Action brought on 30 September 2008 - KODA v Commission

(Case T-425/08)

Language of the case: Danish

Parties

Applicant: KODA (Copenhagen, Denmark) (represented by: K. Dyrekjær and J. Borum)

Defendant: Commission of the European Communities

Forms of order sought

Annul Commission Decision COMP/C2/38.698 - CISAC of 16 July 2008 in its entirety, or

in the alternative, annul Commission Decision COMP/C2/38.698 - CISAC of 16 July 2008 in its entirety in so far as it concerns KODA, or

annul Article 3 and Article 4(2) and (3) of Commission Decision COMP/C2/38.698 - CISAC of 16 July 2008, or

in the alternative, annul Article 3 and Article 4(2) and (3) of Commission Decision COMP/C2/38.698 - CISAC of 16 July 2008 in so far as it concerns KODA, or

in the alternative, annul Article 3 and Article 4(2) and (3) of Commission Decision COMP/C2/38.698 - CISAC of 16 July 2008 in so far as it concerns transmission by cable, and

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in the present case is seeking annulment of Commission Decision C(2008) 3435 final of 16 July 2008 in Case COMP/C2/38.698 - CISAC, by which the Commission found that the applicant had infringed Article 81 EC and Article 53 EEA through its reciprocal representation agreements or in practice had introduced membership restrictions (Article 1) and exclusivity clauses (Article 2) and, by having concerted territorial restrictions in such a manner as to limit a licence to each collecting society's national territory through the licensing of rights to public transmission of music over the Internet, via satellite and cable (Article 3).

In support of its claims, the applicant has put forward the following:

the contested decision is vitiated by an essential procedural defect in that the statement of objections differs from the final decision on a central point;

the contested decision is based on an incorrect application of the law, in that: (i) it has not been established that the applicant's inclusion of territorial restrictions in its reciprocal agreements for the Internet, satellite or cable are the result of a concerted practice with the other EEA collecting societies, and (ii) the territorial restrictions are not anti-competitive.

In the alternative, the applicant submits that no infringement has been demonstrated in the contested decision in so far as regards the licensing of rights via cable transmission.

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