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The issue of essential facilities has attracted renewed attention in Europe in recent years because of the controversy between IMS Health Inc. and NDC Health Corporation, two competitors in pharmaceutical data services in Germany . . . After an extensive investigation, the European Commission (EC) ordered that IMS grant access to the 1860 brick structure on commercially reasonable terms, and the EC decision is now on appeal in the Court of First Instance in Luxembourg. One issue that emerged in that litigation is whether a decision by European authorities to grant access to the alleged essential facility, especially one whose market power derived in part from a copyright, would open a gap between European and U.S. antitrust law. In response to that contention, the authors of this piece filed a statement in the Court of First Instance describing U.S. law on the subject. We argued that the EC's ruling is consistent with U.S. jurisprudence on the subject of essential facilities. The remainder of this article consists of a revised version of the Court of First Instance filing.


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70 Antitrust L.J. 443-462 (2002)