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Language of document : ECLI:EU:T:1997:187

JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

27 November 1997 (1)

(Competition Copyright Rejection of a complaint Enforcement of ajudgment setting aside a decision Partitioning of the market Statement ofreasons Misuse of powers)

In Case T-224/95,

Roger Tremblay, residing in Vernantes (France),

Harry Kestenberg, residing in Saint-André-Les-Vergers (France), and

Syndicat des Exploitants de Lieux de Loisirs (SELL), an association governed byFrench law, having its seat in Paris, represented by Jean-Claude Fourgoux, of theParis Bar, with an address for service in Luxembourg at the Chambers of PierrotSchiltz, 4 Rue Béatrix de Bourbon,

applicants,

Music Users' Council of Europe (MUCE), an association governed by English law,established in Uxbridge (United Kingdom), represented by Jean-Louis Fourgoux,of the Paris Bar, with an address for service in Luxembourg at the Chambers ofPierrot Schiltz, 4 Rue Béatrix de Bourbon,

Associazione Italiana Imprenditori Locali da Ballo (SILB), an association governedby Italian law, having its seat in Rome, represented by Jean-Claude Fourgoux, ofthe Paris Bar, with an address for service in Luxembourg at the Chambers ofPierrot Schiltz, 4 Rue Béatrix de Bourbon,

interveners,

Commission of the European Communities, represented by Giuliano Marenco,Legal Adviser, and Guy Charrier, national official seconded to the Commission,acting as Agents, with an address for service in Luxembourg in the office of CarlosGómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

French Republic, represented by Kareen Rispal-Bellanger, Deputy Director ofLegal Affairs in the Ministry of Foreign Affairs, and Jean-Marc Belorgey, specialadviser in that ministry, acting as Agents, with an address for service inLuxembourg at the French Embassy, 8b Boulevard Joseph II,

intervener,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of: C.W. Bellamy, President, A. Kalogeropoulos and J.D. Cooke, Judges,

Registrar: A. Mair, Administrator,

having regard to the written procedure and further to the hearing on 29 May 1997,

gives the following

Judgment

Facts and procedure

Factual background to the dispute

1.

On 4 February 1986 application was made to the Commission under Article 3(2)of Council Regulation No 17 of 6 February 1962, First Regulation implementingArticles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87,hereinafter 'Regulation No 17) for a finding that Articles 85 and 86 of the EECTreaty had been infringed by a group of discothèque operators called BEMIM(Bureau Européen des Médias de l'Industrie Musicale) of which Roger Tremblayand Harry Kestenberg, individual operators of discothèques, were members at thattime. That application cited the Société des Auteurs, Compositeurs et Éditeurs deMusique (hereinafter 'SACEM), the society which manages copyright in musicalworks in France. Between 1979 and 1988 the Commission also received similarcomplaints from other complainants.

2.

The abovementioned complaint of 4 February 1986 essentially made the followingallegations. The first, alleging an infringement of Article 85(1) of the Treaty,complained of an alleged market-sharing arrangement and complete partitioningof the market as a result between the societies which manage copyright in thevarious Member States, through the conclusion of reciprocal representationcontracts under which managing societies are prohibited from dealing directly withusers established in the territory of another Member State. The two otherallegations, based on Article 86 of the Treaty, concerned the excessive anddiscriminatory nature of the rate of royalties charged by SACEM, and its refusalto allow French discothèques to use its foreign repertoire alone.

3.

In response to the complaints received by it, the Commission undertookinvestigations, requesting information under Article 11 of Regulation No 17.

4.

The investigation conducted by the Commission was suspended following requestsfor preliminary rulings submitted to the Court of Justice, between December 1987and August 1988, by the Appeal Courts of Aix-en-Provence and Poitiers and theTribunal de Grande Instance (Regional Court), Poitiers. Amongst the issues raisedunder Articles 85 and 86 of the Treaty were the level of the royalties charged by

SACEM, the conclusion of reciprocal representation agreements between nationalcopyright-management societies and the fact that SACEM'S reciprocalrepresentation agreements were all-embracing, covering the entire repertoire. Inits judgments of 13 July 1989 in Case 395/87 Ministère Public v Tournier [1989] ECR2521, at p. 2580 and Joined Cases 110/88, 241/88 and 242/88 Lucazeau and Othersv SACEM and Others [1989] ECR 2811, at p. 2834, the Court ruled, inter alia, that:'Article 85 of the EEC Treaty must be interpreted as prohibiting any concertedpractice by national copyright-management societies of the Member States havingas its object or effect the refusal by each society to grant direct access to itsrepertoire to users established in another Member State. It is for the nationalcourts to determine whether any concerted action by such management societieshas in fact taken place.

5.

Following those judgments, the Commission resumed its investigations, moreparticularly with regard to the differences in the levels of royalties charged by thevarious copyright-management societies in the Community. The results of theCommission's investigation were set out in a report dated 7 November 1991.

6.

On 18 December 1991 the Commission was formally requested under Article 175of the EEC Treaty, on behalf of Messrs Tremblay and Kestenberg, of BEMIM andof others, to take a position on their complaints.

7.

On 20 January 1992 the Commission sent a communication to BEMIM pursuantto Article 6 of Commission Regulation No 99/63/EEC of 25 July 1963 on thehearings provided for in Article 19(1) and (2) of Council Regulation No 17 (OJ,English Special Edition 1963-1964, p. 47, hereinafter 'Regulation No 99/63). Inthat letter the Commission stated that, having regard to the principles ofsubsidiarity and decentralization, and in view of the fact that there was noCommunity interest involved because the practices complained of were essentiallynational and that the matter was before a number of French courts, it did notconsider that the information contained in the complaints was such as to enable itto act upon it.

8.

On 20 March 1992 the applicants' counsel submitted observations on the letter of20 January 1992 in which he requested the Commission to pursue the investigationand to send a statement of objections to SACEM.

9.

By a letter dated 12 November 1992, sent by the Member of the Commissionresponsible for competition, the complainants were informed that their applicationfor a finding that Articles 85 and 86 of the Treaty had been infringed had beendefinitively rejected.

10.

Annulment proceedings were instituted before this Court against the decision of 12November 1992 on 11 January 1993.

11.

By judgment of 24 January 1995 in Case T-5/93 Tremblay and Others v Commission[1995] ECR II-188, hereinafter 'Tremblay I), the Court of First Instance (SecondChamber) annulled the decision of 12 November 1992 for infringement of Article190 of the Treaty, in so far as the decision rejected the applicant's allegation thatthe market had been partitioned as a result of an alleged restrictive agreementbetween SACEM and the copyright-management societies in the other MemberStates, and dismissed the remainder of the application.

12.

By an application lodged at the Court Registry on 24 March 1995, Messrs Tremblayand Kestenberg and the Syndicat des Exploitants de Lieux de Loisirs (hereinafter'SELL) brought an appeal seeking the setting aside of the abovementionedjudgment in so far as the Court of First Instance dismissed the action against thatpart of the Commission's decision of 12 November 1992 rejecting the allegationsconcerning infringement of Article 86 of the Treaty.

13.

Following the judgment in Tremblay I, the Commission, on 23 June 1995, sent tothe applicants' counsel a communication under Article 6 of Regulation No 99/63(hereinafter 'the Article 6 letter).

14.

In the Article 6 letter the Commission first recalled that, in Tremblay I, the Courtof First Instance had taken the view that the statement of reasons underpinning thedecision of 12 November 1992 had not apprised the applicants of the grounds onwhich their complaint was rejected, in so far as the latter was concerned with apartitioning of the market as a result of the reciprocal representation contractsconcluded between the copyright-management societies in the various MemberStates.

15.

In the part of its Article 6 letter entitled 'Legal assessment, the Commission setout, first, the replies given by the Court in its abovementioned judgments in theTournier and Lucazeau cases concerning the organization by national copyright-management societies of a network of reciprocal representation contracts, and onthe practice followed by those societies of collectively refusing all direct access totheir respective repertoires to users of recorded music established in other MemberStates.

16.

The Commission pointed out that in its judgments the Court held that reciprocalrepresentation contracts providing for exclusivity, in the sense that those societieshad undertaken not to allow direct access to their repertoire to users of recordedmusic established abroad, could fall under the prohibition contained in Article 85(1)of the Treaty. However, since the exclusivity clauses in the reciprocalrepresentation contracts had been deleted without any alteration of the behaviourof the copyright societies which refused to entrust their repertoire to a society otherthan that established in the territory in question, the Court had gone on to examinewhether those societies had in fact maintained exclusivity by means of a concertedpractice. In that connection, it stated that, whilst the Court had held that

concertation between national copyright-management societies leading to systematicrefusals to allow foreign users direct access to their repertoire was to be regardedas constituting a concerted practice in restraint of competition and likely to affecttrade between Member States, it had also emphasized that concerted action of thatkind could not be presumed where the parallel behaviour could be accounted forby reasons other than the existence of concerted action. However, the Commissionpointed out that, in the Court's view, 'such a reason might be that the copyright-management societies of other Member States would be obliged, in the event ofdirect access to their repertoires, to organize their own management andmonitoring system in another country.

17.

On the basis of those principles, the Commission went on to state, in its letter, thatit continued to take the view that, even if certain parallel behaviour were to befound in the various copyright-management societies' refusals to grant requests bydiscothèques established in other Member States for direct access to theirrepertoire, such parallel behaviour could be attributed only to the similarity of thesituations of the various copyright-management societies. In that connection, theCommission referred to the Opinion of Advocate General Jacobs in the Tournierand Lucazeau and Others cases ([1989] ECR, at p. 2536), in which he stressed thespecific nature of the market for copyright whose protection, in order to beeffective, requires continuous supervision and management within the nationalterritories. It observed in that connection that any copyright-management societywishing to do business in a national territory other than its own would need toestablish a management system enabling it to negotiate contracts with customers,verify the factors forming the basis of the assessment of royalties, monitor the useof its repertoire and take the necessary action in respect of infringements of itscopyright, whereas each society can manage its repertoire more cheaply and moreeffectively by entrusting it to the society already established in that other territory.

18.

Referring also to the judgment of the Court in the Woodpulp cases (Joined CasesC-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 AhlströmOsakeyhtiö and Others [1993] ECR I-1307), the Commission stated that a concertedpractice was not the only plausible explanation for the alleged behaviour of thecopyright-management societies complained of, since, in its view, those societies hadno interest in using any method other than that of granting authority to the societyestablished in the territory in question.

19.

It accordingly concluded:

'[...] not having received from the other complainants or from yourself proof orhard evidence of the existence of such a concerted practice, and not havingobtained any such evidence itself, the Commission cannot attribute the parallelbehaviour to the existence of an agreement or concerted practice between thecopyright-management societies.

20.

In part of its letter of 23 June 1995 entitled 'Conclusions the Commission statedthat:

'Under those circumstances, the Commission considers that the complaints madeby Messrs Roger Tremblay, François Lucazeau and Harry Kestenberg areunfounded in so far as they concern the existence of partitioning of nationalmarkets in copyright in music as a result of an alleged agreement or concertedpractice between the copyright-management societies in the various Member States.

The Commission therefore informs you, under Article 6 of Commission RegulationNo 99/63/EEC of 25 July 1963, of its intention officially to reject that aspect of thecomplaints made by Messrs Roger Tremblay, François Lucazeau and HarryKestenberg.

21.

On 24 July 1995 the applicants' counsel submitted, on behalf of Messrs Tremblayand Kestenberg, observations in response to the communication of 23 June 1995in which he contended in particular that in its Article 6 letter the Commission'merely indicated that it had not been able to obtain any hard evidence of theexistence of a concerted practice, without demonstrating that it had actually soughtsuch evidence and 'did not demonstrate that it had resumed the investigation asthe judgment of the Court of First Instance ought to have prompted it to do. Referring to an arrangement between national copyright-management societies topartition the market by the conclusion of reciprocal representation contracts, andto an agreement between those societies to maintain prices at a high level, theapplicants' counsel argued that the grounds relied on by the Commission inrejecting that part of the complaint concerning the existence of an agreement weretherefore not valid, and requested the Commission either to pursue theinvestigation or to stay a decision in the matter until the Court had given judgmenton the appeal against the judgment given in Tremblay I.

22.

By a letter of 13 October 1995 signed by the Member of the Commissionresponsible for competition, Messrs Tremblay and Kestenberg were informed thattheir complaints lodged on 4 February 1986 had been definitively rejected.

23.

In its letter of 13 October 1995 the Commission stated that, for reasons already setout in the Article 6 letter, there were insufficient grounds for pursuing thecomplaints and that the observations submitted by the complainants in the letterof 24 July 1995 contained no new matters of fact or law liable to alter thatconclusion. In particular, the Commission pointed out in that letter that it wasrequested to establish proof not only of a market-sharing agreement between thecopyright-management societies in the various Member States by the conclusion ofreciprocal representation contracts, but also of a second agreement between thesame societies intended to maintain music prices at a high level.

24.

With regard to the first alleged agreement, the Commission refers to the reasonsalready set out in the Article 6 letter. With regard to the second allegedagreement, the Commission claims first of all, referring to the judgment in TremblayI, that that allegation was not made in the complaint but only in the complainants'observations of 20 March 1992 on the earlier Article 6 letter of 20 January 1992.It infers therefrom that it was not obliged to respond to that point, and considersthat the Court of First Instance did not examine that part of the decision in itsjudgment. None the less, it stresses that the reasons already set out at point 12 ofits decision of 12 November 1992 remain valid: even if it may not be ruled out thatan agreement or concerted practice, though not proven, exists between thecopyright-management societies represented within the Groupement Européen desSociétés d'Auteurs et de Compositeurs, GESAC, it would appear that no preciseeffect in relation to prices may be attributed to any such concertation in any eventsince some prices have gone down and others risen since delivery of the judgmentsin the Tournier and Lucazeau and Others cases, and continue to displayconsiderable variations.

Procedure

25.

By application lodged at the Registry of the Court of First Instance on 13December 1995, the applicants brought these proceedings.

26.

By letter lodged at the Registry on 28 May 1996, the French Republic sought leaveto intervene in support of the form of order sought by the defendant. ThePresident of the Second Chamber (Extended Composition) granted the leavesought by order of 2 July 1996. Following the statement in intervention lodged bythe French Republic, the applicants did not submit any observations within theperiod provided for.

27.

By application lodged at the Registry on 30 May 1996, the Music Users' Councilof Europe, MUCE, sought leave to intervene in support of the form of ordersought by the applicants. By an application lodged at the Registry on 3 June 1996,the Associazione Italiana Imprenditori Locali da Ballo, SILB, also sought leave tointervene in support of the form of order sought by the applicants. By orders of9 October 1996 the President of the Second Chamber (Extended Composition)granted the leave sought.

28.

By judgment of 24 October 1996, the Court dismissed as unfounded the appeal byMessrs Tremblay and Kestenberg and by SELL against the judgment given at firstinstance in Tremblay I (Case C-91/95 P Tremblay and Others v Commission [1996]ECR I-5547).

29.

On 6 November 1996, the plenary Court of First Instance decided, in accordancewith Articles 14 and 51 of the Rules of Procedure, to refer the case, which hadoriginally been assigned to the Second Chamber (Extended Composition), to theSecond Chamber.

30.

Since the interveners, MUCE and SILB, did not lodge statements in interventionwithin the period allowed, the written procedure was closed on 21 November 1996.

31.

Upon hearing the report of the Judge Rapporteur, the Court of First Instance(Second Chamber) decided to open the oral procedure without any preparatoryinquiry. The parties presented oral argument and answered questions put to themorally by the Court at the public hearing on 29 May 1997.

Forms of order sought by the parties

32.

The applicants claim that the Court should:

annul the Commission decision of 13 October 1995 in so far as it rejects thecomplaint;

consequently, order the Commission to carry out the investigations necessaryin order to establish proof of the agreement;

order the Commission to pay the costs of the proceedings.

33.

The Commission contends that the Court should:

dismiss the action as unfounded in all its pleas;

order the applicants to pay the costs.

34.

The French Republic submits that the Court should:

dismiss the action brought by Messrs Tremblay and Kestenberg, and bySELL.

The claim for a direction to be issued to the Commission

35.

The applicants request the Court to order the Commission to carry out theinvestigations necessary to establish proof of the alleged agreement.

36.

The Court recalls that, according to settled case-law, it is not for the Communityjudicature to issue directions to the institutions when exercising its power to reviewthe legality of their acts. According to Article 176 of the Treaty, it is for theinstitution whose act has been declared void to take the necessary measures tocomply with a judgment given in annulment proceedings (see the judgment of theCourt in Case 53/85 AKZO Chemie v Commission [1986] ECR 1965, paragraph 23,

and the judgment in Case T-109/94 Windpark Groothusen v Commission [1995]ECR II-3007, paragraph 61).

37.

It follows that the form of order sought by the applicants, namely for a directionto be issued to the Commission, must be rejected as inadmissible.

The claim for annulment

38.

The applicants rely on three pleas in support of their action: infringement ofArticle 176 of the Treaty; inadequacy of the statement of reasons on which thecontested decision is based: infringement of the Treaty and misuse of powers.

39.

The Court considers it appropriate to start by examining the second plea ofinadequacy of the statement of reasons before going on to examine the first andthird pleas.

Inadequacy of the statement of reasons on which the contested decision was based

Arguments of the parties

40.

The applicants maintain, first of all, that the statement of reasons underpinning thedecision is inadequate since it was not based on an investigation which theCommission ought to have carried out. In the contested decision, the Commissionmerely attempted to provide a general legal justification of the behaviour of thecopyright-management societies based on a distinction between parallel behaviourand an agreement and for an appraisal of any concertation left this to the nationalcourts. The applicants allege that the Commission has used the fact that noevidence of a concerted practice was provided as an excuse, thus putting theburden on the complainants to collect that evidence, whereas it has more effectivemeans at its disposal for that purpose and has the duty to examine complaints withcare, seriousness and promptness.

41.

The applicants also consider that the statement of reasons on which the decisionis based is inadequate in that the Commission's analysis is limited to an appraisalof the clauses in the reciprocal representation contracts relating to exclusivity forcopyright-management societies in regard to access to foreign repertoires.

42.

Finally, as regards the rejection of the complaint of an agreement to maintainroyalties at a high level, the applicants criticize the Commission for reproducing inidentical terms in its decision the grounds already set out at point 12 of its initialdecision of 12 November 1992, in spite of the pro tanto annulment of that decisionin Tremblay I. The statement of reasons is all the more inadequate since it is notaccompanied by any comparative study of the rates charged by the variouscopyright-management societies. As to the Commission's argument that theirchallenge to this part of the contested decision is inadmissible on the ground that

the judgment in Tremblay I annulled the initial Commission decision only on theground that the statement of reasons concerning rejection of the allegation of apartitioning of the market was inadequate, the applicants reply that the judgmentat issue related to the entire concerted practice complained of, there being noreason to distinguish between this particular complaint and that concerning theexistence of an agreement on royalties.

43.

The Commission contends, first, that the applicants' plea is inadmissible in relationto the part of the decision concerning rejection of the complaint alleging anagreement between copyright-management societies on the matter of royalties. Inthe Commission's view, the Court of First instance annulled its initial decision onlyin regard to its decision to reject the complaint of a market-sharing and partitioningagreement, where it was the only allegation made in the original complaint, theallegation of a second agreement on prices being mentioned for the first time onlyin the complainants' observations on the Article 6 letter of 20 January 1992. TheCommission infers therefrom that it was not required to answer that allegation andthat, in the absence of a complaint, there was no decision on this point.

44.

In regard, secondly, to the rejection of the allegation of market partitioning, theCommission observes that, in the contested decision, it rejected the complaint onits merits, taking the view that the alleged agreement was not proven, and not, asmaintained by the applicants, on the ground that appraisal of the concertedpractice was a matter for the national courts. Referring to all the matters set outin its Article 6 letter as well as in its decision, the Commission maintains that thedecision contains a legally adequate statement of reasons and that, in the absenceof solid evidence of an agreement, it was not under any obligation to carry outinvestigations. The Commission points out that the applicants had not adduced anyfresh evidence in that regard, in particular in their observations of 24 July 1995 inreply to the Article 6 letter, and that its own conclusions were also corroboratedby those of the French Competition Council.

45.

In response to the applicants' argument that in the contested decision theCommission confined its appraisal to those clauses in the reciprocal representationcontracts which concerned exclusivity, the Commission replies that, on the contrary,it analysed the functioning of the reciprocal representation system in its entirety.

46.

The French Republic submits, first, that it is inadmissible for the applicants tochallenge that part of the contested decision rejecting the allegation of anagreement between the copyright-management societies on royalties. Since theCourt of First Instance did not annul the initial Commission decision on this point,the Commission's reply to the complainants was supererogatory; the complainantsagain made this charge in their observations on the Article 6 letter and for the solepurpose of having the Commission confirm to them the reasons why that chargehad not been upheld. In any event, the applicants are not challenging theCommission's substantive appraisal but are merely arguing, wrongly, that no

comparative study was made of royalty fees charged by copyright-managementsocieties.

47.

As regards, secondly, the rejection of the charge of market partitioning, the FrenchRepublic considers that the Commission provided a good statement of reasons forits decision. The Article 6 letter and the definitive decision to reject the complaintsare sufficiently detailed and based on clear case-law of the Court. The conclusionreached by the Commission was also reached by the French Competition Counciland by the Court of Cassation in its judgment of 14 May 1991. Under thosecircumstances, and given that there is no prima facie or solid evidence to contradictthe position taken by the Commission, the French Republic considers that theCommission was under no obligation to undertake additional investigations.

Findings of the Court

48.

By this plea the applicants claim that the statement of reasons on which thecontested decision is based is inadequate as regards the rejection of the charge thatthe reciprocal representation contracts concluded amongst the copyright-management societies led to market partitioning and as regards the rejection of thecharge that there was an agreement between those societies to maintain royaltyrates at a high level. Since the admissibility of this plea is contested by both theCommission and the French Republic to the extent to which it is directed againstthe part of the decision rejecting the latter charge, it is necessary to examine, first,whether it is admissible for the applicants to challenge the contested decision onthis point.

49.

On this point the Court observes first of all that, according to settled case-law, noaction lies against decisions which merely confirm earlier decisions (judgments inJoined Cases 166/86 and 220/86 Irish Cement v Commission [1988] ECR 6473,paragraph 16, and Case C-480/93 P Zunis Holding and Others v Commission [1996]ECR I-1, paragraph 14). A decision which merely confirms an earlier decision doesnot afford the persons concerned the opportunity of reopening argument on thelegality of the decision confirmed (judgment in Joined Cases 42/59 and 49/59SNUPAT v High Authority [1961] ECR 53).

50.

In the present case, the Commission had already rejected the complaints at issuein a decision of 12 November 1992 (see paragraph 9 above). In Tremblay I, theCourt of First Instance, ruling on the question whether the Commission hadprovided an adequate statement of reasons for that decision in so far as it rejectedthe allegation of a concerted practice between the copyright-management societiesof the various Member States, contrary to Article 85(1) of the Treaty, consideredthat 'paragraphs 12 and 13 of the contested decision [contained] the reasons forthe rejection of two allegations made by the applicants in their observations on theArticle 6 letter [which] concerned the existence of a restrictive agreementconcluded between, on the one hand, the national copyright-management societiesrepresented within GESAC with a view to standardizing their royalties at the

highest possible rate and, on the other, SACEM and certain French syndicates ofdiscothèque operators (paragraph 39 of the judgment).

51.

On the other hand, finding that the statement of reasons for the contested decisiondid not explain why their complaints had been rejected in so far as they concerneda partitioning of the market as a result of the reciprocal representation contractsconcluded between the copyright-management societies in the various MemberStates, the Court held that 'on that point, the Commission [had] not complie[d]with its obligation under Article 190 of the Treaty to state the reasons for itsdecision (paragraph 40). Consequently, the Court annulled the decision only tothe extent to which it rejected the applicants' allegation of market partitioningresulting from the existence of an alleged restrictive agreement between SACEMand the copyright-management societies having the effect of denying Frenchdiscothèques direct access to the repertoire of those societies (paragraph 49 of thejudgment). The rest of the application was dismissed.

52.

Following partial annulment, by the Court of First Instance, of the decision of 12November 1992, the complainants, in their observations of 24 July 1995 on theCommission's Article 6 letter of 23 June 1995, not only challenged theCommission's intention to reject the complaint of market partitioning throughreciprocal representation contracts but also reiterated their allegation that therewas a second agreement between the copyright-management societies 'intended tomaintain the price of music at a high level. In the contested decision theCommission contended that it was under no obligation to answer that fresh chargemade by the complainants and then went on to refer expressly to the grounds setout at paragraph 12 of its decision of 12 November 1992, stating that, in any event,it regarded them as still valid. The Court finds, on this point, as the applicants alsoaccept, that the contested decision reproduces in identical terms the reasonsalready contained in the previous decision.

53.

In view of those circumstances and since in Tremblay I the Court of First Instanceannulled the Commission's initial decision for inadequacy of its statement ofreasons only in so far as solely the allegation of market partitioning throughreciprocal representation contracts had been rejected but considered that thedecision did explain the reasons for rejection of the allegation of an agreement onroyalty rates, the Commission was not obliged to reexamine, in its new decision, thereasons for which it had considered that the latter allegation could not be upheld. Whilst Article 176 of the Treaty requires the Commission to ensure that a decisionintended to replace an annulled decision is not vitiated by the same irregularitiesas those identified in the judgment annulling the decision (judgment in CaseT-106/92 Frederiksen v Parliament [1995] ECR-SC II-99, paragraph 32), theCommission cannot be required to take a fresh position on aspects of its decisionwhich were not called in question by that judgment.

54.

Under those circumstances, as the French Republic rightly points out, theCommission's reply in its letter of 13 October 1995, in so far as it concernedrejection of the allegation of an agreement between copyright-managementsocieties on royalties rates, constitutes a decision merely confirming its earlierdecision of 12 November 1992. In that letter, it merely refers the complainant to,and unambiguously maintains, the reasons already contained in its first decisionwhose legality had not been called in question on this point by the judgment inTremblay I.

55.

That assessment is also corroborated by the fact that the circumstances andconditions in which the Commission rejected the allegation of an agreement onroyalty rates are identical to those which prevailed upon the adoption of thedecision of 12 November 1992. In fact, the only evidence relied on by thecomplainants, in their letter sent on 24 July 1995 to the Commission, in support ofthis allegation consisted of excerpted statements by the President of SACEM andGESAC at a conference on copyright, held on 16 and 17 March 1992, attended alsoby an official of the Commission assigned to the Directorate-General for Industry(DG III). However, as the applicants acknowledged at the hearing in response toa question put by the Court, the Commission was already aware of thosestatements, which are mentioned at paragraph 92 of the judgment in Tremblay I,when it adopted its decision of 12 November 1992, so that this was not in any eventa new fact in relation to those already known to the Commission when it adoptedits initial decision (see, in that regard, the judgment in Case C-480/93 P ZunisHolding and Others v Commission, cited above, paragraph 12).

56.

Since no action lies against a decision merely confirming an earlier decision, itfollows that it is inadmissible for the applicants to challenge in this action the partof the contested decision rejecting the allegation of an agreement betweencopyright-management societies on royalty rates and to claim an infringement ofArticle 190 of the Treaty in this regard.

57.

As regards, secondly, the statement of reasons for the contested decision in so faras it rejects the allegation of a market partitioning, the Court recalls that, accordingto settled case-law, a statement of reasons must set out clearly and unequivocallythe reasoning of the Community authority responsible for the contested decisionso as to enable the applicant to ascertain the matters justifying the measureadopted so that he can defend his rights and so as to enable the Communityjudicature to exercise its power of review (judgments in Case C-360/92 P PublishersAssociation v Commission [1995] ECR I-23, paragraph 39, Case T-7/92 Asia MotorFrance and Others v Commission [1993] ECR II-669, paragraph 30 and CaseT-575/93 Koelman v Commission [1996] ECR II-1, paragraph 83). The Commissionis not obliged to adopt a position, in stating the reasons for the decisions which itis required to take in order to apply the competition rules, on all the argumentsrelied on by the parties concerned in support of their request. It is sufficient if itsets out the facts and legal considerations having decisive importance in the context

of the decision (see, inter alia, the judgment in Case T-7/92 Asia Motor France andOthers v Commission, cited above, paragraph 31).

58.

In the present case, the Court considers that the applicants are misrepresenting thecontested decision in maintaining, inter alia, that the Commission confined itsanalysis to the exclusivity clauses in the reciprocal representation contractsconcluded between the copyright-management societies of the various MemberStates.

59.

In fact, the Commission, particularly in its Article 6 letter to which the contesteddecision expressly refers, set out in extenso the replies given by the Court of Justicein its Tournier and Lucazeau judgments as to the assessment, in the light of Article85(1) of the Treaty, of the reciprocal representation contracts concluded betweenthe copyright-management societies. As the Commission explained in that letter(see paragraph 16 above), the appraisal of the Court of Justice took account of thefact that the exclusivity clauses in the reciprocal representation contracts had beendeleted without any alteration in the behaviour of the copyright-managementsocieties, which refused to allow direct access to their repertoire by foreign usersand entrusted their repertoire only to a society established in the territory inquestion.

60.

The Commission then went on to point out that, in this kind of context, accordingto the case-law of the Court of Justice cited above, mere parallel behaviour of thecopyright-management societies mentioned by the complainants could not warrantthe presumption, in the absence of evidence pointing in that direction, of anagreement or concerted practice between those societies, where there was aplausible explanation for that behaviour, namely the fact that, under the copyright-management scheme in force, it would not be in the interests of those societies togrant to users situated in other States direct access to their repertoire owing to themanagement and supervision costs which such access would entail.

61.

Noting, finally, in its decision that the complainants had not raised in theirobservations of 24 July 1995 any new matters of fact or of law such as to alter theconsiderations set out in its Article 6 letter, the Commission accordingly concludedthat the practices of the copyright-management societies referred to by thecomplainants did not entail the existence between them of an agreement orconcerted practice contrary to Article 85(1) of the Treaty. Contrary, moreover, tothe assertions of the applicants, the Commission did not therefore refer the matterto the national courts for examination, but concluded that there was no agreementcontrary to Article 85(1) of the Treaty, in the absence of any evidence to thateffect.

62.

In attempting to demonstrate that the statement of reasons for the contesteddecision is inadequate, the applicants also seek to show that the Commission'sinvestigation was inadequate. In particular, the applicants criticize it for not

availing itself of the means it had to investigate for itself the behaviour complainedof, and declining to do so on the sole ground that the complainants had notprovided it with any proof or solid evidence of the existence of an agreement.

63.

The Court finds, nevertheless, that the lack of probative value of the informationprovided by the complainants to the Commission is not disputed by the applicants,who in this connection do not plead any error of law or error of appraisal and who,moreover, acknowledged at the hearing that the information provided was 'neithersufficient [nor] decisive. Not having received any proof or sufficient hard evidencefrom the complainants for demonstrating the existence of an agreement contraryto Article 85(1) of the Treaty, the Commission cannot be criticized for notexamining the complaint properly solely because it did not order additionalmeasures of inquiry. The Court recalls in that connection that, according to settledcase-law, the Commission's obligation, when a matter is brought before it underArticle 3 of Regulation No 17, is not to conduct an investigation but to examineclosely the matters of fact and of law brought to its attention by the complainantin order to ascertain whether there is any conduct liable to distort competition within the common market and to affect trade between Member States (judgmentsin Case C-19/93 P Rendo and Others v Commission [1995] ECR I-3319, paragraph27, and Case T-24/90 Automec v Commission [1992] ECR II-2223, paragraph 79).

64.

In view of all those circumstances, the Court considers that the Commissionsatisfied its obligation to indicate clearly, in rejecting a complaint, the reasons whyclose examination of the matters of fact and of law brought to its notice by thecomplainants did not lead it to initiate proceedings for infringement of Article 85of the Treaty (see the order of the Court of Justice of 16 September 1997 in CaseC-59/96 P Koelman v Commission [1997] ECR I-0000, paragraph 42, and thejudgment given at first instance in Koelman v Commission, cited above, paragraph40).

65.

It follows from all the foregoing that the plea alleging inadequacy of the statementof reasons for the contested decision must be rejected.

Plea of infringement of Article 176 of the Treaty

Summary of the parties' arguments

66.

The applicants maintain that, by adopting the contested decision, the Commissioninfringed its obligations under Article 176 of the Treaty.

67.

According to them, in adopting the contested decision the Commission failed toheed the judgment in Tremblay I in that, following that judgment, the Commissiondid not undertake an inquiry, as the Court of First Instance requested it to do. Intheir view, the Court of First Instance condemned both the inadequacy of theinquiry preceding the adoption of the decision and the inadequacy of the statementof reasons on which it was based. The applicants accordingly conclude that, in

order to comply with the Court of First Instance's direction to take action, even ifit was only implicit, it was for the Commission to use the means available to it toundertake investigations.

68.

Secondly, the applicants criticize the Commission for adopting the contesteddecision without awaiting the judgment of the Court of Justice on the appeal inTremblay I, when the appeal proceedings and the proceedings in this case areinterdependent.

69.

The Commission replies that the argument that it did not heed the judgment inTremblay I, in not undertaking the active investigations it entailed, is based on falsepremisses since the Court of First Instance annulled the part of the contesteddecision concerning the complaint of market partitioning for breach of Article 190of the Treaty, and not on the ground of an error of law. It considers that thecontested decision, which reached the same conclusion as that adopted by it on 12November 1992, but this time satisfying the reasoning requirements of Article 190of the Treaty, is unimpeachable.

70.

In response to the applicants' argument that it ought to have awaited the judgmentof the Court of Justice on the appeal against Tremblay I the Commission points outthat the proceedings before the Court of Justice and the present proceedings havea distinct subject-matter, inasmuch as the appeal brought by the applicants seeksonly partial annulment of the judgment in Tremblay I, and then only in so far as itdid not annul the part of the decision rejecting allegations other than that of theexistence of an agreement. It therefore considers that it was obliged to resumeexamination of the part of the complaint relating to Article 85 of the Treatywithout awaiting the judgment of the Court of Justice.

71.

The French Republic, intervening, contends that the judgment in Tremblay I hadbecome definitive in so far as it annulled the Commission's initial decision, in theabsence of any appeal against that part of the judgment, and that the Commissionwas therefore obliged, under Article 176 of the Treaty, to reply to the complainton this point. It also considers that, even if an appeal had been brought against thewhole of the judgment in Tremblay I, the Commission would have been entitled toadopt a fresh decision if it considered that it had in its possession sufficientinformation to do so, since an appeal does not have suspensory effect, except inspecific situations not relevant to the present case.

Findings of the Court

72.

When the Court of First Instance annuls an act of an institution, it is required,under Article 176, to take the measures necessary to comply with the Court'sjudgment. In that connection, both Community courts have held that, in order tocomply with their judgments and to implement them fully, the institution is requiredto observe not only the operative part of the judgment but also the grounds which

led to the judgment and constitute its essential basis, inasmuch as they arenecessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held tobe illegal and, on the other, indicate the specific reasons which underlie the findingof illegality contained in the operative part and which the institution concernedmust take into account when replacing the annulled measure (judgments in JoinedCases 97/86, 99/86, 193/86 and 215/86 Asteris v Commission [1988] ECR 2181,paragraph 27, and in Frederiksen v Parliament, cited above, paragraph 31).

73.

In the present case, the applicants contend, first of all, that the Commissiondisregarded the judgment in Tremblay I, which, in their view, required it to conductan inquiry. However, it follows from the operative part and grounds of thatjudgment that the Court of First Instance partially annulled the earlier Commissiondecision of 12 November 1992 for breach of Article 190 of the Treaty on theground that it did not apprise the applicants of the reasons justifying rejection oftheir complaints in so far as these concerned market partitioning. That conclusiondid not therefore imply that the Court of First Instance was requesting theCommission to conduct investigations or, a fortiori, that it was giving it some kindof direction to take action in that regard, which is something which it does not havepower to do in the context of its review of legality (see paragraph 36 above). Moreover, since in this judgment (see paragraph 64 above) the Court has foundthat the Commission has now satisfied its obligation under Article 190 of the Treatyto state reasons for its decision in regard to the allegation of market partitioning,the argument that the judgment in Tremblay I has been disregarded and thatArticle 176 of the Treaty has therefore been infringed cannot avail the applicant.

74.

As to the argument that the Commission ought to have waited for the Court ofJustice to give judgment on the applicants' appeal against the judgment in TremblayI before adopting the contested decision, the Court considers that argument to bewithout relevance in the present case. That appeal sought only the partial settingaside of the judgment in Tremblay I in so far as it dismissed the action broughtagainst that part of the Commission's initial decision which concerned theallegations of an infringement of Article 86 of the Treaty (see paragraph 12 aboveand the judgment of the Court of Justice in Case C-91/95 P Tremblay and Othersv Commission, cited above). This Court notes, on the other hand, that no appealhas been brought against the judgment in Tremblay I for annulling the part of theCommission decision concerning its rejection of the allegation of marketpartitioning through an alleged agreement between copyright-management societiesin breach of Article 85 of the Treaty. Since the judgment of this Court has thusbecome definitive on the latter point, it follows that the Commission did not haveto wait for the Court of Justice to give its judgment in order to adopt a freshdecision on that issue.

75.

It follows that this plea must be rejected.

The third plea: infringement of the Treaty and misuse of powers

Arguments of the parties

76.

The applicants consider that the Commission's conduct constitutes an infringementof the Treaty and a misuse of powers. In their view, by deliberately refraining,despite their requests, from investigating the case or at any rate by confining itselfto 'passive investigations, the Commission kept the alleged restrictive agreementalive and thereby pursued objectives other than those for which the powersprovided for in the Treaty were conferred on it (judgments in Joined Cases 3/64and 4/64 Chambre Syndicale de la Sidérurgie Française and Others v High Authority[1965] ECR 567, Case 135/87 Vlachou v Court of Auditors [1988] ECR 2901 andCase C-107/90 P Hochbaum v Commission [1992] ECR I-157). In support of thatplea, the applicants refer to extracts from statements made by the President ofSACEM and GESAC at a conference on copyright held in Madrid on 16 and 17March 1992.

77.

The Commission emphasizes that an allegation of misuse of powers can be takeninto consideration only if the contested decision appears, on the basis of objective,relevant and consistent factors, to have been taken with the exclusive or mainpurpose of achieving an end other than that stated or evading a procedurespecifically prescribed by the Treaty for dealing with the circumstances of the case(judgment in Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni and Others[1994] ECR I-4863). Besides, the fact that the contested decision did not acceptthe arguments put forward by the complainants during the procedure cannot initself constitute a misuse of powers (judgment in Case C-69/89 Nakajima v Council[1991] ECR I-2069). In the present case, the Commission considers that theapplicants have provided no information to substantiate their assertion that noinvestigations or only passive investigations were carried out with the objective ofprotecting a restrictive agreement on prices for the benefit of SACEM.

78.

The French Republic submits no specific observations.

Findings of the Court

79.

With regard first of all to the allegation that the Commission infringed the Treaty,the first paragraph of Article 19 of the Protocol on the EC Statute of the Court ofJustice, which applies to the Court of First Instance pursuant to the first paragraphof Article 46 of that Statute, and Article 44(1) of the Rules of Procedure of theCourt of First Instance provide that an application originating proceedings mustcontain a summary of the pleas in law on which it is based. That statement mustbe sufficiently clear and specific in order to enable the defendant to prepare itsdefence and the Court of First Instance to adjudicate on the action, if appropriatewithout any other information in support. The application must therefore specifythe nature of the grounds on which it is based, so that a mere abstract statementof grounds does not satisfy the requirements of the Statute or of the Rules of

Procedure (judgment in Case T-102/92 Viho v Commission [1995] ECR II-17,paragraph 68).

80.

In the present case, the applicants claim that the Commission has infringed theTreaty without making any specific reference to the provisions which they considerto have been infringed. In their application, they state generally that 'aninadequate statement of reasons, which can often serve to cover up a Treatyinfringement, as in this case, may stem from [...] inadequate handling of a case,and, 'akin to a breach of the Treaty, the Commission's conduct also constitutes amisuse of powers.

81.

The Court considers that those allegations, as formulated by the applicants, do notenable it to determine sufficiently precisely the nature and subject-matter of thecharge made against the Commission nor, a fortiori, to identify the Treatyprovisions which the Commission is alleged to have disregarded. Furthermore, theapplicants' arguments have not enabled the Commission to submit specificobservations on an alleged infringement of the Treaty and effectively to defenditself on this issue.

82.

Under those conditions, the allegation of a Treaty infringement by the Commissionmust be rejected as inadmissible.

83.

As regards the allegation of a misuse of powers, the Court notes that, in supportof their allegation, the applicants cite excerpts from the report of a conference oncopyright held in Madrid on 16 and 17 March 1992 (see paragraph 55 above). Inits judgment in Tremblay I, cited above, the Court has already held that it wasunable to find in those extracts the evidence required to justify an inference thatthere was any misuse of powers (see paragraph 92 of the judgment). It follows thatthis plea must be rejected.

84.

It follows from all the foregoing considerations that the action must be dismissedin its entirety.

Costs

85.

86.

Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the applicants have been unsuccessful and the Commission hasasked for an order of costs against them, the applicants must be ordered to pay thecosts.

87.

However, the French Republic, which intervened in the proceedings, is to bear itsown costs under the first subparagraph of Article 87(4) of the Rules of Procedure.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber)

hereby:

1. Dismisses the action;

2. Orders the applicants to pay the costs of the proceedings;

3. Orders the French Republic to bear its own costs.

BellamyKalogeropoulos

Cooke

Delivered in open court in Luxembourg on 27 November 1997.

H. Jung

A. Kalogeropoulos

Registrar

President

1: Language of the case: French.

ECR