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IMS Health (ECJ)

Court of Justice of the European Communities
IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG.
Preliminary ruling, Case C-418/01
Advocate General opinion of 2 October 2003
Judgment of 29 April 2004

Article 82: abuse of copyright; essential facility
Article numbers refer to the 1997 consolidated version of the EC Treaty.

This preliminary ruling applied and developed the approach in Magill and Bronner to the question of access to a copyright-protected database structure used in pharmaceutical sales reporting.

The reference was from a German court considering an Article 82 defence raised by NDC in an attempt at overturning an injunction obtained by IMS preventing NDC, under German copyright law, from using a geographical data structure ("brick structure") for pharmaceutical sales reporting which was very similar to the structure developed by IMS.

The ECJ's reply to the German court's questions includes the following:

The refusal by an undertaking which holds a dominant position and owns an intellectual property right in a brick structure indispensable to the presentation of regional sales data on pharmaceutical products in a Member State to grant a licence to use that structure to another undertaking which also wishes to provide such data in the same Member State, constitutes an abuse of a dominant position within the meaning of Article 82 EC where the following conditions are fulfilled:

– the undertaking which requested the licence intends to offer, on the market for the supply of the data in question, new products or services not offered by the owner of the intellectual property right and for which there is a potential consumer demand;

– the refusal is not justified by objective considerations;

– the refusal is such as to reserve to the owner of the intellectual property right the market for the supply of data on sales of pharmaceutical products in the Member State concerned by eliminating all competition on that market.

This appears to adopt a test of excluding all competition on the downstream market, taken from Magill's paragraph 56, rather than the Commercial Solvents test (used in Bronner and Burgess) of whether the refusal to supply eliminates all competition on the part of the person requesting the service. This may reflect the fact that IMS had not previously licensed its brick structure, so that any existing competition from NDC using a copyright-infringing structure was illegitimate and its elimination would therefore be justified. Or it may simply be that the two formulations happened to be equivalent in the context of the IMS/NDC dispute (given that the only other competitor had exited the market). Some commentators have also argued that the difference is linked to the fact that Magill and IMS Health (but not Commercial Solvents) involved access to intellectual property rights.

The judgment also confirmed that a relevant market could be identified even if that market was hypothetical and with no previous transactions.

Procedural history

There was a simultaneous administrative and judicial procedure involving the European Commission (to whom NDC and another competitor had complained):

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Last changed by Franck at 6:33 PM on Thursday 26 April 2007.

Reference for this page:
Reckon Open "IMS Health" 2007-04-26T18:33:44
Link within Reckon Open: [[IMS Health]]