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 (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)
Date: 2004-04-30
Institutions: Court of Justice
Subjects: database, dominant position, intellectual property, interpretation of the law, patents licence, restriction on competition

C 118/14

EN

Official Journal of the European Union

30.4.2004

(1) Articles 39 EC and 12 EC do not preclude a case in which an
individual who, moving from one Member State, becomes estab-
lished in another Member State by reason of a change in his
imports his car into the
place of work and, on that occasion,
latter State is made liable to a duty on consumption such as the
basic ‘Normverbrauchsabgabe’ in issue in the main proceedings.

(2) A duty on consumption such as the basic ‘Normverbrauchsab-
gabe’ in issue in the main proceedings constitutes internal taxa-
tion, the compatibility of which with Community law must be
examined in the light of Article 90 EC and not in that of Articles
23 EC and 25 EC.

(3) Article 90 EC must be construed as not precluding a duty on
consumption such as the basic ‘Normverbrauchsabgabe’ in issue
in the main proceedings in so far as the amounts of that duty
accurately reflect the depreciation in real terms in the value of
second-hand motor vehicles imported by an individual and permit
attainment of the objective of taxation of such vehicles which is in
no case greater than the amount of the residual duty included in
the value of similar second-hand vehicles already registered within
the national territory.

(4) Article 90 EC must be construed as precluding the levying, in the
event of importation by an individual of a second-hand car from
another Member State, of a 20 % surcharge on a duty having
the characteristics of the basic ‘Normverbrauchsabgabe’ in issue in
the main proceedings.

(1) OJ C 369 of 22.12.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

29 April 2004

in Case C-418/01 (reference for a preliminary ruling from
IMS Health
the the Landgericht Frankfurt am Main):

GmbH & Co. OHG v NDC Health GmbH & Co. KG (1)

(Competition — Article 82 EC — Abuse of a dominant posi-
tion — 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)

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 Presi-
dent of the Fifth Chamber, C. W. A. Timmermans and S. von
Bahr, Judges; A. Tizzano, Advocate General; H. A. Rühl, Prin-
cipal 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 under-
taking in a dominant position to grant a licence for a brick struc-
ture 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 deter-
mine whether
indispensable to the
marketing of studies of that kind.

the protected structure is

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
the data in question, new
products or services not offered by the copyright owner and for
which there is a potential consumer demand;

the supply of

for

— the refusal is not justified by objective considerations;

(Provisional translation; the definitive translation will be published in
the European Court Reports)

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

In Case C-418/01: reference to the Court under Article 234 EC
by the Landgericht Frankfurt am Main (Germany) for a preli-
minary ruling in the proceedings pending before that court

(1) OJ C 3 of 5.1.2002