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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> AEPI v Commission (Competition) [2009] EUECJ C-425/07 (23 April 2009) URL: https://www.bailii.org/eu/cases/EUECJ/2009/C42507.html Cite as: [2009] EUECJ C-425/07, [2009] 5 CMLR 2, [2009] EUECJ C-425/7 |
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(Appeal Competition Commission rejecting a complaint Serious impediments to the proper functioning of the common market Lack of Community interest)
In Case C-25/07 P,
APPEAL under Article 56 of the Statute of the Court of Justice, brought on 14 September 2007,
AEPI Elliniki Etaireia pros Prostasian tis Pnevmatikis Idioktisias AE, established in Maroussi (Greece), represented by T. Asprogerakas Grivas, dikigoros,
appellant,
the other party to the proceedings being:
Commission of the European Communities, represented by F. Castillo de la Torre and T. Christoforou, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
composed of A. Rosas, President of the Chamber, A. à Caoimh, J. Klučka, U. Lõhmus and A. Arabadjiev (Rapporteur), Judges,
Advocate General: P. Mengozzi,
Registrar: H. von Holstein, Deputy Registrar,
having regard to the written procedure and further to the hearing on 15 October 2008,
after hearing the Opinion of the Advocate General at the sitting on 27 November 2008,
gives the following
Background to the dispute
'In the present case, the alleged infringement is unlikely seriously to impede the proper functioning of the common market, given that all the parties involved are established in Greece and pursue their activities in that country alone. It is not foreseeable that that situation will change, that is to say, that the three ... bodies will start to pursue their activities in other countries in the near future, in view of the structure of the markets providing services for the protection of related rights and the practical difficulties of such an undertaking. Moreover, the effects of the alleged practices are felt only in the Greek market. Contracts for rights to use music are concluded only with radio and television broadcasters and other users in Greece. The three ... bodies are empowered to act only in respect of the protection of related rights in Greece and do not, in practice, have the possibility of exercising such powers outside that country.
Secondly[,] in order to demonstrate that an infringement may have occurred, the Commission is required to undertake a complex investigation into the conditions prevailing in the market in question and the available alternatives. First, given that, on the one hand, Greek law (in accordance with Directive 92/100/EEC [of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61)]) provides that a single remuneration is to be paid for all related rights and, on the other, that the alleged infringement arises from the fact that the three ... bodies make a collective demand to the user for payment of that remuneration, the Commission would have to demonstrate that effective methods exist by which it is possible to seek payment of the single remuneration separately. Second, the Commission [would have] to show [not only] that the three ... bodies held a collective dominant position [but also], according to the judgments of the Court in [Case 395/87] Tournier [[1989] ECR 2521] and [Joined Cases 110/88, 241/88 and 242/88] Lucazeau [and Others [1989] ECR 2811], investigate the relative levels of fees charged in respect of copyright and related rights in all the countries of the European Union, the respective bases on which the calculations are made, the criteria employed and the conditions which prevail in the Greek market by comparison with [the markets] in other European countries.
Moreover, it must be made clear that your company has the opportunity available to it of making its own complaints to the national authorities. In particular[,] it may bring a case before the Greek competition authority. On account of its in-depth knowledge of the conditions prevailing in the national market[,] the Greek competition authority is perfectly capable of dealing with your complaint. The fact that all the parties involved and all the music users in question are established in Greece and pursue their activities in the Greek market adds greater significance to its detailed knowledge of the conditions in the local market. Furthermore, those authorities have competence to apply Articles [81 EC and 82 EC] in the same way as the ... Commission.
It must therefore be concluded that the extent and complexity of the measures of investigation necessary in order to determine whether the conduct of the three ... bodies ... complies with the Community competition rules are disproportionate in relation to the very minor importance of any infringement [in terms of] the functioning of the common market. The case does not, therefore, present the level of Community interest necessary for the Commission to open an investigation.'
The proceedings before the Court of First Instance and the judgment under appeal
'47 Consequently, the Court's analysis must be restricted to the arguments by which the applicant disputes the contention that there were no adverse effects on trade between Member States, maintaining that the imposition of excessively high fees in respect of related rights is a practice that may affect the common market within the meaning of Articles 81 EC and 82 EC, even though it is confined to Greek territory.
48 In that connection the Commission took the view, first, that all the parties involved in the case were established and pursued their activities in Greece, secondly, that it was unlikely that the activities of the three ... bodies could be extended to other countries and, thirdly, that the music users were Greek nationals and that the powers of the three ... bodies were confined to Greek territory.
49 It must be stated at the outset that the points of fact and law put forward by the appellant are not capable of establishing that the practices complained of affected the pattern of trade between Member States in a manner which might harm the attainment of the objectives of a single market. The applicant does no more than refer to the financial difficulties suffered by companies managing copyright and music users in Greece and in all the Member States, but fails to substantiate its own claims or even to adduce suitable evidence for that purpose.
50 As regards the applicant's argument that the fact that the royalties of Greek and foreign authors are paid over to companies established in the European Union has the effect of seriously impeding the proper functioning of the common market, it is clear that the powers of the three ... bodies are confined to Greek territory and, therefore, it is essentially users of music in that territory and Greek authors who suffer the alleged adverse effects of the practices complained of.
51 As regards the arguments that the Court has already held that infringements confined to the territory of one Member State may constitute infringement of the rules of competition, it must be pointed out that, in the cases which gave rise to those decisions, the effect on trade between Members States stemmed from either concerted action by national copyright-management societies, with the effect that they systematically refused to grant direct access to their repertoires to foreign users (Lucazeau and Others, paragraph 17, and Tournier, paragraph 23), or the exclusion of all potential competitors on the geographical market consisting of one Member State (Joined Cases C-41/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR I-743, paragraph 70). Consequently, the cases relied on do not have aspects in common with the present case.
52 As regards the alleged requirement of uniformity and proportionality between the Member States as far as concerns royalties, which was set out in the judgment in SENA [Case C-45/00 Stichting ter Exploitatie van Naburige Rechten (SENA) [2003] ECR I-1251], it must be pointed out that, in that judgment (paragraph 34) the Court, on the contrary, made a ruling to the effect that there was no Community definition of equitable remuneration and that there were no objective reasons to justify the laying down by the Community judicature of methods for determining what constitutes such remuneration.
53 Lastly, as regards the argument that the Commission acknowledged that there had been infringement of Articles 81 EC and 82 EC, it is clear from the letter of 10 December 2004 and from the contested decision that it is unfounded since the Commission did not acknowledge that such infringement had occurred.
54 In the light of the foregoing, the applicant has not adduced any specific evidence to establish the actual or potential existence of serious impediments to the proper functioning of the common market.
55 Consequently, the applicant has failed to demonstrate that, in the contested decision, the Commission made a manifest error of assessment by considering that the effects of the practices that the applicant complained of were felt for the most part, or even entirely, in the Greek market and, accordingly, were unlikely to affect trade between Member States within the meaning of Articles 81 EC and 82 EC.
56 Consequently, the first plea must be rejected as unfounded.'
Forms of order sought
set aside the judgment under appeal;
rule on the merits in accordance with the form of order sought by the applicant in the first instance case or refer the case back to the Court of First Instance for a new ruling, and;
order the Commission to pay the costs in their entirety.
The appeal
Admissibility
Substance
The first ground of appeal
Arguments of the parties
Findings of the Court
The second to fourth grounds of appeal
Arguments of the parties
around 4 500 undertakings which used music and regularly paid royalties ceased to broadcast music on account of the prices imposed by the three bodies in respect of the related rights (5% for the related rights, a percentage which must be compared with the 2.2% requested by the appellant in respect of the copyright). Furthermore, as the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) stated in its judgment No 5144/2005, the appellant received a sum of EUR 5 522 per annum in respect of the royalties payable for the music broadcast in Olympiaki Aeroporia's aeroplanes, whereas the three bodies asked that airline company for a sum of EUR 627 563 per annum in respect of the related rights payable for that music, and
the conduct described above affects intra-Community trade in the field of copyright and related rights because around 50% of the music broadcast in Greece is foreign music. Furthermore, authors of foreign music which is broadcast in Greece are all represented in that Member State by the appellant which collects their royalties for them there. They are thus deprived of significant revenue on account of the exorbitant prices imposed by the three bodies.
Findings of the Court
The fifth ground of appeal
Arguments of the parties
Findings of the Court
Costs
On those grounds, the Court (Third Chamber) hereby:
1. Dismisses the appeal.
2. Orders AEPI Elliniki Etaireia pros Prostasian tis Pnevmatikis Idioktisias AE to pay the costs.
[Signatures]
* Language of the case: Greek.