The defendant appealed a finding that it had abused its dominant market position in refusing to supply to the claimant a copyright licence for its information on horse racing at a proper or acceptable price. The defendant was said to have a monopoly on the information
Held: The appeal was upheld. ‘unfairness in pricing is to be assessed by reference to the relationship between price and the economic value of the relevant product . . the test is whether the price is excessive because it has no reasonable relation to the economic value of the product supplied. ‘The main aim of Article 82 of the Treaty is the protection of consumers . . not of business competitors . . even if it is the competitors and not the consumers who are alleging abuse of dominant position. No principle of law suggests that differential pricing by a monopoly supplier, even if duplicitously conducted, amounts by itself to an abuse of its market position. ATR did not establish that BHB abused its market dominance by specifying excessive, unfair or discriminatory prices or by unreasonably threatening to terminate the supply of pre-race data to ATR. The the judge erred in holding that the economic value of the pre-race data was its competitive price based on cost +. This method of ascertaining the economic value of this product is too narrow in that it does not take account, or sufficient account, of the value of the pre-race data to ATR and in that it ties the costs allowable in cost+ too closely to the costs of producing the pre-race data.
Judges:
Mummery LJ, Sedley LJ, Lloyd LJ
Citations:
[2007] EWCA Civ 38, [2007] UKCLR 309, [2007] BusLR D77
Links:
Statutes:
Competition Act 1998 60, EC Treaty Art 82
Jurisdiction:
England and Wales
Citing:
Appeal from – Attheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
See Also – Attheraces Ltd and Another v The British Horseracing Board Ltd and Another ChD 15-Jul-2005
. .
Cited – The British Horseracing Board Ltd and Others v William Hill Organization Ltd ECJ 9-Nov-2004
bhb_whECJ2004
The claimant sought to prevent re-use by the defendant of information from its horse racing subscription service. They claimed that they had a database right in the information. It cost andpound;4m per year to assemble.
Held: The expression . .
Cited – British Horseracing Board Ltd and Another v William Hill Organization Ltd CA 13-Jul-2005
The Court allowed William Hill’s appeal, holding that BHB had not established that the ECJ had given its earlier ruling on the basis of an erroneous assumption of fact and that the result of applying the ruling was that BHB’s Database did not fall . .
Cited – United Brands Company and United Brands Continentaal BV v Commission of the European Communities ECJ 14-Feb-1978
Europa The opportunities for competition under article 86 of the treaty must be considered having regard to the particular features of the product in question and with reference to a clearly defined geographic . .
Cited – Racecourse Association and others v Office of Fair Trading CAT 2-Aug-2005
. .
Cited – Aberdeen Journals Limited v Office of Fair Trading (No 2) CAT 2002
Sir Christopher Bellamy said: ‘. . the question whether a certain pricing practice by a dominant undertaking is to be regarded as abusive for the purposes of Chapter II is a matter to be looked at in the round, taking particularly into account (i) . .
Cited – Oscar Bronner v Mediaprint (Judgment) ECJ 26-Nov-1998
A major newspaper proprietor had refused to allow a small competitor access to its efficient distribution service.
Held: That amounted to an abuse of a dominant position: ‘First, it is apparent that the right to choose one’s trading partners . .
Cited – Sirena SRL v Eda SRL And Others ECJ 18-Feb-1971
ECJ The rights recognized by the legislation of a member state on the subject of industrial and commercial property are not affected, so far as their existence is concerned, by article 85 and 86 of the treaty. . .
Cited – BHB Enterprises Plc v Victor Chandler (International) Ltd ChD 27-May-2005
The claimant created a very substantial computerised database about horses and the racing industry. It licensed the database to users, including some who were able to grant sub-licenses. It sought to rely on the Database Directive to support its . .
Cited – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .
Cited by:
Cited – Humber Oil Terminals Trustee Ltd v Associated British Ports ChD 24-Feb-2011
The claimant sought to renew its leases of docking facilities from the landlord defendant. The defendant resisted saying it intended to operate its own business, and the claimant now alleged that the defendant was abusing its dominant position to . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property, Commercial
Updated: 31 October 2022; Ref: scu.248343