EN Official Journal of the European Union C 301/57

Action brought on 30 September 2008 — SIAE v Commission

(Case T-433/08)

(2008/C 301/95)

Language of the case: Italian

Parties

Applicant: Società Italiana degli Autori ed Editori — SIAE (Rome, Italy) (represented by: M. Siragusa, M. Mandel, L. Vullo, and S. Valentino, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court of First Instance should:

— annul Articles 3 and 4(2) of the Decision;

— order the Commission to pay the costs incurred by the applicant in the present proceedings;

— order any other measure, including measures of inquiry, that it considers appropriate.

Pleas in law and main arguments

The Decision contested in the present proceedings is the same as that contested in Case T-392/08 AEPI v Commission.

In support of its action, the applicant relies on five pleas in law.

By the first plea, the applicant alleges infringement and misapplication of Article 81 EC, and lack of a preparatory inquiry, in so far as the Decision makes a finding of concerted practice even though there is no evidence to support that finding apart from the mere fact that many reciprocal representation agreements restrict the power to grant licences to the territory in which the other collecting society operates. In that connection, the Commission disregards the fact that many collecting societies believe that they can best guarantee the rights of their members by entrusting their catalogues or repertoires to collecting societies which can offer efficient protection of the rights of authors and composers and, quite clearly, the societies whose presence in the territory is well established are fully able to satisfy that requirement.

By the second plea, the applicant alleges infringement and misapplication of Article 81 EC and the illogical nature of the reasons stated in the Decision, in that, in its efforts to demonstrate the practicability of multi-territory licence management for the broadcasting of musical works via satellite or cable, or over the internet, the Commission itself ultimately demonstrates that the collecting societies do not engage in parallel behaviour. The Commission's accusation is in fact invalidated by the examples that it cites itself of the grant by collecting societies of licences covering a broader area than the territory in which an individual society operates.

By the third plea, the applicant alleges infringement and misapplication of Article 81 EC because, in the event that the Commission should find that there is concerted practice (which the applicant denies), such a practice would have no restrictive effect on competition in that territorial delimitations constitute the necessary corollary of the exclusivity of the rights held by authors and composers.

By the fourth plea, the applicant alleges that the Commission has acted in breach of the audi alteram partem rule and in infringement of Article 253 EC in so far as it has failed to state adequate reasons as regards the fact that the Commission did not inform the societies of the essential factual evidence on which, following its research into the market, it based its refusal to accept the commitments proposed by SIAE.

By the fifth plea, the applicant alleges infringement of Article 253 EC through failure to state adequate reasons for its decision; breach of the principle of proportionality and of the principle of legal certainty; and the contradictory and illogical nature of the measures laid down in Article 4(2) of the Decision. The wholly indeterminate nature of the ‘review’ requested from the collecting societies places SIAE unfairly in a situation of uncertainty as regards the identification of measures which are regarded by the Commission as sufficient to put an end to the alleged concerted practice. Furthermore, given that the Commission expressly recognises that the fact of limiting the licence to the territory of the other collecting society does not amount to restriction of competition, it is manifestly incompatible with that premiss to order the collecting societies to carry out a bilateral review of the territorial delimitation in all their licences for broadcasting via satellite or cable, or online, and, thus, to provide the Commission with a copy of the review of all those reciprocal representation agreements. Moreover, since the Commission requires a ‘bilateral’ review of the territorial delimitations, SIAE's full compliance with Article 4(2) of the Decision is nevertheless beyond SIAE'S own decision-making competence, since it is also subject to the independent views of another 23 collecting societies.