Case T-433/08: Action brought on 30 September 2008 — SIAE v Commission
Date: 2008-09-30
Institutions: Court of First Instance
Subjects: European Commission, Italy, action for annulment (EU), copyright, data transmission, export licence, principle of proportionality, regional planning, satellite communications

22.11.2008

EN

Official Journal of the European Union

C 301/57

Form of order sought

Action brought on 30 September 2008 — SIAE v
Commission

— annul decision 8/VII/2008 No C(2008) 3411 final, notified
on 11 July 2008, excluding from Community financing
certain expenditure incurred by the Member States under
the European Agricultural
the Guarantee Section of
the
Guidance and Guarantee Fund (EAGGF) and under
European Agricultural Guarantee Fund (EAGF) in so far as it
makes certain financial corrections to be borne by Italy.

Pleas in law and main arguments

By the contested decision the Commission excluded from Com-
munity financing chargeable to the EAGGF four categories of
expenditure incurred by the Italian State from 2001 to 2006.
They were corrections relating to certain export refunds of fruit
and vegetables and sugar, aid for citrus processing in respect of
the financial years 2004 and 2005, the amount of the addi-
tional levy to be applied to milk products which in production
and marketing exceed the milk quotas allocated to them in rela-
tion to the 2002-2003 marketing campaign and area/arable
crops aid in respect of 2004, 2005 and 2006.

(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

In support of its claims the applicant submits that the controls
carried out were correct and fair.

Form of order sought

In this case the applicant relies on infringement of the duty to
state reasons, the principle of proportionality, Articles 11, 12
and 14 of Commission Regulation (EC) No 1392/2001 of 9 July
2001 laying down detailed rules for applying Council Regu-
lation (EEC) No 3950/92 establishing an additional levy on milk
and milk products (1), Article 7(4) of Council Regulation (EC)
the
No 1258/1999 of 17 May 1999 on the financing of
common agricultural policy, Article 31 of Council Regulation
(EC) No 1290/2005 of 21 June 2005 on the financing of the
common agricultural policy (2), Article 31 of Council Regulation
(EC) No 1290/2005 of 21 June 2005 on the financing of the
common agricultural policy (3), Articles 22 and 30 of Commis-
sion Regulation (EC) No 2419/2001 of 11 December 2001
laying down detailed rules for applying the integrated adminis-
tration and control system for certain Community aid schemes
established by Council Regulation (EEC) No 3508/92 (4), and
Articles 50, 51 and 30 of Commission Regulation (EC)
No 796/2004 of 21 April 2004 laying down detailed rules for
the implementation of cross-compliance, modulation and the
integrated administration and control system provided for in of
Council Regulation (EC) No 1782/2003 establishing common
rules for direct support schemes under the common agricultural
policy and establishing certain support schemes for farmers (5).

(1) OJ L 187 of 10.7.2001, p. 19.
(2) OJ L 160 of 26.6.1999, p. 103.
(3) OJ L 209 of 11.8.2005, p. 1.
(4) OJ L 327 of 12.12.2001, p. 11.
(5) OJ L 141 of 30.4.2004, p. 18.

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 misap-
plication 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 agree-
ments 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 socie-
their
ties believe that they can best guarantee the rights of
members by entrusting their catalogues or
to
collecting societies which can offer efficient protection of the

repertoires

C 301/58

EN

Official Journal of the European Union

22.11.2008

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.

Action brought on 3 October 2008 — Studio Vacanze v
Commission

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 demon-
strate 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 exam-
ples 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.

Parties

(Case T-436/08)

(2008/C 301/96)

Language of the case: Italian

By the third plea, the applicant alleges infringement and misap-
plication of Article 81 EC because,
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.

in the event

that

By the fourth plea, the applicant alleges that the Commission
has acted in breach of the audi alteram partem rule and in infrin-
gement 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.

alleges

fifth plea,

the applicant

infringement of
By the
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 Deci-
sion. 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 incompa-
tible 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.

Applicant: Studio Vacanze (Budoni,
Cannata, lawyer)

Italy)

(represented by: M.

Defendant: Commission of the European Communities

Forms of order sought

Principal forms of order sought:

— Annul the decision of the Commission of the European

Communities of 2 July 2008;

— Order the Commission to pay the costs of the proceedings.

Alternative form of order sought:

Annul Article 2(2) of the contested decision in so far as it
orders recovery of the aid found to be incompatible, together
with interest, as from the date on which the amounts were
made available to the recipients until the date of their actual
recovery.

Pleas in law and main arguments

The decision contested in the present case is the same as that at
issue in Case T-394/08 Regione Sardegna v Commission and Case
T-408/08 S.F. Turistico Immobiliare v Council and Commission.

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

— infringement of Article 16 of Council Regulation (EC)
No 659/1999 of 22 March 1999 laying down detailed rules
for the application of Article 93 of the EC Treaty (1), in so
far as that provision authorises the opening of the formal
investigation procedure only in cases of ‘misuse of aid’ and
not for the ‘creation of unlawful aid’: it follows, according to
the applicant, that the entire formal investigation procedure
is invalid;