# C_2017382EN.01001801.xml

| 13.11.2017 | EN | Official Journal of the European Union | C 382/18 |
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13.11.2017

EN

Official Journal of the European Union

C 382/18

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Judgment of the Court (Second Chamber) of 14 September 2017 (request for a preliminary ruling from the Augstākā tiesa — Latvia) — Autortiesību un komunicēšanās konsultāciju aģentūra — Latvijas Autoru apvienība v Konkurences padome

(Case C-177/16) (1)

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((Reference for a preliminary ruling - Competition - Article 102 TFEU - Abuse of a dominant position - Concept of ‘unfair price’ - Fees collected by a copyright management organisation - Comparison with rates charged in other Member States - Choice of reference Member States - Assessment criteria for prices - Calculation of the fine))

(2017/C 382/21)

Language of the case: Latvian

Referring court

Referring court

Augstākā tiesa

Parties to the main proceedings

Parties to the main proceedings

Applicant: Autortiesību un komunicēšanās konsultāciju aģentūra — Latvijas Autoru apvienība

Applicant:

Defendant: Konkurences padome

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Trade between Member States is capable of being affected by the level of rates set by a copyright management organisation that holds a monopoly and also manages the rights of foreign copyright holders, with the result that Article 102 TFEU may be applicable. |
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1.

Trade between Member States is capable of being affected by the level of rates set by a copyright management organisation that holds a monopoly and also manages the rights of foreign copyright holders, with the result that Article 102 TFEU may be applicable.

| 2. | For the purposes of examining whether a copyright management organisation applies unfair prices within the meaning of point (a) of the second paragraph of Article 102 TFEU, it is appropriate to compare its rates with those applicable in neighbouring Member States as well as with those applicable in other Member States adjusted in accordance with the PPP index, provided that the reference Member States have been selected in accordance with objective, appropriate and verifiable criteria and that the comparisons are made on a consistent basis. It is permissible to compare the rates charged in one or several specific user segments if there are indications that the excessive nature of the fees affects those segments. |
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2.

For the purposes of examining whether a copyright management organisation applies unfair prices within the meaning of point (a) of the second paragraph of Article 102 TFEU, it is appropriate to compare its rates with those applicable in neighbouring Member States as well as with those applicable in other Member States adjusted in accordance with the PPP index, provided that the reference Member States have been selected in accordance with objective, appropriate and verifiable criteria and that the comparisons are made on a consistent basis. It is permissible to compare the rates charged in one or several specific user segments if there are indications that the excessive nature of the fees affects those segments.

| 3. | The difference between the rates compared must be regarded as appreciable if that difference is significant and persistent. Such a difference is indicative of abuse of a dominant position and it is for the copyright management organisation holding a dominant position to show that its prices are fair by reference to objective factors that have an impact on management expenses or the remuneration of rightholders. |
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3.

The difference between the rates compared must be regarded as appreciable if that difference is significant and persistent. Such a difference is indicative of abuse of a dominant position and it is for the copyright management organisation holding a dominant position to show that its prices are fair by reference to objective factors that have an impact on management expenses or the remuneration of rightholders.

| 4. | In the case where the infringement referred to in point (a) of the second paragraph of Article 102 TFEU is established, remuneration intended for rightholders must be included, for the purpose of determining the amount of the fine, in the turnover of the copyright management organisation concerned, provided that that remuneration forms part of the value of the services provided by that organisation and that that inclusion is necessary in order to ensure that the penalty imposed is effective, proportionate and dissuasive. It is for the referring court to verify, in the light of all the circumstances of the case, whether those conditions are met. |
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4.

In the case where the infringement referred to in point (a) of the second paragraph of Article 102 TFEU is established, remuneration intended for rightholders must be included, for the purpose of determining the amount of the fine, in the turnover of the copyright management organisation concerned, provided that that remuneration forms part of the value of the services provided by that organisation and that that inclusion is necessary in order to ensure that the penalty imposed is effective, proportionate and dissuasive. It is for the referring court to verify, in the light of all the circumstances of the case, whether those conditions are met.

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(1)  OJ C 200, 6.6.2016.

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