22.11.2008

EN

Official Journal of the European Union

C 301/50

(Case T-392/08)

(2008/C 301/85)

Language of the case: Greek

Parties

Applicant: Elleniki Etairia pros Prostasia tis Pnevmatikis Idioktisias AE (Greek Society for the Protection of Intellectual Property) (Athens, Greece) (represented by: P. Xsanthopoulos, T. Asproyerakis-Grivas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The Court is asked to:

—allow the present application admissible in its entirety;

—annul in its entirety the contested decision of the Commission of the European Communities of 16 July 2008 in Case COMP/C2/38.698-CISAC, No E (3435) final, relating to a procedure under Article 81 EC and Article 53 EEA; and

—order the Commission to pay all the costs and the fees of the applicant's lawyers.

Pleas in law and main arguments

By this application the applicant seeks the annulment of the decision of the Commission of the European Communities of 16 July 2008 in Case COMP/C2/38.698-CISAC, No E (3435) final, in so far as the Commission decided that the applicant was infringing Article 81 EC and Article 53 EEA by using, in representation agreements with other societies, membership restrictions contained in Article 11(2) of the model contract of the International Confederation of Societies of Authors and Composers (‘CISAC model contract’) or by the de facto application of restrictions on admitting members and coordination of territorial delineation in a way which limits a licence to the domestic territory of each collecting society.

The applicant puts forward the following grounds for annulment:

First, the applicant claims that the contested decision is based on a mistaken assessment of the facts and of the general de facto situation, the evidence and the subjective elements of the infringement.

Secondly, the applicant claims that its right to a prior hearing was infringed and thirdly, that Article 81 EC and Article 53 EEA were wrongly applied by reason of the fact that the applicant was condemned for a non-existent infringement. In particular, it submits that with the signature of territorial clauses there was no infringement of competition but that those clauses are necessary to ensure to those entitled proper management of their rights in the country in which each contracting society operates. In addition, the applicant maintains that the Court of Justice of the European Communities has accepted that clauses of territorial exclusivity in reciprocal representation agreements do not infringe competition.

Fourthly, the applicant claims that the contested decision does not take account of the fact that in Community law intellectual property and intellectual and artistic works are not the same as other goods and services and wrongly subjects the facts to the legal rule applicable to the latter.

Fifthly, the applicant maintains that the Commission has infringed Article 151 EC, introducing the principle of the cultural exception, according to which the Commission must, in any action, take cultural aspects into account in order to respect and to promote the diversity of the cultures of the Community.

Sixthly, the applicant submits that the fact that the question of fault did not enter into the examination of the alleged infringement of Article 81 EC constitutes a misapplication of the legal rule and a clear failure to give reasons for the contested decision.

Seventhly, the applicant considers that the contested decision infringes the principle of proportionality, since European intellectual property societies are not of the same size, as well as the principle of impartiality, because it was adopted following a preliminary procedure that was not fair. Furthermore, the applicant maintains that the existence of serious contradictions renders the decision defective and irrational. Moreover, the contested decision, in the misleading guise, according to the applicant, of facilitating the obtaining of licences to use music via cable, satellite or on the internet, in reality is aimed at the mutual annihilation of intellectual property societies, by distorting healthy competition, laying down unequal market terms and creating inevitable clashes between those societies. Lastly, the contested decision, directly misconstrues, in the applicant's view, Directive 93/83/EEC (1) and infringes the international Berne Convention for the protection of literary and artistic works, to which the European Union has acceded.

Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15).