# C_2004118EN.01001401.xml

| 30.4.2004 | EN | Official Journal of the European Union | C 118/14 |
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30.4.2004

EN

Official Journal of the European Union

C 118/14

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

29 April 2004

in Case C-418/01 (reference for a preliminary ruling from the the Landgericht Frankfurt am Main): IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG (1)

1

(Competition - Article 82 EC - Abuse of a dominant position - Brick structure used to supply regional sales data for pharmaceutical products in a Member State - Copyright - Refusal to grant a licence)

(2004/C 118/25)

Language of the case: German

In Case C-418/01: reference to the Court under Article 234 EC by the Landgericht Frankfurt am Main (Germany) for a preliminary ruling in the proceedings pending before that court between IMS Health GmbH & Co. OHG and NDC Health GmbH & Co. KG - on the interpretation of Article 82 EC - the Court, composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, C. W. A. Timmermans and S. von Bahr, Judges; A. Tizzano, Advocate General; H. A. Rühl, Principal Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it ruled:

| 1) | For the purposes of examining whether the refusal by an undertaking in a dominant position to grant a licence for a brick structure protected by copyright which it owns is abusive, the degree of participation by users in the development of that structure and the outlay, particularly in terms of cost, on the part of potential users in order to purchase studies on regional sales of pharmaceutical products presented on the basis of an alternative structure are factors which must be taken into consideration in order to determine whether the protected structure is indispensable to the marketing of studies of that kind. |
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1)

For the purposes of examining whether the refusal by an undertaking in a dominant position to grant a licence for a brick structure protected by copyright which it owns is abusive, the degree of participation by users in the development of that structure and the outlay, particularly in terms of cost, on the part of potential users in order to purchase studies on regional sales of pharmaceutical products presented on the basis of an alternative structure are factors which must be taken into consideration in order to determine whether the protected structure is indispensable to the marketing of studies of that kind.

| 2) | The refusal by an undertaking which holds a dominant position and owns a copyright of 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 copyright owner and for which there is a potential consumer demand; |
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2)

The refusal by an undertaking which holds a dominant position and owns a copyright of 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:

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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 copyright owner and for which there is a potential consumer demand;

| — | the refusal is not justified by objective considerations; |
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the refusal is not justified by objective considerations;

| — | the refusal is such as to reserve to the copyright owner the market for the supply of data on sales of pharmaceutical products in the Member State concerned by eliminating all competition on that market. |
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the refusal is such as to reserve to the copyright owner the market for the supply of data on sales of pharmaceutical products in the Member State concerned by eliminating all competition on that market.

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(1)  OJ C 3 of 5.1.2002

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