Gesellschaft zur Verwertung von Leistungsschutzrechten mbH (GVL) v Commission of the European Communities.
Date: 1983-03-02
18 THE APPLICANT EMPHASIZES THAT IN ADOPTING REGULATION NO 17 THE COUNCIL LAID DOWN EXHAUSTIVELY THE COMMISSION ' S POWERS OF DECISION IN THE MATTERS GOVERNED BY ARTICLES 85 AND 86 OF THE TREATY . THOSE POWERS DO NOT INCLUDE THE POWER TO TAKE A DECISION WHICH IS SOLELY INTENDED TO RECORD THAT AN INFRINGEMENT HAS OCCURRED IN THE PAST . IN PARTICULAR ARTICLE 3 OF REGULATION NO 17 MAKES NO REFERENCE TO THE RECORDING OF AN INFRINGEMENT EXCEPT IN CONNECTION WITH A DECISION INTENDED TO BRING THAT INFRINGEMENT TO AN END .
22 IT SHOULD BE OBSERVED IN THE FIRST PLACE THAT , AS THE DEFENDANT HAS RIGHTLY POINTED OUT , THE PROVISIONS OF REGULATION NO 17 , AND IN PARTICULAR THOSE PROVISIONS WHICH PRESCRIBE THE MEASURES TO BE ADOPTED BY THE COMMISSION IN ORDER TO ENSURE THAT ARTICLES 85 AND 86 OF THE TREATY ARE APPLIED , MUST BE INTERPRETED WITHIN THE FRAMEWORK OF THE RULES ON COMPETITION CONTAINED IN THE TREATY . THOSE RULES ARE BASED ON THE PREMISE , WHICH FINDS EXPRESSION IN PARTICULAR IN ARTICLES 87 ( 2 ) ( D ) AND 89 , THAT IT IS FOR THE COMMISSION TO ENSURE THE RULES ON COMPETITION ARE APPLIED BY UNDERTAKINGS AND TO DETERMINE , WHERE NECESSARY , WHETHER THERE HAS BEEN AN INFRINGEMENT OF THOSE RULES .
23 AS IS CLEAR FROM THE RECITALS IN THE PREAMBLE TO REGULATION NO 17 AND FROM ARTICLE 87 ( A ) OF THE TREATY , THE PURPOSE OF REGULATION NO 17 IS TO ENSURE COMPLIANCE WITH THE RULES ON COMPETITION BY UNDERTAKINGS AND , TO THAT END , TO ENABLE THE COMMISSION TO REQUIRE UNDERTAKINGS TO BRING TO AN END ANY INFRINGEMENT WHICH IT ESTABLISHES AND TO IMPOSE FINES AND PERIODIC PENALTY PAYMENTS IN RESPECT OF AN INFRINGEMENT . THE POWER TO TAKE DECISIONS OF SUCH A TYPE NECESSARILY IMPLIES A POWER TO MAKE A FINDING THAT THE INFRINGEMENT IN QUESTION EXISTS .
24 IN REALITY , THE QUESTION RAISED BY THE SECOND SUBMISSION IS THEREFORE NOT WHETHER THE COMMISSION HAS THE COMPETENCE TO TAKE A DECISION ESTABLISHING     THE EXISTENCE OF AN INFRINGEMENT OF THE RULES ON COMPETITION BUT WHETHER THE COMMISSION HAD , IN THIS CASE , A LEGITIMATE INTEREST IN TAKING A DECISION DECLARING CONDUCT WHICH HAD ALREADY BEEN TERMINATED BY THE UNDERTAKING CONCERNED TO BE AN INFRINGEMENT .
25 IN THAT CONNECTION THE CONTESTED DECISION STATES THAT EVEN AFTER THE AMENDMENT OF ITS ARTICLES OF ASSOCIATION AND ITS STANDARD AGREEMENT IN NOVEMBER 1980 GVL CONSIDERS ITSELF JUSTIFIED , IN VIEW OF THE UNCERTAIN LEGAL POSITION , IN EXCLUDING ARTISTS NOT HAVING GERMAN NATIONALITY OR NOT RESIDENT IN THE FEDERAL REPUBLIC OF GERMANY FROM AVAILING THEMSELVES OF ITS MANAGEMENT SERVICES . A DECISION IS THEREFORE SAID TO BE NEEDED TO CLARIFY THE LEGAL POSITION BOTH FOR THE BENEFIT OF THE COMPLAINANTS AND IN ORDER TO PREVENT IDENTICAL OR SIMILAR INFRINGEMENTS IN FUTURE ( PARAGRAPH 74 ).
26 ALTHOUGH GVL MADE IT KNOWN IN THE COURSE OF THESE PROCEEDINGS THAT IT REGARDED THE AMENDMENT OF ITS ARTICLES OF ASSOCIATION AND ITS STANDARD AGREEMENT IN NOVEMBER 1980 AS IRREVOCABLE , IT ALSO STATED BOTH DURING THE ADMINISTRATIVE PROCEEDINGS BEFORE THE COURT THAT IT DID NOT CONSIDER ITSELF BOUND BY THAT AMENDMENT AS REGARDS THE CONCLUSION OF MANAGEMENT CONTRACTS WITH ARTISTS WHO WERE NATIONALS OF A NON-MEMBER COUNTRY BUT RESIDENT IN ANOTHER MEMBER STATE . FURTHERMORE , IN THE COURSE OF THE ABOVE-MENTIONED PROCEEDINGS IT STRESSED THAT IT DID NOT CONSIDER ITSELF BOUND BY COMMUNITY LAW TO MAKE THE AMENDMENT AND THAT IT WAS THEREFORE QUITE FREE TO RESUME ITS PREVIOUS PRACTICE .
27 IN THOSE CIRCUMSTANCES THE COMMISSION WAS ENTITLED TO TAKE THE VIEW THAT THERE WAS A REAL DANGER OF A RESUMPTION OF THAT PRACTICE IF GVL ' S OBLIGATION TO TERMINATE IT WERE NOT EXPRESSLY CONFIRMED AND THAT CONSEQUENTLY IT WAS NECESSARY TO CLARIFY THE LEGAL POSITION .
28 IT FOLLOWS FROM THE FOREGOING THAT A LEGITIMATE INTEREST ON THE PART OF THE DEFENDANT TO ESTABLISH BY MEANS OF THE CONTESTED DECISION , AN INFRINGEMENT OF THE RULES ON COMPETITION PRIOR TO THE AMENDMENT OF THE APPLICANT ' S ARTICLES OF ASSOCIATION HAS BEEN ADEQUATELY DEMONSTRATED AND THAT THEREFORE THE SECOND SUBMISSION MUST BE REJECTED .

THIRD SUBMISSION : APPLICATION OF ARTICLE 90 OF THE TREATY
32 EVEN IF IT IS TRUE THAT THE MONITORING OF THE ACTIVITIES OF SUCH COMPANIES AS PROVIDED FOR BY THAT LAW GOES FURTHER THAN THE PUBLIC SUPERVISION OF MANY OTHER UNDERTAKINGS , THAT IS HOWEVER NOT SUFFICIENT FOR THOSE COMPANIES TO BE INCLUDED IN THE CATEGORY OF UNDERTAKINGS REFERRED TO IN ARTICLE 90 ( 2 ) OF THE TREATY .
38 THE COURT HAS ALREADY ADOPTED THE VIEW , IN ITS JUDGMENT OF 25 OCTOBER 1979 IN CASE 22/79 ( GREENWICH FILM PRODUCTION V SOCIETE DES AUTEURS , COMPOSITEURS ET EDITEURS DE MUSIQUE ( SACEM ) AND SOCIETE DES EDITIONS LABRADOR ( 1979 ) ECR 3275 ), THAT THE ACTIVITIES OF UNDERTAKINGS MANAGING COPYRIGHTS MAY BE CONDUCTED IN SUCH A WAY THAT THEIR EFFECT IS TO PARTITION THE COMMON MARKET AND THEREBY TO RESTRICT THE FREEDOM TO PROVIDE SERVICES WHICH CONSTITUTES ONE OF THE OBJECTIVES OF THE TREATY . THE COURT ADDED THAT SUCH ACTIVITIES ARE THEREFORE CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES WITHIN THE MEANING OF ARTICLE 86 OF THE TREATY .
39 THE COMMISSION ' S OBJECTION TO THE APPLICANT ' S PAST ACTIVITIES RELATES PRECISELY TO THE FACT THAT THEY WERE CONDUCTED IN SUCH A WAY AS TO IMPEDE THE FREE MOVEMENT OF SERVICES TO THE EXTENT OF PARTITIONING THE COMMON MARKET . THE APPLICANT ' S PRACTICE WAS SUCH THAT IT PREVENTED THE EXPLOITATION , ON THE GERMAN MARKET , OF THE RIGHTS OF NON-GERMAN PERFORMERS WHO WERE RESIDENT IN OTHER MEMBER STATES .