But the verdict has left more questions than answers for many practitioners.

In Sot Lelos Kai Sia EE (and Others) v GlaxoSmithKline AEVE (Joined Cases C-468/06 to C-478/06) , the ECJ ruled that a dominant pharmaceutical company may refuse to supply wholesalers involved in parallel exports if the orders are deemed to be "extraordinary".

The ECJ did not offer guidance on what is understood to be "extraordinary" or "ordinary" orders, leaving this to the determination of national courts, but it did state that historical relations between the parties and the size of the orders compared to national demand are relevant factors.

The case involved the Greek subsidiary of healthcare multinational GlaxoSmithKline (GSK), which was restricting supply to pharmaceutical wholesalers in order to limit their parallel activities.

Until November 2000, wholesalers in Greece purchased pharmaceuticals from GSK for both domestic supply and for export to other member states where the price for those products was higher. After first ceasing supplies to the wholesalers, with the intention of supplying hospitals and pharmacies directly, GSK subsequently reinstated supplies but refused to meet wholesaler orders in full.

The wholesalers took the matter to the Greek Competition Authority, which referred questions to the ECJ on whether the conduct constituted abuse of a dominant position and thereby breached Article 82 of EC competition law [see below], which prohibits such abuse.

The ECJ initially found that it could not rule for jurisdictional reasons. But the matter came back before the ECJ following a preliminary reference from the Appeal Court of Athens.

The European Federation of Pharmaceutical Industries and Associations, which represents the industry operating in Europe, is delighted with the verdict, which it says confirms the industry's longstanding position that freedom of contract is essential to protecting competition, innovation and investment.

EFPIA president and CEO of Bayer HealthCare Arthur J Higgins said: "This is a great day for European patients. Competition policy should not be used to export the health choices of one member state to another but should protect consumers and patients rather than parallel traders."

However, those in support of the wholesalers argue that the ECJ has held that it would, in principle, be an abuse of a dominant position for such pharmaceutical companies to refuse to meet "ordinary" orders from wholesalers in order to limit parallel exports by those wholesalers.

And following the ECJ judgment, each side is claiming victory on the issue of whether the specific features of the EU pharmaceutical sector should be taken into consideration when applying Community competition rules in that sector. To date, the Commission has refused to acknowledge such features.

"People do not know how this is going to play out in practice," said Herbert Smith partner David Wilson. "As always, the devil is in the detail and that's not the job of the ECJ."

He added: "The judgment said it was wrong to partition the market and prevent parallel exports. But why say that when the only reason to order more would be to parallel export."

One probable repercussion of the ECJ decision is that the lack of certainty over what constitutes an "ordinary" order will lead to further litigation in national courts on the matter.

"But the problem with that is that every case will be determined on its merits," said Wilson. "So it will be a long time before the situation becomes clear."

The ECJ judgment and any subsequent litigation is likely to be keenly followed in light of the European Commission's decision on January 16 to launch a competition investigation into the pharmaceuticals sector, focusing on how big pharma companies use their IP.

All about Article 82

Article 82 EC prohibits the abuse of a dominant position insofar as it may affect trade between member states. The full text of Article 82 is:

Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market insofar as it may affect trade between member states. Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b) limiting production, markets or technical development to the prejudice of consumers;

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.