General Court partially annuls the Commission decision finding anti-competitive conduct on the part of copyright collecting s…

On 12 April 2013, the General Court partially affirmed and partially annulled the Commission's decision finding that the International Confederation of Societies of Authors and Composers (“CISAC”) infringed Article 101 TFEU.

The CISAC and several collecting societies had been investigated for mutual concertation in relation to the conditions of management and copyright licensing of public musical performances via the internet, satellite, and cable transmission.

On 16 July 2008, the Commission had found that there was an infringement of Article 101 TFEU because: (i) membership clauses in these agreements restricted the authors' ability to affiliate freely; (ii) the exclusivity clauses gave collecting societies absolute territorial protection against other societies; (iii) there was a concerted practice to limit a society's right to grant repertoire licenses in the territory of another society.

In the present judgment, the General Court first affirmed the Commission’s conclusions in respect to the illegality of the membership and exclusivity clauses because there was neither an objective necessity nor a justification for such restrictions on competition.

However, the General Court partially annulled the finding of a concerted practice. In reaching its decision, the General Court reconfirmed two basic tests. (i) If the Commission’s proof of a concerted practice between undertakings is not based on a mere finding of parallel market conduct but on evidence of concertation, then the burden is on the undertakings not merely to submit another explanation for the facts but to challenge the existence of those facts; (ii) If the Commission’s reasoning is based on the assumption that the behaviour established in its decision cannot be explained other than by concertation between the undertakings, then it is sufficient for the undertakings to prove circumstances which cast the conduct established by the Commission in a different light and thus allow an alternative explanation.

In the present case, the Court held that the Commission had failed the first test. That is, it had not demonstrated that the collecting societies acted in concert in that respect. In respect of the second test, the Court held that the Commission did not provide evidence rendering implausible the applicants’ explanation that the parallel conduct of the collecting societies at issue was not the result of concertation, but rather of the need to fight effectively against the unauthorized use of musical works. Consequently, the limitation on a society's right to grant repertoire licenses in the territory of another collecting society was found not to contravene EU competition law.