Order of the President of the Court of 18 August 1971. - GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte) v Commission of the European Communities. - Case 45-71 R.



European Court reports 1971 Page 00791



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Parties

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IN CASE 45/71 R

GEMA ( GESSELLSCHAFT FUER MUSIKALISCHE AUFFUEHRUNGS - UND MECHANISCHE VERVIELFAELTIGUNGSRECHTE ), HAVING ITS REGISTERED OFFICE AT 37/38 BAYREUTHER STRASSE, 1 BERLIN 30, REPRESENTED BY ITS GENERAL MANAGER, ERICH SCHULZE, ASSISTED BY PROFESSOR PHILIPP MOEHRING, ADVOCATE AT THE BUNDESGERICHTSHOF, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, AVOCAT-AVOUE, RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY J . THIESING, LEGAL ADVISER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE BY WAY OF AN ORDER SUSPENDING THE OPERATION OF A DECISION OF THE COMMISSION OF 2 JUNE 1971 ( REF . IV/26.760 - GEMA ) APPLYING ARTICLE 86 OF THE EEC TREATY TO GEMA .

Grounds

AS REGARDS THE IMMEDIATE OPERATION OF ARTICLE 1

1 ARTICLE 1 OF THE DECISION AT ISSUE STATES THAT THERE HAVE BEEN INFRINGEMENTS OF ARTICLE 86 OF THE TREATY ARISING FROM " THE EXISTENCE " AND " THE APPLICATION " OF VARIOUS PROVISIONS OF THE ARTICLES OF ASSOCIATION OF GEMA, OF THE CONTRACT OF ASSIGNMENT OF RIGHTS, OF THE INTERNAL REGULATIONS AND OF THE RULES OF ITS SOCIAL SECURITY FUND .

ARTICLE 3 PROVIDES THAT THE INFRINGEMENTS ARISING FROM THOSE DOCUMENTS MUST BE BROUGHT TO AN END IMMEDIATELY AND THE NECESSARY MEASURES TO AMEND THEM MUST BE TAKEN WITHIN SIX MONTHS OF THE NOTIFICATION .

IN ITS APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE GEMA STATES THAT IT HAS BROUGHT TO AN END THE INFRINGEMENTS SET OUT IN ARTICLE 1 ( 1 ) TO ( 6 ), SO THAT THERE IS ONLY NEED TO ISSUE AN ORDER FOR A SUSPENSION OF OPERATION OF THE OTHER PROVISIONS OF THAT ARTICLE ( PARAGRAPHS 7 TO 13 ).

2 BY GRANTING A PERIOD OF SIX MONTHS FOR THE AMENDMENT OF THE DOCUMENTS FROM WHICH THE INFRINGEMENTS ARISE AND AT THE SAME TIME PROVIDING THAT THEY BE BROUGHT TO AN END IMMEDIATELY, ARTICLE 3 MIGHT GIVE RISE TO DIFFICULTIES OF INTERPRETATION WHICH CANNOT BE SETTLED WITHIN THE FRAMEWORK OF THE PRESENT PROCEEDINGS .

ALTHOUGH THIS DOUBLE PERIOD MAY CORRESPOND TO THE DISTINCTION MADE IN ARTICLE 1 BETWEEN " THE EXISTENCE " AND " THE APPLICATION " OF THE DOCUMENTS IN QUESTION, IT IS POSSIBLE THAT, SUBJECT TO THE JUDGMENT IN DUE COURSE ON THE SUBSTANCE OF THE CASE, SINCE THE WORDING OF ARTICLE 3 IS NOT MORE EXPLICIT, IMMEDIATE OPERATION APPLIES SOLELY TO THE CONTRACTS OF ASSIGNMENT OF RIGHTS MADE AFTER NOTIFICATION OF THE DECISION, WHILST CONTRACTS MADE BEFOREHAND MAY BENEFIT FROM THE SIX MONTHS' PERIOD .

THE COMMISSION SEEMED TO ACCEPT THE LATTER DISTINCTION DURING THE ORAL PROCEEDINGS WHEN IT DECLARED THAT IT WOULD REFRAIN FROM THE OPERATION OF ARTICLE 1 ( 7 ) IN SO FAR AS IT REFERS TO CONTRACTS OF ASSIGNMENT MADE BEFORE NOTIFICATION OF THE DECISION .

WITH REGARD TO NEW CONTRACTS OF ASSIGNMENT MADE SUBSEQUENT TO THAT NOTIFICATION, THEY SEEM UNLIKELY TO BENEFIT FROM AN ORDER SUSPENDING OPERATION SINCE THEY CAN CONTAIN ANY APPROPRIATE RESERVATION CLAUSES RELATING TO ANY CONSEQUENCES OF THE JUDGMENT TO COME .

WHILST GEMA CITES THE MATERIAL DIFFICULTIES WHICH IT MIGHT ENCOUNTER IN THAT RESPECT, THESE DO NOT SEEM TO BE INSUPERABLE SINCE THE COMMISSION HAS ACCEPTED DURING THE ORAL PROCEEDINGS THAT THE DIVISION BY CATEGORIES PROVIDED FOR IN ARTICLE 1 ( 7 ) COULD BE PROVISIONALLY SUSPENDED .

THEREFORE ANY SUCH DIFFICULTIES CANNOT COME INTO CONFLICT WITH THE PROVISIONS OF ARTICLE 185 OF THE TREATY WHEREBY ACTIONS " SHALL NOT HAVE SUSPENSORY EFFECT ".

3 IT SEEMS THAT THE OPERATION OF ARTICLE 1 ( 8 ) TO ( 13 ) CANNOT BE AFFECTED BY THE DISTINCTION BETWEEN OLD AND NEW CONTRACTS OF ASSIGNMENT : CONSEQUENTLY IN THESE CIRCUMSTANCES THE INTERPRETATION WHEREBY THE SIX MONTHS' PERIOD LAID DOWN IN ARTICLE 3 MAY BE APPLICABLE TO THEM CANNOT BE COMPLETELY RULED OUT .

IN ANY CASE, IT MIGHT BE FEARED THAT BECAUSE THE NUMBER AND NATURE OF THE DOCUMENTS CONCERNED - GEMA' S ARTICLES OF ASSOCIATION AND INTERNAL REGULATIONS AND THE RULES OF THE SOCIAL SECURITY FUND - AND BECAUSE OF THE VARIETY AND THE COMPLEXITY OF THE MEASURES ORDERED AND THEIR REPERCUSSIONS ON THE RELATIONSHIP BETWEEN GEMA AND ITS MEMBERS, THE IMMEDIATE OPERATION OF THOSE MEASURES MIGHT SERIOUSLY DISTURB GEMA' S WORK AND THE INTERESTS WHICH IT ADMINISTERS, BEFORE THE EXPIRY OF THE NORMAL PERIOD WHICH SHOULD ENABLE THE COURT TO DELIVER JUDGMENT .

EXCLUDING ANY DELAYS, THAT PERIOD CORRESPONDS APPROXIMATELY TO THAT LAID DOWN IN ARTICLE 3 OF THE DECISION .

BY ITSELF REFRAINING, CONDITIONALLY OR UNCONDITIONALLY, FROM PUTTING INTO IMMEDIATE OPERATION ARTICLE 1 ( 9 ) AND ( 12 ) THE COMMISSION IN ANY CASE ADMITS THE DIFFICULTIES THEREOF .

WITHOUT PREJUDICE TO THE JUDGMENT TO BE DELIVERED IN DUE COURSE AND ITS CONSEQUENCES, IT THEREFORE APPEARS THAT EXCEPTIONAL CIRCUMSTANCES JUSTIFY PRIMA FACIE THE GRANT, UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE, OF AN ORDER SUSPENDING THE OPERATION OF ARTICLE 1 ( 8 ) TO ( 11 ) AND ( 13 ) FOR A PERIOD OF SIX MONTHS AS FROM THE NOTIFICATION OF THE DECISION OF THE COMMISSION .

AS REGARDS THE IMMEDIATE OPERATION OF ARTICLE 2

4 ARTICLE 2 OF THE DECISION STATES THAT THERE HAVE BEEN INFRINGEMENTS OF ARTICLE 86 RESULTING FIRST, FROM PRACTICES RELATING TO THE EXTENSION BY CONTRACT OF THE COPYRIGHT IN CERTAIN MUSICAL WORKS, SECONDLY, FROM THE IMPOSITION OF A LICENCE FEE ON SOUND RECORDINGS WHICH ARE IMPORTED OR REIMPORTED INTO GERMANY, AND LASTLY FROM THE IMPOSITION OF A HIGHER ROYALTY ON TAPE RECORDERS AND VIDEO TAPE RECORDERS IMPORTED INTO THAT STATE .

ARTICLE 3 OBLIGES GEMA TO PUT AN IMMEDIATE END TO THOSE PRACTICES .

THE LATTER DO NOT ARISE FROM THE ARTICLES OF ASSOCIATION OF GEMA OR FROM ANY OF THE DOCUMENTS WHICH IT IS UNDER A DUTY TO AMEND IN ACCORDANCE WITH ARTICLE 1, BUT RESULT MERELY FROM GEMA' S ACTIONS .

IT DOES NOT APPEAR FROM THE WRITTEN OBSERVATIONS OR FROM THE ORAL PROCEEDINGS THAT THE INTERRUPTION OF THOSE PRACTICES IS LIKELY TO COMPROMISE THE ESSENTIAL BASES OF GEMA' S WORK AS IT APPEARS FROM ITS ARTICLES OF ASSOCIATION .

ALTHOUGH INTERRUPTING THOSE PRACTICES MAY CONSTITUTE AN INCONVENIENCE TO GEMA, WHICH THE JUDGE GIVING THE INTERIM RULING MUST TAKE INTO ACCOUNT IN THE LIGHT SOLELY OF THE REQUIREMENTS OF ARTICLE 185 OF THE TREATY, THAT INCONVENIENCE DOES NOT SEEM TO BE CAPABLE OF PARALYSING THE WORK OF GEMA IRRETRIEVABLY .

MOREOVER, THE APPLICANT HAS STATED THAT IT PUT AN END TO ONE OF THE FORMS OF CONDUCT REFERRED TO ( ARTICLE 2 ( 3 )) OF ITS OWN ACCORD .

THERE IS THEREFORE NO NEED TO ORDER A SUSPENSION OF THE OPERATION OF ARTICLE 2 ( 1 ) AND ( 2 ) OF THE CONTESTED DECISION .

Decision on costs

5 THE COSTS SHOULD, IN THE CIRCUMSTANCES, BE RESERVED .

Operative part

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

HEREBY FINDS :

1 . THAT GEMA HAS DECLARED THAT IT HAS " ALREADY PUT AN END " TO THE INFRINGEMENTS REFERRED TO IN ARTICLE 1 ( 1 ) TO ( 6 ) AND ARTICLE 2 ( 3 ) OF THE DECISION OF THE COMMISSION OF 2 JUNE 1971 .

2 . THAT THE COMMISSION HAS DECLARED THAT IT UNCONDITIONALLY REFRAINS FROM PUTTING INTO IMMEDIATE OPERATION ARTICLE 1 ( 7 ) - AS REGARDS CONTRACTS MADE UP TO 8 JUNE 1971 - AND PARAGRAPH 12 OF THE SAID ARTICLE;

AND BY WAY OF INTERIM RULING

HEREBY ORDERS :

1 . THE OPERATION OF ARTICLE 1 ( 8 ), ( 9 ), ( 10 ), ( 11 ) AND ( 13 ) OF THE DECISION OF THE COMMISSION OF 2 JUNE 1971 ( REF . IV/26760 - GEMA ) APPLYING TO GEMA ARTICLE 86 OF THE EEC TREATY SHALL BE SUSPENDED FOR SIX MONTHS FROM NOTIFICATION OF THAT DECISION .

2 . SUBJECT TO THE APPLICATION OF THE DECLARATIONS OF THE COMMISSION RELATING TO ARTICLE 1 ( 7 ) AND ( 12 ), THE APPLICATION FOR AN ORDER SUSPENDING THE OPERATION OF THAT DECISION IS DISMISSED IN ALL FURTHER RESPECTS .

3 . THE COSTS ARE RESERVED .