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Action brought on 29 September 2008 - Performing Right Society v Commission

(Case T-421/08)

Language of the case: English

Parties

Applicant: Performing Right Society Ltd (London, United Kingdom) (represented by: J. Rivas Andrés and M. Nissen, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annul the Commission decision dated 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38.698 - CISAC) on the ground of the absence of a starting date of the infractions and hence of their duration;

Annul Article 3 and/or Article 4(2) of the Commission decision dated 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38.698 - CISAC);

In the alternative, annul Article 3 and/or Article 4(2) of the Commission decision dated 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38.698 - CISAC) as regards to the inclusion of the applicant;

Order that the Commission pay the costs incurred by the applicant.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 230 EC, the annulment, in whole or in part, of Commission Decision C(2008) 3435 of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38.698 - CISAC).

Under the first plea in law, the applicant alleges that the reasoning in the contested decision does not support a finding of infringement for any of the following three forms of exploitation: satellite broadcasting, on-line and cable retransmission. On this basis, the applicant contends that the Commission failed to provide evidence relating to the alleged existence of a concerted practice in which all EEA CISAC members engaged by limiting the scope of their reciprocal mandates to their respective territories. This constitutes, according to the applicant, an error of assessment and an infringement of Article 81 EC and Article 253 EC. Indeed, the applicant submits that there is no parallel behaviour amongst all EEA CISAC members as illustrated by the exceptions to the territorial delineation mentioned in the contested decision itself. In addition, the applicant claims that the contested decision suffers from inadequate reasoning due to its silence as to the starting date and therefore the duration of the infringements, notably the concerted practice, thereby also infringing Articles 2 and 16(1) of Regulation (EC) No 1/2003¹.

Under the second plea in law the applicant submits that the reasoning in the contested decision is faulty as it does not prove that the applicant participated in the alleged concerted practice. Further, according to the applicant there is a plausible explanation to its behaviour other than the existence of a concerted practice, namely, that is chooses those solutions which it deems to be commercially preferable. It is submitted, moreover, that the Commission, in accordance with established case-law, should have looked into whether it is rational individual economic behaviour to appoint one or more additional collecting societies to be able to compete with both the local collecting society and the grantor society doing direct licensing.

Under the third plea in law put forward by the applicant, the remedies imposed by Article 4(2) of the contested decision are legally uncertain, unjustified, not necessary and/or disproportionate to bring the alleged infringement to an end.

Under its fourth plea, the applicant submits that the Commission infringed its right to be heard by not informing it of its reasons not to accept the proposed commitments.

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¹ - Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1)