Opinion of the Advocate General — ECLI:EU:C:2025:417
Date: 2025-06-05
Language of the case: Czech

Summary C-161/24 – 1 
Case C-161/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
29 February 2024 
Referring court: 
Krajský soud v Brně (Czech Republic) 
Date of the decision to refer: 
29 February 2024 
Applicant: 
OSA – Ochranný svaz autorský pro práva k dílům hudebním, z.s. 
Defendant: 
Úřad pro ochranu hospodářské soutěže 
 
Subject matter of the main proceedings 
The subject of the dispute in the main proceedings is whether the collective 
management company concerned has abused its dominant position by charging 
fees to accommodation facilities for the possibility to use television and radio sets 
in rooms regardless of whether the rooms in question were occupied. 
Questions referred for a preliminary ruling 
1. Can Article 102(a) of the Treaty on the Functioning of the European Union 
be interpreted as meaning that the conduct of a collective management company 
that has a de facto monopoly in a Member State and charges accommodation 
facility operators prices for the provision of a licence to make copyrighted works 
available by means of television and radio receivers located in rooms intended for 
the accommodation of private guests, which do not take into account the actual 
occupancy of the individual rooms of the accommodation facilities concerned, 
amount to an abuse of a dominant position, within the meaning of that article? 
EN 
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2. If the first question is answered in the affirmative, must such a practice be 
assessed in terms of (a) the application of unfair trading conditions or (b) the 
application of excessive prices? 
– If the correct standard is the application of unfair trading conditions, what is 
the specific test to be applied in assessing it? 
– If the correct standard is the application of excessive prices, what is the 
specific test to be applied – the general ‘United Brands test’ or a particular 
modified version thereof? 
3. In establishing an infringement of Article 102(a) of the Treaty on the 
Functioning of the European Union in relation to the conduct referred to in the 
first question, is it necessary to prove actual or potential adverse effects on 
competition (including effects on consumer welfare and the exploitative effects of 
the dominant entity’s conduct)? 
4. In establishing an infringement of Article 102(a) of the Treaty on the 
Functioning of the European Union in relation to the conduct referred to in the 
first question, is it necessary to prove that the conduct has a substantial effect on 
trade between EU Member States, or is it sufficient to have a reasonable 
assumption that such an effect might occur and it is not necessary to examine its 
actual extent? 
Provisions of European Union law relied on 
Treaty on the Functioning of the European Union (‘TFEU’): Article 102 
Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation 
of the rules on competition laid down in Articles [101 and 102 TFEU]: Articles 3 
and 5 
Provisions of national law relied on 
Zákon č. 143/2001 Sb., o ochraně hospodářské soutěže (Law No 143/2001 on the 
protection of competition): 
Paragraph 11(1)(a): 
‘Abuse of a dominant position to the detriment of other undertakings or 
consumers shall be prohibited. Abuse of a dominant position shall consist 
particularly of (a) the direct or indirect imposition of unfair conditions in 
agreements with other market participants, particularly the imposition of 
performance which at the time of conclusion of a contract is manifestly 
disproportionate to the consideration provided’. 
Paragraph 22a(1)(c): 
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‘A legal person or a natural person acting as an entrepreneur commits an 
administrative offence as an undertaking if it (…) (c) abuses a dominant position 
contrary to Paragraph 11(1)’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is one of the six collective management companies of copyrighted 
works in the Czech Republic, which has a de facto monopoly in this area. 1 
Between 19 May 2008 and 6 November 2014, it charged fees to hotels and other 
accommodation facilities in the Czech Republic for the possibility to use 
television and radio devices in their rooms, even if some of those rooms were not 
occupied. The fees were identical, regardless of whether the rooms were actually 
used. By decision of 18 December 2019, the Office for the Protection of 
Competition (‘the Office’) found that the applicant had abused its dominant 
position and infringed the prohibition under Article 102(a) TFEU. It thus imposed 
on the applicant a fine of CZK 10 676 000 (namely, approximately EUR 429 000) 
and prohibited the impugned conduct (‘the decision of the Office’). 
2 In the Office’s view, the applicant had by its conduct imposed unfair trading 
conditions on the market for the granting of licences for the use of copyright in the 
musical, literary, dramatic, musical drama, choreographic, pantomime, and audio-
visual arts, the visual arts and architectural works, and the visual component of 
audio-visual works by means of devices enabling radio or television broadcasting 
in the rooms of accommodation facilities in the Czech Republic. It had thus 
abused its dominant position to the detriment of accommodation service providers 
and potentially affected trade between Member States in the exercise of copyright. 
3 The applicant appealed against the decision of the Office, which was rejected by 
the Chairperson of the Office by decision of 23 November 2020 (‘the decision of 
the Chairperson’). The applicant has challenged that decision by submitting an 
action to the referring court. 
Arguments of the parties in the main proceedings 
4 There is no dispute between the parties as to the basic facts of the case, rather they 
disagree as to how to assess the situation at hand in legal terms, from the point of 
view of Article 102(a) TFEU. In particular, the parties to the proceedings do not 
agree on the case-law of the Court of Justice that must be relied on in assessing 
the merits of the case. 
5 In terms of EU law, the parties are in dispute on a total of five individual topics: 
(i) the applicability of the judgment in SABAM, 2 (ii) the correctness of the test 
 
1 See also the judgment of the Court of Justice of 27 February 2014, OSA (C-351/12). 
2 Judgment of the Court of Justice of 25 November 2020, SABAM (C-372/19) (‘the SABAM 
judgment’). 
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applied of unfair trading conditions, (iii) the applicability of the judgments in 
United Brands, 3 SABAM, and AKKA 4 if the applicant’s conduct were to be 
assessed as the application of excessive prices, (iv) the material aspect of 
distortion of competition and the related standard of proof, and (v) demonstration 
of a substantial effect on trade between Member States. 
(i) Applicability of the judgment in SABAM 
6 Unlike the Chairperson of the Office, the applicant claims that the present case 
can be assessed on the basis of the judgment in SABAM. It is closest to it in fact as 
well as in law. Even though the SABAM case concerned a flat rate applied in 
taking into account the number of works reproduced, whereas the present case 
concerns a flat rate used in taking into account the size of the audience, namely 
not having regard to the occupancy of the rooms, the applicant states that this does 
not alter the substance of the case and that, in principle, the same issue is 
concerned – the nature of conduct consisting in the method for determining 
royalties. 5 
7 The Court of Justice, when assessing the SABAM case in terms of the standard of 
abuse of a dominant position, did not do so in the form of unfair trading 
conditions but in the form of the application of excessive prices. According to the 
applicant, that standard should also have been used by the Office. The applicant 
argues that this is the key error of the Office. 
8 Furthermore, the applicant submits that the rate of royalties must be considered as 
a whole. According to the judgment in SABAM, collective management companies 
should not be obliged, in all cases, to take into account elements which are 
specific for various areas of the reproduction of musical works. They should not 
be subject to restrictions in terms of establishing a charging scheme for royalties, 
provided that the method does not result in an excessive rate. 6 
9 According to the applicant, royalties in the SABAM case were always at least in 
part charged even for works that were not played at a festival. In the present case, 
royalties were in part charged for periods when specific rooms were not occupied. 
The applicant claims that the Chairperson of the Office did not take into account 
the factual differences between the payment of royalties for making copyrighted 
works available at festivals (as was the case in SABAM) and in the rooms of 
accommodation facilities. It is obvious from the very nature of festivals that works 
will be made available to the public there; however, it may happen that at a 
 
3 Judgment of the Court of Justice of 14 February 1978, United Brands (C-27/76) (‘the United 
Brands judgment’). 
4 Judgment of the Court of Justice of 14 September 2017, AKKA (C-177/16) (‘the AKKA 
judgment’). 
5 With reference to the Opinion of the Advocate General in SABAM (point 17). 
6 Paragraph 46 of the judgment in SABAM. 
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particular festival not even a single work from the repertoire of the collective 
management company will be made available. In that situation, it might be 
disproportionate to demand a royalty payment. 
10 Royalties for making works available in the rooms of accommodation facilities 
are paid to collective management companies in arrears on an annual basis. With a 
probability bordering on certainty, at least one guest is accommodated during that 
one-year period in every room. In the one-year period for which the applicant 
charges royalties, a copyrighted work was made available in nearly 100% of the 
rooms. 
11 On the other hand, the Chairperson of the Office maintains that the SABAM 
judgment cannot be applied. The amount of fees demanded by the collective 
management company in the SABAM case was based on a rate that allegedly did 
not correspond to the economic value of the services provided by the collective 
management company. One of the purposes of the question addressed by the 
SABAM judgment was to determine the degree of precision required of a 
collective management company holding a dominant position when applying a 
price rate so that it does not thereby abuse its dominant position. 
12 The difference between the two cases lies in the aspect of the communication of a 
work to the public and the existence of performance and consideration. In the 
present case, no communication to the public occurred (in the unoccupied rooms). 
In the matter addressed by the SABAM judgment, there was demonstrably 
communication of a work to the public. If no communication of a work to the 
public had occurred, the fee would not have been paid. 7 According to the SABAM 
judgment, ‘the royalty applied by a collective management organisation must take 
account of the number of musical works protected by copyright actually used’. 8 
13 According to the Chairperson of the Office, the SABAM judgment addressed only 
(a) what proportion of the repertoire managed by SABAM was communicated and 
(b) to what number of members of the public, and whether the rate of royalties 
subsequently applied was in line with Article 102 TFEU. The collective 
management company was entitled to charge royalties for the service rendered 
(communication of a work to the public). That, however, is not the applicant’s 
case. There was no communication of a work at all to the public in the unoccupied 
rooms of accommodation facilities, and hence the operators of those 
accommodation facilities paid the applicant for services that they did not actually 
receive. Consequently, the defendant claims that the judgment in SABAM does not 
offer any guidance for evaluating the applicant’s practices, which should not be 
assessed in terms of the imposition of unfair prices. 
 
7 Point 80 of the Opinion of the Advocate General in SABAM. 
8 Paragraph 50 of the SABAM Judgment. 
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14 According to the Chairperson of the Office, the subject of the case in SABAM was 
the question of the legality of the use of a certain rate of royalty, but that was only 
when a work was demonstrably communicated to the public. Paragraph 41 of the 
SABAM judgment says: ‘… the royalties resulting from such a charging scheme 
represent the consideration paid for the communication to the public of those 
musical works.’ 
(ii) Correctness of the application of the test of unfair trading conditions 
15 The applicant disagrees with the Office that the method of price determination 
must be assessed in terms of the application of unfair conditions. Furthermore, the 
Office relied on case-law and decisions that are not applicable, 9 misinterpreted 
them, and erred in its assessment. Part of the case-law relied on concerned 
conduct by a dominant undertaking with serious adverse effects on competition. It 
also relied on the judgment in STIM, which, however, dealt with the practice of 
charging excessive prices, whereas it refused to apply the SABAM judgment, 
which also dealt with excessive prices. 
16 The applicant asserts that, according to EU decision-making practice and the 
relevant legal literature, 10 a three-step test is applied in the case of abuse of a 
dominant position in the form of the application of unfair trading terms, assessing 
(i) whether the trading term is unrelated to the purpose of the agreement or is not 
necessary for ensuring its expected effect, (ii) whether the trading term causes 
harm to the other party, and (iii) whether the trading term is neither appropriate 
nor reasonable. The Office failed to perform the first two steps of the test and only 
addressed in isolation a form of abstract ‘proportionality’ of the trading condition. 
17 The Chairperson of the Office deems the decisions referred to as applicable. The 
Commission and the EU Courts examined the same practice, namely the 
imposition of unfair trading conditions (with the exception of the STIM judgment). 
According to the Chairperson, that decision-making practice has not been 
superseded. Key for the evaluation of the practice in question is the question of its 
absolute necessity for the accomplishment of the set goal, and it is necessary to 
examine whether the collective management company takes into account all the 
relevant interests for the purpose of ensuring a balance between the maximum 
freedom of authors to make dispositions with their rights and the effective 
management of their rights. 11 
 
9 Commission Decision of 2 June 1971, GEMA (71/224); Judgment of the Court of Justice of 
27 March 1974, BRT (C-127/73) (‘BRT’); Commission Decision of 20 April 2001, DSD 
(2001/463/EC, COMP D3/344493); (‘Commission Decision in DSD’); Judgment of the General 
Court of 24 May 2007, DSD, T-151/01; and Judgment of the Court of Justice of 11 December 
2008, STIM (C-52/07) (‘the STIM judgment’). 
10 O’Donoghue, Robert, Padilla, Jorge, The Law and Economics of Article 102 TFEU, 3rd edition, 
Hart Publishing, Oxford, 2020, p. 1043. 
11 Referring to the judgment in BRT. 
OSA 
 
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18 As concerns the claim that the three-step test was not carried out properly, the 
Chairperson of the Office is not aware of any specific decision of the Commission 
or of the EU Courts where such a test has been applied, and the applicant has only 
referred to legal literature. Other foreign legal literature does not refer to any such 
test in the context of unfair trading terms. On the contrary, it states that it is 
difficult to define the applicable tests, owing to the small number of cases of 
abuse of a dominant position through the imposition of unfair terms. The tests 
applied by the Commission and the Court of Justice consider the anti-competitive 
effects of the condition concerned and its justification. 12 Hence, the application of 
the three-step test was unnecessary in this case. It sufficed for the Office to 
consider the proportionality of the trading term in relation to the consideration and 
the existence of possible justifiable reasons for the applicant’s conduct. 
19 As concerns the STIM judgment, the Chairperson of the Office states that it indeed 
concerned excessive prices, nevertheless, it addressed conceptual issues related to 
the interpretation of Article 102 TFEU; the Court of Justice elaborated in that 
judgment on the principle of proportionality, which, according to the Chairperson 
of the Office, can also be applied to unfair trading terms. On the other hand, the 
Chairperson claims that the judgment in SABAM did not contain any conceptual 
conclusions that could be transferred to the applicant’s case. 
(iii) Applicability of the judgments in United Brands, AKKA, and SABAM, if the 
applicant’s actions are assessed in terms of the application of excessive prices 
20 The applicant claims that if the Office had assessed the applicant’s actions as it 
should have, namely in terms of the application of excessive prices, then the 
royalties that it charged were not excessive. The applicable tests arise from the 
judgments in United Brands, AKKA, and SABAM. By characterising the 
applicant’s conduct as the application of unfair trading conditions, the Office is 
attempting to circumvent the need to apply those judgments. 
21 Furthermore, the applicant claims that, according to that case-law, the test for the 
assessment of excessive prices consists of the following two steps: (i) an 
evaluation of whether there is an excessive disproportion between the actual costs 
and the price claimed, and, if that is the case, then this is followed by (ii) an 
examination of whether the price charged is not disproportionate in absolute terms 
or in comparison with competing products 13 or also in comparison with the 
amount of fees charged in other Member States, or with a focus on specific user 
segments.  14 
 
12 González-Díaz F. E., Snelders R., EU Competition Law. Volume V. Abuse of Dominance under 
Article 102 TFEU, Claeys & Casteels Law Publishers nv, 2013, p. 692). 
13 Paragraph 252 of the United Brands judgment. 
14 Judgment in AKKA, paragraph 2 of the operative part. 
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22 The applicant claims that it did not breach Article 102 TFEU. With regard to the 
first step of the test mentioned above, the applicant states that there is no other 
method to precisely quantify the occupancy of rooms in accommodation facilities 
while, at the same time, achieving the legitimate goal of protecting the interests of 
authors, without this resulting in an undue increase in the costs of contract 
management and oversight over the use of the musical works protected by the 
applicant. It is not within the applicant’s powers to continuously check on the 
occupancy of each accommodation facility. As concerns the second step of the 
test, the applicant adds that, even if another method for the determination of room 
occupancy existed, the amount of royalties would be proportionate in comparison 
with the fees charged by collective management companies abroad, which is also 
confirmed by the information from the Office used in the administrative 
proceedings. 
23 The Chairperson of the Office stated that it did not assess the practice of the 
applicant from the point of view of excessive prices, but rather from the point of 
view of unfair terms as unfair terms under Article 102 TFEU constitutes an 
exploitative practice of abuse of a dominant position, consisting in the imposition 
of unfair terms by an undertaking in a dominant position, in particular those which 
are, at the time of conclusion of the contract, manifestly disproportionate to the 
consideration. 
(iv) Material element of distortion of competition and the related standard of 
proof 
24 According to the applicant, the Office did not address the question of whether the 
failure to take room occupancy into account in the determination of royalty rates 
led to a distortion of competition. It claims that, according to the case-law, the 
conduct of an undertaking with a dominant position cannot be qualified as abuse 
unless there is at least a minimal anti-competitive effect on the market. It suffices 
to show a potential anti-competitive effect, but it must not be an effect that is 
purely hypothetical in nature. 15 The anti-competitive effect need not be proved for 
practices distorting competition by object, 16 but in that case, there must be 
adequate and sufficiently substantiated experience showing their anti-competitive 
nature. 17 The Office did not, however, point to any such practice and, according 
to the applicant, the fact that the collective management companies did not take 
room occupancy in accommodation facilities into account does not constitute such 
a practice. 
 
15 See judgments of the Court of Justice of 6 December 2012, AstraZeneca (C-457/10 P, 
paragraph 112); of 17 December 2011, TeliaSonera (C-52/09); ‘TeliaSonera judgment’); and of 
6 October 2015, Post Danmark (C-23/14, paragraph 65). 
16 See judgment of the Court of Justice of 30 January 2020, Paroxetin (C-307/18, paragraph 155). 
17 Judgment of the Court of Justice of 2 April 2020, Budapest Bank (C-228/18, paragraphs 76 and 
79). 
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25 Furthermore, the applicant disagrees with the opinion of the Chairperson of the 
Office that it is not necessary to establish the actual effects on competition on the 
ground that the application of unfair conditions is merely potential in nature. 
According to the case-law, the competition authority must prove that ‘competition 
has “in fact” been restricted or distorted or “in fact” prevented.’ 18 
26 According to the applicant, it is unclear how accommodation facility operators 
could have sustained competitive harm, 19 with the Office criticising the applicant 
for the method of determining royalties rather than their amount. The amount of 
royalties could be higher without any penalty being incurred as long as the 
applicant adheres to the pricing method preferred by the Office. The applicant was 
unable to obtain a so-called ‘supra-competitive advantage’ as a result of the 
method chosen for setting royalties. Even if there were several collective 
management companies operating on the market, competing with one another, 
they would definitely not compete with one another in terms of which one of them 
takes into account the occupancy rate of accommodation facilities. Competition 
would take place on the basis of price and the size of the repertoire. The pricing 
method is not an element of competition. 
27 The applicant argues that the objective of the prohibition on abuse of a dominant 
position is to prevent practices that have a direct or indirect effect on consumer 
welfare. 20 The defendant has failed to demonstrate an adverse effect on consumer 
welfare. 21 Instead of that case-law standard, it used only the vague concept of 
‘reasonableness’. Furthermore, the defendant has failed to demonstrate the 
exploitative effects of the applicant’s conduct, even though it assessed it as such – 
for that, it should have demonstrated that the trading term leads (i) to a distortion 
of the structure of the market with an effect on consumer welfare, or (ii) to an 
attack on the fundamental values of human society, which certainly include the 
cultural activities of consumers. 22 
28 The Chairperson of the Office states that merely a potential distortion of 
competition is required as the material element of an infringement. In any event, 
the defendant did not treat the applicant’s practices as practices distorting 
competition by object, in respect of which anti-competitive effects need not be 
proven. It is evident from the decision of the Office that the applicant distorted 
 
18 See judgment of the General Court of 12 December 2018, Servier (T-691/14, paragraph 1129); 
judgment of the Court of Justice of 30 June 1966, C-56/65 (LTM, paragraphs 359 and 360); or 
judgment of the General Court of 12 December 2018, Krka (T-684/14, paragraph 361). 
19 Judgment of the Court of Justice of 19 April 2018, MEO (C-525/16, in particular paragraph 37) 
(‘the MEO judgment’). 
20 Judgment of the Court of Justice of 27 March 2012, Post Danmark I (C-209/10) (‘the Post 
Danmark I judgment’). 
21 Judgment of the Court of Justice of 12 May 2022, SEN (C-377/20). 
22 See point 22 of the Opinion of the Advocate General in SABAM. 
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competition by exploiting its business partners by imposing unfair trading 
conditions without having an objective reason to do so, as a result of which its 
business partners sustained material harm, in a context where its business partners 
had practically no other option. 23 
29 As concerns harm and the line of argument based on the MEO judgment, the 
Chairperson of the Office adds that EU case-law defines harm very broadly. 24 
The actions of the applicant had a demonstrable effect on the costs and profits of 
accommodation facility operators and put them at a competitive disadvantage. 
30 According to the Chairperson of the Office, it follows from the case-law that the 
prohibition on abuse of a dominant position is not only directed at practices that 
may cause harm to consumers directly, but also at practices which are detrimental 
to them through their effects on the effective structure of competition. 25 In order 
to decide whether a competitor’s conduct has been abusive, it is unnecessary to 
examine whether that conduct was to the detriment of consumers. It suffices to 
check whether it had a restrictive effect on competition. 26 The Office did not 
establish whether the applicant’s conduct had an effect on consumers (and indeed 
it did not have to do so), but it established that it had an effect on other 
competitors – the applicant’s contractual partners, namely, the operators of 
accommodation facilities. 
31 According to the Chairperson of the Office, as based on the judgment in United 
Brands, the applicant acted in an anti-competitive manner by imposing unfair 
conditions and in fact exploiting its contractual partners (the operators of 
accommodation facilities). The rationale in respect of exploitative practices is that 
an undertaking with a dominant position should not take advantage of weakened 
competition to the detriment of its business partners, beyond a reasonable level, 
thereby distorting competition even further. That was of course precisely what the 
applicant did. 
32 According to the Chairperson of the Office, the judgment in Post Danmark I does 
not change anything in the latter’s position that an adverse effect of the conduct on 
consumer welfare need not be proved. The applicant’s conduct constitutes a 
practice that does not affect consumers directly, rather it does so indirectly – 
through the applicant’s business partners. However, the issue in the Post Danmark 
I judgment was principally the exclusionary practice of abuse of a dominant 
position, whereas the applicant’s conduct consisted of exploiting its business 
 
23 See paragraphs 111 to 115 of the Commission Decision in DSD. 
24 Paragraph 64 of the judgment in TeliaSonera. 
25 Paragraph 36 of the judgment of the Court of Justice of 21 February 1973, Continental Can 
(6/72). 
26 See judgment of the Court of Justice of 15 March 2007, British Airways (C-95/04 P, 
paragraphs 106 to 107). 
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partners – the operators of accommodation facilities – rather than their exclusion 
from competition. 
(v) Establishing a substantial effect on trade between Member States 
33 The applicant claims that two criteria need to be met in order for Article 102 to 
apply: (i) the dominant position of an undertaking on the internal market or a 
substantial part thereof, and (ii) a substantial effect of its actions on trade between 
Member States. 
34 The applicant acknowledges that it has a dominant position on a substantial part of 
the internal market. It denies, however, that its action (namely the method of 
setting prices) was able, in isolation, to result in an increase in the rates of 
royalties paid to foreign authors. 27 Even though, according to the Chairperson of 
the Office, even the mere potential of its having a substantial effect on trade 
between Member States sufficed, the amount is negligible in the context of the 
total income of the authors represented. Hence, the defendant has failed to 
establish that the conduct under review had a substantial effect on trade between 
Member States. 
35 The Chairperson of the Office observes that the Office relied on the case-law of 
the Court of Justice and the Commission Notice on the interpretation of the 
concept of the effect on trade between Member States . 28 The effect on trade 
between Member States may also be potential and it is not necessary to examine 
the actual degree of interference. 29 The Court of Justice has recognised that fees 
charged by an organisation managing copyright that enjoys a monopoly position 
may have an effect on cross-border trade and, therefore, Article 102 TFEU 30 will 
apply to that situation. In the STIM and AKKA 31 judgments, the Court of Justice 
held that trade between Member States may be affected by the rates charged by a 
collective management company, if that company also manages the rights of 
foreign rightholders. The applicant itself concedes that it also manages the works 
of foreign authors, hence, its conduct has an effect on competition not only in the 
Czech Republic but also in other Member States. 
 
27 See paragraph 29 of the judgment in AKKA. 
28 Commission Notice – Guidelines on the effect on trade concept contained in Articles 81 and 82 
of the Treaty, (2004/C 101/07), available at: https://bit.ly/4bMnQsc 
29 Judgment of the General Court of 7 October 1999, Irish Sugar (T-228/97, paragraph 170), or 
judgment of the Court of Justice of 1 February 1978, Miller International Schallplatten GmbH 
(19/77, paragraph 15). 
30 See judgments of the Court of Justice of 13 July 1989, Tournier (395/87, paragraphs 35–38), 
and of 13 July 1989, Lucazeau and Others (110/88, 241/88 and 242/88, paragraphs 21–25). 
31 Paragraph 23 of the judgment in STIM and paragraph 29 of the judgment in AKKA. 
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Succinct presentation of the reasons for the reference for a preliminary 
ruling 
36 According to the referring court, the Court of Justice has not yet addressed the 
issue concerned in the present case – whether the failure to take into account the 
occupancy of rooms in an accommodation facility in the rate of a royalty may 
constitute abuse of a dominant position under Article 102(a) TFEU. The referring 
court is not certain whether – as the applicant claims – specific applicable 
standards may be inferred from the judgment in SABAM for assessing the conduct 
of the applicant, which did not take room occupancy into account in the royalties 
claimed from accommodation facilities. 
37 In terms of whether the Office should have assessed the applicant’s actions in 
terms of (a) excessive prices (opinion of the applicant), or (b) unfair business 
practices (opinion of the Office), the Court of Justice has not offered any guidance 
in its case-law in the form of specific criteria which national authorities could use 
as a basis to evaluate which of the two options to choose and which test to carry 
out in which case. 
38 Furthermore, there is uncertainty as to how to deal with the issue of the 
substantive aspects of an infringement in the form of distortion of competition, 
that is, whether that aspect is merely of a potential nature or whether the Office 
should have established that the applicant’s conduct resulted in at least minimal 
actual anti-competitive effects. If the Office were obliged to prove this, it would 
lead to another question – whether it is necessary also to prove a direct or indirect 
effect on consumer welfare, or the effect of exploitative practices to the detriment 
of the applicant’s business partners. 
39 Related to this is also the question of whether it is necessary to prove a substantial 
effect of the applicant’s actions on trade between Member States (opinion of the 
applicant) or whether a reasonable assumption that such an effect could occur will 
suffice, and thus it is not necessary to examine its actual extent (opinion of the 
Office). That is also one of the conditions for the application of Article 102 TFEU. 
40 At issue are important fundamental rights of the applicant laid down in the EU 
Charter of Fundamental Rights, namely the freedom to conduct a business 
(Article 16), the right to property (Article 17), and the right to a fair trial 
(Article 47).