61981C0262
OPINION OF MR ADVOCATE GENERAL REISCHL
DELIVERED ON 14 SEPTEMBER 1982 (
1
)
Mr President
Members of the Court,
The essential facts in the proceedings before us today are described in Case 62/79 (
2
). The following brief observations should therefore be sufficient.
The French company, “Les Films La Boétie”, the producer of the film “Le Boucher” and sole proprietor of the rights therein, concluded a contract with the Belgian company Ciné-Vog films on 8 July 1969 whereby the latter acquired the exclusive right for seven years to exhibit the film in public inter alia in Belgium and Luxembourg. The film was first shown in Belgian cinemas in May 1970.
The right to show the film on German television was assigned by La Boétie, apparently acting through a French distributor, to a German television station. The film was then broadcast in German with the title “Der Schlächter” in January 1971, that is to say at a time when, under the terms of the agreement between La Boétie and Ciné-Vog, it was still forbidden to show the film on Belgian.television. The broadcast was picked up by three Belgian companies (Coditel) concerned with television transmissions and was relayed by cable — without the consent of La Boétie or Ciné-Vog — to their subscribers in Belgium.
Ciné-Vog regards that act as an infringement of its legal rights. Together with the Chambre Syndicale Belge de la Cinématographie, it therefore applied to the Tribunal de Première Instance [Court of First Instance], Brussels and, on 19 June 1975, obtained a judgment to the effect that the Coditei companies, in acting without Ciné-Vog's consent, had infringed the latter's copyright and were liable in damages.
The Coditei companies appealed against that decision to the Cour d'Appel [Court of Appeal] in Brusssels, arguing that the assignment by La Boétie of the exclusive right of exhibition to Ciné-Vog was inconsistent with Articles 85 and 59 of the EEC Treaty, so that the agreement was void and therefore could not afford Ciné-Vog any legal grounds for instituting proceedings against the Coditei companies. In its judgment of 30 March 1979 the Cour d Appel held that the Court of First Instance had been correct in assuming that the Coditei companies were required by Belgian copyright law (Law of 22 March 1886) and by Article 11 bis of the Berne Convention to obtain the consent of Ciné-Vog. On the subject of Article 85 of the EEC Treaty, the Cour dAppel ruled that it was not applicable to the case which had been brought before it, since Article 36 of the Treaty applied also to copyright, and the right of performance formed part of the specific subject-matter of the copyright in a film. Ciné-Vog would continue in any event to be the proprietor of that right, however, even if it were accepted that Article 85 of the Treaty rendered void the clause stipulating exclusivity. On the other hand, the Cour d'Appel was in some doubt as to the application of Article 59 of the Treaty and on that subject it therefore referred two questions to this Court for a preliminary ruling which I may presume to be familiar in the light of the proceedings in Case 62/79 (
3
).
In its judgment of 18 March 1980 (
3
) this Court held that the provisions of the Treaty relating to the freedom to provide services did not preclude an assignee of the performing right in a cinematographic film in a Member State from relying upon his right to prohibit the exhibition of that film in that State, without his authority, by means of cable diffusion if the film exhibited is picked up and transmitted after being broadcast in another Member State by a third party with the consent of the original owner of the right. The Cour d'Appel has apparently not yet drawn any inferences from that preliminary ruling.
The reason was that the Coditei companies had meanwhile lodged an appeal against the judgment of the Cour d'Appel with the Belgian Cour de Cassation [Court of Cassation]. In particular, they argued that the Cour d'Appel had been wrong in assuming that Article 85 of the EEC Treaty was not applicable to the case which had been brought before it. They contended that since Article 36 did not restrict the scope of application of Article 85, the latter provision could certainly apply where the exercise of an industrial property right or of copyright — as in the case of the transfer of an exclusive licence in respect of a film — was the purpose, means or result of an agreement, decision or concerted practice. In that regard particular consideration must also be given to the question whether similar contracts existed between the same parties or even between third parties and what other clauses in restraint of competition might be contained in the contract under examination.
In its appraisal of the matter, which was clearly made in the light of the preliminary ruling in Case 62/79 1, the Beglian Cour de Cassation came to the conclusion that that head of appeal which alleged a contravention of the Berne Convention should be dismissed. On the subject of Articles 36 and 85 of the EEC Treaty, however, it considered a further interpretation to be necessary. Accordingly, by order of 3 September 1981, it suspended the proceedings before it and submitted the following question for a preliminary ruling under Article 177 of the EEC Treaty:
“Where a company which is the proprietor of the rights of exploitation of a cinematographic film grants by contract to a company in another Member State an exclusive right to show that film in that State, for a specified period, is that contract liable, by reason of the rights and obligations contained in it and of the economic and legal circumstances surrounding it, to constitute an agreement, decision or concerted practice which is prohibited between undertakings pursuant to Article 85 (1) and (2) of the Treaty or are those provisions inapplicable either because the right to show the film is part of the specific subject-matter of copyright and accordingly Article 36 of the Treaty would be an obstacle to the application of Article 85, or because the right relied on by the assignee of the right to show the film derives from a legal status which confers on the assignee protection erga omnes and which does not fall within the class of agreements and concerted practices referred to by the said Article 85?”
My opinion on this question is as follows :
1.
Let me begin by recalling the previous relevant case-law of the Court.
(a)
Since the question put to the Court makes reference to Article 36 which permits certain derogations from the rules of the Treaty relating inter alia to the protection of industrial and commercial property, primary importance attaches to the principle, established by that case-law, that such property comprises copyright and related rights (see judgments in Case 78/70 (
4
), Joined Cases 55 and 57/80 (
5
)).
(b)
Furthermore, it was emphasized in the case-law that the wording of Article 36, especially the second sentence thereof, and the position of that article in the Treaty, indicate that although the Treaty does not affect the existence of property rights the exercise of such rights may in certain circumstances offend against the prohibitory rules contained in the Treaty. Accordingly, exceptions to the rules of the Treaty are possible only in so far as they are necessary in order to safeguard the rights which form the specific subject-matter of the industrial, commercial or other intellectual property (see as regards copyright and related rights, Case 78/80 1 and, as regards trademark law, Case 192/73 (
6
)).
On the subject which concerns us at present, namely the right to exhibit a film, the Court made the fundamental observation in Case 62/79 (
7
), that the problems involved in the observance of copyright in relation to the requirements of the Treaty are not the same as those which arise in connection with literary and artistic works the placing of which at the disposal of the public is inseparable from the circulation of the material form of the works (paragraph 12 of the Decision). The owner of the copyright of a film and his assigns have a legitimate interest in calculating the fees due in respect of the authorization to exhibit the film on the basis of the actual or probable number of performances and in authorizing a television broadcast of the film only after it has been exhibited in cinemas for a certain period of time (paragraph 13). Part of the essential function of the copyright in a film is therefore the right of a copyright owner and his assigns to require fees for any showing of that film (paragraph 14). Hence the rules of the Treaty cannot in principle constitute an obstacle to the geographical limits which the parties to a contract of assignment have agreed upon in order to protect the author and his assigns in this regard: the mere fact that those geographical limits may coincide with national frontiers does not point to a different solution (paragraph 16).
(c)
With regard to the special problems raised by the relationship between Article 36 and the competition law of the Treaty, the view initially expressed (judgment in Joined Cases 56 and 58/64 (
8
)) was that Article 36 did not restrict the scope of Article 85. Later, however, the Court found in Case 40/70 (
9
) that even in competition law the principles of Article 36 were applicable as the emanation of a general legal doctrine. That view can only be understood to mean that the rules of competition law must yield to the extent to which this is necessary in the interests of safeguarding the rights under Article 36 in the manner described above.
(d)
The first occasion involved industrial property rights (a trademark) in the context of the competition rules of the Treaty, in Cases 56 and 58/64 (
8
)mentioned above, which dealt with a monopoly over the territory of a Member State conferring absolute territorial protection whereby the sole concessionaire was permitted to use a trade mark in order to secure territorial protection and to prevent parallel imports. The Court held that Community law could affect the exercise of industrial property rights by restricting such exercise to the extent required for the enforcement of Article 85. A trade mark could not be used to serve an objective which was being pursued under any agreement regarded as unlawful: it was therefore inconsistent with the philosophy of the Community's competition law that claims arising out of the respective trade mark laws of the various States should be misused for purposes contrary to the Community's law on restrictive agreements and practices. The circumstances were similar in Case 28/77 (
10
), where like conclusions were reached.
Although, in those cases, the Court had held the exercise of industrial property rights to be not entitled to protection where it could be said that there was an abuse related to anticompetitive ends, it went considerably further in other cases. In Case 40/70 (
9
), in which a trade mark had been contractually assigned to undertakings in various Member States, the Court held that the exploitation of a trade mark lent itself to a partitioning of the market, so that a simultaneous assignment caused barriers between Member States to be re-erected. Article 85 may therefore apply where proprietors of trade marks or persons deriving title from them enter into agreements enabling them to prevent imports from other Member States (paragraph 10 of the Decision). The situation is different, however, when restrictive agreements on the use of national rights in respect of the same trade mark are drafted in such a way as to avoid any partitioning of the market by reconciling the general exercise of those rights at the Community level with observance of the conditions of competition and with the preservation of the unity of the market. Accordingly, the exercise of a trade mark right may be subject to the prohibitions contained in Article 85 if it appears that such exercise is the purpose, means or result of an agreement, decision or concerted practice. It was also with reference to the exercise of copyright and related rights that the Court held, in its judgment in Case 78/70 (
11
), that such exercise might be subject to the prohibitions contained in Article 85 if it transpired that it was the purpose, means or result of an agreement, decision or concerted practice causing the common market to be partitioned.
(e)
Lastly, reference must be made to the very recent judgment in Case 258/78 (
12
), which deals with a monopoly on seed stock and the assignment of the plant-breeder's rights by their owner to a sole distributor. The judgment affirms that breeder's rights are not a species of industrial property right with characteristics of so special a nature as to require, in relation to the competition rules, a different treatment from other industrial property rights. However, it is necessary to take into consideration, for the purposes of the rules on competition, the specific nature of the products which from the subject-matter of breeder's rights (paragraph 43 of the decision). A decisive aspect of the exclusive licences granted by virtue of a plant-breeder's rights, was that it was valid for both the cultivation and the marketing of the seed, which had been developed by the owner of the rights and had been unknown in the designated territory at the time when the owner and the licensee had begun their cooperative venture. Those circumstances indicated that the licensee was not prepared to accept the risks of cultivation and marketing unless he could be sure of encountering no competition either from other licensees in that territory or from the owner of the rights himself: such an eventuality would be damaging to the dissemination of a new technology and would prejudice competition in the Community between the new product and similar, existing products (paragraph 57). Hence the so-called open exclusive licences, whereby the owner of the rights confines himself to the obligations neither to issue any further licences for the same territory nor himself to compete with the licensee therein, are not in themselves incompatible with Article 85 (1) of the Treaty, if regard be had to the specific nature of the products in question (Paragraph 58). According to the judgment, Article 85 was directed solely against an absolute territorial protection whereby the parties seek to eliminate from the licensed territory any competition which may be offered by third persons, with or without the assistance of parallel imports and exports.
2
(a)
If, in the light of that case-law, one proceeds to examine the problems raised by the present case, it must be remembered from the outset that the question referred to this Court asks first and foremost whether the exclusive right to exhibit a film, contractually granted for a limited period, by the owner of the rights in the film to a company in another Member State, falls under Article 85 (1) of the EEC Treaty. Consequently it is irrelevant that the contract in question contains further clauses which might have some bearing upon competition law. Examples might be the computation of the sum payable where one or more other films are shown at the same time or where a short film not emanating from La Boëtie is so shown; or again, the clauses dealing with the possibility of exhibiting the film on Belgian and Luxembourg television respectively which, in Coditel's view, constitutes an infringement of Article 85 (1) (d) and (e).
These clauses are undoubtedly of interest if the main question is answered in the affirmative and the need arises to ascertain the extent to which competition has been restricted, by referring inter alia to the criterion of “appreciability”. In the event of a negative reply to the main question, on the other hand, the clauses may — where the stipulations of Article 85 (1) are met (which includes the appreciability either of a restriction placed on competition and the adverse effect upon inter-State trade) — at most have a bearing upon the question whether those clauses render the agreement between La Boétie and Ciné-Vog inoperative in its totality and thereby also nullify the exploitation right upon which Ciné-Vog bases its legal action.
(b)
The case-law already cited is in itself sufficient to render untenable Coditel's argument to the effect that interests which, in the context of the free movement of goods, are protected by Article 36, may be considered in the framework of the law on competition as laid down in paragraph (3) of Article 85 and that only if it should transpire that the application of Article 85 as a whole (including that paragraph) adversely affects the existence of an industrial property right is the latter to be accorded priority over the law on competition. The principle that Article 36 must be taken into account even in competition law is one which, in my submission, the Court has never relinquished, and it can logically only be understood as meaning that the application of Article 85 is excluded from the outset where the issue is one of safeguarding rights which form the specific subject-matter of an industrial or other property right: in other words, recourse may, in those circumstances, not be had to Article 85 (3) with its relatively intricate procedure which also entails a degree of legal uncertainty.
(c)
According to the case-law of the Court the existence of a contract which merely has some connection with an industrial property right is insufficient for the purposes of Article 85; for such purposes the exercise of an industrial property right must constitute the purpose, means or result of an agreement, decision or concerted practice, that is to say of a form of agreement which restricts competition.
Contrary to the view held by Coditei, an agreement in restraint of competition cannot, however, be said to come into being when the copyright in a film is — to the extent to which that is possible — relinquished by way of a definitive transfer. The Commission has rightly maintained that this is a case of an isolated legal transaction and that as between the original proprietor of the right and his assign there is no subsisting legal relationship which may have repercussions on competition by limiting the freedom of action enjoyed by the original proprietor of the right. It is in fact not the contractual arrangement which, in a case such as this, prevents the original proprietor of the right from exploiting the right himself or from granting licences in the territory in question to other interested parties. This is rather a consequence of the document of transfer itself: all subsequent developments are merely incidental to the assertion by the new proprietor of the right transferred, over which the former owner no longer has any influence.
If, on the other hand, it is merely an exclusive licence over a given territory which is granted, whereby the exercise of the right (which in principle remains vested in the original owner) is accorded for a specified period to another person, the resultant arrangement may be seen in principle to have a bearing upon competition inasmuch as the freedom of the proprietor of the right to exploit his right economically is contractually restricted in two respects: first, he may not grant any further licences over the territory in question, and secondly, he himself is debarred from exploiting his right in that territory. In this case, therefore, the contractual agreement creates a situation in which competition in the licensed territory is excluded and which deprives those cinemas wishing to exhibit a film of the possibility of choosing between a number of distributors.
The problem thus arises of how exactly to categorize the contract between La Boétie and Ciné-Vog, and it is a problem which, according to what has been said by the Belgian courts, which speak of a “mandat exclusif” and of a temporary relinquishment of exhibition rights, has not been unequivocally resolved. Such a categorization, however, is not our task but is a matter for national case-law. Although the British Government maintains that no distinction is possible between a surrender and a licence, so that both should be treated equally in terms of competition law, I none the less consider such a legal distinction to be perfectly tenable. It is a matter of analysing the clauses of the contract, dealing with the duration for example (which may be shorter than the copyright period), and of determining the party who ultimately assumes the commercial risk, in which task the terms and conditions governing payment may furnish important clues. Furthermore, I believe that the present case is concerned not with the transfer and surrender of copyright but — as the Commission and Coditei themselves assume — with the conditions of a contract for the grant of an exclusive licence.
(d)
If the last-mentioned proposition is indeed correct and there are therefore, in principle, grounds for speaking in terms of a restrictive agreement, the next task is to consider whether the grant of an exclusive licence covering a Member State may nevertheless fall outside Article 85 on the grounds that it is necessary to exercise a film copyright in that manner if the rights forming the specific subject-matter of that copyright are to be safeguarded.
A first reference should be made to the passage in the judgment in Case 62/79 (
13
) in which it is stressed that the problems involved in the observance of copyright in relation to the requirements of the Treaty are not the same, in the case of copyright in a cinematographic film, as those which arise in connection with literary and artistic works the placing of which at the disposal of the public is inseparable from the circulation of the material form of the work (paragraph 12 of the decision). It is clear from this that Coditel's allusion to patent licences and trade mark licences as well as to the Commission's practice in these matters are not, in themselves, compelling arguments in the present case.
A further point to be made is that it is stated in the same judgment that the owner of the copyright in a film and his assigns have a legitimate interest in calculating the fees due in respect of the autorization to exhibit the film on the basis of the actual or probable number of performances and in authorizing a television broadcast of the film only after it has been exhibited in cinemas for a certain period of time (paragraph 13 of the decision). Hence the right to require fees for any showing of a film is part of the essential function of copyright in this type of literary and artistic work, and therefore the rules of the Treaty cannot in principle constitute an obstacle to the geographical limits which the parties to contract of assignment have agreed upon in order to protect the author and his assigns in this regard. It may be concluded from this that the provision in the present case whereby television transmissions of the film were excluded for a stated period cannot be challenged under Article 85. A further inference is that no objection may be made to the geographical limits placed upon the right to exploit the film when it involves restraining a company which has been granted a licence in respect of a given country from operating outside its territory, that is, in the territory of a different licensee.
It seems unlikely, however, that the grant of exclusive licences in respect of a territory which precludes the owner of the right from operating in that territory and from issuing further licences in respect of that territory may be said to be harmful on the basis of the statements in the judgment in Case 62/79 (
14
) which relate to the calculation of the performance fees. It must be admitted straight away that such a calculation is feasible even when a number of licensees are competing within a single territory, since each of several film distributors to whom performance rights are assigned is dealing with certain particular cinemas so that the number of performances may serve to determine his remuneration upon which, in its turn, the percentage share accruing to the original owner of the right may be calculated.
(e)
However, before any definitive answer can be given to the question referred to the Court, it seems appropriate at this stage to make the following additional points:
(aa)
The phraseology employed in the first Coditel judgment gives the impression of being somewhat inadequate in describing the specific subject-matter of the copyright in a cinematographic work. What matters is not only the mode of calculating the remuneration, but also the guarantee of a proper remuneration for the intellectual accomplishment which the creation of a film represents, requiring as it does the exploitation of a variety of forms of copyright (in music, literature, etc.) and involving appreciable financial risks. It is thus not only nontransferable moral rights which are attached to such a work but also the right — expressed as a monopoly — to exploit it by multiplying and exhibiting it. If, however, the owner of the right in a film is not in a position to exploit it himself — which is frequently the case with the smaller European producers, who do not have a widespread marketing network of their own — then the economic repercussions for him upon transfer of the exploitation rights to other persons would obviously differ substantially according to whether there was only one distributor in any one licensed territory or whether there was competition within such territory, as required by Article 85. The latter case would probably mean that the various distributors would have to undercut one another in price in order to attract customers, so that the financial returns passed on to the original owner of the rights might be lower than those he could have obtained by exploiting the film himself, by virtue of his copyright.
In that light it may well be argued that the specific subject-matter of the copyright in a film comprises not only the right to exclude unauthorized third parties from its exploitation but also, where appropriate, the right to have it exploited by a single person, whether it be the owner of the right himself or an exclusive licensee to whom the right is assigned for valuable consideration. This accords with the opinion expressed by the Netherlands Government (the representative of the Federal German Government also submitted similar views), namely that the exercise of the copyright in a film under a contract does not fall within Article 85, provided that it keeps within the limits of what is permitted to the owner of the right himself under Article 36.
(bb)
If it is preferred not to extend so far the definition of the specific subject-matter of the copyright in a film when applying Article 85 of the EEC Treaty, none the less the case pending before the Belgian courts, and the problems raised by it, in any event relate to a new film which, at the time, had only just appeared on the market. This special situation is to be distinguished from the marketing of an old film with which the public is familiar and which has already covered its costs.
In that connection it was pointed out that films are often produced with the financial participation of the distributors.
Of course, that does not happen unless there is a degree of security against the risks: a distributor will be prepared to advance a lump sum for financing a film only if he is accorded an exclusive right of exhibition on one particular market. If it were not for such a facility, many films would not be produced at all, which would impoverish the market and depress competition.
An equally crucial factor is that a new film must, like a newly-developed article of merchandise, first be placed on the market and that this may often entail heavy expenditure on advertising and synchronization.
However, when the producer himself cannot afford such costs, he will not find a licensee for the task unless he grants him an exclusive right of exhibition. The conclusions to be drawn from this are similar to those in the Nungesser (
15
) case. As I have already explained, it was declared in that judgment that an exclusive territorial licence in respect of a newly-developed seed variety was compatible with Article 85 because it was essential for opening up a new market, promoting the dissemination of new technology and strengthening competition. I am of the opinion that, aided by such an approach, it is possible in the present case to consider Article 85 to be similarly inapplicable to the transfer of exclusive rights of exhibition in respect of a new film.
(cc)
On the other hand no decisive importance attaches to the fact, also mentioned in the judgment making the reference, that under Belgian law an exclusive licence to exhibit a film establishes a legal status, a situation which corresponds, moreover, to that in the Gmndig-Consten case (
16
) in regard to trade marks. Neither does it matter, in my opinion, that the interpretation set out above automatically has the effect of excluding “parallel imports”, the preservation of which was thought in the Nimgesser case (
17
) to be so valuable. Indeed, it must be borne in mind that — as far as television is concerned — this effect was accepted, in view of the specific subject-matter of copyright in a film, in the first Coditel (
18
) judgment. Other forms of “parallel imports” are, however, not to be countenanced in the case of a film copyright, because it does not manifest itself, like patents and other copyrights, in tangible form, so that no circulation of goods as such can occur, only the surrender of exploitation rights.
3.
In conclusion, I propose that the question raised by the Belgian Cour de Cassation be answered as follows:
If a company holding the exploitation rights in a cinematographic film enters into a contract granting a company in another Member State, for a fixed period, the exclusive right to exhibit that film, such a contract is not to be regarded as incompatible with Article 85 if the circumstances are such that, without exclusivity, no licensee could be found for the territory in question.
(
1
)	Translated from the German.
(
2
)	Judgment of 18 March 1980 in Case 62/79 SA Compagnie Générale pour la Diffusion de la Télévision, Coditel, and Others v SA Ciné-Vog Films and Others [1980] ECR 881.
(
3
)	Judgment of 18 March 1980 in Case 62/79 SA Compagnie Générale pour la Diffusion de la Télévision, Coditel, and Others v SA Ciné-Vog Films and Others [1980] ECR 881.
(
4
)	Judgment of 8 June 1971 in Case 78/70, Deutsche Grammophon Gesellschaft mbH v Metro-SB-Großmärkte GmbH & Co. KG [1971] ECR 487.
(
5
)	Judgment of 20 January 1981 in Joined Cases 55 and 57/80, Musik-Vertrieb membran GmbH and K-tel International v GEMA — Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte [1981] ECR 147.
(
6
)	Judgment of 3 July 1974 in Case 192/73, Van Zuylen Frères v Hag AG, [1974] ECR 731.
(
7
)	Judgment of 18 March 1980 in Case 62/79 SA Compagnie Générale pour la Diffusion de la Télévision, Coditel, and Others v SA Ciné-Vog Films and Others [1980] ECR 881.
(
8
)	Judgment of 13 July 1966 in Joined Cases 56 and 58/64, Consten GmbH and Grundig-Verkaufs-GmbH v Commission [1966] ECR 322.
(
9
)	Judgment of 18 February 1971 in Case 40/70, Sirena S.r.l. v Eda S.r.l. and Others, [1971] ECR 69.
(
10
)	Judgment of 20 June 1978 in Case 28/77, Tepea BV v Commission, [1978] ECR 1391.
(
11
)	Judgment of 8 June 1971 in Case 78/70, Deutsche Grammophon Gesellschaft mbH v Metro-SB-Großmãrkte GmbH & Co. KG [1971] ECR 487.
(
12
)	Judgment of 8 June 1982 in Case 258/78, L. C. Nimgesser KG and M. Kurt Eisele v Commission, [1982] ECR...
(
13
)	Judgment of 18 March 1980 in Case 62/79 SA Compagnie Générale pour la Diffusion de la Télévision, Coditel, and Others v SA Ciné-Vog films and Others [1980] ECR 881.
(
14
)	Judgment of 18 March 1980 in Case 62/79 SA Compagnie Générale pour la Diffusion de ta Télévision, Coditel, and Others v SA Ciné-Vog Films and Others (1980) ECR 881.
(
15
)	Judgment of 8 June 1982 in Case 258/78, L. C. Nungesser KG and M. Kurt Eisele v Commission, [1982] ECR...
(
16
)	Judgment of 13 July 1966 in Joined Cases 56 and 58/64, Consten GmbH and Grundig-Verkaufs-GmbH v Commission [1966] ECR 322.
(
17
)	Judgment of 8 June 1982 in Case 258/78, L C. Nungesser KG and M. Kurt Eisele v Commission, [1982] ECR...
(
18
)	Judgment of 18 March 1980 in Case 62/79 SA Compagnie Générale pour la Diffusion de ta Télévision, Coditel, and Others v SA Ciné-Vog Films and Others [1980] ECR 881.