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Action brought on 30 September 2008 - Artisjus Magyar Szerzői Jogvédő Iroda Egyesület v Commission

(Case T-411/08)

Language of the case: English

Parties

Applicant: Artisjus Magyar Szerzői Jogvédő Iroda Egyesület (Budapest, Hungary) (represented by: Z. Hegymegi-Barakonyi and P. Vörös, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annul Articles 3 and 4(2) of the decision in so far as they relate to the applicant as well as Article 4(3) of the decision in so far as it refers to Article 3;

Order the Commission to pay the costs.

Pleas in law and main arguments

By means of its application, the applicant seeks partial annulment of Commission Decision C(2008) 3435 final of 16 July 2008 (Case COMP/C2/38.698 - CISAC) determining that the EEA CISAC² members 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 seeks the annulment of Articles 3 and 4(2) and (3) of the contested decision which relate to three specific forms of exploitation (internet, satellite transmission and cable retransmission) in so far as they hold the applicant liable for an Article 81 EC infringement by coordinating with other CISAC members the territorial delineation clauses of reciprocal representation agreements in a way which limited a licence to the domestic territory of each collective rights management societies ("CMRS").

The applicant challenges the contested decision on the basis of four grounds, namely, lack of competence, infringement of an essential procedural requirement, the infringement of the EC Treaty and the misuse of powers by the Commission.

In support of its application, the applicant submits the following pleas in law:

First, according to the applicant, the Commission violated the applicant's rights of defence by adopting the contested decision and fundamentally departing from its position in the Statement of Objections.

Second, the applicant claims that the decision infringes Article 253 EC, as it lacks proper reasoning and fails to identify the starting point of the alleged concerted practice.

Third, the applicant contends that the decision violates Article 81 EC and Article 2 of Regulation (EC) No 1/2003 as the Commission did not produce sufficient evidence to establish the existence of a concerted practice to the requisite legal standard and consequently failed to meet the burden of proof.

Fourth, it is submitted that the decision violates Article 86(2) EC, as the applicant is an undertaking entrusted with the operation of services of general economic interest and the application of EC competition law as set out in the contested decision obstructs the performance of the particular tasks assigned to it.

Moreover, according to the applicant, the Commission misused its powers under Article 81 EC by evading a procedure specifically prescribed by the EC Treaty for dealing with the circumstances of the case. Further, the applicant puts forward that the decision violates Article 151(4) EC as it does not respect cultural diversity. Finally, it is submitted that the decision violates the principle of legal certainty in so far as it requires a course of conduct which the Commission failed to define.

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¹ - International Confederation of Societies of Authors and Composers ("CISAC")

² - Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules oncompetition laid down in Articles 81 and 82 EC (OJ 2003 L 1, p.1)