Case C-52/07: Judgment of the Court (Fourth Chamber) of 11 December 2008 (reference for a preliminary ruling from the Marknadsdomstolen — Sweden) — Kanal 5 Ltd, TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå (STIM) (Copyright — Copyright management organisation enjoying a de facto monopoly — Collection of royalties relating to the broadcast of musical works — Method of calculating those royalties — Dominant position — Abuse)
Date: 2008-12-11
Institutions: Court of Justice
Subjects: copyright, dominant position, interpretation of the law, music, quasi-fiscal charge, television

C 32/2

EN

Official Journal of the European Union

7.2.2009

V

(Announcements)

COURT PROCEEDINGS

COURT OF JUSTICE

Judgment of the Court (First Chamber) of 11 December
the European Communities v
2008 — Commission of

Kingdom of Spain

(Case C-380/06) (1)

(Failure of a Member State to fulfil obligations — Late
payment in commercial transactions — Time-limit — Direc-
tive 2000/35/EC — Infringement of Article 3(1), (2) and (4))

(2009/C 32/02)

Language of the case: Spanish

Judgment of the Court (Fourth Chamber) of 11 December
2008 (reference for
a preliminary ruling from the
Marknadsdomstolen — Sweden) — Kanal 5 Ltd, TV 4 AB v
Föreningen Svenska Tonsättares Internationella Musikbyrå
(STIM)

(Case C-52/07) (1)

(Copyright — Copyright management organisation enjoying a
de facto monopoly — Collection of royalties relating to the
broadcast of musical works — Method of calculating those
royalties — Dominant position — Abuse)

Parties

(2009/C 32/03)

Language of the case: Swedish

Applicant: Commission of the European Communities (repre-
sented by: B. Schima and S. Pardo Quintillán, acting as Agents)

Defendant: Kingdom of Spain (represented by: F. Díez Moreno,
acting as Agent)

Referring court

Marknadsdomstolen

Re:

Failure of a Member State to fulfil obligations — Infringement
of Article 3(1)(2) and (4) of Directive 2000/35/EC of
the
European Parliament and of the Council of 29 June 2000 on
combating late payment in commercial transactions (OJ 2000
L 200, p. 35) — Period of 90 days for the payment of certain
staple foods

Operative part of the judgment

The Court:

1. Dismisses the action;

Parties to the main proceedings

Applicant: Kanal 5 Ltd, TV 4 AB

Defendant:
Musikbyrå (STIM)

Föreningen Svenska Tonsättares

Internationella

Re:

for

Reference
a preliminary ruling — Interpretation of
Article 82 EC — Payments made by commercial television chan-
nels to an organisation responsible for the management of the
performing rights of musical works — Calculation of payments
based on a percentage of the revenue from, inter alia, subscrip-
tions and advertising.

2. Orders the Commission of the European Communities to pay the

costs.

Operative part of the judgment

(1) OJ C 294 of 2.12.2006.

1) Article 82 EC must be interpreted as meaning that a copyright
management organisation with a dominant position on a substan-
tial part of
the common market does not abuse that position
where, with respect to remuneration paid for the television broadcast
of musical works protected by copyright, it applies to commercial

7.2.2009

EN

Official Journal of the European Union

C 32/3

television channels a remuneration model according to which the
amount of the royalties corresponds partly to the revenue of those
channels, provided that that part is proportionate overall to the
quantity of musical works protected by copyright actually broadcast
or likely to be broadcast, unless another method enables the use of
those works and the audience to be identified more precisely
without however resulting in a disproportionate increase in the
costs incurred for the management of contracts and the supervision
of the use of those works.

2) Article 82 EC must be interpreted as meaning that, by calculating
the royalties with respect to remuneration paid for the broadcast of
in a different manner
musical works protected by copyright
according to whether
the companies concerned are commercial
companies or public service undertakings, a copyright management
organisation is likely to exploit in an abusive manner its dominant
position within the meaning of that article if it applies with respect
to those companies dissimilar conditions to equivalent services and
if it places them as a result at a competitive disadvantage, unless
such a practice may be objectively justified.

(1) OJ C 95, 28.4.2007.

monitoring of taxable transactions carried out during a series of
tax periods

Operative part of the judgment

The Court:

1. declares that, by extending, by Article 2(44) of Law No 350 of
24 December 2003 relating to the provisions for drawing up the
annual and pluriannual budget of
the State (Finance Law for
2004) (legge n. 350, disposizioni per la formazione del bilancio
annuale e pluriennale dello Stato (legge finanziaria 2004),
to
2002 the tax amnesty provided for in Articles 8 and 9 of Law
No 289 of 27 December 2002 relating to the provisions for
drawing up the annual and pluriannual budget of
the State
(Finance Law for 2003) (legge n. 289, disposizioni per la forma-
zione del bilancio annuale e pluriennale dello Stato (legge finan-
ziaria 2003), and consequently providing generally and indiscrimi-
nately that assessment of taxable transactions effected in the 2002
tax period is to be discontinued, the Italian Republic has failed to
fulfil its obligations under Article 2(1)(a), (c) and (d) and Arti-
cles 193 to 273 of Council Directive 2006/112/EC of
28 November 2006 on the common system of value added tax,
which as from 1 January 2007 replaced Articles 2 and 22 of
Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to turn-
over taxes — Common system of value added tax: uniform basis of
assessment, and under Article 10 EC;

Judgment of the Court (Fifth Chamber) of 11 December
the European Communities v
2008 — Commission of

2. Orders the Italian Republic to pay the costs.

Italian Republic

(Case C-174/07) (1)

(1) OJ C 140, 23.6.2007.

of a Member State

(Failure
obligations —
Article 10 EC — Directive 2006/112/EC — Sixth VAT Direc-
tive — Obligations under domestic rules — Monitoring of
taxable transactions — Amnesty)

fulfil

to

(2009/C 32/04)

Language of the case: Italian

Judgment of
the Court (First Chamber) of 11 Decem-
ber 2008 (reference for a preliminary ruling from the
Bundesfinanzhof — Germany) — A.T. v Finanzamt
Stuttgart-Körperschaften

Parties

(Case C-285/07) (1)

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and M. Alfonso, acting as Agents)

Defendant: Italian Republic (represented by: I.M. Braguglia, acting
as Agent, and G. De Bellis, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Infringement
of Articles 2 and 22 of Directive 77/388/EEC: Sixth Council
Directive of 17 May 1977 on the harmonisation of the laws of
the Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment (OJ 1977
L 145, p. 1), replaced, as from 1 January 2007 by Council
Directive 2006/112/EC of 28 November 2006 on the common
system of value added tax (OJ 2006 L 347, p. 1) — Obligations
under domestic rules — National law which discontinues the

(Directive 90/434/EEC — Cross-border exchange of shares —
Fiscal neutrality — Conditions — Articles 43 EC and 56 EC
— Legislation of a Member State making the continued use of
the book value of the shares transferred in exchange for the
new shares received, and therefore the fiscal neutrality of the
transfer, conditional on the carryover of that value in the tax
acquiring
foreign company —
balance
Compatibility)

sheet

the

of

(2009/C 32/05)

Language of the case: German

Referring court

Bundesfinanzhof