Keywords
Summary

Keywords

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1. Competition - Dominant position - Relevant market - Weekly television programme listings and magazines publishing listings

(EEC Treaty, Art. 86)

2. Free movement of goods - Industrial and commercial property - Article 36 of the Treaty - Interpretation taking account of the competition rules

(EEC Treaty, Arts 2, 3, 36, 85 and 86)

3. Competition - Dominant position - Copyright - Weekly television programme listings - Exercise of copyright - Abuse - Conditions

(EEC Treaty, Arts 36 and 86)

4. Measures adopted by the Community institutions - Statement of reasons - Obligation - Scope - Decision pursuant to the competition rules

(EEC Treaty, Art. 190)

5. Competition - Dominant position - Effect on trade between Member States - Criteria

(EEC Treaty, Art. 86)

6. Competition - Administrative procedure - Termination of infringements - Power of the Commission - Orders given to undertakings

(Regulation No 17 of the Council, Art. 3(1) )

7. International agreements - Agreements between the Member States - Agreements antedating the EEC Treaty - Article 234 of the Treaty - Object - Scope - Justification for restrictions on intra-Community trade - Not permissible

(EEC Treaty, Art. 234)

Summary

1. The markets for weekly television programme listings and for the television magazines in which they are published constitute, for the purposes of Article 86 of the Treaty, sub-markets within the markets for television programme information in general. They offer a product - information on weekly programmes - for which there is a specific demand, both from third parties wishing to publish and market comprehensive television guides and from television viewers.

2. Within the system of the Treaty, Article 36 must, in defining the scope of the protection that article seeks to give to industrial and commercial property rights, be interpreted in the light of the Community' s objectives and activities as defined in Articles 2 and 3 of the EEC Treaty and that assessment must take into account, in particular, the requirements arising out of the establishment of a system of free competition within the Community, referred to in Article 3(f), which take the form, inter alia, of the prohibitions laid down in Articles 85 and 86 of the Treaty.

3. While in principle the protection of the specific subject-matter of a copyright entitles the copyright holder to reserve the exclusive right to reproduce the protected work and that is not called in question by the rules of the Treaty and while the exercise of that exclusive right is not in itself an abuse, that does not apply when, in the light of the details of each individual case, it is apparent that that right is exercised in such ways and circumstances as in fact to pursue an aim manifestly contrary to the objectives of Article 86. In that event, the copyright is no longer exercised in a manner which corresponds to its essential function, within the meaning of Article 36 of the Treaty, which is to protect the moral rights in the work and to ensure a reward for the creative effort, while respecting the aims of, in particular, Article 86.

That is the case where a television broadcasting company uses the copyright in its weekly programme listings under national law to reserve the exclusive right to publish those listings, thus preventing the emergence on the ancillary market of television magazines, where it enjoys a monopoly, of a new product containing the programmes of all the broadcasting stations capable of being received by television viewers, for which there is potential consumer demand.

4. Although, under Article 190 of the Treaty, the Commission is required, when adopting a decision pursuant to the competition rules, to state the factual matters justifying the adoption of a decision, together with the legal considerations which have led to its adopting it, the article does not require the Commission to discuss all the matters of fact and law which may have been dealt with during the administrative proceedings.

5. The interpretation and application of the condition regarding effects on trade between Member States, under Article 86 of the Treaty, must be based on the purpose of that condition which is to define, in the context of the law governing competition, the boundary between the areas respectively covered by Community law and the law of the Member States. Thus Community law covers any agreement or any practice which is capable of constituting a threat to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by partitioning the national markets or by affecting the structure of competition within the Common Market. It is enough, therefore, in order for Article 86 to be applicable, that the abusive conduct should be capable of affecting trade between Member States and it is not necessary to find that there is a real and present effect on inter-State trade.

6. The power conferred on the Commission by Article 3(1) of Regulation No 17 to require the undertakings concerned to bring an infringement to an end implies a right for the Commission to order such undertakings to take or refrain from taking certain action with a view to bringing the infringement to an end. In that light, the obligations imposed upon the undertakings must be defined with regard to requirements relating to re-establishing compliance with the law, taking into account the details of each individual case.

7. Article 234 of the Treaty must be interpreted as meaning that a convention concluded before the entry into force of the Treaty cannot be relied on to justify restrictions on trade between Member States. Article 234 is intended to ensure that the application of the Treaty does not affect either the duty to observe the rights of non-member countries under an agreement previously concluded with a Member State, or the observance by that Member State of its obligations under that agreement and it affects only rights and obligations in force between Member States and non-member countries.