by Miranda Cole and Christos Malamataris
On 20 March, the European Commission published its decision settling the Reuters Instrument Codes (“RICs”) Case. The Commission’s investigation focused on whether the restrictions imposed by Thomson Reuters (previously Reuters) on the licensing of RICs amounted to the abuse of a dominant position (in breach of Article 102 TFEU) in the market for consolidated real-time datafeeds (“RTDs”).
Consolidated RTDs supply financial institutions with continually updated market information on financial instruments, combining data about different types of instruments from several sources. Thomson Reuters was historically the most important provider in this market. Data in Thomson Reuters’ Consolidated RTDs can only be retrieved using the relevant RICs. As a result, RICs became the de facto standard identifiers, and customers developed their internal systems using the RIC symbology, embedding RICs in their IT applications and training their staff to use them.
However, Thomson Reuters imposed significant restrictions on the use of RICs, including (i) prohibiting customers from using them to retrieve data from Consolidated RTDs provided by Thomson Reuters’ competitors; and (ii) preventing third parties from creating mapping tables matching RICs with the symbology used by Thomson Reuters’ competitors. The Commission found that the practical effect of these restrictions was that customers of Thomson Reuters were unable to switch to RTDs provided by competing suppliers.
In its preliminary analysis, the Commission concluded that Thomson Reuters’ conduct breached Article 102 TFEU because it was liable to cause consumer harm and foreclose competitors, while adding that the restrictions imposed could not be justified on the basis of IP rights (copyright or database rights). To address these concerns, Thomson Reuters offered commitments, the effect of which was to enable customers to switch some of their internal applications to use Consolidated RTDs provided by Thomson Reuters’ competitors, without having to change the symbology embedded in their internal systems or retrain staff. The commitments envisage that this will be achieved using mapping tables produced by third parties that match RICs with the symbology used in competitors’ Consolidated RTDs. These mapping tables can be developed by customers themselves or by third parties developing for them. However, the commitments do not enable Thomson Reuters’ competitors to embed mapping tables in their Consolidated RTDs and sell them directly to customers.
The approach reflected in the commitments suggests that the Commission did not consider the supply of market-generated data (in which no database or copyrights vest) to be a “new product”. Had it done so, Thomson Reuters might have been expected to have been required to provide access to RICs (as essential inputs) to its competitors (as per IMS Health, for example). The scope of the commitments suggest that the Commission viewed the restrictions imposed by Thomson Reuters as a form of exclusive dealing that tied individual customers to its Consolidated RTDs, since commitments enabling customers to develop mapping tables (independently or through third parties) would be enough to break that tie.