2003/741/EC: Commission Decision of 13 August 2003 relating to a proceeding under Article 82 of the EC Treaty (Case COMP D3/38.044 — NDC Health/IMS Health: Interim measures) (notified under document number C(2003) 2920)

• Published date: 18 October 2003
• Subject Matter: concorrenza,posizione dominante,competencia,posición dominante,concurrence,position dominante
• Official Gazette Publication: Gazzetta ufficiale dell’Unione europea, L 268, 18 ottobre 2003,Diario Oficial de la Unión Europea, L 268, 18 de octubre de 2003,Journal officiel de l’Union européenne, L 268, 18 octobre 2003

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32003D0741

2003/741/EC: Commission Decision of 13 August 2003 relating to a proceeding under Article 82 of the EC Treaty (Case COMP D3/38.044 — NDC Health/IMS Health: Interim measures) (notified under document number C(2003) 2920)

Official Journal L 268 , 18/10/2003 P. 0069 - 0072

Commission Decision

of 13 August 2003

relating to a proceeding under Article 82 of the EC Treaty

(Case COMP D3/38.044 - NDC Health/IMS Health: Interim measures)

(notified under document number C(2003) 2920)

(Only the English text is authentic)

(2003/741/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty(1), as last amended by Regulation (EC) No 1/2003(2), and in particular Articles 3 and 16 thereof,

Having regard to the Commission Decision of 8 March 2001 to initiate proceedings in this case,

Having regard to the Commission Decision 2002/165/EC(3) based on Regulation No 17, and particularly on the Commission's powers under Article 3 thereof to adopt interim measures, addressed and notified to IMS Health in this case,

Having regard to the application for withdrawal of the decision by IMS Health on 31 October 2002,

Having given IMS Health, NDC Health and AzyX the opportunity to make known their views on whether or not the Commission should withdraw the interim measures decision on grounds of lack of urgency,

Having regard to the final report of the Hearing Officer in this case(4),

After consulting the Advisory Committee on Restrictive Practices and Dominant Positions,

Whereas:

(1) IMS Health (IMS) has created, in collaboration with the pharmaceutical industry over a long period of time, a brick structure for the presentation of regional pharmaceutical prescription and sales data services in Germany. The Commission found in its Decision 2002/165/EC that this constituted a de facto industry standard and it was acknowledged to be so by the pharmaceutical companies. The need for comparable and compatible data, the possible loss of relationship between sales representatives and the doctors, the modification of the working contracts of sales representatives and the costs incurred to modify software and applications based on the 1860 brick structure if pharmaceutical companies were to switch to another brick structure, were considered as creating a very significant obstacle for them to do so. Moreover, technical and other constraints such as the necessary use of administrative boundaries, the data-protection law and the uncertainty concerning the permissibility under copyright law of selling data in another structure based on postal districts, gravely limited the possibilities to create other marketable brick structures. In particular, the Landgericht Frankfurt am Main (Frankfurt District Court) had granted, between October and December 2000, separate injunctions prohibiting NDC Health (NDC) (an American multinational company), AzyX (a much smaller Belgian company) and Pharma Intranet Information (PI, now a subsidiary of NDC), competitors of IMS on the regional pharmaceutical sales data services market, from using structures derived from the 1860 brick structure on the basis that IMS enjoyed copyright protection.

(2) The Commission also found that IMS had no objective justification for refusing to grant a licence for the 1860 brick...