Kanal 5 Ltd and TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå (STIM) upa.
Date: 2008-12-11
19. In examining whether an undertaking holds a dominant position within the meaning of the first paragraph of Article 82 EC, it is of fundamental importance to define the market in question and to define the substantial part of the common market in which the undertaking may be able to engage in abuses which hinder effective competition (Case C‑7/97 Bronner  [1997] ECR I‑7791, paragraph 32).
22. It follows that STIM has a dominant position on the market concerned in the main proceedings (see, to that effect, Bronner , paragraph 35) and that, since that dominant positions extends over the territory of a Member State it is capable of constituting a substantial part of the common market (see, to that effect, Case C‑203/96 Dusseldorp and Others  [1998] ECR I‑4075, paragraph 60; Bronner , paragraph 36; Case C‑340/99 TNT Traco  [2001] ECR I‑4109, paragraph 43; and Case C‑462/99 Connect Austria  [2003] ECR I‑5197, paragraph 79).
25. The concept of abuse is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition (Case 85/76 Hoffman‑La Roche  v Commission [1979] ECR 461, paragraph 91, and Case C‑62/86 AKZO v Commission  [1991] ECR I‑3359, paragraph 69).
26. Although the fact that an undertaking is in a dominant position cannot deprive it of its right to protect its own commercial interests if they are attacked, and such an undertaking must be conceded the right to take such reasonable steps as it deems appropriate to protect those interests, such behaviour cannot be accepted if its purpose is specifically to strengthen that dominant position and abuse it (see, Case 27/76 United Brands and United Brands Continentaal v Commission  [1978] ECR 207, paragraph 189, and Joined Cases C‑468/06 to C‑478/06 Sot. Lélos kai Sia and Others  [2008] ECR I‑0000, paragraph 50).
27. In that context, it is advisable therefore to ascertain whether the dominant undertaking has made use of the opportunities arising out of its dominant position in such a way as to reap trading benefits which it would not have reaped if there had been normal and sufficiently effective competition ( United Brands and United Brands Continentaal  v Commission , paragraph 249).
28. According to the case-law of the Court, such an abuse might lie in the imposition of a price which is excessive in relation to the economic value of the service provided (see Case 26/75 General Motors Continental  v Commission  [1975] ECR 1367, paragraph 12, and United Brands and United Brands Continentaal  v Commission , paragraph 250).
30. In so far as those royalties are intended to remunerate composers of musical works protected by copyright with respect to the television broadcast of those works, it is necessary to take into consideration the particular nature of that right.
31. In that context, it is appropriate to seek an appropriate balance between the interest of composers of music protected by copyright to receive remuneration for the television broadcast of those works and those of the television broadcasting companies to be able to broadcast those workers under reasonable conditions.
33. So far as concerns the abusive nature of similar rates of royalties, the amount of which also corresponded to a percentage of the turnover of a discotheque, the Court held that the fact that a flat-rate royalty is charged can be criticised by reference to the prohibition contained in Article 82 EC only if other methods might be capable of attaining the same legitimate aim, namely the protection of the interests of authors, composers and publishers of music, without thereby increasing the costs of managing contracts and monitoring the use of protected musical works (see, Case 395/87 Tournier  [1989] ECR 2521, paragraph 45).
34. Likewise, the application by STIM of the remuneration model at issue in the main proceedings does not in itself constitute an abuse within the meaning of Article 82 EC and must, in principle, be regarded as a normal exploitation of copyright.
35. It cannot be denied that, by collecting royalties with respect to remuneration paid for the television broadcast of musical works protected by copyright, STIM pursues a legitimate aim, namely, safeguarding the rights and interests of its members vis-à-vis users of their musical works (see, to that effect, Tournier , paragraph 31).
36. Furthermore, those royalties, which represent the consideration paid for the use of musical works protected by copyright for the purposes of television broadcast, must, in particular, be analysed with respect to the value of that use in trade.
37. In that connection, in so far as such royalties are calculated on the basis of the revenue of the television broadcasting societies, they are, in principle, reasonable in relation to the economic value of the service provided by STIM.
38. Furthermore, the owner of the copyright and the person claiming through him have a legitimate interest in calculating the fees due in respect of the authorisation to exhibit the film on the basis of the actual or probable number of performances (see, to that effect, Case 62/79 Coditel and Others  [1980] ECR 881, paragraph 13, and Tournier , paragraph 12).
39. The remuneration model applied by STIM takes account of the number of musical works protected by copyright actually broadcast, because, as is apparent from the order for reference, the amount of those royalties varies in accordance not only with the revenue of the television broadcasting companies but also with the amount of music broadcast.
40. However, it is conceivable that, in certain circumstances, the application of such a remuneration model may amount to an abuse, in particular when another method exists which enables the use of those works and the audience to be identified and quantified more precisely and that method is capable of achieving the same legitimate aim, which is the protection of the interests of composers and music editors, without however leading to a disproportionate increase in the costs incurred for the management of the contracts and the supervision of the use of musical works protected by copyright.
47. Finally, in order to determine whether the fact that a copyright management organisation calculates royalties paid with respect to remuneration due for the broadcast of musical works protected by copyright in a different manner according to whether they are commercial companies or public service undertakings constitutes an abuse within the meaning of Article 82 EC, the referring court must consider whether such a practice may be objectively justified (see, to that effect, United Brands and United Brands Continentaal  v Commission , paragraph 184; Tournier , paragraphs 38 and 46; Case C‑95/04P British Airways  v Commission  [2007] ECR I‑2331, paragraph 69; and Sot. Lélos kai Sia and Others , paragraph 39). Such justification may arise, in particular, from the task and method of financing of public service undertakings.