WRITTEN QUESTION E-3995/00 by Helmuth Markov (GUE/NGL) to the Commission. VIKH application for the issuing of a GEMA individual exemption certificate.
Date: 2000-12-21
Institutions: European Parliament, Provisional data
Subjects: broadcasting, competition law, complaint to the Commission, copyright, music, quasi-fiscal charge, tax exemption

C 235 E/42

Official Journal of the European Communities

EN

21.8.2001

Answer given by Mr Monti on behalf of the Commission

(19 February 2001)

1.
Concerning the individual exemptions and negative clearances mentioned by the Honourable
Member the Commission is not in possession of any application. Insofar as it was presented to the
Commission in the cases mentioned by the Honourable Member, that there would be infringements of
Community law present, Directorate General Competition has acted as follows.

2.
In the Platte/Mazda case the Commission has rejected the complaint due to lack of Community
interest. In the Blei/Ulrich and Blei/Sparkasse H(cid:252)ckeswagen cases, answering the informal request of the
party concerned, Directorate General Competition has informed it that the cases, since containing no clue
for an infringement of the competition rules of the Treaty, do not enjoy priority. With regard to the
complaints in Blei/GEMA and Blei/GEZ cases, Directorate General Competition has informed the complai-
nant that for the time being it does not see any reason to further investigate the cases, either because they
do not contain a clue for an infringement of the competition rules of the EC Treaty or due to lack of
Community interest, respectively.

If a matter falls under the exclusive competence of a Member State, the Commission cannot handle

3.
the case.

(2001/C 235 E/046)

WRITTEN QUESTION E-3995/00

by Helmuth Markov (GUE/NGL) to the Commission

(21 December 2000)

Subject: VIKH application for the issuing of a GEMA individual exemption certificate

On 26 March 1999, a grievance procedure was submitted to the Commission against the (cid:145)Gesellschaft f(cid:252)r
(Society for Musical Performing
musikalische Auff(cid:252)hrungs- und mechanische Vervielf(cid:228)ltigungsrechte(cid:146)
Rights and Mechanical Reproduction Rights) (GEMA) and it appears that the matter has still not been
taken into hand.

On 13 January 2000 the (cid:145)Verband innovativer Kfz-Unternehmer und Handelsvertreter e.V.(cid:146) (Association of
Innovative Motor Vehicle Manufacturers and Trade Representatives) (abbr. VIKH) called for the issuing of
a copy of the individual exemption documentation or the granting of an individual exemption concerning
the GEMA, which the complainant has still not received.

On what grounds have the above-mentioned complaints and the request for individual exemption

1.
documentation not been dealt with and the documentation not been forwarded?

2.
Does the Commission share the complainant(cid:146)s view that unlike music which is played for financial
gain (as is the case with radio stations, discotheques, opera-houses, theatres, live bands, etc.), music which
is played in restaurants, car dealers, or hairdressing establishments is not subject to the payment of royalty
fees to GEMA? (According to Commission Decision 71/224, the playing of music is only subject to
copyright royalties if it is played with a view to earning money.)

Furthermore, does

the Commission share the complainant(cid:146)s view that
3.
a compulsory individual exemption for its contracts with the above undertakings?

the GEMA requires

4. Would GEMA contracts with these undertakings (hairdressers, restaurants (cid:129) though not for use in
a discotheque or similar (cid:129) and car dealers, to create atmosphere in the salesroom) be eligible for
authorisation?

Answer given by Mr Monti on behalf of the Commission

(7 March 2001)

1.
By letter dated 26 March 1999 the VIKH has alleged that the collection of royalties by Gema for the
playing of background music, either in the form of recorded music or broadcasting in a restaurant
infringes competition law. By letter dated 27 April 1999, the Competition Directorate-General informed

21.8.2001

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Official Journal of the European Communities

C 235 E/43

the VIKH, that it saw no reason to initiate proceedings under the competition rules laid down in the
EC Treaty. It stated that the collection of royalties by GEMA for the audio reproduction of works protected
by copyright related rights in restaurants does not in itself represent an infringement of these provisions.
VIKH(cid:146)s letter of 26 March 1999 does not provide any indication that the calculation of the fees infringed
these provisions. Nor does VIKH(cid:146)s letter of 19 September 2000 contain, according to a preliminary view of
the Competition Directorate-General, any new information that might justify the initiation of proceedings.
The VIKH was also informed of this.

After the Commission Decision of 2 June 1971 in the GEMA case (71/224), GEMA(cid:146)s statutes were
amended on a number of occasions. Following these amendments the Commission adopted a negative
clearance decision on 4 December 1981 (82/204). The Commission did not find it necessary to grant an
individual exemption.

2.
The Commission does not share VIKH(cid:146)s view that music played in restaurants is not subject to the
payment of royalty fees to GEMA. As in the examples mentioned by way of comparison by the
Honourable Member, playing of music in restaurants is an exploitation having commercial character.

The GEMA Decision (71/224) does not deal with this question. However, rightholders or holders of related
rights, such as broadcasters, should receive royalties (remuneration) for music played in an establishment
whose principal purpose/activity is commercial in nature. This remuneration is provided for not only in
national law of the Member States but also in international convention law (Article 11bis of the Berne
Convention for the Protection of Literary and Artistic Works and Article 12 of the Rome Convention for
the protection of performers, producers of phonograms and broadcasting organisations). Community law
and especially Article 8 of Council Directive 92/100/EEC of 19 November 1992, on rental right and
lending right and on certain rights related to copyright in the field of intellectual property (1)
is in
accordance with international law and with the Community international commitments. Furthermore, the
World Trade Organisation-TRIPs Agreement incorporating Article 11bis of the Berne Convention does not
allow exemptions from paying royalties or obtaining the right holder(cid:146)s permission for (cid:145)small establish-
ments(cid:146) that play broadcast music (such as restaurants, car dealers or hairdressing establishments, for
example).

3. and 4.
Contracts with undertakings such as those mentioned by the Honourable Member do not
necessarily require an individual exemption. Such contracts do not automatically fall within the scope of
the Community competition rules if they are confined solely to the use of the copyright for valuable
consideration. However, if because of an unjustified level of copyright fees that had an appreciable effect
on trade between Member States, such contracts represented an abuse of a dominant position within the
meaning of Article 82 (ex Article 86) of the EC Treaty, they would be prohibited and this infringement
would not be exemptable. The Commission is however not in the possession of information that would
justify such a conclusion.

(1) OJ L 346, 27.11.1992.

(2001/C 235 E/047)

WRITTEN QUESTION E-4002/00

by Robert Evans (PSE) to the Commission

(21 December 2000)

Subject: Damage to marine life from military activity

The US has recently cancelled military training exercises in some marine areas to avoid inflicting damage
on sensitive marine habitats. This comes as the result of a public consultation period before permission to
undertake military exercises is granted.