Parties
Grounds
Operative part
Parties
In Case T-184/01 R,
IMS Health Inc., a company incorporated in accordance with the laws of the State of Delaware, established at Fairfield, Connecticut (United States of America), represented by N. Levy and J. Temple Lang, Solicitors, and R. O'Donoghue, Barrister,
applicant,
v
Commission of the European Communities, represented by E. Gippini Fournier, F. Siredney-Garnier and A. Whelan, acting as Agents, with an address for service in Luxembourg,
defendant,
supported by
AzyX Deutschland GmbH Geopharma Information Services, established at Neu-Isenburg (Germany), represented by L. Levi, G. Vandersanden and D. Dugois, lawyers,
and
National Data Corporation, a company incorporated in accordance with the laws of the State of Delaware, established at Atlanta, Georgia (United States of America), represented by I. Forrester QC, F. Fine, Solicitor, C. Price and A.F. Gagliardi, lawyers, with an address for service in Luxembourg,
and
NDC Health GmbH & Co. KG, established at Bad Camberg (Germany), represented by I. Forrester QC, F. Fine, Solicitor, M. Powell, C. Price and A.F. Gagliardi, lawyers, with an address for service in Luxembourg,
interveners,
APPLICATION for interim measures in respect of the Commission Decision of 3 July 2001 relating to a proceeding pursuant to Article 82 EC (Case COMP D3/38.044 - NDC Health/IMS Health: Interim measures),
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Grounds
Background
1 Pharmaceutical manufacturing undertakings require information concerning the sales both of their own products and those of their competitors in order to develop their marketing policies. As a high proportion of medical prescriptions are dispensed by pharmacies in the neighbourhoods of the prescribing doctors, data concerning sales of pharmaceutical products by wholesalers to pharmacies represent a good approximation of doctors' prescribing preferences and, consequently, enable pharmaceutical manufacturers to gauge the effectiveness of the performance of the sales representatives who talk to them.
2 Regional sales-data (or market) reports are based on data purchased from pharmaceutical wholesalers by undertakings engaged in the provision of sales-data services to pharmaceutical companies. Agreements between wholesalers and the providers of regional sales-data services in Germany contain stipulations designed to respect the former's obligations under the German Bundesdatenschutzgesetz (Federal Data Protection Act). The Bundesdatenschutzgesetz requires that pharmaceutical sales information be aggregated for at least three pharmacies within each geographical area to which the data supplied relate. In practice, it appears that respect for this requirement necessitates the inclusion of at least four to five pharmacies within each geographical segment.
3 The processing of the raw, regional sales data purchased from pharmaceutical wholesalers is carried out by the providers of sales-data reports according to their respective input structures. The data are then checked and formatted in accordance with brick structures, on which various analyses are carried out by the service providers. Bricks divide a country into artificially designated geographic areas. The essential purpose of a brick structure is to create territorial segments within a particular market with equal or comparable sales performance potential, whilst respecting data-protection requirements and certain geographical boundaries. In Germany, sales territories of pharmaceutical sales representatives are defined by reference to an aggregation of several bricks.
4 The data formatted, according to a brick structure, form the basis for regional sales reports. These reports are delivered by the service providers to the pharmaceutical companies in printed form, on CD-ROM, online or in a combination of these forms, depending on the client's preference. The data is then either processed internally by the pharmaceutical companies or submitted by them to other undertakings for analysis on their behalf.
5 IMS (Intercontinental Marketing Services) Health Incorporated (hereinafter either the applicant or IMS) is a United States-based company that provides a broad range of market research, marketing, and sales management services to the pharmaceutical industry. It is the world's leading provider of information solutions to the pharmaceutical and healthcare industries. IMS is active in 100 countries. In Germany, through its German subsidiary (IMS Health GmbH & Co. OHG, hereinafter IMS Health), it provides a regional sales-data service to interested pharmaceutical companies. Since 2000, its service has been based on a brick structure entitled the 1 860 brick structure. This brick structure is central to the present proceedings.
6 The applicant has been investing resources in developing brick-structure-based, data-report services in Germany since 1969. It started out using a 329 brick-segment structure. By the late 1980's, this early rudimentary structure had been subdivided into more sophisticated structures containing initially 418 and then 922 segments. In 1991 a number of cities were further subdivided creating a structure with 1 086 bricks. In 1992, an additional 244 bricks, corresponding to administrative units in the former German Democratic Republic, were added to take account of the effects of German reunification. In 1993, following the introduction of a five-digit postcode system in Germany, a complete reworking of its brick structure was required. 119 cities were restructured with the result that a 1 845 segment structure was created.
7 In 1998, the applicant began a development programme designed, inter alia, to lead to the creation of a new brick structure. The programme culminated in the development of a format for the 1 860 brick structure in 1999. The 1 860 brick structure was launched on the market in January 2000 and now constitutes the core feature of the regional sales-data service provided by IMS Health in Germany.
8 Suspecting that two competitors on the German market, Pharma Intranet Information AG (hereinafter PI) and AzyX Deutschland GmbH Geopharma Information Services (hereinafter AzyX), which were founded by some of its former senior personnel and which had initially entered the German market selling services based on alternative brick structures, were, by early 2000, in fact marketing services based on copies of the 1 860 brick structure, the applicant decided to bring copyright infringement proceedings before the Landgericht (Regional Court) Frankfurt am Main (hereinafter Landgericht Frankfurt). These proceedings were lodged, respectively, on 26 May 2000 and 22 December 2000 against PI and AzyX.
9 In the proceedings against PI, the Landgericht Frankfurt, on 16 November 2000, confirming an earlier judgment of 12 October 2000, held that, under German copyright law, the applicant, through IMS Health, enjoyed copyright protection in the 1 860 brick structure. In the same judgment, it also confirmed an injunction it had issued on 27 October 2000 prohibiting PI and Mr Lederer, a former general manager of IMS Health, from using the 1 860 brick structure and brick structures derived from the 1 860 brick structure.
10 National Data Corporation (hereinafter NDC), which is also a United States-based company and an international competitor of the applicant, acquired PI in August 2000. On 26 October 2000, it requested a licence from the applicant to use the 1 860 brick structure in return for an annual licence fee of DEM 10 000 (EUR 5 112.92). By letter of 28 November 2000, the applicant rejected the request while the copyright issue remained sub judice before the national courts, PI having lodged an appeal against the Landgericht Frankfurt's abovementioned judgments of 27 October and 16 November 2000. In a further letter of 18 December 2000, the applicant refused to enter into licence negotiations on the basis that it was not essential for NDC to have the use of the 1 860 brick structure so as to compete against it on the German market.
11 On 4 December 2000, NDC Health GmbH & Co. KG, NDC's German subsidiary (hereinafter NDC Health) brought an action for a declaration before the Landgericht Nürenburg-Fürth that IMS Health was not entitled to require it not to use structures based, inter alia, on the 1 860 brick structure. However, on 28 December 2000, IMS Health obtained an interim injunction from the Landgericht Frankfurt prohibiting the use by NDC Health, inter alia, of the 1 860 brick structure.
12 On 19 June 2001, PI's appeal against the judgments of 27 October and 16 November 2000 was dismissed by the Oberlandesgericht (Higher Regional Court) Frankfurt am Main (hereinafter Oberlandesgericht Frankfurt).
13 On 12 July 2001, the Landgericht Frankfurt rejected an appeal brought by NDC Health against the interim injunction issued against it on 28 December 2000.
14 On 30 August 2001, in the context of the main copyright action between IMS Health and NDC Health regarding the former's application for a definitive injunction prohibiting the latter from using the 1 860 brick structure or any of its derivatives, the Landgericht Frankfurt decided to stay the proceedings and refer a number of questions to the Court of Justice pursuant to Article 234 EC. In substance, it wishes to know whether the application of German copyright law may be affected by Article 82 EC in circumstances where there has been some industry involvement in the development of the protected work. On 22 October 2001, this preliminary reference was registered as Case C-418/01 at the Court of Justice's Registry.
15 In the AzyX proceedings, the Landgericht Frankfurt issued, on 28 December 2000, an interim injunction prohibiting AzyX from providing, promoting or offering data on the basis of the 1 860 brick structure. On 15 February 2001 it confirmed the said interim injunction.
16 Consequently, on 24 April 2001, AzyX requested a licence from the applicant to use the 1 860 brick structure. On 28 May 2001, the applicant refused this request, principally because it did not consider that access to the 1 860 brick structure was necessary to permit AzyX to compete against it on the German market and because it regarded as too low the royalty of DEM 100 000 (EUR 51 129.19) offered by AzyX.
17 On 18 September 2001, the Oberlandesgericht Frankfurt vacated the injunction issued by the Landgericht Frankfurt against AzyX on 28 December 2000, with the result that the latter is no longer prohibited by court order in Germany from using the 1 860 brick structure or its derivatives (see further paragraphs 44 and 45 below).
The Commission's investigation and adoption of the contested decision
18 On 18 December 2000, NDC lodged a complaint with the Commission alleging that the applicant's refusal to license it to use the 1 860 brick structure constituted an infringement of Article 82 EC. It also requested the Commission to adopt interim measures against the applicant.
19 The applicant initially commented on the complaint in a letter of 12 January 2001 and replied to requests for information from the Commission by letters, respectively, of 15 and 26 January 2001 and of 7 March 2001.
20 On 8 March 2001, the Commission sent a Statement of Objections (hereinafter SO) to the applicant which was received on 9 March 2001. The Commission defined the crucial question as being whether or not the 1 860 brick structure constituted an essential facility (SO, paragraph 58). It concluded (SO, paragraph 84), on the information available to it, that access to that structure appeared to be indispensable for competitors, that the applicant's refusal to grant licences was not objectively justified and that the said refusal potentially constituted an abuse of the dominant position which IMS held on the relevant German market. The Commission warned IMS that it intended to adopt a decision imposing interim measures (SO, paragraphs 100 to 103).
21 The applicant submitted a written response to the SO on 2 April 2001. A hearing before the Commission then took place on 6 April 2001, during which considerable discussion took place of whether or not the 1 860 brick structure constituted a de facto industry standard. The Commission sent a request for further information to the applicant on 4 May 2001, to which the latter replied on 14 May 2001. The applicant also replied, on 14 June 2001, to further evidence obtained by the Commission following post-hearing requests for information made by it pursuant to Article 11 of Council Regulation No 17 of 6 February, the first Regulation implementing Articles [81] and [82] of the Treaty, (OJ, English Special Edition 1959-1962, p. 87, hereinafter Regulation No 17) of a number of pharmaceutical companies. These requests were designed to ascertain their views concerning the allegedly indispensable nature of the 1 860 brick structure. Copies of the responses of these pharmaceutical companies were provided by the Commission to the applicant in two instalments on 22 May 2001 and 7 June 2001. The applicant commented on that additional evidence by way of a further memorandum to the Commission of 14 June 2001. It was also heard at a meeting which took place between its representatives and those of the Commission on 18 June 2001.
22 On 3 July 2001, the Commission adopted a decision relating to a proceeding pursuant to Article 82 EC (Case COMP D3/38.044 - NDC Health/IMS Health: Interim measures) (hereinafter the contested decision). It is based on Regulation No 17, and particularly on the Commission's powers under Article 3 thereof to adopt interim measures first identified by the Court of Justice in Camera Care v Commission (Case 792/79 R [1980] ECR 119, hereinafter Camera Care), and confirmed in a number of subsequent judgments of the Community judicature (see Joined Cases 228/82 and 229/82 Ford v Commission [1984] ECR 1129, hereinafter Ford; Case T-23/90 Peugeot v Commission [1991] ECR II-653, hereinafter Peugeot; and Case T-44/90 La Cinq v Commission [1992] ECR II-1, hereinafter La Cinq).
23 In the recitals in the preamble to the contested decision, the Commission considers (paragraph 41) that the conditions which, according to the abovementioned Camera Care line of case-law, must be satisfied before it may take protective measures in the course of a pending Regulation No 17 investigation are all satisfied.
24 Regarding the existence of a prima facie infringement of Article 82 EC, the Commission, first, analyses the relevant product and geographical markets. It distinguishes, on the basis of information provided by the applicant in its letter of 7 March 2001, between data collected from retail pharmacies and data collected from pharmaceutical wholesalers (paragraphs 47 and 48). These data give rise to four distinct services depending on whether they relate to national or regional data. Moreover, German data represent a separate product that is not substitutable for data from another country. Accordingly, the Commission defines the relevant market in this case as being the market for German regional sales data services (paragraph 51).
25 As the relevant market is the largest of its kind in the Community, the Commission considers it to constitute a substantial part of the common market (paragraph 60). As the applicant enjoys a quasi-monopoly situation on that market with a market share of over [...%], NDC and AzyX being its only competitors, the Commission finds it to have a dominant position on the relevant market (paragraph 62).
26 Next, the Commission explains (see paragraphs 63 to 185) why, on the evidence available at present, there exists a sufficient prima facie case that the applicant's refusal to license NDC constitutes an abuse under Article 82 EC and why interim measures should be ordered, if the other conditions for ordering such measures are fulfilled (paragraph 186). This assessment is based essentially on the existence of exceptional circumstances and particularly on its view (drawn from the findings set out in paragraphs 75 to 123) that the 1 860 brick structure constitutes a de facto industry standard (paragraph 180). The applicant's refusal of access to the 1 860 brick structure is likely to eliminate all competition in the relevant market, since without it it is not possible to compete on the relevant market (paragraph 181). This conclusion is based essentially on its findings that there is no likelihood of the applicant's competitors creating an alternative structure to the 1 860 brick structure (see paragraphs 124 to 166) and on the absence of any justification for the latter's refusal to license its competitors (paragraphs 167 to 174).
27 The Commission also finds that there is a risk of serious and irreparable harm and intolerable damage to the public interest which establishes the urgent need to grant protective interim measures (paragraph 201). It considers, on the basis of the evidence before it, that there is good reason to suppose that unless NDC is granted a licence to the 1 860 brick structure its German operation will go out of business, and that there will be intolerable damage to the public interest (paragraph 190). In its view, without interim measures, NDC will lose current customers, have no prospect of attracting new customers for the coming years and will probably cease trading in Germany (paragraph 193). Apart from the serious risk of irreparable harm to NDC, there is also a risk of intolerable damage to the public interest within the meaning of the La Cinq judgment (paragraph 195). It states that [a]n eventual finding in the main decision that IMS had abused its dominant position under Article 82 EC would be illusory if meanwhile NDC's German subsidiary and other competitors had been put out of business (paragraph 196). Finally, rejecting IMS's contention that it would suffer irreparable harm, it concludes that the balance of interests in this case favours the applicant (paragraph 199).
28 Accordingly, Articles 1 to 3 of the operative part of the contested decision provide:
Article 1
IMS Health (IMS) is hereby required to grant a licence without delay to all undertakings currently present on the market for German regional sales data services, on request and on a non-discriminatory basis, for the use of 1 860 brick structure, in order to permit the use of and sales by such undertakings of regional sales data formatted according to this structure.
Article 2
In any licensing agreements relating to the 1 860 brick structure, any royalties to be paid for these licences shall be determined by agreement between IMS and the undertaking requesting the licence ("the parties").
If an agreement has not been reached within two weeks of the date of the request for a licence, appropriate royalties will be determined by one or several independent experts. The expert(s) will be chosen by agreement of the parties within one week of the parties' failure to agree on a licence fee. If an agreement on the identity of the expert(s) has not been reached within this time, the Commission shall appoint an expert or several experts from a list of candidates provided by the parties, or, if appropriate, choose one or several suitably qualified person(s).
The parties will make available to the expert(s) any document which the expert(s) consider necessary or useful to carry out their task. The expert(s) shall be bound by professional secrecy and shall not disclose any evidence or documents to third parties except to the Commission.
The expert(s) will make a determination on the basis of transparent and objective criteria, within two weeks of being chosen to carry out this task. The expert(s) will communicate this determination without delay to the Commission for approval. The Commission's Decision shall be final and take effect immediately.
Article 3
A penalty of EUR 1 000 per day shall be payable in respect of any period during which IMS fails to comply with the provisions of this Decision.
29 Article 4 of the contested decision specifies that its provisions ... shall apply until notification of the decision concluding the proceeding, while, according to Article 5, the decision is addressed to IMS Health of Harewood Avenue, London NW1, United Kingdom.
Procedure
30 By application lodged at the Registry of the Court of First Instance on 6 August 2001, the applicant brought an action under the fourth paragraph of Article 230 EC seeking, inter alia, in the form of order sought the annulment of the contested decision or, alternatively, its annulment in so far as it requires IMS Health to license the 1 860 Brick Structure to companies currently present on the German market for regional sales data services and specifies the conditions under which the negotiation of licence terms will be conducted and approved by the Commission.
31 By separate application lodged at the Court's Registry on the same day, the applicant, in accordance with Articles 242 and 243 EC, brought the present application for interim measures in respect of the operation of the contested decision. In the form of order sought, the President of the Court of First Instance is requested:
- to suspend the operation of the Decision on his own initiative until such time as he has heard and determined this Application;
- to further suspend the operation of the Decision until the Court of First Instance has rendered judgment on the [the main action]; and
- to grant any other interim measures the President considers appropriate.
32 By order of 10 August 2001, adopted pursuant to the second subparagraph of Article 105(2) of the Rules of Procedure of the Court of First Instance, the President suspended, ex parte, the operation of the contested decision until the order terminating the present proceedings for interim relief is made. This interim order was based on what appeared, provisionally, to be the existence of a prima facie case against the validity of the contested decision, the potentially serious economic and non-economic consequences for the applicant of compulsory-licence terms being fixed by the Commission in respect of the use of the 1 860 brick structure and the need, so as to ensure the proper administration of justice, for the judge hearing the application for interim measures to have time to consider the complex factual and legal issues raised by the present proceedings.
33 By applications lodged at the Court's Registry, respectively, on 13 and 14 August 2001, AzyX and NDC sought, inter alia, leave to intervene in support of the form of order sought by the Commission in the present proceedings. By letters of 27 August 2001, neither the applicant nor the Commission raised any objection to those applications, but both parties requested confidential treatment vis-à-vis the applicants in intervention in respect of certain documents.
34 The applicants in intervention, without prejudice to the outcome of their respective applications, were invited by the President, on 29 August 2001, to submit any written observations, along with any applications for confidential treatment, they wished to make by 12 September 2001.
35 On 29 August 2001, AzyX applied for permission to use French in its observations supporting its application in intervention. The applicant, by letter of 31 August 2001, having objected only to the use of French in any written observations submitted by AzyX, and the Commission having no objection, the President decided, on 5 September 2001, in accordance with Article 35(2) of the Rules of Procedure, to permit AzyX to use French in its oral observations.
36 By application lodged at the Court's Registry on 12 September 2001, NDC Health applied for leave to intervene in support of the form of order sought by the Commission. It explained that, although its observations would be essentially identical to those of NDC, as the undertaking directly implicated in the copyright infringement proceedings brought in Germany by IMS Health, it had an interest in intervening separately. Without prejudice to the outcome of its application, it was invited by the President on 13 September 2001 to submit the same day any written observations and any application for confidential treatment it wished to make. As the oral hearing was fixed for the following day, the President decided to hear the observations of the parties in respect of this further application in intervention at that hearing.
37 At the oral hearing on 14 September 2001, the President, noting NDC's status as the complainant in the ongoing administrative procedure before the Commission, that NDC Health was directly implicated in the copyright infringement proceedings brought by IMS Health in Germany and that AzyX was not merely IMS Health's only other current competitor on the relevant market but also closely associated with the investigation of NDC's complaint, decided that the interest of all three applicants in intervention in the result of the present interim-relief proceedings, as required by the second paragraph of Article 37 of the EC Statute, applicable to the Court of First Instance by virtue of Article 46 thereof, was established. Accordingly, the President decided to accept the three applications in intervention.
38 In the absence of any request from the main or intervening parties for a formal order in respect of the various applications for confidential treatment lodged by the main and intervening parties, the President, having perused the documents and particulars concerned by the applications, then decided at the oral hearing that they should, prima facie, be treated as confidential for the purposes of the present proceedings, since they appeared, in accordance with Article 116(2) of the Rules of Procedure, to constitute business secrets.
39 Accordingly, the main and intervening parties presented oral observations and replied to questions from the President. A further written statement from Dr Sati Sian, Vice-President of the applicant, which supplemented a confidential statement contained in Annex Four to the application for interim measures, was admitted by the President to the case-file, without any objection from the other parties. Dr Sian was also permitted by the President, without objection from the other parties, to made a confidential oral statement in a special closed session. In the absence of objections, Mr Jeffrey Kanis, Vice-President of NDC Health, was also authorised by the President to make a statement at the hearing.
40 By letter of 18 September 2001, the President asked the Commission to confirm, as alleged by the applicant in both its application and oral observations, whether or not the Commission possessed information regarding the brick structure(s) currently being used by the interveners, AzyX and NDC/NDC Health, for the purpose of supplying regional sales-data services on the German market. In the event that it possessed such information, the Commission was requested to submit it to the Court's Registry by 24 September 2001. In so far as any such information was considered to contain confidential business secrets of any of the interveners, the Commission was also requested, by the same deadline, to submit appropriate non-confidential version(s) of the relevant information.
41 Following a request from the applicant to be allowed to submit brief supplementary observations in order to respond to the written observations of the Commission and the interveners, all of which were received by it only very shortly before the oral hearing, the President decided to fix 24 September 2000 as the deadline for the submission of such observations. The Commission and the interveners were allowed until 27 September 2001 to submit succinct further observations in respect of the applicant's supplementary observations.
42 On 24 September 2001, the Commission replied to the written question of 18 September 2001. The President being satisfied, in accordance with Article 116(2) of the Rules of Procedure, of the prima facie confidential nature of that response, a non-confidential version thereof, submitted in full by the Commission on 25 September 2001, was notified to the applicant and to the interveners on 26 September 2001.
43 Supplementary written observations were received from the applicant on 24 September 2001, and from the Commission and the interveners on 27 September 2001.
44 The Oberlandesgericht Frankfurt's decision of 18 September 2001 to vacate the Landgericht Frankfurt's injunction against AzyX of 28 December 2000, was, according to the applicant's supplementary observations, adopted for procedural reasons. In its supplementary observations, the Commission, although not formally contesting this assessment, indicates that the national court's reasoning relates to a different evaluation of the urgency underlying IMS Health's application for injunctive relief regarding the alleged breach by AzyX of its copyright in the 1 860 brick structure. AzyX provides no information in its supplementary observations regarding the Oberlandesgericht Frankfurt's judgment.
45 On 18 October 2001, the President, by way of a written question, asked the applicant to confirm whether or not it was possible for IMS Health to bring an appeal against the judgment of the Oberlandesgericht Frankfurt and, if so, whether it intended to lodge such an appeal. By letter of 22 October 2001 the applicant replied stating that the judgment was final. It confirmed that the judgment lifted the injunction against AzyX for the reasons identified by the Commission in its supplementary observations. However, IMS stressed that it is premised on the assumption that the copyright in the 1 860 brick structure is valid.
Law
46 Under Articles 242 EC and 243 EC and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21), the Court of First Instance may, if it considers that the circumstances so require, order that the application of the contested act be suspended or prescribe any necessary interim measures.
47 Article 104(2) of the Rules of Procedure provides that applications for interim relief must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures sought. The measures sought must be necessary in order to avoid serious and irreparable damage to the applicant's interests arising before a decision is reached in the main action and provisional in that they must not prejudge that decision or neutralise in advance its effects (orders in Joined Cases 76/89 R, 77/89 R and 91/89 R RTE and Others v Commission [1989] ECR 1141, paragraph 12, hereinafter the Magill order; Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 22, hereinafter Commission v Atlantic Container Line; and Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30, hereinafter SCK and FNK). The judge hearing an application for interim measures must, where appropriate, also weigh up the interests involved (order in Case C-445/00 R Austria v Council [2001] ECR I-1461, paragraph 73).
48 Article 3(1) of Regulation No 17 provides:
Where the Commission upon application or upon its own initiative, finds that there is infringement of Articles [81 and 82] EC, it may by decision require the undertakings or associations of undertakings concerned to bring such infringements to an end.
49 In Camera Care, the Court of Justice stated (paragraphs 17 and 18):
As regards the right to take decisions conferred upon the Commission by Article 3(1) [of Regulation No 17], it is essential that it should be exercised in the most efficacious manner best suited to the circumstances of each given situation. To this end the possibility cannot be excluded that the exercise of the right to take decisions conferred upon the Commission should comprise successive stages so that a decision finding that there is an infringement may be preceded by any preliminary measures which may appear necessary at any given moment.
From this point of view the Commission must also be able, within the bounds of its supervisory task conferred upon it in competition matters by the Treaty and Regulation No 17, to take protective measures to the extent to which they might appear indispensable in order to avoid the exercise of the power to make decisions given by Article 3 from becoming ineffectual or even illusory because of the action of certain undertakings. The powers which the Commission holds under Article 3(1) of Regulation No 17 therefore include the power to take interim measures which are indispensable for the effective exercise of its functions and, in particular, for ensuring the effectiveness of any decisions requiring undertakings to bring to an end infringements which it has found to exist.
50 The power of the Commission to adopt such interim decisions pursuant to its investigatory powers under Regulation No 17 in Camera Care has been confirmed in Ford (paragraphs 18 and 19), Peugeot (paragraphs 19 and 20), and La Cinq (paragraphs 27 and 28).
51 It is appropriate in the present interim-relief proceedings, where the applicant is seeking the interlocutory suspension of an interim Commission decision that takes protective measures pursuant to the Camera Care line of case-law, first, to consider the extent of the stateable case that it must demonstrate in order to justify, subject to its satisfying the other conditions, the suspension sought.
The interlocutory judicial review of interim Commission decisions
52 According to the contested decision, three conditions must be satisfied under the Camera Care line of case-law before the Commission may take protective measures in the course of an ongoing investigation under Regulation No 17. They are (paragraph 41):
- there is a reasonably strong prima facie case establishing an infringement;
- there is a likelihood of serious and irreparable harm to the applicants unless the measures are ordered;
- there is an urgent need for protective measures.
53 It should straightaway be pointed out that in La Cinq the Court of First Instance clarified (paragraph 28) the precise conditions which, in accordance with the case-law of the Court of Justice, namely the orders in Camera Care and in Ford v Commission (Joined Cases 229/82 R and 228/82 R [1982] ECR 3091, hereinafter the Ford order), must be fulfilled before the Commission may adopt interim measures. It held, first, that protective measures may be granted only where the impugned practices at issue are prima facie such as to constitute a breach of the Community rules on competition that could be sanctioned by a final decision of the Commission, and, secondly, that such measures are to be taken only in cases of proven urgency in order to prevent a situation arising where it is likely that serious and irreparable damage to the party applying for their adoption, or intolerable damage to the public interest, will be caused. It stated that the condition concerning urgency, which, in the decision at issue in that case, just as in the contested decision, the Commission had regarded as a third condition for ordering interim measures, was, however, in reality but one aspect of the condition concerning the risk of serious and irreparable damage (paragraph 29).
54 It follows, since if a risk of serious and irreparable harm exists urgency is inevitably simultaneously established, that the three conditions enumerated by the Commission in the contested decision fall correctly to be characterised as constituting effectively two conditions.
55 It is appropriate initially to recall that, since the two conditions for ordering interim measures are concurrent, failure to fulfil either of them will suffice so as to prevent the Commission from exercising its power to adopt such measures (La Cinq, paragraph 30).
56 The Commission, supported by NDC and NDC Health, submits that, having regard to the interim nature of the protective measures taken in the contested decision, the judge hearing an application for interim relief must reconsider the same conditions, albeit at the behest of the applicant, as those already considered to be satisfied in the contested decision: i.e. that exceptional circumstances exist which render the refusal to license the brick structure an abuse by the applicant of its dominant position; that the applicant's sole competitors will, in the short-term, be forced out of the relevant market if they are not granted access, for a reasonable fee, to this presumptively essential brick structure; and that there is no danger that the obligatory grant of such access will cause serious and irreparable harm to the applicant. Since the standard of judicial review in annulment proceedings against decisions based on complex economic assessments, such as those which underlie the findings made in the contested decision, is that of requiring that the Commission has committed a manifest error, the applicant in the present proceedings should be required to establish a stateable case that the Commission has manifestly erred in its consideration of all of the requisite conditions. In other words, as the Commission stressed both at the oral hearing and in its supplementary observations, the applicant must not only demonstrate the existence of a prima facie case that the contested decision manifestly misconstrues the scope of Article 82 EC, in arriving at the prima facie conclusion that an abuse has occurred, but, in addition, a stateable case of manifest error concerning the consideration of the urgency and the balance of interests justifying the adoption of the impugned interim measures. As formulated by NDC in its written observations, the standard of proof required of the applicant is that it demonstrate the absence of a credible legal basis for the contested decision.
57 Responding to these arguments at the oral hearing, the applicant alleged that, as regards the prima facie case requirement, it was merely required to prove to the satisfaction of the judge hearing the interim application that it had established a reasonable chance of winning the main action. To impose a higher standard would prejudge that action and effectively deny it the possibility of obtaining interim relief. In any event, even if it may be required, quod non, to demonstrate the existence of a stronger than usual prima facie case, it submits that it is manifest, at least provisionally, that the core prima facie conclusion reached by the Commission in the contested decision regarding the abusive nature of its refusal to license is flawed.
58 It is appropriate first to recall that, in Commission v Atlantic Container Line, the President of the Court of Justice upheld the order adopted by the President of the Court of First Instance in Atlantic Container Line and Others v Commission (T-395/94 R [1995] ECR II-595, hereinafter Atlantic Container Line and Others v Commission). In the order under appeal, the President of the Court of First Instance had not imposed any special standard of prima facie case in respect of an application for suspension of a Commission decision refusing, inter alia, to grant an exemption, pursuant to Article 81(3) EC and Article 9(1) of Regulation No 17. The decision of the Commission whether or not to grant such an exemption, being one which the Commission alone has power to adopt, constitutes a classic example of a decision that is inherently discretionary in nature involving the assessment of complex factual and economic criteria. In its appeal, the Commission alleged, in respect of the prima facie case requirement, that the contested order had transformed the normal test of "fumus boni juris" into a test of "fumus non mali juris".
59 The Commission's plea was rejected. The President of the Court of Justice held that, under Articles 242 EC and 243 EC, the judge hearing an application for interim relief may, if [he] considers that the circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures, and that, in so doing, account must be taken of the conditions laid down, as regards applications brought before the Court of First Instance, in Article 104(2) of the Rules of Procedure, as further defined in the case-law (Commission v Atlantic Container Line, paragraph 21). As regards the condition specified in Article 104(2) of the Rules of Procedure relating to the pleas of fact and law establishing a prima facie case for the interim measures applied for, he stated that a number of different forms of wording had been used in the case-law to define the condition relating to the establishment of a prima facie case, depending on the individual circumstances (paragraph 26). Noting that the wording of the contested order, which referred to pleas in law which are not, prima facie, entirely ungrounded, was identical or similar to that used on a number of occasions by the Court of Justice, he stated that [s]uch a form of wording shows that, in the opinion of the judge hearing the application, the arguments put forward by the applicant cannot be dismissed at that stage of the procedure without a more detailed examination (paragraph 26). He then confirmed, on the basis of the case-law, that the said judge may consider that, in the light of the circumstances of the case, such pleas in law provide prima facie justification for ordering suspension of the application of an act under Article [242 EC] or interim measures under Article [243 EC] (paragraph 27).
60 There is no reason to suppose that the scope of the power granted pursuant to Article 104 of the Rules of Procedure to the judge hearing an application for interim relief, as interpreted by the President of the Court of Justice in Commission v Atlantic Container Line in respect of a final Commission decision applying the Treaty competition law rules and adopted on the basis of the express powers it enjoys under Regulation No 17, falls to be interpreted differently where the decision in respect of which interim relief is sought constitutes, instead, an interim decision adopted on the basis of the Camera Care case-law.
61 This view is confirmed by the previous case-law concerning interim-relief applications brought in respect of the first two Commission decisions adopting interim measures (see the Ford order and Case T-23/90 R Peugeot v Commission [1990] ECR II-195, hereinafter the Peugeot order). In the former, the President of the Court of Justice stated (paragraph 8) that, [w]hilst the Commission is not prima facie prevented, when examining an application for an exemption in respect of a distribution network, from making the grant of the exemption conditional upon extension of the range of products distributed, the fact remains that certain questions arising in these proceedings may give rise to serious dispute [and that] objections which it is possible to raise regarding the procedure selected by the Commission cannot be rejected without further consideration. This sufficed to establish a prima facie case since the urgency of the applicant's request for a suspension of the contested decision was then examined.
62 This approach was applied in the Peugeot order. Having referred to the requirement that interim measures adopted by the Commission be of a temporary nature and be restricted to what is required in the given situation (paragraph 17), the President of the Court of First Instance then stated (paragraph 18):
In consequence, without there being any need to rule on all the submissions put forward by the applicants against the provisional measures adopted by the Commission, submissions which, moveover, are also put forward in the main application and fall to be examined in the proceedings on the substance of the case, it is sufficient for the purposes of the present proceedings on the application for interim measures to consider whether the submissions of law and fact relied on prima facie justify a suspension of the operation of the contested decision ....
63 Although rejecting the applicant's main argument that the Commission had committed a manifest error in deciding that motor vehicle distribution agreements were not, in general, exempted from the scope of Article 81(1) EC by Regulation ([E]C) No 123/85 of 12 December 1984 on the application of Article [81(3) EC] to certain categories of motor-vehicle distribution and servicing agreements (OJ 1985 L 15, p. 16), the President of the Court of First Instance decided that a prima facie case was established, since it was not possible to overlook the fact that certain questions which are raised in the present case give rise to serious problems of interpretation (paragraph 22).
64 There is, moreover, nothing in the order in National Carbonising Company v Commission (Case 109/75 R [1975] ECR 1193, hereinafter NCC) which would justify the conclusion, drawn by analogy by NDC and NDC Health, that the applicant must demonstrate the absence of a credible legal basis for the contested decision. In that case, the applicant sought an order requiring the Commission either to take a decision addressed to National Coal Board (NCB), its supplier, or alternatively an order addressed to NCB to refrain from implementing a certain policy on prices. The Commission considered that the complaint against it concerned an alleged failure to act within the meaning of Article 35 CS. The President of the Court of Justice, observing that was for the court hearing the main action to determine whether there was an actionable failure to act, stated that the applicant [was] in fact asking the judge hearing the proceedings for the adoption of interim measures that no effect should be given to a negative decision refusing, in particular, to take emergency measures [and that] [t]o grant such an application would amount, temporarily, to a positive decision taken by the judge hearing the proceedings for the adoption of interim measures in lieu and instead of the Commission (paragraph 6). Consequently, it was for the Commission to adopt the measures which it consider[ed] necessary, as it would be contrary to the balance between the institution[s] which derives from the Treaty for the judge hearing the proceedings for the adoption of interim measures to substitute himself for the Commission in the exercise of a power which belongs primarily, subject to review by the Court, to the Commission which has all the information required for this purpose or the means of obtaining it (paragraph 8). It follows that NCC, as the Court of Justice itself stated in Camera Care (paragraph 20), merely confirmed the existence, albeit within the context of the CS Treaty, of a power for the Commission, subject to certain conditions, to take the measures of conservation (paragraph 8).
65 No principles emerge from the abovementioned case-law that would support the plea advanced by the Commission, supported by NDC and NDC Health, regarding the special nature of the prima facie case (fumus boni juris) that must be established in an interim-relief application concerning an interim Commission decision adopting protective measures.
66 Nor is there any other convincing reason why an applicant should be required to demonstrate a particularly strong or serious stateable case against the validity of what, after all, constitutes a prima facie evaluation by the Commission of the existence of an infringement of Community competition law. The provisional nature of such Commission decisions was expressly recalled in the Ford and Peugeot orders (see, respectively, paragraphs 11 and 24). The mere fact that the reason underlying the Commission's assessment was that the taking of protective measures was urgent does not justify requiring an applicant who is seeking the suspension of the decision imposing those measures to demonstrate a particularly strong prima facie case. The Commission's concerns can be taken into account by the judge hearing such an interim application when considering in whose favour the balance of interests lies. There is thus no justification for affording to such provisional Commission decisions a special status for the purpose of interim-relief applications.
67 In this respect, it is noteworthy that the Court of First Instance in Peugeot rejected the various arguments raised by the applicant in its plea alleging the failure by the Commission to establish, in law, any prima facie indication of an infringement of Article 81 EC. The standard required of the Commission was that of being right to consider ... at first sight (paragraph 37), or, alternatively, of its conclusions not being prima facie incorrect (paragraph 46). Furthermore, in response to a claim that the Commission was not empowered to take provisional measures, since the situation was not sufficiently clear as a matter of law and it had not been shown that there was any particular likelihood of the existence of an infringement, the Court pointed out that, in proceedings relating to the
