Action brought on 30 September 2008 - Sacem v Commission

(Case T-422/08)

Language of the case: French

Parties

Applicant: Société des auteurs, compositeurs et éditeurs de musique (Sacem) (Neuilly-sur-Seine, France) (represented by: H. Calvet, lawyer)

Defendant: Commission of the European Communities

Form of order sought

annul the Commission's decision of 16 July 2008 in Case COMP/C2/38.698 - CISAC in so far as it (i) finds, in Article 1, that the applicant had infringed Article 81 of the EC Treaty and Article 53 of the EEA Agreement by using, in its reciprocal representation agreements, the membership restrictions which were contained in Article 11(II) of the CISAC model contract, or by de facto applying those membership restrictions, and (ii) orders it, as a result, in Article 4.1, to bring that infringement immediately to an end, insofar as it has not already done so, and to communicate to the Commission all the measures it has taken for that purpose;

annul the Commission's decision of 16 July 2008 in Case COMP/C2/38.698 - CISAC in so far as it (i) finds, in Article 3, that the applicant infringed Article 81 of the EC Treaty 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 and (ii) orders it, as a result, in Article 4.2, within 120 days of the date of notification of this decision, to bring to an end the infringement and, within that period of time, to communicate to the Commission all the measures it has taken for that purpose;

annul the Commission's decision of 16 July 2008 in Case COMP/C2/38.698 - CISAC in so far as it orders the applicant to refrain from repeating any act or conduct described in Articles 1 and 3, and from any act or conduct having the same, or similar, object or effect.

order the defendant to pay the costs.

Pleas in law and main arguments

In this case, the applicant seeks partial annulment of the Commission's decision 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) concerning concerted practices on the conditions of management and licensing of authors' public performance rights of musical works by collecting societies, in the form of membership restrictions applied in the reciprocal representation agreements, as laid down by the model contract of the International Confederation of Societies of Authors and Composers (CISAC model contract) or as applied in practice.

In support of its application, the applicant submits, first of all, that the Commission infringed its rights of the defence and essential procedural requirements:

by accusing the applicant, in the contested decision, of participation in an alleged concerted practice while the statement of objections sent to the applicant was based on the theory of network effects; the applicant was therefore not in a position to defend itself over its participation in an alleged concerted practice;

by failing to provide reasons for maintaining against the applicant the complaints relating to the membership restrictions which were contained in the reciprocal representation agreements entered into between European societies of authors or applied de facto by those societies, whereas the applicant showed that it had removed those clauses and was not applying them;

by failing to provide a definition of the activity which was the subject of the contested decision, as regards the infringement relating to an alleged concerted practice and therefore the scope of the decision's directions.

Secondly, the applicant claims that the Commission infringed Article 81 EC and Article 53 of the EEA Agreement:

by accusing the applicant of an infringement by way of the membership clause whereas the applicant showed that it had removed those clauses and was not applying them;

by committing a manifest error of assessment as regards satellite radio broadcasting, since the societies of authors were each mandated to grant the satellite radio broadcasting operators a multi-territorial authorisation covering the entire footprint of the satellite used to broadcast their programmes;

by using an inaccurate market definition;

by accusing the applicant of participation in an alleged concerted practice without providing evidence of it;

by concluding that there was a concerted practice whereas the alleged concerted behaviour between societies of authors could not have limited competition;

by ordering the societies of authors to refrain from 'any act or conduct having the same, or similar, object or effect' to the alleged concerted practices which led to the territorial limitations contained in the reciprocal representation agreements while asserting that each society was free to determine bilaterally the scope of the reciprocal representation agreements entered into by them, on the ground that those contradictions undermine legal certainty.

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