Keywords
Summary

Keywords

1 . COMPETITION - ADMINISTRATIVE PROCEDURE - RIGHTS OF THE DEFENCE - NOTICE OF OBJECTIONS - RIGHT OF AN UNDERTAKING TO SUBMIT ITS OBSERVATIONS - STATEMENT OF REASONS FOR THE DECISION TAKEN BY THE COMMISSION - DUTY TO DISCUSS ALL OBSERVATIONS SUBMITTED BY THE UNDERTAKING - NONE - CONDITION

( REGULATION NO 99/63 OF THE COMMISSION )

2 . COMPETITION - ADMINISTRATIVE PROCEDURE - POWERS OF THE COMMISSION - FINDING OF AN INFRINGEMENT WHICH HAS BEEN TERMINATED - LEGITIMATE INTEREST IN MAKING THE FINDING - DANGER OF A RESUMPTION OF AN INFRINGEMENT REQUIRING THE LEGAL POSITION TO BE CLARIFIED

( REGULATION NO 17 OF THE COUNCIL )

3 . COMPETITION - UNDERTAKINGS ENTRUSTED WITH THE OPERATION OF SERVICES OF GENERAL ECONOMIC INTEREST - CONCEPT - COMPANIES FOR THE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS - INCLUSION - CONDITIONS

( EEC TREATY , ART . 90 ( 2 ))

4 . COMPETITION - DOMINANT POSITION - ABUSE - EFFECT ON TRADE BETWEEN MEMBER STATES - CRITERIA - EFFECT ON THE STRUCTURE OF COMPETITION WITHIN THE COMMON MARKET - ACTIVITIES OF COMPANIES FOR THE MANAGEMENT OF COPYRIGHT

( EEC TREATY , ART . 86 , FIRST PARA .)

5 . COMPETITION - DOMINANT POSITION - ABUSE - UNDERTAKING HAVING DE FACTO MONOPOLY - REFUSAL TO PROVIDE SERVICES BASED ON THE NATIONALITY OR THE RESIDENCE OF THE CLIENT - PROHIBITION

( EEC TREATY , ART . 86 , FIRST PARA .)

Summary

1 . EVEN IF IT IS CORRECT TO SAY THAT THE PURPOSE OF REGULATION NO 99/63 IS TO ENSURE THAT UNDERTAKINGS HAVE THE RIGHT , UPON THE CONCLUSION OF THE INQUIRY , TO SUBMIT THEIR OBSERVATIONS ON ALL THE OBJECTIONS WHICH THE COMMISSION INTENDS TO RAISE AGAINST THEM , THE REGULATION DOES NOT REQUIRE THE COMMISSION TO DISCUSS ALL THOSE OBSERVATIONS IN THE STATEMENT OF THE REASONS ON WHICH ITS DECISION IS BASED IF THOSE REASONS ARE , OF THEMSELVES , SUCH AS TO JUSTIFY THE CONCLUSIONS AT WHICH THE COMMISSION HAS ARRIVED .

2 . THE POWER OF THE COMMISSION TO ADOPT DECISIONS REQUIRING UNDERTAKINGS TO BRING TO AN END ANY INFRINGEMENT OF THE COMMUNITY RULES ON COMPETITION WHICH IT ESTABLISHES AND TO IMPOSE FINES AND PERIODIC PENALTY PAYMENTS IN RESPECT OF AN INFRINGEMENT NECESSARILY IMPLIES THE POWER TO MAKE A FINDING THAT THE INFRINGEMENT IN QUESTION EXISTS . THE COMMISSION MAY THEREFORE ADOPT DECISIONS ESTABLISHING THE EXISTENCE OF AN INFRINGEMENT WHICH THE UNDERTAKING IN QUESTION HAS ALREADY TERMINATED PROVIDED THAT IT HAS A LEGITIMATE INTEREST IN TAKING SUCH A DECISION . SUCH AN INTEREST EXISTS IF THE COMMISSION CONSIDERS THAT THERE IS A REAL DANGER OF A RESUMPTION OF THE PRACTICE WHICH THE UNDERTAKING HAS TERMINATED AND THAT CONSEQUENTLY IT IS NECESSARY TO CLARIFY THE LEGAL POSITION .

3 . THE SOLE FACT THAT THE MONITORING OF COMPANIES FOR THE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS , AS PROVIDED FOR BY THE NATIONAL LAW APPLICABLE TO SUCH COMPANIES , GOES FURTHER THAN THE PUBLIC SUPERVISION OF MANY OTHER UNDERTAKINGS , IS NOT SUFFICIENT FOR THOSE COMPANIES TO BE INCLUDED IN THE CATEGORY OF UNDERTAKINGS REFERRED TO IN ARTICLE 90 ( 2 ) OF THE TREATY WHEN THE LEGISLATION IN QUESTION DOES NOT CONFER THE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS ON SPECIFIC UNDERTAKINGS BUT DEFINES IN A GENERAL MANNER THE RULES APPLYING TO THE ACTIVITIES OF COMPANIES WHICH INTEND TO UNDERTAKE THE COLLECTIVE EXPLOITATION OF SUCH RIGHTS .

4 . IN ORDER TO DETERMINE WHETHER TRADE BETWEEN MEMBER STATES IS CAPABLE OF BEING AFFECTED BY AN ABUSE OF A DOMINANT POSITION IN THE RELEVANT MARKET FOR THE PURPOSES OF ARTICLE 86 OF THE TREATY , ACCOUNT MUST BE TAKEN OF THE CONSEQUENCES FOR THE EFFECTIVE COMPETITIVE STRUCTURE IN THE COMMON MARKET .

THE ACTIVITIES OF COMPANIES FOR THE MANAGEMENT OF COPYRIGHTS ARE CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES IF THEY ARE CONDUCTED IN SUCH A WAY AS TO IMPEDE THE FREE MOVEMENT OF SERVICES TO THE EXTENT OF PARTITIONING THE COMMON MARKET .

5 . A REFUSAL BY AN UNDERTAKING HAVING A DE FACTO MONOPOLY TO PROVIDE ITS SERVICES FOR ALL THOSE WHO MAY BE IN NEED OF THEM BUT WHO DO NOT COME WITHIN A CERTAIN CATEGORY OF PERSONS DEFINED BY THE UNDERTAKING ON THE BASIS OF NATIONALITY OR RESIDENCE MUST BE REGARDED AS AN ABUSE OF A DOMINANT POSITION WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 86 OF THE TREATY .