Opinion of the Advocate General — ECLI:EU:C:2008:660
Date: 2008-11-27
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: Greece

summary published at ECR I‑88). 25 Furthermore, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see Comunità montana della Valnerina v Commission, paragraph 105, and, inter alia, the orders in Martinez v Parliament, paragraph 40, and Front National and Others v Parliament and Council, paragraph 24). 26 It must be stated in that regard that the appellant identified certain paragraphs of the judgment under appeal, in particular, paragraphs 38, 41 to 43, 44 and 54 against which it set out legal arguments seeking to show that the Court of First Instance had erred in law. 27 The plea of inadmissibility must therefore be rejected. Substance 28 In support of its appeal, the appellant relies on five grounds of appeal. By its first ground of appeal, it alleges failure to state the grounds of the judgment under appeal as regards the Commission’s discretion when examining complaints lodged with it. By its second to fourth grounds of appeal, the appellant submits in essence that the judgment of the Court of First Instance is unfounded and contains no statement of grounds as regards the finding that trade between Member States is unaffected. Lastly, by its fifth ground of appeal, the appellant submits that the judgment under appeal contains an error of law inasmuch as even a potential effect on trade between Member States is sufficient for Articles 81 EC and 82 EC to apply. The first ground of appeal – Arguments of the parties 29 The appellant claims that there was failure to state the grounds in paragraph 38 of the judgment under appeal in so far as the Court of First Instance did not examine whether the Commission stayed, in the contested decision, within the bounds of its discretion in handling competition complaints lodged with it. The fact that the Commission is accorded such a discretion in that connection does not justify the dismissal of the action because the discretion in question may not be exercised in an arbitrary manner. 30 The Commission contends that the Court of First Instance stated specific and full grounds for its assessment according to which the Commission stayed, in the contested decision, within the bounds of its discretion. – Findings of the Court 31 The Court of First Instance was right to hold, in paragraph 38 of the judgment under appeal, that the Commission is responsible for defining and implementing Community competition policy and for that purpose has a discretion as to how it deals with complaints lodged with it (see to that effect Case C-119/97 P Ufex and Others v Commission [1999] ECR I-1341, paragraphs 88 and 89). 32 However, it cannot be deduced from that that the Court of First Instance failed to examine whether the Commission had exercised that discretion within the limits established by the case-law. 33 After pointing out, in paragraph 39 of the judgment under appeal, that, according to settled case-law, when the Commission decides upon certain priorities in examining complaints brought before it, it may decide on the order in which those complaints will be examined and refer to the Community interest residing in a particular case as being the predominant criterion, the Court of First Instance stated, in the next paragraph of that judgment, that, in order to assess the Community interest, the Commission must take into account the circumstances of the particular case and, in particular, the matters of fact and of law which are submitted to it in the complaint brought before it, by weighing up the effects of the alleged infringement on the functioning of the common market, the likelihood of being able to establish the existence of such an infringement and the extent of the investigative measures necessary. 34 In that regard, the Court of First Instance pointed out that it is for it to determine, inter alia, whether it is apparent from the contested decision that the Commission weighed up those factors (paragraph 41 of the judgment under appeal). 35 In the paragraphs of the judgment under appeal that followed, the Court of First Instance carried out precisely such an investigation. 36 In particular, the Court of First Instance examined, in paragraphs 46 et seq. of that judgment, whether the Commission was right to find that the practices complained of were unlikely seriously to impede the proper functioning of the common market in order to conclude that there was a lack of any sufficient Community interest to necessitate the investigation of a complaint by the Commission. 37 In so doing, the Court of First Instance subjected the conditions under which the Commission exercised its discretion to judicial review. 38 In those circumstances, it cannot be alleged that the Court of First Instance did not examine whether the Commission stayed, in the contested decision, within the bounds of its discretion when handling complaints lodged with it. The judgment under appeal is not, therefore, vitiated by failure to state the grounds in that regard. 39 Accordingly, the first ground of appeal must be rejected as unfounded. The second to fourth grounds of appeal – Arguments of the parties 40 The appellant’s second to fourth grounds of appeal, which it is appropriate to examine together, relate to the Court of First Instance’s findings that, where the effects of an infringement are felt only in the territory of one Member State, the Commission is entitled to reject a complaint for lack of Community interest on the ground that that infringement does not affect intra-Community trade. 41 By its second and third grounds of appeal, the appellant claims, in particular, that there were errors of assessment or failure to state the grounds in paragraphs 41 to 43 of the judgment under appeal. Furthermore, the appellant alleges that the Court of First Instance based its finding, in paragraph 44 of that judgment, on case-law which is not concerned with copyright, without taking into consideration a series of relevant judgments which show that intra-Community trade may be affected even where the infringement occurs exclusively in the territory of one Member State. 42 In its fourth ground of appeal, the appellant submits that Articles 81 EC and 82 EC do not automatically preclude intra-Community trade from being affected if the infringement takes place in the territory of one Member State. Furthermore, it disputes the finding in paragraphs 49 and 50 of the judgment under appeal that it failed to adduce evidence capable of establishing, first, that the practices complained of have an effect on the pattern of trade between Member States which might harm the attainment of the objectives of a single market and, secondly, that the damage allegedly caused by those practices is not suffered essentially by music users in Greek territory and Greek authors. It relies, in that regard, inter alia, on the following evidence: – around 4 500 undertakings which used music and regularly paid royalties ceased to broadcast music on account of the prices imposed by the three bodies in respect of the related rights (5% for the related rights, a percentage which must be compared with the 2.2% requested by the appellant in respect of the copyright). Furthermore, as the Monomeles Protodikeio Athinon (Court of First Instance (single judge), Athens) stated in its judgment No 5144/2005, the appellant received a sum of EUR 5 522 per annum in respect of the royalties payable for the music broadcast in Olympiaki Aeroporia’s aeroplanes, whereas the three bodies asked that airline company for a sum of EUR 627 563 per annum in respect of the related rights payable for that music, and – the conduct described above affects intra-Community trade in the field of copyright and related rights because around 50% of the music broadcast in Greece is foreign music. Furthermore, authors of foreign music which is broadcast in Greece are all represented in that Member State by the appellant which collects their royalties for them there. They are thus deprived of significant revenue on account of the exorbitant prices imposed by the three bodies. 43 According to the Commission, it is apparent from the detailed statement of grounds in the judgment under appeal that, contrary to what the appellant claims, the scope of the activities of the three bodies and their practices did not give rise to the slightest suspicion that those activities have a perceptible effect on intra‑Community trade. – Findings of the Court 44 It must be borne in mind at the outset that, according to settled case-law, the Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice (see Case C 390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I-769, paragraph 29, and Case C‑237/98 P Dorsch Consult v Council and Commission [2000] ECR I‑4549, paragraph 35). 45 Consequently, it is not possible to uphold the arguments put forward by the appellant, in particular in the context of its fourth ground of appeal, which seek to show that trade between Member States is affected, namely the fact that it collects royalties in Greece relating to the use of music not only of Greek authors, but also of authors established in other Member States of the European Union, and the fact that it pays the royalties collected, on the basis of reciprocal representation agreements, to equivalent bodies established in other Member States, which are responsible, like AEPI, for the collective management of copyright in musical works. 46 First, those arguments are all of a purely factual nature and cannot, therefore, be examined by the Court on appeal. 47 Secondly, the appellant has not claimed that the Court of First Instance distorted the clear sense of some of the evidence. 48 Thirdly, the appellant confines itself to disputing the Court of First Instance’s finding that it did not establish that the practices complained of are capable of affecting intra-Community trade. However, the submissions relied on are in any event irrelevant given that such an effect does not in itself give rise to serious impediments to the proper functioning of the common market. It is important to point out in that regard that the Court of First Instance rejected the appellant’s first plea in support of its action for annulment and found that it had not adduced any specific evidence to establish the actual or potential existence of serious impediments to the proper functioning of the common market. 49 It must be pointed out in that regard that the concepts of, first, an effect on intra-Community trade and, secondly, of serious impediments to the proper functioning of the common market are two separate concepts. 50 As regards the first concepts, it is apparent from the wording of Article 81 EC and 82 EC that those Articles are applicable to agreements restricting competition and abuse of a dominant position only if those agreements and that abuse may affect intra-Community trade. The effect on trade between Member States thus serves as a criterion to define the scope of Community competition law, in particular Articles 81 EC and 82 EC, as against that of national competition law. If it is established that the alleged infringement is not capable of affecting intra‑Community trade or of affecting it only in an insignificant manner (see, to that effect, Case C‑238/05 Asnef-Equifax et Administración del Estado [2006] ECR I‑11125, paragraph 34 and the case-law cited, and Case C-407/04 P Dalmine v Commission [2007] ECR I-829, paragraph 90 and the case-law cited), then Community competition law, and more specifically Articles 81 EC and 82 EC, do not apply. 51 Furthermore, it is apparent from settled case-law that, if an agreement between undertakings is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that it has an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in a manner which might harm the attainment of the objectives of a single market between Member States (see to that effect, inter alia, Dalmine, paragraph 90). 52 As for the concept of serious impediments to the proper functioning of the common market, it may constitute one of the criteria for evaluating whether there is sufficient Community interest to necessitate the investigation of a complaint by the Commission. 53 Therefore, when the Commission determines the order of priority for dealing with the complaints brought before it, it may legitimately refer to the Community interest. In this context, it is required to assess in each case how serious the alleged interferences with competition are and how persistent their consequences are. That obligation means in particular that it must take into account the duration and extent of the infringements complained of and their effect on the competition situation in the European Community (Ufex and Others, paragraph 93). 54 Consequently, in a situation where intra-Community trade is found to be affected, a complaint relating to infringement of Articles 81 EC and 82 EC will be investigated by the Commission rather than by the national competition authorities if there is sufficient Community interest. That may inter alia apply where the infringement complained of is capable of giving rise to serious impediments to the proper functioning of the common market. 55 Although it is true, in that regard, that, in the judgment under appeal, the Court of First Instance did not draw a clear and specific distinction between those two concepts but confused them, as the Advocate General pointed out in paragraphs 40 to 45 of his Opinion, that finding cannot give rise to the annulment of that judgment if the operative part of the judgment is shown to be well founded for other legal reasons (see to that effect, inter alia, Case C-30/91 P Lestelle v Commission [1992] ECR I-3755, paragraph 28, and Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 58). 56 It is apparent inter alia from a combined reading of paragraphs 49, 50 and 54 of the judgment under appeal that the operative part of that judgment appears to be based on grounds which can be summarised by the finding made by the Court of First Instance in paragraph 54 of the judgment that the applicant had not adduced any specific evidence to establish the actual or potential existence of serious impediments to the proper functioning of the common market. 57 It follows from that that, irrespective of the considerations in the judgment under appeal relating to the issue of the effect on intra-Community trade for the purposes of Articles 81 EC and 82 EC, the Court of First Instance dismissed the action on the basis that there was no specific evidence to establish the actual or potential existence of serious impediments to the proper functioning of the common market as a criterion for evaluating whether there is sufficient Community interest to necessitate the investigation of a complaint by the Commission. 58 Therefore, it cannot be claimed that the confusion characterising the judgment under appeal, which was not, moreover, raised by the appellant in its appeal, is such as to preclude an understanding of the grounds underlying that judgment with a view to challenging its validity or a review by the Court. 59 Likewise, while it is true that the Court of First Instance found, in paragraph 55 of the judgment under appeal, that the applicant had failed to establish that, in the contested decision, the Commission had made a manifest error of assessment by considering that the effects of the practices complained of were unlikely to affect trade between Member States within the meaning of Articles 81 EC and 82 EC, although the Commission did not, in fact, take a view on that issue, the fact none the less remains that that finding does not concern the concept of serious impediments to the proper functioning of the common market. 60 Furthermore, having regard to the fact that the Commission did not handle the issue of the effect on trade between Member States in the contested decision, it is important to point out that that finding of the Court of First Instance does not preclude the competent national authorities from applying Articles 81 EC and 82 EC in the present case. 61 As regards the argument the appellant put forward on the basis of the Court’s case-law in the context of its second and third grounds of appeal, which is mentioned in paragraph 41 of the present judgment, it is clear that the case-law thus relied on is not relevant to the present case. 62 The judgments to which the appellant refers, namely those in Case 22/78 Hugin Kassaregister and Hugin Cash Registers v Commission [1979] ECR 1869; Tournier; Lucazeau and Others; Case C-179/90 Merci convenzionali porto di Genova [1991] ECR I-5889; Case C-18/93 Corsica Ferries [1994] ECR I-1783; and RTE and ITP v Commission, all deal with the concept of the effect on trade between Member States for the purposes of Articles 81 EC and 82 EC. 63 The only judgment cited by the appellant which deals with the concept of serious impediments to the proper functioning of the common market, namely the judgment in Case T-5/93 Tremblay and Others v Commission [1995] ECR II-185, is likewise not relevant to the present case. It is apparent from paragraph 40 of that judgment that the Court of First Instance annulled a decision of the Commission on the ground of failure to state reasons in so far as that decision rejected complaints about an alleged partitioning of the domestic market as a result of the reciprocal representation contracts concluded between the copyright-management societies in the various Member States. Those are not the circumstances of the present case. 64 Accordingly, the second to fourth grounds of appeal must be rejected. The fifth ground of appeal – Arguments of the parties 65 The appellant disputes the finding in paragraph 54 of the judgment under appeal that it did not adduce any specific evidence to establish the actual or potential existence of serious impediments to the proper functioning of the common market. According to the appellant, Articles 81 EC and 82 EC do not require the actual existence of an impediment as a potential impediment is sufficient. In that regard it submits, relying on certain evidence most of which has already been adduced in the context of the fourth ground of appeal, that the potential effect on intra-Community trade is clear. Consequently, the Court of First Instance erred in its interpretation of Articles 81 EC and 82 EC. 66 The Commission contends that the appellant is misreading paragraphs 42, 48 to 50, 54 and 55 of the judgment under appeal, as the reference which the Court of First Instance made to the ‘actual or potential’ existence of serious impediments to the proper functioning of the common market must be assessed in the light of the evidence adduced by the appellant. – Findings of the Court 67 In its fifth ground of appeal, the appellant criticises the Court of First Instance’s finding, in paragraph 54 of the judgment under appeal, that it did not adduce any specific evidence to establish the actual or potential existence of serious impediments to the proper functioning of the common market, but confined itself to attempting to show that the practices complained of potentially affect intra‑Community trade for the purposes of Articles 81 EC and 82 EC. 68 As is apparent from paragraph 48 of the present judgment, even if the practices complained of potentially affect intra-Community trade for the purposes of Articles 81 EC and 82 EC, as the appellant claims, such an effect does not in itself entail the potential existence of serious impediments to the proper functioning of the common market. 69 Consequently, the fifth ground of appeal must be rejected as irrelevant. 70 Having regard to the foregoing, the appeal must be dismissed in its entirety. Costs 71 Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the appellant has been unsuccessful, it must be ordered to pay the costs. On those grounds, the Court (Third Chamber) hereby: 1. Dismisses the appeal. 2. Orders AEPI Elliniki Etaireia pros Prostasian tis Pnevmatikis Idioktisias AE to pay the costs. [Signatures] * Language of the case: Greek.