Appeal brought on 15 February 2019 by Groupe Canal + against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-873/16 Groupe Canal + v Commission

(Case C-132/19 P)

(2019/C 131/38)

Language of the case: French

Parties

Appellants: Groupe Canal + (represented by P. Wilhelm, P. Gassenbach and O. de Juvigny, avocats)

Other parties to the proceedings: European Commission, French Republic, Union des producteurs de cinéma (UPC), C More Entertainment AB, European Film Agency Directors — EFADs, Bureau européen des unions de consommateurs (BEUC)

Form of order sought

— Set aside the judgment delivered by the General Court on 12 December 2018 in Case T-873/16 in so far as it dismissed the action brought by Groupe Canal + for annulment of Commission Decision of 26 July 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.40023 — Cross-border access to pay-TV), and in so far as it ordered the appellant to pay the costs;

— Annul the Commission Decision of 26 July 2016 in the abovementioned Case AT.40023;

— Order the European Commission to pay the costs in their entirety.

Pleas in law and main arguments

By its first ground of appeal, GCP maintains that the General Court was not entitled to rule out the existence of misuse of powers, consisting for the Commission of putting an end to geo-blocking, by means of commitments, when Regulation (EU) 2018/302 (1) expressly provides that audiovisual content may be the subject of geographical restrictions.

By its ground of appeal, GCP claims that the General Court committed a procedural error and infringed the audi alteram partem principle, since none of the arguments relating to the applicability of Article 101(3) TFEU was discussed by the parties to the proceedings. Consequently, the General Court did not observe GCP’s rights of defence.

By its third ground of appeal, GCP submits that the General Court committed an error of law relating to infringement of its obligation to state reasons by failing to address the plea in law alleging that the Commission failed to take into account the French economic and legal context to which the clauses at issue belonged. The judgment is based on an inaccurate premiss and disregards the specific economic and legal context of the film industry and is contrary to the case-law of the Court of Justice which has expressly held that the clauses at issue may be perfectly valid in the film industry.

By its fourth ground of appeal, GCP argues that the General Court erred in law concerning the interpretation of Article 9 of Regulation No 1/2003 (2) and point 128 of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, leading to infringement of the principles of proportionality and respect for the rights of third parties. The competition concerns expressed in the Commission’s preliminary assessment related only to the territories of the United Kingdom and Ireland and the competition situation concerning France was not even examined. Furthermore, the General Court erred in law in finding, first, that the Commission decision did not constitute an interference in the contractual freedom of GCP and, second, that it did not affect GCP’s ability to bring an action before a national court in order to establish the compatibility of the relevant clauses with Article 101(1) TFEU, when it follows from the case-law of the Court of Justice that a national court may not disregard a decision taken on the basis of Article 9 of Regulation (EC) No 1/2003 and the accompanying preliminary assessment.

(1) Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC (OJ 2018 L 601, p. 1).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).