Keywords
Summary

Keywords

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1 . COMPETITION - DOMINANT POSITION WITHIN THE MARKET - COPYRIGHTS - EXPLOITATION BY AN UNDERTAKING - ABUSE - COMPETENCE OF THE NATIONAL COURT

( EEC TREATY, ARTICLE 86 )

2 . COMPETITION - COMMUNITY RULES - DEROGATION - UNDERTAKINGS ENTRUSTED WITH THE OPERATION OF SERVICES OF GENERAL ECONOMIC INTEREST - DEFINITION - STRICT INTERPRETATION - COMPETENCE OF THE NATIONAL COURT

( EEC TREATY, ARTICLE 90 ( 2 ))

Summary

1 . AN ABUSE CAN CONSIST IN THE FACT THAT AN UNDERTAKING ENTRUSTED WITH THE EXPLOITATION OF COPYRIGHTS AND OCCUPYING A DOMINANT POSITION WITHIN THE MEANING OF ARTICLE 86 IMPOSES ON ITS MEMBERS OBLIGATIONS WHICH ARE NOT ABSOLUTELY NECESSARY FOR THE ATTAINMENT OF ITS OBJECT AND WHICH THUS ENCROACH UNFAIRLY UPON A MEMBER'S FREEDOM TO EXERCISE HIS COPYRIGHT .

THE INEQUITABLE NATURE OF SUCH PROVISIONS MUST BE DETERMINED BY THE RELEVANT COURT, BEARING IN MIND BOTH THE INTRINSIC INDIVIDUAL EFFECT OF THOSE CLAUSES AND THEIR EFFECT WHEN COMBINED .

IF ABUSIVE PRACTICES ARE EXPOSED, IT IS FOR THE NATIONAL COURT TO DECIDE WHETHER AND TO WHAT EXTENT THEY AFFECT THE INTERESTS OF AUTHORS OR THIRD PARTIES CONCERNED, WITH A VIEW TO DECIDING THE CONSEQUENCES WITH REGARD TO THE VALIDITY AND EFFECT OF THE CONTRACTS IN DISPUTE OR CERTAIN OF THEIR PROVISIONS .

2 . AS ARTICLE 90 ( 2 ) PERMITS, IN CERTAIN CIRCUMSTANCES, DEROGATION FROM THE RULES OF THE TREATY, UNDERTAKINGS WHICH CAN TAKE ADVANTAGE OF IT MUST BE STRICTLY DEFINED .

PRIVATE UNDERTAKINGS MAY COME UNDER THAT PROVISION, BUT THEY MUST BE ENTRUSTED WITH THE OPERATION OF SERVICES OF GENERAL ECONOMIC INTEREST BY AN ACT OF THE PUBLIC AUTHORITY .

IT IS THUS THE DUTY OF THE NATIONAL COURT TO INVESTIGATE WHETHER AN UNDERTAKING WHICH INVOKES THE PROVISIONS OF ARTICLE 90 ( 2 ) FOR THE PURPOSE OF CLAIMING A DEROGATION FROM THE RULES OF THE TREATY HAS IN FACT BEEN ENTRUSTED BY A MEMBER STATE WITH THE OPERATION OF SUCH A SERVICE .