François Lucazeau and others v Société des Auteurs, Compositeurs et Editeurs de Musique (SACEM) and others.
Date: 1989-07-13
11 With regard to the first point, it is apparent from the documents before the Court that a "reciprocal representation contract", as referred to by the national court, must be taken to mean a contract between two national copyright-management societies concerned with musical works whereby the societies give each other the right to grant, within the territory for which they are responsible, the requisite authorizations for any public performance of copyrighted musical works of the other society and to subject those authorizations to certain conditions, in conformity with the laws applicable in the territory in question . Those conditions include in particular the payment of royalties, which are collected for the other society by the society which it has empowered to act as its agent . The contract specifies that each society is to apply, with respect to works in the other society' s repertoire, the same scales, methods and means of collection and distribution of royalties as those which it applies for works in its own repertoire .
13 Consequently, it is apparent that reciprocal representation contracts between copyright-management societies have a twofold purpose : first, they are intended to make all protected musical works, whatever their origin, subject to the same conditions for all users in the same Member State, in accordance with the principle laid down in the international provisions; secondly, they enable copyright-management societies to rely, for the protection of their repertoires in another State, on the organization established by the copyright-management society operating there, without being obliged to add to that organization their own network of contracts with users and their own local monitoring arrangements .
25 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 . In such a case it is for the undertaking in question to justify the difference by reference to objective dissimilarities between the situation in the Member State concerned and the situation prevailing in all the other Member States .
29 That argument cannot be accepted . It is apparent from the documents before the Court that one of the most marked differences between the copyright-management societies in the various Member States lies in the level of operating expenses . Where - as appears to be the case here, according to the record of the proceedings before the national court - the staff of a management society is much larger than that of its counterparts in other Member States and, moreover, the proportion of receipts 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 the high level of royalties .