18.12.2008   

EN

Official Journal of the European Union

C 323/1

A.

‘Transfer of economic activities’ means any operation whereby a taxpayer subject to corporation tax or a natural person engaged in a business:

B.

When, in connection with a transfer of economic activities, the exit State reserves the option to exercise its taxing rights on the reserves made (profits realised but not yet taken into account for tax purposes) and to take back, in full or in part, the provisions made (expenditure not yet incurred but already taken into account for tax purposes), the host State may provide for the creation of reserves or provisions of identical or different amounts, in accordance with the rules governing the tax base in that State, and allow deduction from taxable results for the year in which they were established.

C.

When, in connection with a transfer of economic activities, the exit State reserves the option to exercise its taxing rights on the unrealised gains corresponding to the assets held by the taxpayer, calculated as the difference between the market value of these assets on the transfer date and their book value, the host State takes the market value on the transfer date when calculating the subsequent added value in the event of disposal.

D.

In case of disagreement between the host State and the exit State regarding the market value of the assets on the transfer date, the two States settle their dispute using the appropriate procedure.

E.

The host State can require the taxpayer engaged in a transfer of economic activities to provide evidence that the exit State has exercised or will exercise its rights under the conditions set out above, as well as evidence of the market value applied by the exit State.

F.

The provisions laid down at Community level in relation to Mutual Assistance provide the framework for the host State to assist the exit State, in particular for the purposes of determining the disposal date.

18.12.2008   

EN

Official Journal of the European Union

C 323/3

18.12.2008   

EN

Official Journal of the European Union

C 323/7

—

from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

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in electronic form on the EUR-Lex website under document number 32008M5183. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu).

18.12.2008   

EN

Official Journal of the European Union

C 323/7

—

from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

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in electronic form on the EUR-Lex website under document number 32008M5361. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu).

18.12.2008   

EN

Official Journal of the European Union

C 323/8

18.12.2008   

EN

Official Journal of the European Union

C 323/9

1.

The majority of the Advisory Committee agrees with the Commission that the relevant product markets are:

A minority abstains.

2.

The majority of the Advisory Committee agrees with the Commission that in the product markets listed from (a) to (c) the relevant geographic market is currently national in scope but could potentially be broader and at least regional in scope in the absence of the restrictions introduced by the collecting societies in the reciprocal agreements.

A minority abstains.

3.

The majority of the Advisory Committee agrees with the Commission's conclusion that the membership clause — which reflect the language of Article 11(II) of the CISAC model before the revision of June 2004 — incorporated in the reciprocal agreements between collecting societies constitutes an anti-competitive practice as defined under Article 81(1) of the EC Treaty and Article 53(1) EEA and does not fulfil all the conditions of Article 81(3) of the EC Treaty and Article 53(3) EEA.

A minority abstains.

4.

The majority of the Advisory Committee agrees with the Commission's conclusion that the exclusivity clauses — which reflect the language of Article I of the CISAC model contract before the revision of 1996 — incorporated in the reciprocal agreements between collecting societies constitute an anti-competitive practice as defined under Article 81(1) of the EC Treaty and Article 53(1) EEA and does not fulfil all the conditions of Article 81(3) of the EC Treaty and Article 53(3) EEA.

A minority abstains.

5.

The majority of the Advisory Committee agrees with the Commission's conclusion that the practice of collecting societies which consists in systematically limiting in the bilateral reciprocal agreements the right to licence their repertoire to the domestic territory of the respective other collecting society:

A minority abstains.

6.

The majority of the Advisory Committee agrees with the Commission that the collecting societies that are still involved in the practices described under points 3 and 4 should immediately bring to an end the infringements.

A minority abstains.

7.

The majority of the Advisory Committee agrees with the Commission that the collecting societies should bring an end to the practice described in point 5 within 90 days of the date of notification of the decision.

A minority abstains.

8.

The Advisory Committee asks the Commission to take into account all the other points raised during the discussion.

9.

The Advisory Committee recommend the publication of its opinion in the Official Journal of the European Union.

18.12.2008   

EN

Official Journal of the European Union

C 323/10

18.12.2008   

EN

Official Journal of the European Union

C 323/12

(1)

The Decision, pursuant to Article 7 of Regulation (EC) No 1/2003, is addressed to 24 EEA collecting societies which are members of CISAC (the International Association of Collecting Societies of Authors and Composers). The addressees are: Ελληνική Εταιρεία Προστασίας της Πνευματικής Ιδιοκτησίας (ΑΕPΙ — Greece), Autortiesibu un komunicesanas konsultaciju agentura/Latvijas Autoru apvieniba (AKKA/LAA — Latvia), Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger, reg.Gen.m.b.H (AKM — Austria), Magyar Szerzői Jogvédő Iroda Egyesület (ARTISJUS — Hungary), Vereniging Buma (BUMA — Netherlands), Eesti Autorite Ühing (EAÜ — Estonia), Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA — Germany), the Irish Music Rights Organisation Limited — Eagras um Chearta Cheolta Teoranta (IMRO — Ireland), Komponistrettigheder i Danmark (KODA — Denmark), Lietuvos autorių teisių gynimo asociacijos agentūra (LATGA-A — Lithuania), Performing Right Society Limited (PRS — United Kingdom), Ochranný svaz Ochranný svaz autorský pro práva k dílům hudebním, o.s. (OSA — Czech Republic), Société Belge des Auteurs, Compositeurs et Editeurs Scrl/Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM — Belgium), Société des Auteurs, Compositeurs et Editeurs de Musique (SACEM — France), Združenje skladateljev, avtorjev in založnikov za zaščito avtorskih pravic Slovenije (SAZAS — Slovenia), Sociedad General de Autores y Editores (SGAE — Spain), Societa Italiana degli Autori ed Editori (SIAE — Italy), Slovenský ochranný Zväz Autorský pre práva k hudobným dielam (SOZA — Slovakia), Sociedade Portuguesa de Autores (SPA — Portugal), Samband Tónskalda og Eigenda Flutningsréttar (STEF — Iceland), Svenska Tonsättares Internationella Musikbyrå (STIM — Sweden), Säveltäjäin Tekijänoikeustoimisto teosto r.y. (TEOSTO — Finland), the Norwegian Performing Right Society (TONO — Norway), and Stowarzyszenie Autorów ZAiKS (ZAIKS — Poland) (2).

(2)

The Decision identifies specific clauses contained in the reciprocal representation agreements between collecting societies which relate to membership and exclusivity as well as the concerted practice applied by the collecting societies which leads to a strict domestic territorial segmentation of licensing areas. It concludes that these agreements and practices are anti-competitive and run contrary to Article 81 of the EC Treaty. It does not however foresee any fines.

(3)

The Decision concerns the conditions of management and licensing, by collecting societies, of authors' public performance rights of musical works. Authors (lyricists and composers) hold the copyright (inter alia the public performance rights) on the works they have created. Collecting societies, of which there is normally one single society per country, manage copyright on behalf of authors. As a consequence of the transfer of rights from its members (authors and other right holders) a collecting society has a portfolio of works. This portfolio constitutes the own repertoire of the collecting society.

(4)

All the collecting societies to whom the Decision is addressed operate under the umbrella of CISAC. CISAC has agreed a model contract which serves as a non-mandatory template for reciprocal representation agreements between CISAC members for the licensing of public performance rights of musical works. Each collecting society undertakes to grant its repertoire to all other collecting societies for exploitation in their respective territories. As a result of the network created by all the reciprocal representation agreements, each collecting society has the ability to offer a global portfolio of musical works to commercial users, but only for use in its own domestic (i.e. national) territory.

(5)

The Decision does not challenge the existence of the reciprocal representation agreements as such, but certain of their clauses and a concerted practice found to exist amongst collecting societies.

(6)

Until 2004, one clause in the CISAC model contract provided that neither contracting collecting society could, without the consent of the other, accept as a member an author who is either already a member of another collecting society, or who is a national of the territory where the other collecting society operates. A number of reciprocal representation agreements concluded among collecting societies still contain such a membership clause. Such a membership clause restricts the ability of an author to become a member of the collecting society of their choice, or to be simultaneously a member of different EEA collecting societies, for the management of his or her rights in different EEA territories. This membership clause restricts competition between collecting societies on the market for the provision of services to authors.

(7)

According to the exclusivity clause in the CISAC model contract a collecting society authorises another collecting society to licence and administer its repertoire, on an exclusive basis, within the territory of the latter society. This clause was contained in the CISAC model contract until 1996 and is still present in the reciprocal representation agreements of 17 collecting societies. The clause prevents a collecting society from licensing its own repertoire in other territories and from allowing an additional collecting society to represent the same repertoire within the territory of the domestic collecting society. As a consequence, collecting societies are reciprocally guaranteed to have a monopoly in their domestic market for the granting of licences to commercial users, such as broadcasters and online content providers. This exclusivity clause therefore restricts competition between collecting societies on the market for the provision of public performance rights to commercial users.

(8)

The Decision also challenges the concerted practice among all collecting societies relating to strict domestic territorial delineation. All collecting societies limit, through reciprocal representation agreements, the right to licence their repertoire to the domestic territory of the other contracting collecting society. This systematic delineation of domestic territory amounts to a concerted practice because it cannot be explained by individual market behaviour or the alleged need for geographic proximity between the licensor and the commercial user. The Decision takes note of the fact that a local presence is not required to monitor the use of the licence for internet, satellite and cable broadcast. As a consequence, collecting societies have the technical capacity to issue multi-territorial licences, however the uniform and systematic territorial delineation precludes collecting societies from offering multi-repertoire and multi-territorial licences to commercial users. Furthermore, the Decision finds that the concerted practice is not objectively necessary to ensure that collecting societies grant each other reciprocal mandates.

(9)

The addressees shall bring an end to the membership clause and to the exclusivity clause immediately, as far as they have not already done so. They have 120 days of the date of the notification to bring an end to the concerted practice.

(10)

The Decision will make it easier for an author to select which collecting society/societies will manage his or her public performance rights. This is of interest to an author (irrespective of whether he or she is a local composer or an artist with an international audience) because efficiency, quality of service and conditions of membership differ appreciably between collecting societies.

(11)

The Decision also allows collecting societies to licence their repertoire to more than one other collecting society per territory. For internet, satellite and cable exploitation, the Decision improves the opportunities for commercial users (including broadcasters and content providers) to obtain a licence which covers more than one territory. By opening up the market to more competition between collecting societies, the Decision will provide incentives to collecting societies to improve their efficiency and the quality of their services, thereby benefitting both authors and users.

(12)

The Decision does not call into question the existence of the network of reciprocal representation agreements between collecting societies and does not force or oblige a collecting society to withdraw from its reciprocal representation agreements, nor does the Decision facilitate a race to the bottom in authors' royalty payments. Collecting societies remain at liberty to continue the current system of fixing royalties or to otherwise introduce other models which protect royalty payments. The Decision will however encourage competition on the level of administration fees charged to the authors, through effecting efficiency gains, which will decrease administration fees and thereby increase the revenues of authors.

(13)

The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 17 June 2008.

18.12.2008   

EN

Official Journal of the European Union

C 323/14

—

any information concerning the availability of the standard can be obtained either from the European Standardisation Organisations or from the national standardisation bodies of which the list is annexed to the Directive 98/34/EC of the European Parliament and of the Council (3) amended by the Directive 98/48/EC (4),

—

publication of the references in the Official Journal of the European Union does not imply that the standards are available in all the Community languages,

—

the Commission ensures the updating of this list.

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CEN: rue de Stassart 36, B-1050 Brussels, tel. (32-2) 550 08 11; fax (32-2) 550 08 19 (http://www.cenorm.be),

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Cenelec: rue de Stassart 35, B-1050 Brussels, tel. (32-2) 519 68 71; fax (32-2) 519 69 19 (http://www.cenelec.org),

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ETSI: 650, route des Lucioles, F-06921 Sophia Antipolis, tel. (33) 492 94 42 00; fax (33) 493 65 47 16 (http://www.etsi.org).

18.12.2008   

EN

Official Journal of the European Union

C 323/15

1.

by failing to adopt or to notify the Authority within the time prescribed, of the measures necessary to implement Articles 6-10 of the Act referred to at point 17 of Annex IV to the Agreement on the European Economic Area as adapted to the EEA Agreement by Protocol 1 thereto, the Kingdom of Norway has failed to fulfil its obligations under Article 15(1) of that Act and Article 7 EEA,

and

2.

the Kingdom of Norway be ordered to bear the costs of these proceedings.

—

the case concerns the failure by Norway to implement into its national law the Act referred to at point 17 of Annex IV to the EEA (Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings), within the prescribed time limit.

18.12.2008   

EN

Official Journal of the European Union

C 323/s3