to an agreement prohibited by that provision. Thus, the mere fact that a measure adopted by a manufacturer, which has the object or effect of restricting competition, falls within the context of continuous business relations between the manufacturer and its wholesalers is not sufficient for a finding that such an agreement exists.