In view of the decision of 15 March 2000 by which the Council of State, sitting as a court, before giving judgement on the arguments pleaded by Cegedim, a corporation, claiming the annulment of the order of the Minister of the Economy dated 11 August 1998, invited the Competition Council to supply it with all means of appreciation which might allow it to determine whether the tariffs which the National Institute of Statistics and Economic Studies is authorised to apply for the sale of elements of the listing known as SIRENE amount to anticompetitive practices in the meaning of Article 8 of the Ordinance of 1 December 1986;
Given that (1) the National Institute of Statistics and Economic Studies manages the national identification catalogue of businesses and their establishments, known as SIRENE, which includes information relating to businesses; (2) this catalogue is exploited commercially by the Institute by means of (a) final user licences which forbid the communication of its data to third parties and (b) rediffusion licences which allow the commercial exploitation of the data in the catalogue as regards third parties; and (3) CEGEDIM is petitioning for the annulment of the order of the Minister of Economy Finance and Industry dated 11 August 1998 relating to the pricing conditions to be applied to the access by the public to information about businesses, public organisations and their establishments, which fixes the conditions for exploiting the SIRENE catalogue;
Given that (1) the order under attack was made pursuant to Article 1 of the Decree of 17 February 1995 relating to the remuneration of certain services rendered by the Institute which provides that remuneration may be charged for the supply by the Institute of certain services to individuals, and to public or private organisations other than the State; (2) this order establishes a tariff which reduces in proportion to the number of documentary units, that is to say addresses of businesses, for making available the whole of the SIRENE catalogue for the use of final user licensees; and (3) on the other hand it provides that rediffusion licensees are obliged to subscribe to the updating of the catalogue and makes them liable to pay a royalty of 8 centimes per documentary unit in cases of transfers to a final user for a single use and 20 centimes per documentary unit for multiple use;
Without it being necessary to give judgement on the other arguments in the petition;
Given that pursuant to Article 8 of the Ordinance of 1 December 1986, now Article L. 420-2 of the Commercial Code, “the abusive exploitation by a business or a group of businesses of a dominant position on the internal market or a substantial part thereof ” is forbidden;
Given that (1)although the State may collect private royalties when it communicates public data in view of the exploitation of the latter, when such communication may be considered, within the meaning of the laws on intellectual property, as works of the mind, such royalties may not, by reason of their excessive nature, obstruct the competitive activity of other economic operators if the data in question is an essential resource for the production of a product or the provision of a service which are different from those supplied by the State; and (2) in such a case the collection of excessive private royalties is an abuse of a dominant position which breaches the legislative provisions mentioned above;
Given that (1) it is clear from the documents produced, and in particular the opinion dated 28 December 2001 of the Competition Council requested by a preliminary decision of the Council of State dated 15 March 2000, that there exists a market of large size catalogues which are sold to businesses in order to prospect their clients directly; (2) the Institute participates directly in this market by marketing the SIRENE catalogue; (3) competitors, such as CEGEDIM, also participate in the market by marketing listings based upon the SIRENE catalogue but differing from the latter by reason of the enhancement operations which they carry out on the original catalogue, and are therefore a different product from the catalogue sold by the Institute; and (4) the SIRENE catalogue is an essential source for the companies which prepare such clientele listings, especially since, contrary to the allegations of the Minister of Economy, Finance and Industry, the national commercial and company registry does not contain all the information appearing in the SIRENE catalogue, and cannot therefore be substituted for it;
Given that (1) the application of a proportional royalty of 20 centimes per address transferred as set out in the order dated 11 August 1998, which arises principally from the existence of exclusive rights of the Institute over the SIRENE catalogue and not from costs linked to the reproduction of this data base, effectively prevents those who sell it on to earn a margin for the sale of large size listings prepared by them by reason of the sale price applied by the Institute; and (2) thus, the resellers cannot offer their products on the market for large size listings;
Given that while the Minister argues that an agency contract, which is a contract for a term of one year renewable unless terminated, would allow the resellers to make a profit and possibly to provide a service of enrichment of the SIRENE catalogue on behalf of their clients, such a contract does not in principle allow modifications to the product as delivered and cannot therefore be considered to be equivalent to a rediffusion licence;
Given further that (1) by setting both a reducing tariff for final clients of the Institute and a proportional royalty of 20 centimes for resellers the order under attack may put the Institute in a position to automatically abuse its dominant position on the relevant market of large size clientele listings and breaches the terms of Article 8 of the Ordinance of 1 December 1986; and (2) taking into account the conditions of calculation so laid down, the order under attack can only be quashed in its entirety;
Article 1: The order of 11 August 1998 of the Minister of Economy Finance and Industry is quashed.
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