CJEC, October 18, 1979, No 125-78

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

1. The dispute in these proceedings arises out of a letter dated 23 July 1971 by which the applicant, GEMA, a German performing right association, submitted a complaint to the Commission in pursuance of Article 3 (2) (b) of Regulation no 17 of 6 February 1962 (Official Journal, English special edition 1959-1962, p. 87) the aim of which was to establish the existence of infringements of the rules on competition laid down in Articles 85 and 86 of the EEC treaty by the Compagnie Luxembourgeoise de télédiffusion (hereinafter referred to as ''Radio Luxembourg ''), its subsidiary, Radio Music International (hereinafter referred to as ''RMI''), both of which have registered offices in Luxembourg, and Radio Tele-Music (hereinafter referred to as ''RTM''), whose registered office is in berlin-wilmersdorf.

2. According to the terms of that complaint radio Luxembourg concluded contracts through RMI with publishers of light music established in the Federal Republic of Germany and carrying on their business there, by which RMI receives one half of the royalties due in respect of the performing rights over the musical works published jointly by RMI and the said publishers in return for the frequent broadcasting of those compositions in German on Radio Luxembourg at favourable listening times. The effect of that practice is to obtain for Radio Luxembourg, as a member of GEMA, excessive royalties in respect of performing rights. Since the applicant - which is the only performing right association in the Federal Republic - has to apportion all the royalties which it receives on the basis of a fixed scale of distribution, the result of the said practice is to put the other publishers of light music, who are also members of the applicant association, in an unfavourable position.

3. The Commission complied with the terms of the applicant's complaint on 23 January 1974 by sending to the aforementioned three companies a letter containing a Statement of the Objections raised against them in accordance with Article 19 (1) of Regulation no 17. On 23 April 1974 the Commission conducted hearings of the parties but did not inform the applicant of the subsequent course of the proceedings.

4. By letter of 31 January 1978 the applicant called upon the Commission to adopt''a formal decision in the inquiry into the proceedings''within two months failing which the applicant would lodge against the Commission an application for failure to act, in accordance with Article 175 of the treaty.

5. The Commission replied by letter of 22 March 1978 in which it expressed the view that''the most recent information''in its possession did not entitle it to grant the applicant's application for a decision recording an abuse of a dominant position by Radio Luxembourg and the other aforementioned undertakings. In the light of recent developments in the situation the Commission considered it doubtful whether it was possible to demonstrate convincingly that Radio Luxembourg occupied a dominant position in a substantial part of the common market and abused such a position. After setting out in detail the reasons for that opinion the Commission concluded that a decision by way of Article 86 of the treaty would not be justified. In accordance with Article 6 of Regulation no 99-63 of the Commission of 25 July 1963 on the hearings provided for in Article 19 (1) and (2) of Council Regulation No 17 (Official Journal, English special edition 1963-1964, p. 47) the Commission allowed the applicant the opportunity of submitting any further comments within two months of receipt of''this notification''.

6. in the aforementioned letter the Commission also expressed its opinion that associations for the protection of performing rights were able in other ways to take precautions against distortions of competition resulting from the practice of certain broadcasting companies of giving preference in broadcasting to pieces of light music over which they had certain rights of ownership. the Commission suggested that the applicant should have discussions on that subject with certain of its officials. during those discussions which took place on 14 April 1978 and which, according to the applicant, covered all the points raised by the Commission in its letter of 22 March 1978, the Commission submitted proposals involving in particular amendment of the Articles of association of GEMA in order to frustrate Radio Luxembourg's practice of arranging for joint publication. however, by a telex message of 28 April 1978 the applicant informed the Commission that it considered its proposals to be impracticable.

7. On 31 may 1978 the applicant lodged an application under Article 175 of the treaty, seeking to establish the illegality of the Commission's failure to act and to call upon it either to adopt a formal decision within the context of the proceedings instituted in 1971 following the applicant's complaint or, if appropriate, to inform the applicant of the discontinuance of the proceedings, in pursuance of Article 6 of Regulation No 99-63. The applicant claims that the letter of 22 March 1978 did not constitute performance by the Commission of its obligations under Article 3 (2) of Regulation No 17 since the applicant is''entitled... to have... the Commission continue the proceedings instituted against Radio Luxembourg, establish the existence of the infringement and prescribe the measures necessary in order to put an end to it''.

8. By order of 17 January 1979 the Court allowed Radio Luxembourg and RMI to intervene in support of the submissions of the Commission.

9. On 19 March 1979 the applicant submitted in the alternative certain additional conclusions which, in case the Court should consider the application for failure to act to be inadmissible, sought, by way of the second paragraph of Article 173 of the treaty, the annulment of the decision not to continue with the proceedings instituted against Radio Luxembourg contained in the Commission's letter of 22 March 1978.

Admissibility

10. The Commission contests the admissibility of the application for failure to act on the ground that the conditions for the application of Article 175 are not satisfied.

11. The Commission observes that the second Paragraph of Article 175 requires it not to have''defined its position''within two months of being called upon to act and claims that there is No failure to act in this instance since its letter of 22 March 1978 constitutes a definition of its position within the meaning of Article 175. That statement is in turn challenged by the applicant who claims, first, that the letter of 22 March is purely interlocutory in nature and, secondly, that as a private applicant making an application by way of Article 3 (2) of Regulation No 17 it is entitled to a''decision''within the meaning of Article 189 of the treaty. The Commission claims, furthermore, that as the decision demanded by the applicant could not have been addressed to it but only to the undertakings whose conduct was called in question by the complaint the applicant does not fall within the category of natural or legal persons who, under the terms of the third Paragraph of Article 175, may complain to the Court.

12. The Commission also contests the admissibility of the applicant's alternative application. The applicant bases that alternative application upon Article 42 (2) of the rules of procedure according to which 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''. The Commission claims, however, that that application does not raise any fresh issue but rather puts forward fresh conclusions. In any event, the application is inadmissible since it was submitted after the expiry of the period prescribed by the final Paragraph of Article 173.

13. It is therefore necessary to consider the admissibility of both the application for failure to act and the alternative application.

A - The application for failure to act

14. It is necessary to decide, first, whether the letter of 22 March 1978 constitutes defining a position within the meaning of the second Paragraph of Article 175. To that end it is first necessary to consider the Commission's obligations within the context of the procedure laid down by Regulation No 17 and supplemented by Regulation No 99-63 for the purpose of establishing possible infringements of Articles 85 and 86 of the treaty.

15. Article 3 of Regulation No 17 provides in particular as follows :

''(1) Where the Commission, upon application or upon its own initiative, finds that there is infringement of Article 85 or Article 86 of the treaty, it may by decision require the undertakings or associations of undertakings concerned to bring such infringement to an end.

(2) Those entitled to make application are :

(a) Member States ;

(b) natural or legal persons who claim a legitimate interest.''

16. Article 6 of Regulation No 99-63 provides that :

''where the Commission, having received an application pursuant to Article 3 (2) of Regulation No 17, considers that on the basis of the information in its possession there are insufficient grounds for granting the application, it shall inform the applicants of its reasons and fix a time-limit for them to submit any further comments in writing.''

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.

19. As regards the letter of 22 March 1978 it must be noted that the Commission informed the applicant of its view that a decision by way of Article 86 of the treaty would not be justified and set out the facts and reasons on which that opinion was based. In addition, in accordance with the provisions of Article 6 of the aforementioned Regulation No 99-63 it fixed a time-limit of two months for the submission by the applicant of any further comments in writing.

20. It follows that the Commission acted in accordance with the aforementioned provisions of Article 6 of Regulation No 99-63 by informing the applicant of the outcome of the proceedings and of the reasons for the discontinuance of the inquiry into its complaint. It must be added that it emerges from the terms of the letter, which is in two separate sections, that the Commission's suggestion for discussions with the applicant in order to examine other suitable methods of dealing with the consequences of the practices called in question by it falls outside the scope of the procedure to establish an infringement of the rules on competition instituted by the Commission following the submission of the original complaint. Contrary to the argument put forward by the applicant that suggestion cannot therefore confer on the letter an interlocutory character.

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.

22. It follows that in this instance the Commission has not failed to act on the applicant's application to it and that the circumstances contemplated by Article 175 are not present.

23. The application on the grounds of failure to act must therefore be dismissed as inadmissible.

B - The application for annulment

24. As has already been stated the applicant lodged supplementary conclusions on 19 March 1979 seeking the annulment of''the decision not to pursue the proceedings instituted against Radio Luxembourg contained in the Commission's letter to the applicant of 22 March 1978 (second Paragraph of Article 173 of the EEC treaty)''. In support of its application the applicant states that it is based upon the same facts as those already referred to for the purposes of the application for failure to act. It also claims that its application constitutes the raising of a fresh issue based on matters of law which came to light only at the end of the written procedure and that it is therefore admissible by virtue of the first subParagraph of Article 42 (2) of the rules of procedure.

25. The matter of law referred to by the applicant is the communication to it on 20 February 1979 of the grounds for the judgment given by the bundesgerichtshof on 12 december 1978 in an action between the applicant and Radio Luxembourg, RMI and RTM which concerned the same facts as those which form the basis of the proceedings instituted by the Commission against those companies. It may be seen from that judgment that the Bundesgerichtshof states, in particular, that the Commission has ceased to pursue those proceedings. According to the applicant the Bundesgerichtshof had regarded the Commission's letter of 22 March 1978 as a decision putting an end to the proceedings. The applicant has lodged the alternative application for annulment in case the Court shares that opinion.

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.

27. The alternative application for annulment must therefore be dismissed as inadmissible.

Costs

28. Under Article 69 (2) of the rules of procedure, the unsuccessful party shall be ordered to pay the costs.

29. As the applicant has failed in its submissions it must be ordered to pay the costs with the exception of those which may have been incurred as a result of the intervention of Radio Luxembourg and RMI in respect of which, in accordance with Article 69 (3) of the rules of procedure the applicant and the interveners, who have not submitted any written or oral observations, must each bear their own costs.

THE COURT

Hereby :

1. Dismisses the application as inadmissible ;

2. Orders the applicant to pay the costs with the exception of those which may have been incurred as a result of the intervention, in respect of which the applicant and the interveners must each bear their own costs.