On 6 April the European Court of Justice (the court) rejected in its entirety the appeals brought by Radio Telefis Eireann and Independent Television Publications Ltd (the TV listings companies) against a 1991 judgment of the Court of First Instance (CFI), bringing to an end a long running legal battle that has been waged for nine years between the TV listings companies and Magill TV Guide Ltd (Magill), an Irish publisher.The case has been the subject of a complaint, a Commission decision, a CFI ruling, an advocate-general's opinion and now a Court of Justice ruling.The issue underlying the case involves one of the most commercially important issues raised by the creation of a supranational body of European law: the relationship between national intellectual propert y rights and EU treaty rules on competition.The validity of national systems of intellectual property ownership is assured under the Treaty of Rome by art 222.

However, the exercise of intellectual property rights may infringe specific provisions of the Treaty of Rome, including competition rules.Art 86 of the treaty provides that undertakings in a dominant position, ie a position of market power such that they can control or hinder the maintenance of effective competition on a given market, are prohibited from abusing that position.

There is no possibility of an exemption being granted for such abusive behaviour as exists for agreements caught by art 85(1).Conduct can infringe art 86 in a wide variety of situations.

Art 86 itself lists four examples, including conduct, which limits production, markets or technical development.

A classic example of abusive conduct therefore occurs where an undertaking uses its market power to exclude new competitors from entering or remaining on a given market.

Abusive conduct will only infringe art 86 where it is shown that the undertaking concerned is in a dominant position.In the early 1980s, Magill attempted to publish an innovative weekly TV listing magazine giving details of all programmes to be shown in the Irish Republic and Northern Ireland.

Such programme listing information was protected by copyright and the TV listings companies were therefore able to refuse to grant Magill a license to reproduce their copyright material on a weekly basis.Magill was forced to stop publication, but alleged that the refusal was anti-competitive and merely protected the market for their own individual (and non-comprehensive) TV guides.The effect was that although comprehensive daily listings appeared in the press with the consent of the TV listings companies, no weekly listing appeared, except the individual listings magazines of the TV listings companies, each of which carried only their own programme listings.Magill complained to the Commission, which adopted a decision in 1988 requiring the TV listings companies to grant Magill and other third parties a licence on reasonable terms.

The TV listings companies appealed the decision to the CFI, which upheld the Commission's decision and subsequently appealed this judgment to the court.Appeals from judgments of the CFI to the court are only permitted on points of law.

The Magill judgment, consists firstly of a review of the legal analysis and conclusions drawn by the CFI.

Having completed this review the court effectively endorses all aspects of the CFI's ruling on the application of art 86.

The court therefore equally rejects the opinion and suggested response of advocate-general Gulmann issued in June 1994.The court held as follows:-- the mere holding of an intellectual property right does not of itself make the holder a dominant undertaking for the purposes of art 86.

Dominance is a question of fact to be assessed in individual cases;-- the CFI and the Commission had correctly defined the relevant product and geographic markets.

A force of circumstance had given the TV listings companies a de facto monopoly over their own programme scheduling information.

As a result they were in a dominant position not only in respect of the supply of that information, but also on the secondary market for the publication of weekly TV guides;-- the exercise of a national copyright can be challenged under EU competition rules, even where the exercise consists of an act which forms part of the essential subject matter of that right, eg in the case of co pyright, the act refusing to license a right of reproduction, provided that there are 'exceptional circumstances' present;-- three elements were cited by the court as creating the exceptional circumstances in Magill in which art 86 became applicable:(i) the refusal to license reproduction prevented the emergence of a new product for which there was a potential consumer demand which the TV listings companies were not satisfying;(ii) the refusal was arbitrary in that it was not justified for reasons associated with either the TV listings companies' broadcasting or publishing activities;(iii) finally as a consequence of the refusal, the TV listings companies reserved to themselves, by eliminating or excluding all potential competition, the market for the publication of weekly TV guides;-- trade between member states was affected as all competition had been excluded in a geographical market consisting of one member state (Ireland) and part of another (Northern Ireland);-- the provisions of the Berne Convention on copyright did not change this assessment as the provisions could not be relied upon for questions concerning intra-EU relations where the rights of countries which are not member states of the EU are not involved.Whilst it seems clear that the 'Magill rules' will be of general application, not confined merely to cases involving copyright, there are a number of issues of practical importance which the court seems to have chosen to leave open.In not defining or in any way limiting the concept of 'exceptional circumstances', the court considers that this concept is to be widely interpreted.

The exceptional circumstances identified in Magill are essentially examples of conduct which the court has held to be abusive in past cases.In Magill the abuse/exceptional circumstance incorporated two elements: an exclusionary refusal to supply a raw material, as per the court's decision in Commercial Solvents (cases 6 and 7/73 [1974] ECR 223); and a limitation of consumer services and failure to satisfy potential consumer demand, within the terms of the court's ruling in Hofner (case C 41/90 [1991] ECR 1979).The court does not indicate whether the exceptional circumstances were cumulative or whether individually either element would have sufficed.Logically other examples of abuse can also create 'exceptional circumstances' and, indeed, may automatically do so.

Returning to the words of the CFI, which the court reproduced in its judgement, where it is apparent that a rightholder is exercising its rights in such ways or circumstances as in fact to pursue an aim manifestly contrary to art 86, the right-holder must anticipate that its actions may be challenged on EU competition grounds before national or European courts and/or the Commission.1995