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Action brought on 3 October 2008 - CISAC v Commission

(Case T-442/08)

Language of the case: English

Parties

Applicant: International Confederation of Societies of Authors and Composers (CISAC) (Neuilly-sur-Seine, France) (represented by: J.-F. Bellis and K. Van Hove, lawyers)

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 COM/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 the annulment, pursuant to Article 230 EC, of Article 3 of the Commission decision of 16 July 2008 (Case COM/C2/38.698 - CISAC), determining that 24 of CISAC's EEA based societies engaged in a concerted practice in violation of Article 81 EC and Article 53 EEA "by coordinating the territorial delineations of the reciprocal representation mandates granted to one another in a way which limits a licence to the domestic territory of each collecting society".

The applicant submits that the decision limits the finding of infringement to three specific forms of exploitation of performing rights (internet, satellite transmission and cable retransmission), whilst the reciprocal representation agreements generally cover all forms of exploitation of performing rights.

In support of its application, the applicant raises the following two main pleas in law:

(i) According to the applicant's submissions, the Commission made an error of assessment and infringed Article 81 EC as well as Article 253 EC by determining that the parallel territorial delineation resulting from the reciprocal representation agreements concluded by the EEA CISAC members constitutes a concerted practice. The applicant considers that the presence of a territorial delineation clause in all the reciprocal representation agreements concluded by its members is not the product of a concerted practice to restrict competition. Rather, this state of affairs exists because all the societies find it in the interest of their members to include such a clause in their reciprocal representation agreements.

(ii) In the alternative, the applicant claims that if there were a concerted practice on territorial delineations, it would not be restrictive of competition within the meaning of Article 81 EC for two reasons. First, the alleged concerted practice on territorial delineations is not illegal because it concerns a form of competition that is not worthy of protection. Second, even if the alleged practice would be considered to restrict competition, it does not infringe Article 81(1) EC according to the applicant's allegations because it is necessary and proportionate to the legitimate objective.

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