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Action brought on 30 September 2008 - STEF v Commission

(Case T-428/08)

Language of the case: English

Parties

Applicant: Samband tónskálda og eigenda flutningsréttar (STEF) (Reykjavík, Island) (represented by: H. Melkorka Óttarsdóttir, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Annul Article 3 of the Commission decision of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38.698 -CISAC); and

Order the Commission to pay the costs.

Pleas in law and main arguments

By means of this application the applicant seeks partial annulment pursuant to Article 230 EC of Commission Decision C(2008)3435 final of 16 July 2008 (Case COMP/C2/38.698 - CISAC) relating to a proceeding under Article 81 EC and Article 53 EEA. Precisely, the applicant contests the Commission findings in Article 3 of the contested decision stating that territorial delineations of the reciprocal representation mandates granted by one authors' society to another constitute a concerted practice in violation of Article 81 EC and Article 53 EEA.

The applicant puts forward four pleas in law in support of its claims.

First, the applicant submits that the Commission committed an error of assessment and infringed Article 81 EC by deciding that the parallel territorial delineation included in the reciprocal representation agreements concluded by the applicant and the other CISAC members is the result of a concerted practice. It claims that the level of evidence put forward by the Commission in the decision is insufficient to establish that the parallel conduct is not the result of normal competitive conditions but constitutes such a concerted practice. The applicant further states that the presence of the delineation clause in all of its reciprocal agreements is necessary to protect effectively and sufficiently the interest of the authors represented by the applicant and the other CISAC members.

Secondly, the applicant contends that, contrary to the findings of the contested decision, the territorial delineation by CISAC societies in their reciprocal representation agreements is not restrictive of competition within the meaning of Article 81(1) EC because to create and protect the competition between the authors' societies would be inconsistent with the fundamental nature of the collecting society which is to protect the rights of its members and operate exclusively for its members.

Thirdly, in the alternative, the applicant argues that, even if the territorial delineation constituted a concerted practice within the meaning of Article 81(1) EC, the conditions of Article 81(3) EC are fulfilled. It states that the challenged practice improves the distribution of music, allows consumers fair share of the resulting benefits, does not impose restrictions on undertakings which are not indispensable to the attainment of the objective nor afford them the possibility of eliminating competition in respect of a substantial part of the products. This practice should be then considered to be necessary and proportionate, in the meaning of Article 81(3) EC to the legitimate objective of protecting the rights of the societies' members and the authors.

Finally, the applicant claims that the Commission failed to apply Article 151(4) EC in its decision which states that the Community shall take into account cultural aspects in its action under other provisions of the Treaty, in particular in order to respect and to promote the diversity of its cultures.

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