CELEX: 61983CC0298
Language: en
Date: 1985-01-16
Title: Opinion of Mr Advocate General Lenz delivered on 16 January 1985. # Comité des industries cinématographiques des Communautés européennes (CICCE) v Commission of the European Communities. # Competition - Abuse of a dominant position - Broadcasting of cinematographic films on television. # Case 298/83.

OPINION OF MR ADVOCATE GENERAL LENZ
      delivered on 16 January 1985 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      According to its constitution, the applicant in the present proceedings comprises the most representative associations in the Member States of the European Communities of film makers, distributors and technical industries and its objects include safeguarding the interests of the film industry. On 3 February 1981 it made an application to the Commission under Article 3 of Regulation No 17 of 6 February 1962 (Official Journal, English Special Edition 1959-62, p. 87). That article reads as follows :
      
               ‘(1)
            
            
               Where the Commission, upon application or upon its own initiative, finds that there is infringement of Article 85 or Article 86 of the Treaty, it may by decision require the undertakings or associations of undertakings concerned to bring such infringement to an end.
            
         
               (2)
            
            
               Those entitled to make application are:
               
                        (a)
                     
                     
                        Member States;
                     
                  
                        (b)
                     
                     
                        natural or legal persons who claim a legitimate interest.
                     
                  
         
               (3)
            
            
               Without prejudice to the other provisions of this regulation, the Commission may, before taking a decision under paragraph 1, address to the undertakings or associations of undertakings concerned recommendations for termination of the infringement.’
            
         The application was directed against the conduct of the three French television companies, Société nationale de télévision française 1 (TF 1), Société nationale de télévision en couleur Antenne 2 (A 2) and Société nationale de programmes France Régions (FR 3), towards makers and distributors of cinematographic films in connection with the purchase of broadcasting rights. The applicant claims that the three television companies infringed Article 86 of the EEC Treaty by taking unfair advantage of their statutory monopoly to fix film licence fees abnormally low — as evidenced by average fees — having regard to their economic value and to the service they represented.
      The Commission, to which a similar complaint had already been submitted by the Bureau de liaison des industries cinématographiques in a letter of 23 November 1978, followed up the application in February 1982 by making a request for information to the applicant and the three television companies. The questions asked covered, among other things, film production costs and their amortization, the six or seven major film suppliers in France which are in a position to negotiate prices, the licence fees paid by the three French television companies between 1979 and 1981 and the average fees paid by television companies in other Member States.
      After assessing all the information received, the Director General for Competition at the Commission of the European Communities concluded that it did not suggest that Article 86 of the EEC Treaty had been infringed. The applicant was notified of that finding and of the Commission's intention to proceed no further with the matter in a letter dated 12 July 1983. The letter stated essentially that, in view of the fact that different films had different values depending on a number of factors (which it listed), it was not possible to determine a single yardstick valid for all films. Furthermore, for that reason and in view of the ratio legis of Article 86, it was not possible to apply Article 86 to that part of the television companies' budgets that was earmarked for purchasing films and reach the conclusion that it was abnormally low. Any abuse would have to be determined with reference to specific films, for it was on that basis alone that the Commission would be able to pursue the matter of unfair prices. The letter continued by stating that it was impossible, for the purposes of Article 86, to compare the fees paid by a television company for the right to broadcast a film with the amount the film had cost to make nor, by the same token, could the comparison reasonably be made with the cost of a similar television production. Finally, after assuring the applicant that it would continue to monitor developments in the film sector in France, the Commission gave it one month to submit comments pursuant to Article 6 of Regulation No 99/63 of 25 July 1963 (Official Journal, English Special Edition 1963-64, p. 47), which reads as follows:
      ‘Where the Commission, having received an application pursuant to Article 3 (2) of Regulation No 17, considers that on the basis of the information in its possession there are insufficient grounds for granting the application, it shall inform the applicants of its reasons and fix a time-limit for them to submit any further comments in writing.’
      The applicant's first response was a letter dated 29 August 1983, in which it stated generally that it disagreed with the decision to discontinue the procedure, on the ground that the arguments put forward by the Commission did not accord with the facts and failed to take account of the conditions in which the film industry operated and of the damage inflicted by the television companies on that industry.
      On 13 September 1983, the applicant submitted further comments. It referred to an assessment of the material circumstances (in the light of French law) which was set out in an Opinion of 28 June 1979 of the French Commission de la Concurrence [Competition Commission] and to an interview given by the present President of the Republic in which he acknowledged that the film licence fees paid by the television companies were unusually low because of their abuse of a dominant position and that the fees should be raised to the average cost of making a television film. The applicant also contended that if the existence of generalized abuse could be determined it could at least be presumed that abuses had occurred in several individual instances. If, however, the Commission had insufficient information about the film licence fees paid it should initiate suitable inquiries with the television companies. The applicant would then be able to state its views on the amount paid for each film.
      In fact, on appeal by the Fédération de la production cinématographique française [Federation of the French Cinematographic Industry] pursuant to Regulations of 30 June 1945, the Law of 19 July 1977 and the Decree of 25 October 1977, the Commission de la Concurrence held in the aforementioned Opinion that in view of the licence fees which had been paid, the three French television companies (which together have a statutory monopoly of the broadcasting of films on television) had infringed Article 50 of the Regulation of 30 June 1945, which provides:
      ‘The activities of an undertaking or group of undertakings having on the domestic market or a substantial part thereof a dominant position characterized by monopoly or by a manifest concentration of economic power are prohibited where those activities have the aim or may have the effect of impeding the normal operation of the market.’
      It came to that conclusion on the following ground. The licence fees paid were so low as to bring about an unbalanced distribution of amortization costs between the cinemas, on the one hand, and the television companies, on the other, on the basis that one third of television programmes were paid for with between 3% and 6% of the aggregate budget and of a comparison of the average film licence fees paid in 1978 with the cost of a television programme. However, at the same time Article 51 of the Regulation of 30 June 1945 was held to apply (whereby the activities of an undertaking with a dominant position are not caught by Article 50 if they arise as a result of the application of legislation), since a cluster of constraints (limitation of the receipts of television companies and the need for parliamentary approval) narrowly limit the television companies' freedom of action. Accordingly the 1979 Report of the Commission de la Concurrence also mentions the need for the public authorities to adjust the legal framework within which the television industry must operate (apparently, however, it was not adjusted sufficiently, despite an approach by the Bureau de Liaison des Industries Cinématographiques to the competent French authorities).
      Even after receipt of that Opinion the Director-General for Competition at the Commission of the European Communities did not alter his views, as he stated in a letter to the applicant dated 28 October 1983. In it he contended first that the Opinion of the Commission de la Concurrence was based on ‘French legislation, which does not fulfil the same criteria and conditions as Article 86 of the Treaty of Rome’. Secondly he maintained that since the applicant had adduced no new factors the finding could remain that Article 86 was not applicable for the reasons stated in the letter of 12 July 1983 and the procedure was therefore discontinued.
      That prompted the CICCE to apply to the Court of Justice on 29 December 1983 to have the Commission's decisions of 12 July 1983 and 28 October 1983declared void.
      
      My views on that application are as follows.
      I — Admissibility
      
               1.
            
            
               No doubt has been cast on the admissibility of the application itself and indeed no reservations should arise in that regard.
               The Court has already declared (in the judgment in Case 26/76 (
                     1
                  )) that persons who are entitled to make applications pursuant to Article 3 of Regulation No 17 may institute proceedings if their application is turned down (and see the judgment in Case 210/81 (
                     2
                  ), where it was held in connection with the final communication of the result of a complaint that an action would lie where a request pursuant to Article 3 of Regulation No 17 was refused either wholly or in part). It is also evident that the CICCE whose members' sales opportunities are likely to be impaired by the French television companies' alleged conduct in restraint of competition, must be deemed to have a ‘legitimate interest’ within the meaning of Article 3 of Regulation No 17 (cf. Steindorf, Das Antragsrecht im EWG-Kartellverfahren und seine prozessuale Durchsetzung, in Außenwirtschaftsdienst des Betriebsberaters 1963, p. 353 et seq.; Deringer, Das Wettbewerbsrecht der Europäischen Wirtschaftsgemeinschaft, commentary on Article 3 of Regulation No 17).
               By the same token there is no cause for concern in the fact that the contested decisions were taken by the Commission's Director- General for Competition or that the complaint refers, inter alia, to the letter of 12 July 1983 (calculated from the delivery of the latter, the filing of the application in December 1983 would have to be held to be out of time). Evidently — nothing to the contrary has been claimed in the proceedings — the Director-General for Competition has the power to take such decisions (and that is entirely reasonable), which must therefore be attributed without question to the Commission. Furthermore, there is no objection to the inclusion of the aforementioned letter of July 1983 in these proceeedings (not being a final act, it cannot itself be challenged; cf. von der Groeben, von Boeckh, Thiesing, Kommentar zum EWG-Vertrag, commentary on Article 3 of Regulation No 17), since its function, as the Commission itself has conceded, consists partly in supplying some of the reasons underlying the final decision suspending the procedure.
            
         
               2.
            
            
               In contrast, two other serious objections as to admissibility have been raised.
               
                        (a)
                     
                     
                        Whereas, according to its wording, the application seeks only to have the two (specified) decisions discontinuing the Commission proceedings declared void, the true purpose of the application to the Court — as was stressed once again in the oral proceedings — is to obtain a decision that there has been an abuse of a dominant position within the meaning of Article 86 of the EEC Treaty. The Commission considers that that exceeds the bounds of the present proceedings, and that is certainly true.
                        In that respect it is sufficient to note that in order for Article 86 to be applicable there must be a dominant position and, in addition, trade between Member States must have been affected. However, the Commission, as it has expressly stated, has not yet made inquiries to that end; in particular, it has not yet come to any conclusion as regards the existence of a dominant position, which raises the question what is the relevant market and — since no less than three companies are involved — the additional problem of determining where a collective monopoly ends and an oligopoly begins. That issue cannot be prejudged now; in particular, the applicant's view that the Commission is barred from returning to the matter because it failed to express a view thereon in the relevant decisions is erroneous.
                        As a result, the sole subject of these proceedings is whether there is sufficient evidence that the three television companies fixed prices improperly, whether the Commission procedure should therefore not have been discontinued and whether instead the matter ought to have been investigated further.
                     
                  
                        (b)
                     
                     
                        The Commission also considers that not all the applicant's complaints are admissible.
                     
                  In that connection it refers to Article 6 of Regulation No 99/63 (quoted above). It argues that that provision determines the scope of the protection afforded to an applicant by court action: the only arguments that can be held to be admissible in the action before the Court are, the Commission contends, those embodied in the comments made pursuant to Article 6 of Regulation No 99/63, and reference to arguments that have played no rôle in those proceedings must be deemed to be precluded.
               In my view, however, it is extremely doubtful whether that argument can be correct. There is certainly nothing to support it in the previous decisions of the Court. All that has been said (in the judgment in Case 125/78, (
                     3
                  ) paragraph 17) is that Article 6 seeks to ensure that the applicant is informed of the reasons for refusing the application; it has also been stated that the Commission is not precluded from reopening the proceedings where the applicant puts forward fresh elements of law or of fact within the period granted to it for that purpose. The important point appears to be that the Commission's argument would result in a reduction of the legal protection which is evidently intended to be afforded to applicants by the Treaty in conjunction with Article 3 of Regulation No 17. Such a restriction would have to be clearly stated, however, (in the third paragraph of Article 38 of the ECSC Treaty or in Article 42 (2) of the Rules of Procedure, perhaps); a provision contained in a Commission regulation intended only to secure a final hearing for the applicant is scarcely sufficient for that purpose.
               Unlike the Commission, I consider that in proceedings before the Court reviewing a decision to discontinue a Commission procedure, all the reasons stated by the Commission are, in principle, open to challenge and therefore it is appropriate when considering whether the Commission procedure should not in fact have been discontinued to take account of all the arguments advanced by the applicant. It is therefore unnecessary to decide whether the same conclusion could be drawn from the fact that in its first response (29 August 1983) the applicant described all the Commission's arguments as unsound or from the fact that the applicant referred in its concluding remarks to the aforementioned Opinion of the Commission de la Concurrence (in which, in its view, the arguments which the Commission deems to be inadmissible are expressed sufficiently plainly).
            
         II — Substance
      1.
      As far as the material question of the extent of the Commission's obligations vis-à-vis an applicant under Article 3 of Regulation No 17 is concerned, I consider it appropriate in the first place to cite the relevant previous decisions of the Court.
      The Court has held (in the judgment in Case 125/78 (
            3
         ) paragraph 18) that an applicant under Article 3 of Regulation No 17 is not entitled to require the Commission to take a final decision as to whether there was an infringement and that the Commission is therefore not under a duty to continue with the procedure up to the stage of a final decision in every case. Accordingly, there was no cause for complaint on the ground that the Commission had not deemed a decision to be warranted under Article 86 of the Treaty because it had doubts as to whether a dominant position existed and, if so, whether it had been abused.
      Admittedly, the judgment in Case 210/81 (
            2
         ) (concerning the operation of a selective distribution system vis-à-vis the applicant) refers to the Commission's ‘duty of vigilance’ (paragraph 22) and the duty, on receipt of a complaint, to examine the facts put forward by the applicant in order to decide whether the competition rules have been infringed (paragraph 19). However, it was also held (paragraph 22) that the complaint contained no factor capable of supporting the view that the Community's competition rules had been infringed, and also (paragraph 20) that there was no evidence that the undertaking operating the selective distribution system had contravened competition law in applying the system. In addition, the judgment refers to the limited scope for judicial review by the Court of Justice in such matters, for it was considered relevant that the Commission's findings were not based on a materially incorrect appreciation of the facts and were not vitiated by any manifest abuse of discretion.
      2.
      It is therefore apparent that the Court's previous decisions do not support the view, sometimes advanced in the literature, that anyone with a legitimate interest who puts forward facts which are reasonably capable of indicating that competition law has been breached (it is not necessary to provide detailed evidence or offers of proof) is entitled to the full procedure (including the requisite inquiries) and to a decision, and that the only case in which such entitlement would be denied is where the application is vexatious or malicious (see Steindorf, loc. cit.; similarly Deringer, loc. cit., who says that an applicant may compel an undertaking to terminate a breach of the competition rules; and von der Groeben, loc. cit., according to whom an applicant who indicates sufficient cause for suspicion is entitled to the intervention of the Commission, which, according to the principle that every offence must be prosecuted (Legalitätsprinzip), is under a duty to take the necessary steps to eliminate any breach of the law).
      Rather, it seems that in such cases the Commission has a wide discretion and that in the exercise of that discretion what the applicant states is of substantial importance (the applicant — especially if it is a large undertaking or a powerful interest group — has extensive duties of cooperation). Bearing in mind that interested persons may seek redress directly in the national courts, and that the Commission, which acts primarily in the public interest, does not have the necessary funds to pursue all the (obviously numerous) complaints, it appears therefore that the Commission is not bound, merely because its attention has been drawn to suspicious factors, to conduct competition proceedings, with all the attendant consequences thereof, culminating in a decision either that there is an infringement, or that the existence of an infringement cannot be proved.
      Where the Commission acts accordingly — as it did in this case — complaints about its manner of proceeding are only warranted if there is a manifest abuse of discretion or if it transpires that its findings were based on wrong facts.
      3. The applicant's individual complaints
      
               (a)
            
            
               In the Commission's letter of 12 July 1983 it is stated (in paragraph 2) that the economic value of films is very variable (according to previous decisions of the Court, economic value is the criterion for assessing abusive price-fixing — see the judgments in Case 26/75 (
                     4
                  ) and Case 27/76 (
                     5
                  )) and depends in particular on a number of factors, which are listed as points (a) to (f).
               
                        (aa)
                     
                     
                        In an attempt to upset the basis of the decision discontinuing the Commission procedure, the applicant has criticized the Commission for wrongly identifying the economic value of broadcasting a film with the intrinsic value (‘valeur économique intrinsèque’) of the film itself: in reality the value of the right to broadcast a film is dependent on the nature and extent of the use that the assignee may make - of that right.
                     
                  
                        (bb)
                     
                     
                        The applicant also maintains that in fact the economic value of a film does not depend on all the criteria listed by the Commission; in particular the artistic merit of a film frequently has no bearing on its commercial success.
                     
                  
                        (cc)
                     
                     
                        The applicant adds that the fact that a film is shown for the first time (‘inédit’) is irrelevant as far as acquisition of the broadcasting rights is concerned, since in every case the film will already have been shown in the cinemas.
                     
                  
                        (dd)
                     
                     
                        The applicant also criticizes the Commission for not taking account in its decision of the value of the service made possible by film broadcasting rights, by which it means that they enhance the range of television programmes.
                     
                  It can readily be shown, however, that those criticisms are unconvincing.
               As far as point (aa) is concerned, it is sufficient to point out that the Commission's letter includes among the factors determining value the size of the potential television audience, whether the film has already been shown on television and the time for which broadcasting rights are granted: none of those factors refers to the intrinsic value of the film (that is, its production costs, which is what the applicant obviously has in mind).
               As regards the argument set out in point (bb) it is clear that the Commission certainly did not mean that the value of a given film depends on all the criteria listed, on the basis of which a points table, so to speak, might be drawn up. To me it is clear that the Commission intended only to point to criteria that might possibly be thought relevant in evaluating the value of a film.
               As far as the criticism set out in point (cc) is concerned, the Commission argues cogently that what is meant is whether a film is shown for the first time on television; it cannot be otherwise under French law, with which the Commission is familiar, for in France films are only permitted to be shown on television when they have been shown for a certain time (three years) in the cinemas.
               Finally, as regards the complaint set out in point (dd), the use of the word ‘notamment’ in the Commission's letter clearly shows that the list is not exhaustive. As the Commission has plainly stated, the price of a film is influenced by its drawing power (admittedly though, it is not stated exactly how that aspect is to be assessed when evaluating the licence fee). As regards the applicant's reference to the fact that advertisements which are shown immediately before films (Sunday evenings on TF 1) attract the highest rate, in the first place conclusions about the value of a film-broadcasting right cannot be derived directly from the price paid for a minute's advertising time, since the products concerned are entirely different from one another. Secondly, as the Commission points out, advertising rates on TF 1 during the week are the same regardless of whether the advertisement is shown before a film (as is frequently, but not invariably, the case on Mondays) or not (as on other weekdays).
            
         
               (b)
            
            
               In the Commission procedure (and, moreover, in the Court proceedings) the applicant has only dealt with aggregate figures — such as the amount allocated for film licence fees as a proportion of the television companies' total receipts, and a comparison of the average film licence fee with the average production costs of a television film. Consequently it is contended in paragraphs 3 and 4 of the Commission's letter of 12 July 1983 (and this appears to be the main thrust of the Commission's argument) that it is not possible to apply Article 86 of the EEC Treaty to a proportion of the television companies' budget: rather, any abuse must be determined with reference to specific films and to the fees paid for them.
               The applicant does not accept that. It considers that if a general abuse can be determined from aggregate figures abuses can be presumed to have taken place in a series of individual cases. At least, it maintains, that state of affairs creates a presumption warranting further investigation of the facts, and the Commission was in breach of its duty in failing to make such an investigation.
               In my opinion the Commission's view is correct on that point, too.
               
                        (aa)
                     
                     
                        The Commission correctly contends that in the field of competition law — where its decisions have wide-reaching consequences in civil law, and even in criminal law, and may influence the behaviour of others concerned in the market — presumptions do not suffice. That is to be inferred, in its view, from the judgment in Case 27/76 (
                              5
                           ) in which it was held that doubts operate in favour of the undertaking concerned where there is no proof of unfair prices within the meaning of Article 86. It is also relevant that decisions in the field of competition law often result in an instruction to terminate the conduct that was the subject of complaint. Needless to say, however, such instructions must be based on the most precise information.
                     
                  
                        (bb)
                     
                     
                        The applicant refers to the low proportion of the television companies' total budget which is set aside for film licence fees. But the size of that budget item says nothing conclusive about its use: where it is used only to pay for a relatively small number of films a fair price is quite possibly paid for each film (that is to say, a price which would come about given sufficiently effective competition, which is the standard to be applied according to the judgment in Case 27/76 (
                              5
                           ). On the other hand, it is also clear that if that budget item could in fact be extended with the aid of Article 86 the result would not necessarily be higher licence fees, since it is possible that more broadcasting rights would be purchased.
                     
                  
                        (cc)
                     
                     
                        Furthermore, it is plain that films are very heterogeneous products and consequently film broadcasting rights have very different values (as we have heard, the relevant factors include success in the cinema, the age of the film, the expected television audience, whether one only or several broadcasts are permitted and whether it is a repeat broadcast). The figures obtained from the television companies by the Commission and given to the Court plainly support that view. For instance, the figures show (I will not go through them all here) that in 1980, TF 1 paid licence fees for French films of between FF 200000 and FF 1.1 million in the case of a first showing, between FF 110000 and FF 900000 in the case of a second showing, between FF 120000 and FF 900000 in the case of a third showing and between FF 100000 and FF 450000 in the case of a fourth showing. For films from other EEC countries, the fees varied from FF 150000 to FF 700000 and for films from nonmember countries from FF 130000 to FF 850000 (first showing), from FF 140000 to FF 326000 (second showing) and from FF 150000 to FF 270000 (third showing).
                        Although it is plain that for the purposes of the application of Article 86 average values are of little assistance, it is by no means impossible that at least the higher fees (which almost match the production costs of a television film) are quite fair. It must also be admitted that not all the lower values (for example those for a fourth showing or for a minor film) necessarily signify underpayment. In particular, the Commission correctly contends that it is impossible to conclude that there has been a general abuse from a comparison between the average film licence fees and the average production costs of a television film. In fact, that argument is untenable, quite simply because the ‘products’ are not comparable (on the one hand, there is the single showing of a film which has already been shown and may be shown again in the cinemas, on the other hand, fidi rights in a new product, covering repeat broadcasts and the sale of rights to other television companies and to videocassette producers).
                     
                  
                        (dd)
                     
                     
                        Finally, the method employed by the applicant does not found a presumption that the Commission had a duty to pursue the matter and to conduct further inquiries, if it was not to lay itself open to a charge of abuse of discretion.
                     
                  That presumption is certainly not justified on the basis of the information relating to the average film licence fees paid in other Member States, which the applicant supplied to the Commission in answer to question 11 of its request for information. From that it appears (the figures are for 1977) that in no country did the fees significantly exceed those reported for France (average fee FF 213000, highest fee FF 1 million); on the contrary, all the other countries recorded lower fees, with the sole exception of the Federal Republic of Germany, where the average fee — FF 223000 at the 1977 exchange rate — was somewhat higher than the average for France. Nor is it justified in my view in the light of the disclosure of the individual fees paid by the French television companies, because the differences may be attributable to the different values of the films concerned.
               The applicant should have shown by means of individual examples — (being a European group, it should have had no difficuly in so doing) — that serious grounds for suspecting abuse existed, for instance by showing that in another Member State (particularly one where private television companies are in competition with one another) higher fees were obtained for a particular film or that powerful suppliers (of which there are some even in France) obtained higher fees for comparable films.
               Since that was not done, the Commission's failure to undertake difficult, timeconsuming inquiries which would have kept its staff from other work can scarcely be termed an abuse of discretion.
            
         
               (c)
            
            
               Finally, reference must be made to the applicant's letter of 13 September 1983 in which it adverts to the aforementioned Opinion of the Commission de la Concurrence. (By contrast, the statements of the present President of the Republic, which are also mentioned there, are obviously of a political nature and do not constiture a legal assessment of the facts of this case, and therefore they cannot be cited directly in the present legal proceedings).
               In the applicant's view the Opinion of the Commission de la Concurrence, at least, ought to have led, if not to a corresponding decision on the part of the Commission of the European Communities, to a continuation of the Commission procedure.
               Here too, I am unable to agree with the applicant.
               Admittedly the basic import of the two relevant provisions (Article 50 of the Ordonnance of 30 June 1945 and Article 86 of the EEC Treaty) is the same. However, the French system as a whole exhibits considerable differences as regards the (advisory) powers of the Commission de la Concurrence and the legal consequences of its findings and especially as regards Article 51 of the Ordonnance, which has no equivalent in Community law (see also Behrens and Korb-Schikaneder, Europäisches Wettbewerbsrecht vor französischen Gerichten, Rabeis Zeitschrift, Vol. 48, Issue 48, p. 457 et seq., especially pp. 464 to 466). The chief feature appears to be a marked tendency to generalize, as is apparent in the Opinion before the Court, (Steindorf, loc. cit., also refers to this tendency).
               The conclusion must be — and this view is supported by the findings contained in the Opinion of the Commission de la Concurrence concerning Article 51 of the Ordonnance and by its aforementioned Report for 1979 — that it is not the purpose or object of the Commission's Opinion to make findings on the basis of Article 86 of the Treaty. As a result, its conclusions certainly cannot simply be taken over into Community law. For instance, they could not serve as a basis for the adoption of actual measures. The relationship between the amortization of the production costs of a film through cinema receipts on the one hand and television broadcasts on the other forms the cornerstone of the deliberations of the Commission de la Concurrence. But it is hard to find anything of relevance for assessing the fairness of film licence fees.
            
         
               (d)
            
            
               In sum, it may be said that in the light of what has emerged in these proceedings there are no grounds for criticizing the Commission for having adopted the contested decision on the basis of inaccurate information, or for having abused its discretion in regard to the procedure initiated at the applicant's request.
            
         Consequently the action challenging the Commission's decision of 28 October 1983 should be dismissed as unfounded.
      As far as the costs are concerned, I consider that each party should be ordered to pay its own costs, since the Commission's application for costs was only set out in the rejoinder, contrary to Article 40 of the Rules of Procedure, and must therefore be ignored.
      (
            *1
         )	Translated from the German.
      (
            1
         )	Judgment of 25 October 1977 in Case 26/76, Metro SBGroßmärkte GmbH & Co. KG v Commission of the European Communities, [1977] ECR 1875.
      (
            2
         )	Judgment of 11 October 1983 in Case 210/81, Oswald Schmidt, trading as Demo-Studio Schmidt v Commission of the European Communities, [1983] ECR 3045.
      (
            3
         )	Judgment of 18 October 1979 in Case 125/78, GEMA, Gesellschaft für musikalische Auffübrugs- und mechanische Vervielfältigungsrechte v Commission of the European Communities, [1979] ECR 3173.
      (
            4
         )	Judgment of 13 November 1975 in Case 26/75 General Motors Continental NV v Commission of the European Communities [1975] ECR 1367.
      (
            5
         )	Judgment of 14 February 1978 in Case 27/76 United Brands Company and United Brands Continentaal BV v Commission of the European Communities [1978] ECR 207.