ORDER OF THE PRESIDENT OF THE COURT

31 August 2010 ( )

(Appeal – Application for interim measures – Management of copyright – Commission decision – Cessation of a concerted practice – Suspension of operation of the decision)

In Case C‑32/09 P(R),

APPEAL pursuant to the second paragraph of Article 57 of the Statute of the Court of Justice, brought on 26 January 2009,

Artisjus Magyar Szerzői Jogvédő Iroda Egyesület, established in Budapest (Hungary), represented by Z. Hegymegi-Barakonyi and P. Vörös, ügyvédek,

appellant,

the other party to the proceedings being:

European Commission, represented by F. Castillo de la Torre and V. Bottka, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE PRESIDENT OF THE COURT,

after hearing the Advocate General, V. Trstenjak,

makes the following

Order

1 By its appeal, the appellant seeks the annulment of the order of the President of the Court of First Instance of the European Communities (now ‘the General Court’) of 14 November 2008 in Case T‑411/08 R Artisjus v Commission (‘the order under appeal’), by which that Court dismissed its application for interim measures seeking suspension of the operation of Articles 3 and 4(2) and (3) of Commission Decision C(2008) 3435 final of 16 July 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C2/38.698 – CISAC) (‘the contested decision’), and the adoption of any appropriate interim measures.

2 The legal framework, the facts underlying the dispute and the procedure before the General Court were summarised by the President of that Court in paragraphs 1 to 21 of the order under appeal.

The order under appeal

3 In the order under appeal, the President of the General Court noted that the urgency of an application for interim measures had to be assessed in relation to the need for an interim decision in order to prevent serious and irreparable damage to the party applying for those measures. In order to be able to assess the nature of that damage, the judge hearing the application must have specific evidence; the alleged damage must be certain, or at least shown with a sufficient degree of probability by the party applying for interim measures.

4 The President of the General Court thus first examined the argument that the contested decision would dramatically reduce the appellant’s income, possibly even endangering its existence.

5 He noted, in that regard, that the appellant had not produced any figures in its application for interim measures to support its claims. He concluded from this that, in the absence of specific factors put forward by the appellant, its bald assertion as to the serious financial damage which it would suffer as a result did not justify suspension of the operation of the contested decision.

6 The President of the General Court then went on to address the uncertainty which, in the appellant’s view, surrounds the implementation of the contested decision, which fails to define in a precise manner the conduct required of it by the Commission and infringes the principle of legal certainty.

7 As regards the latter point, he found that the contested decision did not make void the reciprocal representation agreements concluded by the appellant, which had a certain amount of freedom as regards the review required of the agreements in question. Consequently, the President of the General Court took the view that the appellant’s obligation to review those agreements could not be regarded as causing it serious and irreparable damage.

8 Finally, the President of the General Court proceeded to determine whether there was any substance to the appellant’s claims that the required amendment of those agreements would be fundamentally contrary to its commercial interests and would entail irreversible changes since it would be unable to restore the status quo if the contested decision were to be annulled.

9 The President of the General Court held, in that regard, that those assertions were not supported by any evidence and that the appellant had not demonstrated why it would be impossible for it, if necessary, to reamend those revised agreements or to provide, even at that point in time, for such a reamendment. He concluded that the damage alleged was purely hypothetical and could not justify granting the suspension of operation sought.

10 Having dismissed the application for interim measures on the ground of lack of urgency, the President of the General Court did not examine whether the other cumulative conditions for ordering the suspension of operation sought had been satisfied, in particular whether the existence of a prima facie case had been established.

Procedure before the Court

11 The Commission submitted its observations on the appeal on 23 February 2009.

12 Since the written observations of the parties contain all of the information necessary to enable a ruling to be given on the present appeal, there is no need to hear oral argument.

The appeal

13 In support of its appeal, the appellant raises two grounds alleging, respectively, a breach of Article 107(1) of the Rules of Procedure of the General Court and misinterpretation of the principle of urgency.

The first ground of appeal, alleging a breach of Article 107(1) of the Rules of Procedure of the General Court

14 The appellant submits that the order under appeal breaches Article 107(1) of the Rules of Procedure of the General Court, which states that ‘[t]he decision [on the application] shall take the form of a reasoned order’. The President of the General Court, it argues, failed to have regard for that provision by ignoring, in the statement of reasons for the order under appeal, an essential argument showing the existence of serious and irreparable harm. The statement of reasons for the order under appeal therefore does not reflect the circumstances of the case and the Court of Justice is thus unable to exercise its powers of review.

15 In the appellant’s view, the implementation of the contested decision would cause it serious and irreparable harm not only because the other collecting societies would be unlikely, if the decision were annulled, to reamend the agreements in order to restore the status quo, but also because the appellant would have no influence over contractual relations established in the meantime between other collecting societies and third-party users. The order under appeal, however, makes clear reference only to the agreements concluded by the appellant with other collecting societies but not to the legal relations between those societies and third parties.

16 The Commission contends that the substance of that assertion is inaccurate and that the assertion is irrelevant.

17 In that regard, and as the appellant itself points out, the judge hearing an application for interim measures cannot be required to reply explicitly to all of the points of fact and law raised in the course of the interlocutory proceedings (orders of the President in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 58, and Case C‑393/96 P(R) Antonissen v Council and Commission [1997] ECR I‑441, paragraph 25). It is sufficient that the reasons given validly justify his order in the light of the circumstances of the case and enable the Court of Justice to exercise its powers of review (order of the President in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 52).

18 In the present case, it must be noted that the appellant, in its application for partial suspension of the contested decision until the General Court has given judgment on the action which it brought in the main proceedings, argued primarily that the amendment of the reciprocal representation agreements required by the Commission in its decision would cause it serious and irreparable damage in that it would trigger market developments which would be very difficult, if not impossible, to reverse even if the decision were to be subsequently annulled.

19 In support of that argument, the appellant argued that it would not be in a position to restore the status quo unilaterally since its partners, namely the other collecting societies, would not agree to it. The appellant concluded that the restoring of the status quo was entirely beyond its control. That conclusion was based in particular on the premiss that the other collecting societies would be even less inclined to restore the status quo if they have entered into long‑term agreements in the meantime with third parties which they are not in a position to amend.

20 In response to that main argument based on the impossibility of restoring the status quo, the President of the General Court stated, in paragraph 58 of the order under appeal, that it rested on mere assertions which were not supported by any evidence. He noted that the appellant based its argument on the anticipated reaction of its contracting parties, a reaction which clearly included the agreements which the latter were likely to conclude with third parties, and that the entirely hypothetical damage alleged in that regard did not justify granting the suspension of operation sought.

21 In those circumstances, it cannot be contended that the President of the General Court omitted an essential argument in support of the appellant’s application.

22 Consequently, the ground of appeal alleging a breach of Article 107(1) of the Rules of Procedure of the General Court must be rejected.

The second ground of appeal, alleging misinterpretation of the principle of urgency

23 According to the appellant, the President of the General Court misinterpreted the urgency criterion in wrongly arriving at the conclusion, first, that the implementation of the contested decision would not trigger market developments which would be very difficult, if not impossible, to reverse and, second, that it would not impose significant restrictions on the appellant’s freedom to define its business policy.

24 The appellant considers that it has shown with a sufficient degree of probability that the market developments which are likely to occur following the execution of the contested decision will be very difficult, if not impossible, to reverse. In its view, the consequence of the implementation of the contested decision is that the other collecting societies may enter into agreements with third parties covering several repertoires, including its own, and several national territories, including the territory in which it operates. Because of the existence of those agreements, it would be extremely difficult, if the contested decision were to be annulled, to restore the status quo since certain parties to the agreements would not be prepared to amend them voluntarily. In support of that view, it refers to the fact that the vast majority of the other collecting societies have been hesitant in signing agreements containing clauses on the restoration of the situation prior to the contested decision. In any event, reversing the market developments would be beyond the appellant’s control.

25 The appellant argues that, in accordance with settled case‑law, such circumstances justify the suspension of operation of the contested decision.

26 The appellant asserts, in addition, that the contested decision imposes significant restrictions on its freedom to define its business policy. The implementation of the decision implies that several collecting societies could compete for the same repertoire and in the same territory. Such competition would inevitably have a considerable impact on the business policy of the collecting societies and, consequently, on the market.

27 According to the appellant, the restriction on the freedom to define a business policy has been recognised by the Courts of the European Union as a factor supporting the likelihood of serious and irreparable damage.

28 In conclusion, the appellant takes the view that, since it is impossible to demonstrate future market developments by means of direct evidence, it was sufficient for it to show with a sufficient degree of probability that such events could arise.

29 The Commission contends that the second ground of appeal is inadmissible in that it concerns a question of fact, that all the relevant factors regarding urgency were considered in the order under appeal, and that the appeal simply requests a re-examination of the arguments raised at first instance.

30 In that regard, it should be noted that the appellant’s criticism, in reality, relates to the assessment made by the President of the General Court of the evidence which it submitted, and not to a possible misinterpretation, on the President’s part, of the criteria founding urgency.

31 It is for the General Court alone to assess the value which should be attributed to the evidence produced to it. That assessment does not, therefore, constitute, save where the clear sense of the evidence submitted to the General Court has been distorted, a point of law which is subject to review by the Court of Justice (see, inter alia, Case C‑411/04 P Salzgitter Mannesmann v Commission [2007] ECR I‑959, paragraph 55, and the order of the President of 24 March 2009 in Case C‑60/08 P(R) Cheminova and Others v Commission, paragraph 71).

32 In any event, the elements relied on by the appellant cannot establish that the assessment of the President of the General Court was wrong in law. In finding, in paragraph 58 of his order, that those elements constituted mere assertions which the appellant had not specified, still less demonstrated, and that the appellant’s argument was thus based on an anticipated reaction of its contracting parties, the President of the General Court did not depart from the case‑law.

33 While it is true that, in order to establish the existence of serious and irreparable damage, it is not necessary for the occurrence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the applicant is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the President in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67).

34 It follows from the foregoing that the assessment made by the President of the General Court as to the possibly irreparable nature of the damage incurred by the appellant, and thus as to the matter of urgency, is not vitiated by an error of law.

35 Consequently, the second ground of appeal must be rejected.

36 In the light of all of the foregoing considerations, the appeal must be dismissed.

Costs

37 Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, 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, the appellant must be ordered to pay the costs.

On those grounds, the President of the Court hereby:

1. Dismisses the appeal;

2. Orders the appellant to pay the costs.

Luxembourg, 31 August 2010.

[Signatures]