61993CO0378_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case C-378/93,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Juge-Commissaire for the judicial receivership of La Pyramide SARL at the Tribunal de Commerce, Saint-Omer (France), for a preliminary ruling
on the interpretation of Articles 85 and 86 of the EEC Treaty,
THE COURT,
composed of: O. Due, President, G.F. Mancini, J.C. Moitinho de Almeida, M. Diez de Velasco and D.A.O. Edward (Presidents of Chambers), C.N. Kakouris, R. Joliet (Rapporteur), F.A. Schockweiler, G.C. Rodríguez Iglesias, F. Grévisse, M. Zuleeg, P.J.G. Kapteyn and J.L. Murray, Judges,
Advocate General: C.O. Lenz,
Registrar: R. Grass,
after hearing the Opinion of the Advocate General,
makes the following
Order
Grounds
1 By order of 30 July 1993, received at the Court Registry on 3 August 1993, the Juge-Commissaire for the judicial receivership of La Pyramide SARL at the Tribunal de Commerce (Commercial Court), Saint-Omer (France), referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty the following questions on the interpretation of Articles 85 and 86 of the EEC Treaty:
"1) In two judgments of 13 July 1989 (Case 395/87 Ministère Public v Tournier [1989] ECR 2521 and Joined Cases 110/88, 241/88 and 242/88 Lucazeau v SACEM [1989] ECR 2811) the Court of Justice ruled on two criteria for assessing abuse of a dominant position by a collective copyright-management society such as SACEM, that is to say a comparison of European tariffs and the structure of management costs (operating costs). The Court is requested to provide guidance for the Tribunal de Commerce, whose task it is to evaluate the debts owed to SACEM, by answering the following additional questions:
a) Can the survey undertaken by the Commission, embodied in the report of 7 November 1991 supplementing the table submitted to the Court of Justice of the European Communities by the Commission, together with the COVEC and Ernst & Young audits carried out at the request of the discothèques, be deemed to meet the requirements as regards comparison of tariffs?
b) Does comparison with the European average furnish the proof that SACEM imposes unfair trading conditions?
c) Should the concept of unit cost of music per customer used by the English Copyright Tribunal to establish the fair tariff payable by discothèques serve as the basis for determining the ceiling of the fair payment that may be demanded from discothèques and for establishing abuse of a dominant position?
d) Should the fair payment that may be demanded by a collective copyright-management undertaking such as the SACEM, which holds a monopoly in a substantial part of the common market, be determined on the basis of the level of the financial burden to be borne by each undertaking using music?
2) If the payment is excessive, does that render the collective-management society liable if a collective procedure in the nature of receivership proceedings is instituted due to that very fact, and does it preclude application of national legislation governing infringement of copyright by virtue of the circumstances making it incompatible with Article 86 of the Treaty?
3) Does the concertation amongst European copyright societies and the creation of the GESAC, in so far as they are designed to and serve to obtain an increase in the fees payable by users in the personal interest of those service undertakings, constitute an agreement, decision or concerted practice within the meaning of Article 85 of the Treaty since the partitioning-off by country, which results from the reciprocal representation contracts concluded between national copyright societies, prevents users from inducing such societies to compete against one another in connection with the world repertoire for which they are entitled to grant authorization to use music?
Does the exceptional nature of SACEM' s dominant position, which prevents any negotiation with users, constitute a ground for objecting to the agreements or practices which prevent users from inducing the copyright societies to compete with one another in order for users to obtain better conditions?
4) Is the concept of Community interest something left to the unfettered discretion of the Commission, and can the principle of subsidiarity be validly invoked by the Commission, without breaching the general principles of Community law, in the case of complaints it has supposedly been investigating for 14 years, in deciding, finally, to remit the matter to the national courts called on to examine infringements of Articles 85 and 86, although the Commission is not unaware of the conflicting nature of French case-law, and the investigative resources, at European level, justify the matter being kept at Community level?
5) Was it possible for the Commission, after finding, at the end of its survey set out in the report of 7 November 1991, that appreciable differences (by multiples) had been established and confirmed between the French tariff and tariffs in the other Member States (as recognized by SACEM itself in a document entitled Annex VII to the COVEC counter-report), to refrain from adopting a position, and should it not itself have found that there was an infringement of Article 86 of the Treaty, given that the Court of Justice of the European Communities held in its abovementioned judgments of 13 July 1989 that 'a national copyright-management society holding a dominant position in a substantial part of the common market imposes unfair trading conditions where the royalties which it charges to discothèques are appreciably higher than those charged in other Member States' "?
2 Those questions were raised in judicial receivership proceedings concerning La Pyramide.
3 Article 14 of French Law No 85-98 of 25 January 1985 on judicial liquidation and receivership of undertakings provides that in such proceedings a juge-commissaire is appointed in order to ensure the expeditious handling of the procedure and to protect the interests involved. Under Article 101 of that Law the juge-commissaire is in particular empowered to decide to allow or reject debts.
4 In its written observations to the Court, La Pyramide maintains that the questions submitted by the juge-commissaire are admissible. It submits in that respect that the juge-commissaire must be regarded as a court or tribunal of a Member State and that a dispute is pending before him. In this case the juge-commissaire is called on to resolve a dispute between La Pyramide and the Société des Auteurs, Compositeurs et Éditeurs de Musique (SACEM) regarding a debt owed to the latter. La Pyramide is disputing the amount of that debt on the grounds that SACEM' s tariffs represent an abuse of a dominant position within the meaning of Article 86 of the Treaty which SACEM holds in particular as a result of its agreements with the copyright-management societies in other Member States which are contrary to Article 85.
5 La Pyramide further considers that it was not necessary for the juge-commissaire to give particular reasons for his questions. The initiation of the procedure for recognition of debts is sufficient to explain why the judge called upon to assess the debt owed to SACEM, and thus to rule on the tariffs applied by SACEM, was prompted to ask the Court of Justice for interpretation of Articles 85 and 86. In any event in the proceedings which led to the judgments in Case 402/85 Basset v SACEM [1987] ECR 1747, Case 395/87 Ministère Public v Tournier [1989] ECR 2521 and Joined Cases 110/88, 241/88 and 242/88 Lucazeau v SACEM [1989] ECR 2811, the Court of Justice has already taken cognizance of the issue confronting the French courts called upon to rule on copyright royalties.
6 In its written observations SACEM maintains first that this request for interpretation serves no purpose in so far as the Court of Justice has already considered the dispute between SACEM and discothèque operators and it has already given two judgments on the matter in Tournier and Lucazeau, cited above.
7 SACEM further maintains that an order for reference seeking interpretation must contain a statement of reasons setting out the factual and legal elements which characterize the dispute before the national court so as to disclose the legal context for the interpretation requested and to enable those concerned to submit observations and to adopt their positions. It points out that in the judgment in Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo v Circostel [1993] ECR I-393 and the order in Case C-157/92 Pretore di Genova v Banchero [1993] ECR I-1085 the Court held that questions submitted for a preliminary ruling by an order for reference which gave too imprecise an account of the facts and legal issues were inadmissible. SACEM maintains that the general nature of a question and the lack of concrete information to identify the doubts confronting the judge making the reference should prompt the Court to declare that it is unable to answer the question put to it. In this case, the juge-commissaire has made no reference to the legal context for the interpretation requested or to any factual situation whatsoever on which the questions are based. Moreover the questions refer to alleged discriminatory practices without defining what they consist of or what their effect is. Because of the imprecise nature of the facts and issues of law referred to by the national judge, the Court of Justice is not able to furnish an interpretation of Community law which will be helpful to him. SACEM therefore considers that the questions are inadmissible.
8 In its written observations the Commission acknowledges that a juge-commissaire is indeed a court or tribunal since, in a situation involving opposing interests, he must establish the existence and the amount of each creditor' s rights, where necessary, after hearing the parties, and he alone exercises that jurisdiction. It is further clear from the papers submitted by the juge-commissaire that he is hearing a dispute in which La Pyramide disputes the debt owed to SACEM on the grounds that the tariffs applied by that copyright management association constitute an abuse of a dominant position within the meaning of Article 86 of the Treaty.
9 However, the Commission points out that the order does not specify the reasons which led the juge-commissaire to question the compatibility with Community law of SACEM' s conduct and to deem it necessary to refer questions on that matter for a preliminary ruling. According to the judgments in Case C-83/91 Meilicke v ADV/ORGA [1992] I-4871, and Telemarsicabruzzo, cited above, and the orders in Banchero, cited above, and Case C-386/92 Monin Automobiles [1993] ECR I-2049, the juge-commissaire should have given an account of the facts of the dispute before him and should have set out, in the context of the interpretation of Community law, the problems to which he considers a solution is necessary in order to resolve the dispute before him. In this case the juge-commissaire merely reproduced the questions suggested for a preliminary ruling by La Pyramide. The Commission further notes that the juge-commissaire has not even submitted to the Court the audits carried out by Covec and Ernst & Young and the Commission' s report of 7 November 1991 to which the questions refer. The Commission therefore considers that there is no need for the Court to rule on the questions.
10 It has consistently been held that the procedure provided for by Article 177 of the Treaty is a means of cooperation between the Court of Justice and the national courts.
11 It is clear from the judgments in Case C-343/90 Lourenço Dias v Director da Alfândega do Porto [1992] ECR I 4673, paragraph 17, and Meilicke, cited above, paragraph 25, that the spirit of cooperation which must prevail in this procedure requires the national court to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions.
12 In the light of that function the Court has held that it could not give a preliminary ruling on a question raised before a national court where the interpretation of Community law bore no relation to the actual nature of the case or the subject-matter of the main action (see Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563, paragraph 6, and Lourenço Dias, cited above, paragraph 18).
13 For that reason the Court held in Lourenço Dias, cited above, paragraph 19, that in order to determine whether the interpretation of Community law requested bears some relation to the actual nature of the case and the subject-matter of the main action it is essential for the national court to explain the reasons why it considers that a reply to its questions is necessary in order to resolve the dispute.
14 The need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court defines the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Telemarsicabruzzo, cited above, paragraph 6, Banchero, cited above, paragraph 4, and Monin, cited above, paragraph 6).
15 As the Court pointed out in those decisions, those requirements are of particular importance in certain areas, like that of competition, characterized by complex factual and legal situations.
16 The order for reference merely sets out the text of the questions for a preliminary ruling.
17 Assuming that the court making the reference has jurisdiction to rule on whether SACEM' s tariffs are fair, certain of its questions are extraneous to the dispute as so defined (Questions 2, 3, 4 and 5), others refer to documents which have not been communicated to the Court (Question 1(a) and (c)) and others fail to set out the facts on which they are founded (Question 1(b) and (d)).
18 Accordingly it should be held, pursuant to Article 92 of the Rules of Procedure, that the questions referred to the Court for a preliminary ruling are all manifestly inadmissible.
Decision on costs
Costs
19 The costs incurred by Italian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are a step in the action pending before the national juge-commissaire, the decision on costs is a matter for him.
Operative part
On those grounds,
THE COURT
hereby orders:
The reference for a preliminary ruling by the Juge-Commissaire for the receivership of La Pyramide SARL made by order of 30 July 1993 is inadmissible.
Luxembourg, 9 August 1994.