Opinion of the Advocate General — ECLI:EU:C:2008:491
Date: 2008-09-11
Language of the case: Swedish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Intellectual, industrial and commercial property
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 1. Competition – Dominant position – Copyright management organisation having a de facto monopoly – Collection of royalties corresponding to part of the revenue of commercial television channels which is proportionate overall to the quantity of musical works broadcast in the absence of other methods enabling the use of those works and the audience to be measured more precisely (Art. 82 EC) 2. Competition – Dominant position – Copyright management organisation having a de facto monopoly – Collection of royalties calculated in a different manner according to whether the companies are commercial companies or public service undertakings (Art. 82 EC) 1. Article 82 EC must be interpreted as meaning that a copyright management organisation with a dominant position on a substantial part of the common market does not abuse that position where, with respect to remuneration paid for the television broadcast of musical works protected by copyright, it applies to commercial television channels a remuneration model according to which the amount of the royalties corresponds partly to the revenue of those channels, provided that that part is proportionate overall to the quantity of musical works protected by copyright actually broadcast or likely to be broadcast, unless another method enables the use of those works and the audience to be identified more precisely without however resulting in a disproportionate increase in the costs incurred for the management of contracts and the supervision of the use of those works. (see para. 41, operative part 1) 2. Article 82 EC must be interpreted as meaning that, by calculating the royalties with respect to remuneration paid for the broadcast of musical works protected by copyright in a different manner according to whether the companies concerned are commercial companies or public service undertakings, a copyright management organisation is likely to exploit in an abusive manner its dominant position within the meaning of that article if it applies with respect to those companies dissimilar conditions to equivalent services and if it places them as a result at a competitive disadvantage, unless such a practice may be objectively justified. As regards the examination as to whether such a practice exists account must be taken, where appropriate, of the fact that, unlike commercial television companies, public service undertakings do not have either advertising revenue or revenue relating to subscription contracts and of the fact that the royalties paid by public service undertakings are collected without taking account of the quantity of musical works protected by copyright actually broadcast. Furthermore, it must also be ascertained whether commercial television companies are competitors of public service undertakings on the same market. As regards the examination of any objective justification, such justification may arise, in particular, from the task and method of financing of public service undertakings. (see paras 44-48, operative part 2)