ECJ maintains position
against Commission's imposition of compulsory licence of intellectual
The European Court of Justice has confirmed that in
the context of intellectual property rights the Commission does not have
an automatic right to impose interim measures when it considers that there
may have been a breach of competition law.
In its ruling last week the ECJ rejected an appeal against the European Court
of First Instance's decision to suspend an interim measure
previously imposed by the Commission. The Commission had ordered copyright
owner IMS Health ("IMS") to licence its "1860 brick structure" system to
two companies wishing to compete with IMS in the German market.
IMS is the world's leading supplier of information
on sales and prescriptions of pharmaceutical products. Until 1999, IMS was
the only supplier of such services in Germany. The brick structure
reflects the division of pharmacies in Germany into small geographical
units. Sales reports and prescription details were provided by IMS on the
basis of this structure and were seen as essential for the pharmaceutical
industry to assess sales and trends.
Two new entrants to the German market tried to sell data using other
structures but the industry would not accept any other format. IMS's
structure had become the industry standard for Germany. Because of this
the Commission thought that IMS's refusal to licence it to competitors was
a breach of competition law and ordered IMS to licence its structure to
the two competitors NDC and AzyX. (See
IPnewsflash 9 July 2001).
IMS had appealed against this ex parte imposition of the compulsory
licence order and succeeded in having the order suspended by the European Court
of First Instance pending a full hearing of the case. (See
IPnewsflash 15 November 2001).
Now the highest European court has rejected NDC's
appeal against the suspension of this order. The ECJ confirmed that a
compulsory licence order is not a suitable interim measure to impose on
IMS. The court ordered that the costs of the appeal hearing be borne by
We look forward with interest to the actual trial of this matter. At
first instance in the interim hearings the court appeared to criticise the
Commission's approach and seemed attracted by IMS's argument that
assertion of exclusive rights within the main operating market to which