Autortiesību un komunicēšanās konsultāciju aģentūra / Latvijas Autoru apvienība v Konkurences padome.
Date: 2017-09-14
26


In that regard, it follows from well-established case-law of the Court that the interpretation and application of the condition relating to effects on trade between Member States contained in Articles 101 and 102 TFEU must be based on the purpose of that condition, which is to define, in the context of the law governing competition, the boundary between the areas respectively covered by EU law and the law of the Member States. Thus, EU law covers any agreement or any practice which is capable of constituting a threat to freedom of trade between Member States in a manner which might harm the attainment on the objectives of a single market between the Member States, in particular by sealing off national markets or by affecting the structure of competition within the common market (judgment of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 89 and the case-law cited).
27


If an agreement, decision or practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant (judgment of 25 January 2007, Dalmine v Commission, C‑407/74 P, EU:C:2007:53, paragraph 90 and the case-law cited).
32


It should be recalled from the outset that the concept of ‘undertaking’ referred to in Article 102 TFEU includes any entity engaged in an economic activity, irrespective of its legal form and the way in which it is financed (see, inter alia, judgment of 1 July 2008, MOTOE, C‑49/07, EU:C:2008:376, paragraphs 20 and 21 and the case-law cited).
33


Any activity consisting in offering goods or services on a given market is an economic activity (judgment of 1 July 2008, MOTOE, C‑49/07, EU:C:2008:376, paragraph 22 and the case-law cited). In the present case, it is apparent from the file available to the Court that it is not disputed that the AKKA/LAA’s activity, consisting in the collection of the fees from which authors of musical works are remunerated, is a service.
34


In addition, an organisation such as the AKKA/LAA, which holds a monopoly on the provision of such a service within the territory of a Member State, holds a dominant position in a substantial part of the internal market within the meaning of Article 102 TFEU (see, to that effect, judgment of 27 February 2014, OSA, C‑351/12, EU:C:2014:110, paragraph 86 and the case-law cited).
35


The abuse of a dominant position within the meaning of that article might lie in the imposition of a price which is excessive in relation to the economic value of the service provided (see, to that effect, judgment of 11 December 2008, Kanal 5 and TV 4, C‑52/07, EU:C:2008:703, paragraph 28 and the case-law cited).
36


In that regard, the questions to be determined are whether the difference between the cost actually incurred and the price actually charged is excessive, and, if the answer to that question is in the affirmative, whether a price has been imposed which is either unfair in itself or unfair when compared with competing products (judgment of 14 February 1978, United Brands and United Brands Continentaal v Commission, 27/76, EU:C:1978:22, paragraph 252).
37




Nonetheless, as observed in essence by the Advocate General in point 36 of his Opinion, and as the Court has also recognised (see, to that effect, judgment of 14 February 1978, United Brands and United Brands Continentaal v Commission, 27/76, EU:C:1978:22, paragraph 253), there are other methods by which it can be determined whether a price may be excessive.
38


Thus, according to the case-law of the Court, a method based on a comparison of prices applied in the Member State concerned with those applied in other Member States must be considered valid. It is apparent from that case-law that, when an undertaking holding a dominant position imposes scales of fees for its services which are appreciably higher than those charged in other Member States, and where a comparison of the fee levels has been made on a consistent basis, that difference must be regarded as indicative of an abuse of a dominant position (judgments of 13 July 1989, Tournier, 395/87, EU:C:1989:319, paragraph 38, and of 13 July 1989, Lucazeau and Others, 110/88, 241/88 and 242/88, EU:C:1989:326, paragraph 25).
44


Next, it should be borne in mind that a comparison between the prices applied in the Member State concerned and those applied in other Member States must be made on a consistent basis (judgments of 13 July 1989, Tournier, 395/87, EU:C:1989:319, paragraph 38, and of 13 July 1989, Lucazeau and Others, 110/88, 241/88 and 242/88, EU:C:1989:326, paragraph 25).
53


It should first be recalled that, when an undertaking holding a dominant position imposes scales of fees for its services which are appreciably higher than those charged in the other Member States, that difference must be regarded as indicative of an abuse of a dominant position (judgments of 13 July 1989, Tournier, 395/87, EU:C:1989:319, paragraph 38, and of 13 July 1989, Lucazeau and Others, 110/88, 241/88 and 242/88, EU:C:1989:326, paragraph 25).
57


Next, it should be noted that these factors are merely indicative of abuse of a dominant position. It may be possible for the copyright management organisation to justify the difference by relying on objective dissimilarities between the situation of the Member State concerned and that of the other Member States included in the comparison (see, to that effect, judgments of 13 July 1989, Tournier, 395/87, EU:C:1989:319, paragraph 38, and of 13 July 1989, Lucazeau and Others, 110/88, 241/88 and 242/88, EU:C:1989:326, paragraph 25).
58


In order to justify such a difference, certain factors can be taken into consideration, such as the relationship between the level of the fee and the amount actually paid to the rightholders. When the proportion of fees taken up by collection, administration and distribution expenses rather than by payments to copyright holders is considerably higher, the possibility cannot be ruled out that it is precisely the lack of competition on the market in question that accounts for the heavy burden of administration and hence for the high level of fees (see, to that effect, judgments of 13 July 1989, Tournier, 395/87, EU:C:1989:319, paragraph 42, and of 13 July 1989, Lucazeau and Others, 110/88, 241/88 and 242/88, EU:C:1989:326, paragraph 29).
65


It is settled case-law of the Court that that concept covers the value of the concerned undertaking’s sales of goods or services, thereby reflecting its real economic situation (see, to that effect, judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraphs 16 to 18 and the case-law cited).
68


Furthermore, it should be noted that, when a national competition authority imposes a fine, that fine must, like any penalty imposed by national authorities as a result of an infringement of EU law, be effective, proportionate and dissuasive (see, to that effect, judgment of 8 July 1999, Nunes and de Matos, C‑186/98, EU:C:1999:376, paragraph 10 and the case-law cited).