Action brought on 1 October 2008 - AKM v Commission

(Case T-432/08)

Language of the case: German

Parties

Applicant: Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger reg. Gen. mbH (AKM) (Vienna, Austria) (represented by: H. Wollmann and F. Urlesberger, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annul the Commission's decision, in so far as it relates to AKM, pursuant to the first paragraph of Article 231 EC;

order the defendant to pay the costs pursuant to Article 87(2) of the Rules of Procedure.

Pleas in law and main arguments

The application concerns Commission Decision C (2008) 3435 final of 16 July 2008 in Case COMP/C2/38.698 - CISAC, in which the Commission found concerted practices in connection with the reciprocal grant of music copyright between collecting societies which are members of the International Confederation of Societies of Authors and Composers ('CISAC') to be incompatible with Article 81 EC and Article 53 of the EEA Agreement.

The applicant seeks the annulment of the decision in so far as the Commission found that AKM infringed Article 81 EC and Article 53 EEA by using in its reciprocal representation agreements the membership restrictions contained in Article 11(2) of the CISAC model contract or by de facto applying membership restrictions, and by coordinating the territorial restriction of licences, and in so far as AKM was directed to bring those infringements to an end.

The applicant relies on the following pleas in law in support of its claims:

The applicant submits, first, that the Commission erred in its findings of fact as regards the application of membership restrictions by AKM. The Commission did not produce any evidence to prove that AKM actually applied such a restriction. On the contrary, the Commission failed to take into consideration evidence of the fact that AKM operates an 'open membership policy'. In addition, the Commission overlooked the fact that the previously applicable membership clauses in AKM's reciprocal representation agreements were, at least tacitly, dispensed with and are no longer included in reciprocal representation agreements entered into by AKM.

Furthermore, Article 3 of the Commission's decision, in which the Commission accuses AKM of '[infringing] Article 81 of the 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', is inconsistent with the reasons for the decision. In particular, the operative part of the decision is not limited to the means of transmission (satellite, internet and cable) which the Commission dealt with in its considerations.

Moreover, the existing territorial delineations of licences in AKM's reciprocal representation agreements are not the product of a concerted practice. Essentially, the Commission relied solely on the fact that the reciprocal representation agreements of European collecting societies follow a standard system as proof of the existence of an intentional concerted practice. The explanation for this parallel conduct can, however, readily be found in the traditional market structures and the statutory framework for the activities of collecting societies.

Finally, the Commission's decision infringes the principle of legality, since it is not clear from Article 4(2) of the decision what is meant by the requirement to 'review' certain contractual provisions.

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