Final Report (1) of the Hearing Officer in Case COMP/C-2/38.698 — CISAC

(2008/C 323/07)

The draft decision in this case gives rise to the following observations:

Statement of objections

Following an investigation initiated pursuant to the receipt of two complaints, the Commission addressed a Statement of Objections (SO) to 24 European collecting societies (AEPI, AKKA-LAA, AKM, ARTIJUS, BUMA, EAU, GEMA, IMRO, KODA, LATGA, PRS, OSA, SABAM, SACEM, SAZAS, SGAE, SIAE, SOZA, SPA, STEF, STIM, TEOSTO, TONO, and ZAIKS) and CISAC (International Confederation of Societies of Authors and Composers) on 31 January 2006. The complaints came from two commercial users, the RTL Group, against the German collecting society GEMA, and the digital audio broadcaster Music Choice Europe plc, against CISAC. The two cases were combined into the present case.

The SO was received on 3 February 2006, and the parties were given two months to reply.

Extensions of the deadline to reply to the SO were granted, taking into account the need to send a corrected version of the CD-ROM containing the Commission's file. A new deadline was set at 11 April 2006 for all parties. All the addressees replied in due time except three, which did not submit any comments: the Islanders collecting society (STEF), the Portuguese collecting society (SPA) and the Lithuanian collecting society (LATGAA).

Access to file

PRS requested access to the replies to the SO by the other addressees. The Hearing Officer at the time, Serge Durande, informed PRS of the Commission's general practice not to provide access to the replies of other parties to the SO. Replies to the SO, or part of them, become accessible only if the Commission makes use of them in the final decision. PRS did not dispute this position.

Access was also subsequently granted to the non-confidential versions of written comments provided by third parties.

Complainants and other third parties

The complainants were provided with a non-confidential version of the SO on 6 March 2006 and submitted comments in writing on 7 April 2006.

Twenty-seven undertakings requested and were granted the status of interested third party in the proceedings (see below under Oral Hearing). They were informed about the nature and subject matter of the case by means of a non confidential version of the SO and were requested to submit written comments.

The Oral Hearing

An Oral Hearing took place on 14, 15 and 16 June 2006.

All addressees with the exception of EAU and those who did not reply to the SO requested an oral hearing pursuant to Article 12 of Commission Regulation (EC) No 773/2004. SOZA ARTIJUIS and OSA were represented by CISAC legal representatives.

The following third parties were admitted to the Oral Hearing: EDIMA; IFPI; RTL Group; Music Choice; Footprint; IMPALA; Universal Music International; Music Users' Council of Europe; ICMP; Nextradiotv; EBU; ZDF; ARD; VPRT; SKAP; EICTA; ECCA; ROAIM; FFACE; Vodafone; ACT' and UTECA. Some third parties (BT, Deutsche Telekom, Ericsson, Infospace, BBC) did not request to attend the Oral Hearing.

Letter of facts and further access to file

During the Hearing it became clear that the investigation had continued after the SO was sent. Therefore, the Hearing Officer recommended that a Letter of Facts be sent and that a new round of access to file containing Article 18 letters, replies to these letters and additional third party comments on the SO be made available to the parties. The Letter of Facts was sent on 5 July 2006, and the parties were granted 10 working days to make supplementary submissions once the supplementary access to file had taken place.

No parties made any further submissions or comments on the Letter of Facts.

New requests for information also were sent between September-November 2006 and on 18 December 2006 the parties were given access to these requests and the replies.

Access to results of Article 27(4) market test

Commitments offered by CISAC and 18 collecting societies in March 2007 were market tested by the publication of a Notice pursuant to Article 27(4) of Regulation (EC) No 1/2003 on 9 June 2007. A non-confidential version of the comments made in response to the market test was sent to all parties on 30 August 2007.

The draft decision

Following the replies to the SO and the Oral Hearing, the Commission has determined that the preliminary conclusions with regard to possible infringements by CISAC should not be retained. According, CISAC is not an addressee of the present draft decision.

The Commission has also dropped from the draft decision one objection against the remaining parties that had originally been included in the SO. No fines are foreseen in the draft decision.

The draft decision submitted to the Commission only contains objections in respect of which the parties have been afforded the opportunity of making known their views.

In the light of the above, I consider that the rights of the parties to be heard have been respected in this case.

(1)  Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21).