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Magill (EC, CFI and ECJ)

Court of Justice of the European Communities
Joined cases C-241/91 and C-242/91, known as Magill
Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v Commission
Judgment of 6 April 1995 available online (HTML)

Court of First Instance
Radio Telefis Eireann (RTE) v Commission
Judgment of 10 July 1991 available online (HTML)
Independent Television Publications Ltd (ITP) v Commission
Judgment of 10 July 1991 available online (HTML)

Commission of the European Communities
Decision of 21 December 1988 available online (HTML)

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

In the joined appeals from the two CFI judgments, the Court of Justice endorsed the Commission's decision that the BBC's, RTE's and ITV's refusal to licence their copyright in their television programme listings to an independent publisher wishing to produce a new weekly TV listing magazine covering all television stations was an abuse.

The decision rested in part on the fact that the refusal to supply "prevented the appearance of a new product, a comprehensive weekly guide to television programmes, which the appellants did not offer and for which there was a potential consumer demand" (paragraph 54), which the Court of Justice held was an abuse under Article 82(b). The Court of First Instance had also emphasised that the broadcasters had given a free licence to the press to publish their daily listings and highlights of their weekly programmes in the press in both Ireland and the United Kingdom.

Paragraph 56 of the ECJ judgment notes, with reference to Commercial Solvents, that the refusal to supply led to the exclusion of all competition in the downstream market. The precise wording in Commercial Solvents was "eliminating all competition on the part of this customer". The dropping of the second part probably reflects the absence of an existing competitor/customer (at least before the Commission's decision) in the case of weekly TV programmes. The subsequent Bronner judgment, in a case where there was an existing competitor, restated the full Commercial Solvents test, under which abuse can arise even if there is no risk of elimination of all competition from all actual and potential competitors. Commercial Solvents and Bronner were followed in the UK case Burgess (2005). But in IMS Health (2004) the Magill paragraph 56 formulation was used. Some commentators have claimed that the Magill/IMS Health formulation is specific to copyright licensing (or, more widely, intellectual property rights) cases.

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Last changed by Franck at 9:44 AM on Friday 20 October 2006.

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Reckon Open "Magill" 2006-10-20T09:44:44
Link within Reckon Open: [[Magill]]