Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v Commission of the European Communities.
Date: 1995-04-06
47 However, the basic information as to the channel, day, time and title of programmes is the necessary result of programming by television stations, which are thus the only source of such information for an undertaking, like Magill, which wishes to publish it together with commentaries or pictures. By force of circumstance, RTE and ITP, as the agent of ITV, enjoy, along with the BBC, a de facto monopoly over the information used to compile listings for the television programmes received in most households in Ireland and 30% to 40% of households in Northern Ireland. The appellants are thus in a position to prevent effective competition on the market in weekly television magazines. The Court of First Instance was therefore right in confirming the Commission' s assessment that the appellants occupied a dominant position (see the judgment in Case 322/81 Michelin, cited above, paragraph 30).
(b) Existence of abuse
49 Admittedly, in the absence of Community standardization or harmonization of laws, determination of the conditions and procedures for granting protection of an intellectual property right is a matter for national rules. Further, the exclusive right of reproduction forms part of the author' s rights, so that refusal to grant a licence, even if it is the act of an undertaking holding a dominant position, cannot in itself constitute abuse of a dominant position (judgment in Case 238/87 Volvo, cited above, paragraphs 7 and 8).
50 However, it is also clear from that judgment (paragraph 9) that the exercise of an exclusive right by the proprietor may, in exceptional circumstances, involve abusive conduct.
53 Thus the appellants ° who were, by force of circumstance, the only sources of the basic information on programme scheduling which is the indispensable raw material for compiling a weekly television guide ° gave viewers wishing to obtain information on the choice of programmes for the week ahead no choice but to buy the weekly guides for each station and draw from each of them the information they needed to make comparisons.
54 The appellants' refusal to provide basic information by relying on national copyright provisions thus prevented the appearance of a new product, a comprehensive weekly guide to television programmes, which the appellants did not offer and for which there was a potential consumer demand. Such refusal constitutes an abuse under heading (b) of the second paragraph of Article 86 of the Treaty.
55 Second, there was no justification for such refusal either in the activity of television broadcasting or in that of publishing television magazines (RTE judgment, paragraph 73, and ITP judgment, paragraph 58).
56 Third, and finally, as the Court of First Instance also held, the appellants, by their conduct, reserved to themselves the secondary market of weekly television guides by excluding all competition on that market (see the judgment in Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223, paragraph 25) since they denied access to the basic information which is the raw material indispensable for the compilation of such a guide.
67 It is to be noted at the outset that the Court of Justice has consistently held that, pursuant to Article 168a of the Treaty and Article 51 of the Statute of the Court of Justice of the EEC, an appeal may rely only on grounds relating to infringement of rules of law, to the exclusion of any appraisal of the facts (judgment in Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 10). The arguments relied on by RTE must therefore be rejected in so far as they question the appraisal of the facts by the Court of First Instance.
69 In order to satisfy the condition that trade between Member States must be affected, it is not necessary that the conduct in question should in fact have substantially affected that trade. It is sufficient to establish that the conduct is capable of having such an effect (judgments in Case 322/81 Michelin v Commission, cited above, paragraph 104, and in Case C-41/90 Hoefner and Elser v Macrotron [1991] ECR I-1979, paragraph 32).
84 Next, so far as the United Kingdom and Ireland are concerned, it is true that they were already parties to the Convention when they acceded to the Community and that Article 234 of the Treaty therefore applies to that Convention, in accordance with Article 5 of the Act of Accession. It is, however, settled case-law that the provisions of an agreement concluded prior to entry into force of the Treaty or prior to a Member State' s accession cannot be relied on in intra-Community relations if, as in the present case, the rights of non-member countries are not involved (see, in particular, the judgment in Case 286/86 Ministère Public v Deserbais [1988] ECR 4907, paragraph 18).
85 Finally, the Paris Act, which amended Article 9(1) and (2) of the Convention (the provisions relied on by RTE), was ratified by the United Kingdom only after its accession to the Community and has still not been ratified by Ireland.
90 It is appropriate to observe that Article 3 of Regulation No 17 is to be applied according to the nature of the infringement found and may include an order to do certain acts or things which, unlawfully, have not been done as well as an order to bring an end to certain acts, practices or situations which are contrary to the Treaty (judgment in Joined Cases 6/73 and 7/73 Commercial Solvents, cited above, paragraph 45).
98 The Court must observe here that, according to settled case-law, Commission decisions intended to find infringements of competition rules, issue directions and impose pecuniary sanctions must state the reasons on which they are based, in accordance with Article 190 of the EEC Treaty, which requires the Commission to set out the reasons which prompted it to adopt a decision, so that the Court can exercise its power of review and Member States and nationals concerned know the basis on which the Treaty has been applied (see the judgment in Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, paragraph 66).
99 However, the Commission cannot be required to discuss all the matters of fact and law which may have been dealt with during the administrative proceedings (judgment in Case 246/86 Belasco and Others v Commission [1989] ECR 2117, paragraph 55).