Case T-425/08: Action brought on 30 September 2008 — KODA v Commission
Date: 2008-09-30
Institutions: Court of First Instance
Subjects: Denmark, European Commission, Internet, action for annulment (EU), fine, proportional representation, regional planning, satellite communications

C 327/32

EN

Official Journal of the European Union

20.12.2008

Pleas in law and main arguments

the applicant seeks partial annulment of

In this case,
the
Commission's decision 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) concerning concerted practices on
the conditions of management and licensing of authors' public
performance rights of musical works by collecting societies, in
the form of membership restrictions applied in the reciprocal
representation agreements, as laid down by the model contract
of the International Confederation of Societies of Authors and
Composers (CISAC model contract) or as applied in practice.

In support of its application, the applicant submits, first of all,
that the Commission infringed its rights of the defence and
essential procedural requirements:

— by accusing the applicant, in the contested decision, of parti-
cipation in an alleged concerted practice while the statement
of objections sent to the applicant was based on the theory
of network effects; the applicant was therefore not in a posi-
tion to defend itself over its participation in an alleged
concerted practice;

— by failing to provide reasons for maintaining against the
applicant the complaints relating to the membership restric-
tions which were contained in the reciprocal representation
agreements entered into between European societies of
authors or applied de facto by those societies, whereas the
applicant showed that it had removed those clauses and was
not applying them;

— by failing to provide a definition of the activity which was
the subject of the contested decision, as regards the infringe-
ment relating to an alleged concerted practice and therefore
the scope of the decision's directions.

— by concluding that there was a concerted practice whereas
the alleged concerted behaviour between societies of authors
could not have limited competition;

— by ordering the societies of authors to refrain from ‘any act
or conduct having the same, or similar, object or effect’ to the
alleged concerted practices which led to the territorial limita-
tions contained in the reciprocal representation agreements
while asserting that each society was free to determine bilat-
erally the scope of the reciprocal representation agreements
entered into by them, on the ground that those contradic-
tions undermine legal certainty.

Action brought on 30 September 2008 — KODA v
Commission

(Case T-425/08)

(2008/C 327/59)

Language of the case: Danish

Parties

Applicant: KODA (Copenhagen, Denmark)
Dyrekjær and J. Borum)

(represented by: K.

Defendant: Commission of the European Communities

Secondly, the applicant claims that the Commission infringed
Article 81 EC and Article 53 of the EEA Agreement:

Forms of order sought

— Annul Commission Decision COMP/C2/38.698 — CISAC of

16 July 2008 in its entirety, or

— by accusing the applicant of an infringement by way of the
membership clause whereas the applicant showed that it had
removed those clauses and was not applying them;

— by committing a manifest error of assessment as regards
satellite radio broadcasting, since the societies of authors
were each mandated to grant the satellite radio broadcasting
operators a multi-territorial authorisation covering the entire
footprint
their
of
programmes;

broadcast

satellite

used

the

to

— by using an inaccurate market definition;

— in

the

alternative,

Decision
annul
COMP/C2/38.698 — CISAC of 16 July 2008 in its entirety
in so far as it concerns KODA, or

Commission

— annul Article 3 and Article 4(2) and (3) of Commission
Decision COMP/C2/38.698 — CISAC of 16 July 2008, or

— in the alternative, annul Article 3 and Article 4(2) and (3) of
Commission Decision COMP/C2/38.698 — CISAC of
16 July 2008 in so far as it concerns KODA, or

— in the alternative, annul Article 3 and Article 4(2) and (3) of
Commission Decision COMP/C2/38.698 — CISAC of
16 July 2008 in so far as it concerns transmission by cable,
and

— by accusing the applicant of participation in an alleged

concerted practice without providing evidence of it;

— order the Commission to pay the costs.

20.12.2008

EN

Official Journal of the European Union

C 327/33

Pleas in law and main arguments

Pleas in law and main arguments

The applicant
in the present case is seeking annulment of
Commission Decision C(2008) 3435 final of 16 July 2008 in
Case COMP/C2/38.698 — CISAC, by which the Commission
found that
the applicant had infringed Article 81 EC and
Article 53 EEA through its reciprocal representation agreements
or in practice had introduced membership restrictions (Article 1)
and exclusivity clauses (Article 2) and, by having concerted terri-
torial restrictions in such a manner as to limit a licence to each
collecting society's national territory through the licensing of
rights to public transmission of music over the Internet, via
satellite and cable (Article 3).

In support of
following:

its claims, the applicant has put forward the

— the contested decision is vitiated by an essential procedural
defect in that the statement of objections differs from the
final decision on a central point;

— the contested decision is based on an incorrect application
of the law, in that: (i) it has not been established that the
applicant's inclusion of
territorial restrictions in its reci-
procal agreements for the Internet, satellite or cable are the
result of a concerted practice with the other EEA collecting
societies, and (ii) the territorial restrictions are not anti-
competitive.

In the alternative, the applicant submits that no infringement
has been demonstrated in the contested decision in so far as
regards the licensing of rights via cable transmission.

Action brought on 1 October 2008 — AKM v Commission

(Case T-432/08)

(2008/C 327/60)

Language of the case: German

Parties

Applicant:
Staatlich genehmigte Gesellschaft der Autoren,
Komponisten und Musikverleger reg. Gen. mbH (AKM) (Vienna,
(represented by: H. Wollmann and F. Urlesberger,
Austria)
lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's decision, in so far as it relates to
AKM, pursuant to the first paragraph of Article 231 EC;

The application concerns Commission Decision C(2008) 3435
final of 16 July 2008 in Case COMP/C2/38.698 — CISAC, in
which the Commission found concerted practices in connection
with the reciprocal grant of music copyright between collecting
societies which are members of the International Confederation
of Societies of Authors and Composers (‘CISAC’) to be incompa-
tible with Article 81 EC and Article 53 of the EEA Agreement.

The applicant seeks the annulment of the decision in so far as
the Commission found that AKM infringed Article 81 EC and
Article 53 EEA by using in its reciprocal representation agree-
ments the membership restrictions contained in Article 11(2) of
the CISAC model contract or by de facto applying membership
restrictions, and by coordinating the territorial restriction of
licences, and in so far as AKM was directed to bring those
infringements to an end.

The applicant relies on the following pleas in law in support of
its claims:

The applicant submits, first, that the Commission erred in its
findings of fact as regards the application of membership restric-
tions by AKM. The Commission did not produce any evidence
to prove that AKM actually applied such a restriction. On the
contrary,
the Commission failed to take into consideration
evidence of the fact that AKM operates an ‘open membership
policy’. In addition, the Commission overlooked the fact that
the previously applicable membership clauses in AKM's reci-
procal representation agreements were, at least tacitly, dispensed
with and are no longer included in reciprocal representation
agreements entered into by AKM.

Furthermore, Article 3 of the Commission's decision, in which
the Commission accuses AKM of ‘[infringing] Article 81 of the
Treaty and Article 53 of the EEA Agreement by coordinating
the territorial delineations in a way which limits a licence to the
domestic territory of each collecting society’, is inconsistent with
the reasons for the decision. In particular, the operative part of
the decision is not
transmission
(satellite, internet and cable) which the Commission dealt with
in its considerations.

limited to the means of

Moreover,
licences in
the existing territorial delineations of
AKM's reciprocal representation agreements are not the product
of a concerted practice. Essentially, the Commission relied solely
on the fact that the reciprocal representation agreements of
European collecting societies follow a standard system as proof
of the existence of an intentional concerted practice. The expla-
nation for this parallel conduct can, however, readily be found
in the traditional market structures and the statutory framework
for the activities of collecting societies.

Finally,
the Commission's decision infringes the principle of
legality, since it is not clear from Article 4(2) of the decision
what is meant by the requirement to ‘review’ certain contractual
provisions.

— order

the defendant

the
Article 87(2) of the Rules of Procedure.

to pay

costs pursuant

to