EN

Official Journal of the European Union

C 197/33

(Case T-229/08)

(2008/C 197/58)

Language of the case: English

Parties

Applicant: Independent Music Publishers and Labels Association (Impala, international association) (Brussels, Belgium) (represented by: S. Crosby, J. Golding, Solicitors, and I. Wekstein, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—annul the Commission's Decision of 3 October 2007 in Case No COMP/M.3333-Sony/BMG declaring a concentration compatible with the common market and the functioning of the EEA Agreement, in accordance with Article 8(2) of Council Regulation (EEC) No 4064/89 (1);

—order the Commission to pay the costs.

Pleas in law and main arguments

By Decision C(2004) 2815 of 19 July 2004, the Commission declared compatible with the common market the concentration by which Bertelsmann AG and Sony Corporation of America acquired joint control of the joint venture company Sony BMG combining their recorded music businesses (Case No. COMP/M.3333-Sony/BMG). By the judgment of 13 July 2006, the Court of First Instance annulled the Commission's decision (2). Following this annulment, the case was re-notified to the Commission who reassessed the concentration under the current market circumstances and by contested Decision C(2007) 4507 of 3 October 2007 authorised the merger as compatible with the common market and functioning of the EEA Agreement.

The applicant who is an international association representing independent music companies — competitors to the parties to the merger seeks the annulment of that decision. It claims that in authorising the merger the Commission committed a manifest error of assessment, and/or misapplied the law on collective dominance and/or infringed Article 253 EC by:

—failing to apply the correct test and to properly assess the existence, strengthening or creation of a collective dominant position in the physical recorded music market and market for recorded music in digital formats;

—failing to conduct a prospective analysis as to whether or not the concentration might strengthen or create a collective dominant position on the market for physical recorded music and/or the market for recorded music in digital formats, and failing to give reasons or sufficient reasons for dispensing with a prospective analysis;

—failing to conduct a proper analysis concerning the possible effects of the merger on consumer choice or cultural diversity, or to make a prospective analysis thereof; and

—in conclusion, failing to find that the merger strengthened or created a collective dominant position in the physical recorded music market and market for recorded music in digital formats.

Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1, corrigendum OJ 1990 L 257, p. 13).

Case T-464/04, Impala v. Commission, [2006] ECR II-2289, judgment on appeal, Case C-413/06 P, Bertelsmann and Sony Corporation of America v Impala.