GEMA, Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte, v Commission of the European Communities.
Date: 1979-10-18
17 AS IS SHOWN BY THE PHRASE ' '  . . . SHALL INFORM THE APPLICANTS OF ITS REASONS ' ' , IT FOLLOWS THAT THE COMMUNICATION REFERRED TO IN ARTICLE 6 OF REGULATION NO 99/63 ONLY SEEKS TO ENSURE THAT AN APPLICANT WITHIN THE MEANING OF ARTICLE 3 ( 2 ) ( B ) OF REGULATION NO 17 BE INFORMED OF THE REASONS WHICH HAVE LED THE COMMISSION TO CONCLUDE THAT ON THE BASIS OF THE INFORMATION OBTAINED IN THE COURSE OF THE INQUIRY THERE ARE INSUFFICIENT GROUNDS FOR GRANTING THE APPLICATION . SUCH A COMMUNICATION IMPLIES THE DISCONTINUANCE OF THE PROCEEDINGS WITHOUT , HOWEVER , PREVENTING THE COMMISSION FROM RE-OPENING THE FILE IF IT CONSIDERS IT ADVISABLE , IN PARTICULAR WHERE , WITHIN THE PERIOD ALLOWED BY THE COMMISSION FOR THAT PURPOSE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 6 , THE APPLICANT PUTS FORWARD FRESH ELEMENTS OF LAW OR OF FACT . THE APPLICANT ' S ARGUMENT THAT AN APPLICANT UNDER ARTICLE 3 ( 2 ) OF REGULATION NO 17 IS ENTITLED TO OBTAIN FROM THE COMMISSION A DECISION WITHIN THE MEANING OF ARTICLE 189 OF THE TREATY ON THE EXISTENCE OF THE ALLEGED INFRINGEMENT CANNOT , THEREFORE , BE ACCEPTED .
18 MOREOVER , EVEN ASSUMING THAT SUCH A COMMUNICATION IS IN THE NATURE OF A DECISION WITHIN THE MEANING OF ARTICLE 189 OF THE TREATY AND THAT IT IS THEREFORE CAPABLE OF BEING CONTESTED BY WAY OF ARTICLE 173 OF THE TREATY , THAT IN NO WAY IMPLIES THAT THE APPLICANT WITHIN THE MEANING OF ARTICLE 3 ( 2 ) OF REGULATION NO 17 IS ENTITLED TO REQUIRE FROM THE COMMISSION A FINAL DECISION AS REGARDS THE EXISTENCE OR NON-EXISTENCE OF THE ALLEGED INFRINGEMENT . IN FACT THE COMMISSION CANNOT BE OBLIGED TO CONTINUE THE PROCEEDINGS WHATEVER THE CIRCUMSTANCES UP TO THE STAGE OF A FINAL DECISION . THE INTERPRETATION PUT FORWARD BY THE APPLICANT WOULD REMOVE ALL MEANING     FROM ARTICLE 3 OF REGULATION NO 17 WHICH IN CERTAIN CIRCUMSTANCES ALLOWS THE COMMISSION THE OPPORTUNITY OF NOT ADOPTING A DECISION TO COMPEL THE UNDERTAKINGS CONCERNED TO PUT AN END TO THE INFRINGEMENT ESTABLISHED . IT THEREFORE FOLLOWS FROM THE NATURE OF THE PROCEDURE TO ESTABLISH AN INFRINGEMENT LAID DOWN BY ARTICLE 3 OF THE REGULATION THAT IT CANNOT BE ACCEPTED THAT A NATURAL OR LEGAL PERSON WHO , IN PURSUANCE OF ARTICLE 3 ( 2 ) ( B ) OF THE REGULATION , HAS REQUESTED THE COMMISSION TO ESTABLISH THE SAID INFRINGEMENT , IS ENTITLED TO DEMAND A FINAL DECISION ON THE PROCEEDINGS INSTITUTED BY THE COMMISSION FOLLOWING HIS COMPLAINT .
21 IT RESULTS FROM THE FOREGOING CONSIDERATIONS THAT BY REPLYING BY MEANS OF THE LETTER OF 22 MARCH 1978 , WHICH WAS IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 6 OF REGULATION NO 99/63 , TO THE APPLICANT ' S LETTER OF 31 JANUARY 1978 CALLING UPON IT TO ACT , THE COMMISSION ADDRESSED TO THE APPLICANT AN ACT WHICH CONSTITUTES A DEFINITION OF ITS POSITION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 175 OF THE TREATY .
26 THE FIRST SUBPARAGRAPH OF ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE STATES THAT : ' ' NO FRESH ISSUE MAY BE RAISED IN THE COURSE OF PROCEEDINGS UNLESS IT IS BASED ON MATTERS OF LAW OR OF FACT WHICH COME TO LIGHT IN THE COURSE OF THE WRITTEN PROCEDURE ' ' . THAT PROVISION THEREFORE ALLOWS AN APPLICANT , IN EXCEPTIONAL CIRCUMSTANCES , TO RAISE FRESH ISSUES IN ORDER TO SUPPORT CONCLUSIONS SET OUT IN THE DOCUMENT INSTITUTING THE PROCEEDINGS . IT DOES NOT IN ANY WAY PROVIDE FOR THE POSSIBILITY OF AN APPLICANT ' S INTRODUCING FRESH CONCLUSIONS OR , A FORTIORI , OF TRANSFORMING AN APPLICATION ON GROUNDS OF FAILURE TO ACT INTO AN APPLICATION FOR ANNULMENT . IN THIS INSTANCE THE CONCLUSIONS IN THE ORIGINATING APPLICATION WERE BASED ON ARTICLE 175 OF THE TREATY WHILST THOSE IN THE ADDITIONAL APPLICATION RELATE TO THE EXISTENCE OF AN ACT WHICH MAY BE CONTESTED BY VIRTUE OF ARTICLE 173 . THE APPLICANT CANNOT THEREFORE RELY ON THE PROVISIONS REFERRED TO ABOVE IN ORDER TO SHOW THE ADMISSIBILITY OF ITS APPLICATION FOR THE ANNULMENT OF ANY DECISION CONTAINED IN THE COMMISSION ' S LETTER OF 22 MARCH 1978 .