JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
12 April 2013 (*)
(Competition – Agreements, decisions and concerted practices – Copyright relating to public performance of musical works via the internet, satellite and cable retransmission – Decision finding an infringement of Article 81 EC – Sharing of the geographic market – Bilateral agreements between national collecting societies – Concerted practices precluding the possibility of granting multi-territory and multi-repertoire licences – Article 151(4) EC – Cultural diversity)
In Case T‑451/08,
Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (Stim), established in Stockholm (Sweden), represented by C. Thomas, Solicitor, and N. Pourbaix, lawyer,
applicant,
v
European Commission, represented by F. Castillo de la Torre and V. Bottka, acting as Agents,
defendant,
APPLICATION for annulment in part of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C2/38.698 – CISAC),
THE GENERAL COURT (Sixth Chamber),
composed of H. Kanninen (Rapporteur), President, S. Soldevila Fragoso and M. van der Woude, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearings on 12 October 2011 and 27 June 2012,
gives the following
Judgment
Background to the dispute and the contested decision
1 Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C2/38.698 – CISAC) (‘the contested decision’) concerns the conditions of management and licensing of copyright relating to public performance rights of musical works solely with respect to exploitation via the internet, satellite and cable retransmission. It is addressed to 24 collecting societies established in the European Economic Area (EEA) which are members of the International Confederation of Societies of Authors and Composers (CISAC) (‘the collecting societies’), including the applicant, Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (Stim).
2 The collecting societies manage authors’ (lyricists’ and composers’) rights in the musical works which they have created. Those rights generally include the exclusive right to authorise or prohibit the exploitation of the protected works. That is the case, in particular, for public performance rights. A collecting society acquires those rights either by direct transfer from the original holders or by transmission from another collecting society managing the same categories of rights in another country and, on behalf of its members, grants exploitation licences to commercial users, such as broadcasting undertakings or organisers of live shows (‘the users’).
3 The management of copyright implies that each collecting society must ensure that each right holder receives the remuneration due to him for the exploitation of his works, irrespective of the territory in which they are exploited, and ensure that there is no unauthorised exploitation of protected works.
4 In that context, CISAC has drawn up a non-binding model contract, the initial version of which dates back to 1936 and has been amended on a number of occasions, which must be completed by the contracting collecting societies, in particular with respect to the definition of the territory in which they operate (‘the model contract’). On the basis of the model contract, the collecting societies have prepared reciprocal representation agreements (‘RRAs’) whereby they mutually confer on each other the right to grant licences. The RRAs cover not only the exercise of the rights for traditional ‘offline’ applications (concerts, radio, discotheques, etc.), but also exploitation via the internet, satellite or cable broadcast.
Administrative procedure
5 In 2000 RTL Group SA, a radio and television broadcasting group, lodged a complaint with the Commission of the European Communities against a member of CISAC concerning its refusal to grant it a Community-wide licence for its music broadcasting activities. In 2003 Music Choice Europe Ltd, which provides radio and television broadcasting services on the internet, lodged a second complaint against CISAC concerning the model contract. As a result of those complaints the Commission initiated a procedure pursuant to the competition rules.
6 On 31 January 2006 the Commission addressed a statement of objections to CISAC and the collecting societies (‘the statement of objections’) and set a time‑limit of two months for a response; the applicant complied with that time‑limit.
7 CISAC and most of the collecting societies, including the applicant, were heard by the Commission at the hearing on 14, 15 and 16 June 2006.
8 In March 2007 the applicant and 17 other collecting societies, as well as CISAC, proposed a number of commitments to the Commission pursuant to Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 implementing the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), which were published in the Official Journal of the European Union, pursuant to Article 27(4) of that regulation (OJ 2007 C 128, p. 12).
9 At recital 72 to the contested decision the Commission asserted that, in the light of the observations received, the commitments referred to in paragraph 8 above would not give an appropriate answer to the competition concerns raised in the statement of objections.
Relevant clauses of the model contract
10 The contested decision is aimed in particular at the clauses provided for, at least during a certain period, by the model contract with regard, first, to the membership of the right holders in the collecting societies (‘the membership clause’) and, second, to the exclusive nature of the mandates which the collecting societies grant themselves mutually in the RRAs and to their territorial scope.
11 As regards the membership clause, Article 11(2) of the model contract provided until 3 June 2004 that the collecting societies could not accept as a member an author already affiliated to another collecting society or having the nationality of one of the countries in which another collecting society was active, except under certain conditions (recitals 18 to 21 and 27 to the contested decision). It cannot be excluded that a number of RRAs still contain such a clause (recitals 35, 125 and 260 to the contested decision).
12 As regards the exclusive nature of the mandates and their territorial scope, first, Article 1(1) and (2) of the model contract provided, until May 1996, that one of the collecting societies would grant another, reciprocally, the exclusive right on the territories on which the latter operated to grant the necessary authorisations for all public performances (‘the exclusivity clause’). Second, Article 6(1) of the model contract invites the collecting societies to define the territories in which they operate, without giving further detail in that regard. Article 6(2) states that each collecting society is to refrain, in the territory of the other society, from any intervention in the latter’s exercise of the mandate conferred on it (‘the non‑intervention clause’) (recitals 22 to 25 to the contested decision).
13 According to the Commission, the collecting societies apply Article 6(1) of the model contract in such a way as to introduce territorial limitations such that the geographic cover of the licences granted by a given society is, apart from a few slight exceptions, limited to the territory of the EEA country in which the society in question is established (‘the national territorial limitations’) (recital 38 to the contested decision).
14 The evidence supplied by the collecting societies during the administrative procedure did not permit the Commission to conclude with certainty, first, that 17 of those societies had actually and completely removed the exclusivity clause from their RRAs and, second, that all the collecting societies had actually and completely removed the non-intervention clause from the agreements (recitals 37 and 40 to the contested decision).
Relevant markets
15 The collective management of copyright by means of the model contract covered the following three product markets: first, the provision of copyright administration services to right holders; second, the provision of copyright administration services to other collecting societies; and, third, the grant of licences covering public performance rights to users for exploitation via the internet, satellite and cable retransmission (recital 49 to the contested decision).
16 From a geographic point of view, the first market is national, but, in the absence of membership restrictions, it could be broader (recitals 58 and 59 to the contested decision).
17 The second market has a national aspect, but includes cross-border elements. Since internet transmission activities are not confined to a single EEA country, undertakings in those sectors require multi-territorial licences, which the collecting societies would be able to grant in the absence of the restrictions in the RRAs. Likewise, for satellite transmission and cable retransmission, any collecting society established within the satellite footprint would be able to grant licences covering the whole of that footprint (recitals 60 to 62 to the contested decision).
18 Finally, although, historically, the third market has been defined as having a national scope owing to the need for local monitoring, the same does not necessarily apply for internet, satellite and cable retransmission, as remote monitoring is possible in those fields (recitals 63 and 64 to the contested decision).
Application of Article 81(1) EC and Article 53(1) of the EEA Agreement
Membership clauses, exclusivity clauses and non-intervention clauses
19 For the purposes of the present case, according to the Commission, first, the membership clause constitutes an infringement of Article 81(1) EC and Article 53(1) of the EEA Agreement (recitals 123 to 137 to the contested decision).
20 Second, following examination of the exclusivity clause and the non-intervention clause, it became apparent that the exclusivity clause had a foreclosure effect in the domestic market of collecting societies which enjoy exclusivity, since no collecting society could grant a licence in the national territory of another collecting society. According to the Commission, even the possibility that a collecting society would grant directly to a user a licence covering only its own repertoire for performances in the national territory of another collecting society (‘a direct licence’) is excluded.
21 As regards the non-intervention clause, the Commission observes that in the statement of objections it had considered, in substance, that that clause reinforced the exclusivity clause. Following the observations of certain collecting societies, which maintained that the non-intervention clause does not prevent the grant of direct licences, and in view of the fact that some RRAs were amended so as to remove that clause, the Commission decided to refrain from taking action in relation to that provision of the model contract (recitals 138 to 152 to the contested decision).
Concerted practice relating to the national territorial limitations
22 According to the Commission, the national territorial limitations are the result of a concerted practice that restricts competition (recitals 154 and 155 to the contested decision).
23 It claims that the national territorial limitations cannot be explained simply by autonomous conduct prompted by market forces. Thus, the collecting societies substituted cooperation for the risks of competition in order to ensure, to a certain extent, that those limitations would be not only accepted reciprocally by the other collecting societies but also implemented in all the RRAs (recitals 156 and 157 to the contested decision).
24 The reason for its certainty is said to lie in the mutual dependency existing between collecting societies, especially in the field of offline applications, which require local monitoring networks. For the licensing of rights and the collection of royalties, each collecting society is therefore dependent on the other collecting societies and thus at risk of being disciplined if, in the field of online rights, it is unwilling to perpetuate the historical market segmentation (recital 157 to the contested decision).
25 According to the Commission, the existence of a concerted practice emerges from a number of elements.
26 First, the Commission emphasises that the collecting societies discussed the standardisation of their model contracts in the context of CISAC’s activities (recital 158 to the contested decision).
27 Second, the Santiago Agreement, which was notified to the Commission by a number of collecting societies with a view to obtaining an exemption under Article 81(3) EC, shows that the question of the territorial scope of the mandates referred to in the RRAs, in particular those covering new forms of exploitation, was the subject-matter of multilateral discussions among the collecting societies. That agreement, whereby the collecting societies undertook to grant global licences but only to users established in their national territory, was not renewed when it expired at the end of 2004, following the statement of objections which the Commission sent to the collecting societies in the context of the procedure for obtaining the exemption referred to above (‘the Santiago statement of objections’), which resulted in a return to national territorial limitations. In the contested decision, the Commission considers that the abandoning of the Santiago Agreement shows that the collecting societies did coordinate their behaviour as regards the scope of licences for internet use (recitals 158 and 169 to the contested decision).
28 Third, the parallel behaviour relating to the national territorial limitations should be assessed in the light of the preceding situation, in which the RRAs contained the exclusivity clause. The fact that no change in behaviour occurred with respect to those limitations after the exclusivity clause was removed is an indication of a concerted practice. In that regard, however, the contested decision acknowledges that this is not so where there are other reasons which may show that the market segmentation is the result of individual behaviour (recital 170 to the contested decision).
29 As regards the existence of such reasons in the present case, in the first place, the Commission observes that, while it accepts that copyright and the scope of its protection are defined by national legislation, that does not mean that licences relating to a specific country must be granted by the national collecting society. In that respect, its argument is based on the Santiago Agreement (recitals 159 and 160 to the contested decision).
30 In the second place, the Commission denies that the relevant legislative framework, in particular Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15), justifies the collecting societies’ behaviour with respect to satellite broadcasting. That directive merely determines the applicable law for the satellite broadcasting of copyright works, which is the law of the EEA country in which the signals carrying the programme are introduced in an uninterrupted chain of communication leading to the satellite and back to earth.
31 However, Directive 93/83 does not establish that only the collecting society established in that EEA country can grant the licences necessary for that form of copyright exploitation. Furthermore, as that directive provides that the act of communication must be regarded as taking place solely in that EEA country, users need a licence only for that country. Directive 93/83 therefore rendered obsolete the Sydney Agreement, whereby, in 1987, the collecting societies had inserted into the model contract a provision establishing that the collecting society established in the country from which the signals carrying the programmes went to the satellite was authorised to grant licences covering the entire footprint of the satellite, where necessary after having consulted or obtained the consent of the other collecting societies concerned (recitals 163 to 165 to the contested decision).
32 In the third place, the Commission points out that the collecting societies differ considerably in terms of efficiency, administrative costs and their repertoires. They could therefore have an interest in mandating one collecting society, with a particularly good record, to grant licences covering a wider territory than that in which it is established, or to mandate more than one collecting society in some regions, in order to increase the distribution of their repertoire and thereby the remuneration of their authors (recitals 167 and 168 to the contested decision).
33 In the fourth place, the Commission observes that, as the contested decision deals only with the legal exploitation of copyrighted material (recital 11 to the contested decision), the need for local monitoring does not explain the national territorial limitations. For exploitation via the internet, satellite and cable retransmission, there are technical solutions that make it possible to monitor the licensee even where the licence is used outside the national territory of the collecting society or where the licensee is established outside that territory. The collecting societies have already put in place licensing practices, as evidenced in particular by the grant of direct licences, which demonstrate their capability to monitor uses and users outside their domestic territory. Furthermore, the current system is not based on the principle of proximity with the licensee, since the territorial limitation of the mandate means that each collecting society grants licences for the use of rights in its territory of activity, irrespective of the residence of the licensee (recitals 171 to 174 to the contested decision).
34 At recitals 186 to 199, the Commission provides further information about each of the forms of exploitation covered by the contested decision. In particular, as regards the internet, it refers to the Simulcasting agreement, which was granted an exemption in Commission Decision 2003/300/EC of 8 October 2002 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case No COMP/C2/38.014 – IFPI ‘Simulcasting’) (OJ 2003 L 107, p. 58). That agreement allows broadcasters whose signals originate in the EEA to approach any collecting society which is a party to that agreement in order to obtain a multi‑territorial and multi-repertoire licence authorising Simulcasting broadcasting (the simultaneous transmission by radio stations and television channels, via the internet, of sound recordings included in their broadcasts of radio or television signals). The same applies to another agreement, the Webcasting agreement (recital 191 to the contested decision).
35 The Commission refers, moreover, to the ‘Nordic and Baltic’ cooperation model (‘the NBC model’), which allows a user to obtain a single multi-territorial licence for online exploitations, covering mechanical reproduction rights and public performance rights and valid for Denmark, Estonia, Latvia, Lithuania, Finland, Sweden, Iceland and Norway (recital 179 to the contested decision).
36 In addition, the Commission mentions that in January 2006 the German collecting society, the Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA), and the British collecting society, Performing Right Society Ltd, established the joint venture CELAS, which acts as a pan‑European one-stop-shop for the licensing of online and mobile rights of a particular publisher’s Anglo-American repertoire (recital 193 to the contested decision).
37 The existence of those agreements shows that a presence on the spot is not necessary (recital 190 to the contested decision). In that regard, the Commission observes that, if the monitoring carried out without a presence on the spot detected breaches which required legal proceedings or if it were necessary to audit the records on the spot, it would be possible for the collecting society that issued a licence covering a territory different from that of its Member State of establishment to entrust those tasks to another person, such as the local collecting society, which has a presence on the spot and the necessary knowledge of the legal system of the country concerned (recitals 177 and 178 to the contested decision).
38 After having provided that information in order to demonstrate that the national territorial limitations in the RRAs can be explained only by the presence of a concerted practice, the Commission acknowledges that, in particular circumstances, the decision not to grant authority to license outside the territory in which a collecting society is established may be prompted by the fact that the other collecting society does not have the technical capability that would enable it to provide proper monitoring and enforcement or by the fact that the legal system of an EEA country has features such that the national society will be preferred when the licensor makes its choice, owing, for example, to the particular status which it may enjoy in proceedings before the domestic courts. A territorial limitation which is the result of the assessment of those factors would not normally constitute a concerted practice restrictive of competition. However, the systematic practice of national territorial limitations in all the RRAs could not be explained by those factors (recitals 182 and 183 to the contested decision).
39 Having thus concluded that the collecting societies’ conduct constituted a concerted practice, the Commission considered whether that practice restricted competition. It considered that that was so, since that practice ensures that each collecting society is the only one that can grant users multi-repertoire licences for the EEA country in which it is established (recitals 207 to 209 to the contested decision).
40 The result is that each collecting society may charge administrative costs for the management of rights and the grant of licences without facing competitive pressure on those costs from other collecting societies. That lack of competition might have negative repercussions even at the level of authors, whose revenues may vary depending on the collecting society that administers their rights (recitals 134 and 210 to the contested decision).
41 In answer to the argument, raised by a number of collecting societies in their replies to the statement of objections, that competition between collecting societies would result in a ‘race to the bottom’ for the royalties of right holders, the Commission asserted, referring to Decision 2003/300, that Article 81(3) EC permits the development of a tariff mechanism capable of limiting competition on the prices of licences to the administrative costs, without having an impact on the income of the right holders. In any event, the mandating collecting society could merely define a level of revenue for its repertoire vis-à-vis the other collecting societies that grant licences abroad. It would thus receive a guaranteed ‘wholesale’ price for its repertoire while the collecting societies granting licences for that repertoire would be able to compete on the margin which they add to that wholesale price (recitals 217 to 219 to the contested decision).
42 In that regard, the Commission observes that certain adaptations of the pricing system would provide the collecting societies with an incentive to compete. A recent market trend confirms that it may be an efficient strategy for right holders, and therefore also for the collecting societies, to grant their rights to several competing collecting societies. Accordingly, a publishing group has announced that it intends to designate several collecting societies which will have the power to grant users pan-European licences to exploit the Anglo-American mechanical rights of its repertoire for online use (recital 220 to the contested decision).
43 The contested decision also mentions Commission Decision C(2006) 4350 of 4 October 2006 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C2/38.681 – The Cannes Extension Agreement) (OJ 2007 L 296, p. 27), concerning licences for mechanical rights, which imposed binding commitments providing for a mechanism for the grant of multi-territorial licences with a guarantee that right holders’ revenues will not be jeopardised, owing to the fixing of a uniform rate agreed by all collecting societies, while permitting a certain degree of competition by the introduction of the possibility for collecting societies to offer a maximum rebate to record companies, limited to administrative costs (recital 82 to the contested decision).
Application of Article 81(3) EC and Article 53(3) of the EEA agreement
44 In recitals 229 to 253 to the contested decision, the Commission examined whether – as some collecting societies claimed in their replies to the statement of objections – the concerted practice relating to the territorial limitations could be exempted from the application of Article 81(1) EC, since it fulfilled the four conditions laid down in Article 81(3) EC, namely, first, that it contributed to improving the production or distribution of the goods at issue or to promoting technical or economic progress, secondly, that it did not impose on the undertakings concerned any restrictions which were not indispensable, thirdly, that a fair share of the resulting benefit was reserved for the consumers of those goods and, fourthly, that it did not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
45 In that respect, the Commission considered, first, that the system of RRAs did indeed permit the existence of national one-stop-shops, which improve the distribution of music by allowing users to obtain multi-repertoire licences. However, the contested decision would not eliminate that system; it would merely prohibit coordination between the collecting societies in defining the scope of the mandates which they confer on each other.
46 For the same reason, the Commission considered, secondly, that the concerted practice was not indispensable to maintaining the system of national one-stop-shops. Nor, in the Commission’s view, is that practice indispensable in order to effectively ensure the necessary monitoring.
47 Thirdly, the Commission considered that the restriction on competition resulting from the national territorial limitations could constitute an advantage for right holders only if all the collecting societies administered the repertoires entrusted to them efficiently, which, according to the Commission, is not the case here, given the differences in the level of the administrative costs of each collecting society. Furthermore, it left open the question of the advantages which could result for users, as the national territorial limitations have certain advantages for users but also have the disadvantage that licences are strictly limited as to their geographic scope.
48 Fourthly, the Commission observed that the coordination on territorial restrictions completely eliminated competition among collecting societies on the same territory. That elimination of competition is all the more serious because the collecting societies are the only ones that could reasonably enter the other national markets.
Application of Article 151(4) EC
49 As a number of collecting societies had observed in their replies to the statement of objections that, according to Article 151(4) EC, the Community is to take cultural aspects into account in its action under other provisions of the Treaty, in particular in order to respect and to promote the diversity of its cultures, the Commission explained, at recitals 94 to 99 to the contested decision, that the contested decision did not call cultural diversity into question, since it did not prohibit the RRA system as such, but challenged only the national territorial limitations established in that system as a result of concertation.
50 In that regard, the Commission observed inter alia that it was incorrect to maintain that the contested decision would prevent users from gaining access to the world repertoire through one collecting society and thereby lead certain users to focus on the popular repertoires, thus neglecting the repertoires of the smaller collecting societies, which would therefore find it more costly to promote their authors. In any event, the Commission states that the marketing efforts for the distribution of musical works are essentially borne by record companies, broadcasters and radio stations, not by the collecting societies.
51 Nor, according to the Commission, does the contested decision interfere with the collecting societies’ internal policy regarding the distribution of royalties between their members, whether they apply some level of cross-subsidisation, including by offering social or cultural services, or whether they distribute royalties strictly in accordance with the actual use of musical works.
Operative part
52 On the basis of the above considerations, the Commission, without imposing a fine, decided as follows:
‘Article 1
The following [24] undertakings have infringed Article 81 [EC] and Article 53 of the EEA Agreement by using, in their reciprocal representation agreements, the membership restrictions which were contained in Article 11 [paragraph 2] of the model contract … or by de facto applying those membership restrictions:
…
Stim
…
Article 2
The following [17] undertakings have infringed Article 81 [EC] and Article 53 of the EEA Agreement by conferring, in their reciprocal representation agreements, exclusive rights as provided for in Article 1 [paragraphs 1 and 2] of the CISAC model contract:
…
Stim
…
Article 3
The following [24] undertakings have infringed Article 81 [EC] and Article 53 of the EEA Agreement by coordinating the territorial delineations in a way which limits a licence to the domestic territory of each collecting society:
…
Stim
…
Article 4
1. The undertakings listed in Articles 1 and 2 shall immediately bring to an end the infringements referred to in those Articles, in so far as they have not already done so, and shall communicate to the Commission all the measures they have taken for that purpose.
2. The undertakings listed in Article 3 shall, within 120 days of the date of notification of this Decision, bring to an end the infringement referred to in that Article and shall, within that period of time, communicate to the Commission all the measures they have taken for that purpose.
In particular, the undertakings listed in Article 3 shall review bilaterally with each other undertaking listed in Article 3 the territorial delineation of their mandates for satellite, cable retransmission and internet use in each of their reciprocal representation agreements and shall provide the Commission with copies of the reviewed agreements.
3. The addressees of this Decision shall refrain from repeating any act or conduct described in Articles 1, 2 and 3, and from any act or conduct having the same, or similar, object or effect.
…’
Procedure and forms of order sought
53 By application lodged at the Registry of the General Court on 2 October 2008, the applicant brought an action for the partial annulment of the contested decision.
54 Upon hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure as provided for in Article 64 of the Rules of Procedure, invited the parties to answer a number of questions. The parties complied with that request.
55 At the hearing on 12 October 2011, the parties presented oral argument and answered the questions put to them by the Court.
56 As the Judge-Rapporteur was unable to sit in the present case, the President of the General Court reallocated the case to another Judge-Rapporteur and, pursuant to Article 32(3) of the Rules of Procedure, designated another Judge to complete the Sixth Chamber.
57 By order of 11 January 2012, the General Court (Sixth Chamber), in its new composition, reopened the oral procedure and the parties were informed that they could present oral argument at a further hearing.
58 The parties again presented oral argument and replied to the questions put by the Court at the hearing on 27 June 2012.
59 The applicant claims that the Court should:
– annul Article 3, Article 4(2) and Article 4(3) of the contested decision, the latter only in so far as it refers to Article 3;
– order the Commission to pay the costs.
60 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
61 In support of its action, the applicant relies on a single plea in law, alleging breach of Article 151(4) EC. That single plea in law is composed, in essence, of three parts, relating to, first, the consequences which the prohibition of the concerted practice relating to national territorial limitations has on cultural diversity in the European Union, secondly, the actual scope of the restriction on competition arising from that concerted practice and, thirdly, the application of Article 81(3) EC.
62 Moreover, at the hearings the applicant claimed that the Commission had not proved the existence of a concerted practice relating to the national territorial limitations contained in the RRA.
63 The Commission submits that, by its statements at the hearings, the applicant has raised a new plea in law, which should be declared inadmissible.
64 It is necessary, first of all, to rule on the admissibility of the applicant’s claims relating to the lack of evidence of the concerted practice.
Admissibility of the claims relating to the lack of evidence of the concerted practice
65 The applicant claims that the lack of evidence which it relied on at the hearings is closely linked to the plea in law, expressly set out in its written pleadings, alleging that the concerted practice does not restrict competition.
66 In that respect, it must be recalled that, according to the case-law, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure, as the first subparagraph of Article 48(2) of the Rules of Procedure provides. Nevertheless, a plea which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible (see Case T‑359/04 British Aggregates and Others v Commission [2010] ECR II‑4227, paragraph 87 and the case-law cited).
67 In the present case, in order to assess whether the applicant’s claims relating to the lack of evidence of the concerted practice constitute amplification of the single plea in law which it set out in its written pleadings, it must be noted, first of all, that the applicant did not contest, in the application or in the reply, the existence of a concerted practice. Its single plea in law alleges only a breach of Article 151(4) EC and is based on the consequences which the contested decision has for cultural diversity.
68 The applicant has not called into question, in its written pleadings, the evidentiary character of the elements referred to in the contested decision, which, according to the Commission, add to the finding of parallel conduct and consequently allow the existence of the concerted practice relating to the national territorial limitations to be established.
69 Moreover, the arguments relied on by the applicant in its written pleadings to support its claim that the concerted practice did not restrict competition, in the light of the obligation to take into consideration Article 151(4) EC, do indeed have a link to the fact that the parallel conduct of the collecting societies could be explained by reasons other than concertation. However, that link does not allow the inference that the applicant’s claims relating to the lack of evidence of the concerted practice is a mere amplification of the plea in law put forward in its written pleadings.
70 In that respect it must be observed that the concepts used to establish the existence of concertation, within the meaning of Article 81(1) EC, are different from those used to establish the existence of the impairment of competition which may result from that concertation. It follows that the examination of the reasons put forward as other explanations for the parallel conduct of the collecting societies differs significantly from the assessment of the existence of a restriction on competition.
71 In the first case, by invoking, at the hearing, a lack of evidence of the concerted practice, the applicant sought to obtain a ruling by the General Court on the issue of whether there were plausible explanations, other than concertation, for the parallel conduct of the collecting societies (see, to that effect, Joined Cases 29/83 and 30/83 Compagnie royale asturienne des mines and Rheinzink v Commission [1984] ECR 1679, paragraph 16, and Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraphs 71 and 126, and Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraph 725). However, in the second case, the analysis required for the examination of the single plea in law raised in the applicant’s written pleadings requires a ruling on the issue of whether the presence of national territorial limitations in all of the RRAs is objectively necessary to achieve the objectives of Article 151(4) EC (see, to that effect and by analogy, Case T‑112/99 M6 and Others v Commission [2001] ECR II‑2459, paragraph 109), or inherent to the protection of copyright (see, by analogy, Case C‑519/04 P Meca-Medina and Majcen v Commission [2006] ECR I‑6991, paragraph 42).
72 In the light of those significant differences between challenging, on the one hand, the existence of the concerted practice and, on the other hand, the restrictive character of that concerted practice, it is necessary to conclude that, at the hearing, the applicant raised a new plea in law, which must be rejected as inadmissible, in accordance with Article 48(2) of the Rules of Procedure.
The first part of the single plea in law, concerning the consequences which the prohibition of the concerted practice relating to the national territorial limitations has on cultural diversity
73 As a preliminary, it must be recalled that, under Article 151(4) EC, ‘[t]he Community shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures’. Accordingly, in the application of Article 81 EC, the Commission is required to take into consideration the objective of respecting and promoting cultural diversity, in particular where the application of that article concerns an activity linked to culture.
74 It is apparent from the contested decision (see paragraphs 49 to 51 above) that the Commission carried out an assessment of the case submitted to it from the perspective of Article 151(4) EC. Moreover, the applicant does not claim that the Commission ignored that provision, but rather claims, in essence, that it did not correctly evaluate the scope of the consequences that Articles 3 and 4 of the contested decision would have for cultural diversity.
75 The applicant claims that the system censured by the Commission is very simple for both authors and users. For authors, the system ensures that less popular types of music will be licensed and royalties paid in all territories in which the music is used, thus supporting the creative efforts of authors of those types of music. As for users, the system means that they can easily obtain licences for the global repertoire in each of the EEA countries in which they operate.
76 It must indeed be held that the cooperation of the collecting societies in the context of CISAC for the purposes, in particular, of creating a worldwide repertoire on the basis of RRAs, benefits cultural diversity, in so far as it opens up the possibility of obtaining from each collecting society a licence covering all of the repertoires, valid for exploitations taking place in the territory in which that collecting society is established (‘the national one-stop-shop’).
77 The fact that one user may acquire, in one transaction, a licence covering both the most popular music and less commercially attractive music is an advantage for the broadcasting of the latter. In the absence of a national one-stop-shop, some users might seek only licenses covering music whose broadcasting is more profitable and would not spend more in order to obtain the licences necessary for the broadcasting of other types of music.
78 The Commission considered, inter alia in recital 95 to the contested decision, that the decision did not harm cultural diversity. According to the Commission, the contested decision does not prohibit the system of RRAs as such, or prevent the collecting societies from using some national limitations, but rather it is intended to emphasise the anti-competitive nature of the coordinated approach adopted for that purpose by all of the collecting societies. The Commission’s observations on the scope of the contested decision are not, moreover, contested by the applicant.
79 It must also be pointed out that the enforcement of the contested decision could give rise to new possibilities for a collecting society to grant another collecting society the management of its repertoire. Those new possibilities would complement the existing possibilities, without replacing them. In that respect, the probability that the system of RRAs would be maintained is all the higher since, as regards the traditional forms of exploitation of copyright, the contested decision does not affect the possibility for collecting societies to continue to grant their repertoire solely to a local collecting society.
80 As regards the applicant’s arguments that maintaining the system of RRAs is not sufficient in itself, on the ground that it is vital to ensure that less commercially attractive music and more popular music are always bundled in the same licence, it must be observed that they are ineffective. Even if the General Court annulled Article 3 of the contested decision, the first two articles of that decision would inevitably have an effect on competition between those two categories of music. It must be noted, in particular, that the applicant does not call into question Article 2 of the contested decision, which, in ordering the removal of the exclusivity clause, allows the grant of direct licences (see paragraph 20 above).
81 Accordingly, the scenario that the applicant claims to fear, in which the less popular repertoires are marginalised and their protection becomes less effective, is not the direct consequence of the part of the contested decision challenged by the applicant in the form of order it seeks. The existence of direct licences already allows users to request licences with a pan-European scope from only the collecting societies that hold the repertoires which interest them, instead of requesting licences covering the entire repertoire of each of the collecting societies established in the territories in which the users broadcast their music, if they consider it economically more rational to do so.
82 In fact, Article 3 of the contested decision allows collecting societies which do not themselves wish to grant direct licences over their repertoires, or which do not possess the necessary infrastructure for that purpose, to confer a multi-territorial mandate on the collecting societies which do grant such direct licences. Consequently, those latter collecting societies could grant direct licences to which the above repertoires would be added. Accordingly, collecting society A, which grants direct licences in country B, could receive, from collecting society C, a mandate which would not be limited to country A, but would also extend to country B.
83 As regards the applicant’s fears that even users interested in obtaining all of the repertoires would no longer be able to do so via national one-stop-shops if some repertoires were managed outside the system of RRAs, it must be observed that such an eventuality depends on whether some large publishers or collecting societies, with which the authors whose music is more commercially attractive are affiliated, find it preferable, in respect of the forms of exploitation which the contested decision concerns, to withdraw their rights from collective management or to withdraw the mandates that they gave to the smaller collecting societies, in order to grant only direct licences. That would be a free commercial choice on their part, to which the annulment of the part of the contested decision dealing with the national territorial limitations would be of no consequence.
84 Such modifications of the market conditions, liable to bring about a fragmentation of the repertoires, are not the result of the Commission’s censure of the concerted practice relating to national territorial limitations. The fact that such a change resulted from a demand in the market, independent of the contested decision, is confirmed by the applicant’s acknowledgement that it participated in attempts, incomplete or abandoned, to modify the system of national territorial limitations.
85 It follows from the above that the applicant has not demonstrated to the requisite legal standard that the Commission failed to take duly into account the requirements linked to the protection of cultural diversity. The first part of the single plea in law must therefore be rejected.
The second part of the single plea in law, concerning the actual scope of the restriction on competition arising from the concerted practice relating to the national territorial limitations
86 The applicant claims that the restriction on competition arising from the national territorial limitations is inexistent or marginal. In that regard, it explains that its argument is primarily intended to enable the Court to compare the interest that the Commission is supposedly serving by prohibiting the system in place with the applicant’s concerns about cultural diversity. In the applicant’s submission, the smaller the restriction on competition, the more difficult it is for the Commission to justify the merits of an action alleged to be harmful to cultural diversity. Moreover, the Commission should have considered that any restrictive effect arising from the national territorial limitations was inherent and proportional to the pursuit of cultural objectives and, therefore, excluded from the scope of application of Article 81(1) EC.
87 It must be pointed out, first of all, that the protection of cultural diversity is an element which the Commission must take into account when it applies Article 81(1) EC. In that respect, it must be recalled, on the one hand, that the Commission took cultural diversity into consideration and came to the conclusion that the contested decision, while applying Article 81(1) EC to the collective management of copyright, did not endanger cultural diversity (see paragraph 78 above). On the other hand, it follows from the examination of the first part of the applicant’s single plea in law that the Commission’s conclusion in that respect must be affirmed.
88 In those circumstances, the acceptance or dismissal of the present part of the single plea in law depends on whether the restriction on competition arising from the concerted practice is objectively necessary or inherent to the protection of copyright (see, to that effect and by analogy, Meca-Medina and Majcen v Commission, paragraph 42, and M6 and Others v Commission, paragraph 109).
89 To support its claim that the presence of national territorial limitations in all of the RRAs is objectively necessary or inherent to the protection of copyright, the applicant claims, first, that in the absence of RRAs it would not be possible to grant licences covering several repertoires.
90 In that respect, it must be observed, from the outset, that the fact that the cooperation between collecting societies is necessary for the grant of licences covering several repertoires does not however mean that every form of cooperation between them is in accordance with Article 81(1) EC.
91 It must also be recalled that, in the present case, the issue is not whether it can be established that those limitations correspond to rational behaviour on the part of the applicant. Rather, the issue which arises is whether the applicant has proved that the existence of those limitations in all of the RRAs was objectively necessary, on the ground that, in the absence of those limitations, it would not have been able to cooperate with the other collecting societies in order to make possible the grant of multi-repertoire licences.
92 However, the applicant itself acknowledges that the system of territorial limitations is not the sole possible method allowing the grant of multi-repertoire licences and that other initiatives are possible. The attempts to modify the system based on national territorial limitations show that the collecting societies did not consider that system to be the most adapted to respond to the requirements of new forms of copyright exploitation, which lend themselves well to transnational uses. That system, conceived of and used for decades for traditional forms of copyright exploitation, was also applied to new forms of exploitation, pending the discovery of other solutions which could meet the new challenges posed by those new forms of exploitation while ensuring an adequate level of protection of the rights in question. It follows that the presence of national territorial limitations in all of the RRAs cannot be considered as being objectively necessary.
93 Secondly, according to the applicant, the national territorial limitations do not restrain competition because they do not prevent the grant of direct licences.
94 In that respect, it must be observed, from the outset, that the application of Article 81 EC to the conduct of an undertaking is not subject to a finding of the exclusion of all forms of competition, since partial restrictions are sufficient to incur sanctions for the breach of that provision.
95 Moreover, the removal of the national territorial limitations is intended to enable competition other than that made possible by the grant of direct licences. The national territorial limitations prevent two collecting societies, which grant direct licences, from competing to obtain the rights to the repertoire of another collecting society which does not grant direct licences, in order to add it to the direct licences they grant. In fact, under the national territorial limitations, the mandates given, for example, by collecting society D, which does not concede direct licences, to collecting society A, to collecting society B, and to collecting society C, respectively cover only country A, country B, and country C, even if collecting society A and collecting society B grant direct licences in country C. In the absence of the generalised application of the national territorial limitations, collecting society D may decide to grant a mandate, for the management of repertoire D in country C, not only to collecting society C, but also to collecting society A or to collecting society B. The collecting society selected to that end could extend to repertoire D the scope of the direct licences which it grants in country C. The possibility for collecting society D to choose between collecting society A and collecting society B is a form of potential competition which is restricted by the generalised use of national territorial limitations by all of the collecting societies.
96 The fact that the applicant’s behaviour restricts at least one form of competition therefore allows the conclusion that the Commission was right to find that the conduct censured by Article 3 of the contested decision was anti-competitive.
97 Consequently, the second part of the applicant’s single plea in law must be rejected.
The third part of the single plea in law, concerning the application of Article 81(3) EC
98 The applicant claims that, even on the assumption that the concerted practice found in the contested decision does appreciably restrict competition, the Commission could have avoided the harm to cultural diversity described above by declaring that the concerted practice satisfied the four conditions laid down in Article 81(3) EC to preclude the application of Article 81(1) EC to an agreement, decision or concerted practice.
99 It must be recalled that the application of Article 81(3) EC is subject to certain conditions, satisfaction of which is both necessary and sufficient (Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 38, and Case T‑17/93 Matra Hachette v Commission [1994] ECR II‑595, paragraph 104).
100 First, the agreement, decision or concerted practice concerned must contribute to improving the production or distribution of the goods in question, or to promoting technical or economic progress; secondly, it must not impose on the participating undertakings any restrictions which are not indispensable; thirdly, ‘consumers’ must be allowed a fair share of the resulting benefit; and, fourthly, it must not afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products in question.
101 According to Article 2 of Regulation 1/2003, the burden of proving that the conditions laid down in Article 81(3) are fulfilled rests on the undertaking invoking the benefit of that provision.
102 The applicant claims that the protection of cultural diversity should have led the Commission to apply Article 81(3) EC to the contested practice, since the importance of that protection meant that the conditions set out in that article were fulfilled. It even claims that the Commission could have applied that provision on the basis of not only the evidence put forward by the collecting societies, but also of the evidence that the Commission could have sought so as to avoid causing unnecessary damage to cultural diversity.
103 Although it follows from the case-law that the facts relied on by an undertaking may be such as to oblige the Commission to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission and Others [2009] ECR I‑9291, paragraphs 82 and 83), it cannot be found that the burden of proof, in the context of the application of Article 81(3) EC, is reversed merely by the effect of Article 151(4) EC. The latter provision implies only that it is necessary to bear in mind the requirements relating to the respect for and promotion of cultural diversity when considering the four conditions for the application of Article 81(3) EC, in particular as regards the condition relating to the indispensable nature of the restriction.
104 According to the applicant, the four conditions in question are fulfilled in the present case. In particular, the system censured by the Commission, on the one hand, is indispensable to ensuring that every licence granted in any country of the EEA also covers less commercially attractive music and, on the other hand, does not eliminate competition, since the alleged restriction found by the Commission is fictitious and competition between the collecting societies is possible both by the grant of direct licences and the possibility that the right holders may change collecting societies.
105 However, as the Commission pointed out, in particular in section 8.3 of the contested decision, in which it assessed whether the restrictions relating to the national territorial limitations were indispensable, within the meaning of Article 81(3) EC, and in recital 241 to that same decision, the maintenance of the system of national one-stop-shops does not require the presence of national territorial limitations in each RRA.
106 The Commission’s reasoning must be affirmed, in view of the considerations set out in the assessment of the first part of the applicant’s single plea in law (see, inter alia, paragraphs 78 to 80 above).
107 It follows that the concerted practice relating to national territorial limitations is not indispensable for the maintenance of the national one-stop-shops, the collapse of which, according to the applicant, would harm cultural diversity.
108 Since at least one of the cumulative conditions necessary for the application of Article 81(3) EC is not fulfilled in the present case, it is also necessary to reject the third part of the applicant’s single plea in law and, consequently, the action in its entirety must be dismissed.
Costs
109 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (Stim) to pay the costs.
Kanninen | Soldevila Fragoso | Van der Woude |
Delivered in open court in Luxembourg on 12 April 2013.
[Signatures]
Table of contents
Background to the dispute and the contested decision
Administrative procedure
Relevant clauses of the model contract
Relevant markets
Application of Article 81(1) EC and Article 53(1) of the EEA Agreement
Membership clauses, exclusivity clauses and non-intervention clauses
Concerted practice relating to the national territorial limitations
Application of Article 81(3) EC and Article 53(3) of the EEA agreement
Application of Article 151(4) EC
Operative part
Procedure and forms of order sought
Law
Admissibility of the claims relating to the lack of evidence of the concerted practice
The first part of the single plea in law, concerning the consequences which the prohibition of the concerted practice relating to the national territorial limitations has on cultural diversity
The second part of the single plea in law, concerning the actual scope of the restriction on competition arising from the concerted practice relating to the national territorial limitations
The third part of the single plea in law, concerning the application of Article 81(3) EC
Costs