C-8/71

JUDGMENT OF THE COURT 13 JULY 1971 1

Deutscher Kompanistenverband e.V. v Commission of the European Communities2

Case 8/71

Summary

Procedure — Failure to act on the part of the executive — Concept (EEC Treaty, Article 175)

Article 175 of the EEC Treaty refers to and not the adoption of a measure dif­ failure to act in the sense of failure to ferent from that desired or considered take a decision or to define a position, necessary by the persons concerned.

Application to the Court under Article 175 of the EEC Treaty on the ground of failure to act, with a view to obtaining a ruling that the Commission has failed in its duty to hear the Deutscher Komponistenverband e.V. in its capacity as a legal person having a sufficient interest in the proceedings initiated under Articles 85 and 86 of the EEC Treaty against the Gesellschaft fur musikalische Aufführungs-und mechanische Vervielfaltigungsrechte (GEMA),

1 — Language of the Case: German. 2 — CMLR.

JUDGMENT OF 13. 7. 1971 — CASE 8/71

THE COURT

composed of: R. Lecourt, President, A. M. Donner (Rapporteur) and A. Trabucchi, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore and H. Kutscher, Judges,

Advocate-General: K. Roemer

I — Facts and procedure In a letter of 17 November 1970 the Commission left open the question The facts which form the basis of the whether the applicant was an interested dispute and the course of the procedure party within the meaning of Article 19(2) may be summarized as follows: of Regulation No 17/62, in view of By a letter or 5 June 1970 addressed to the fact that Professor Werner Egk was the Gesellschaft fur musikalische Auffüh­ both Chairman of the supervisory board rungs-und mechanische Vervielfälti­ of GEMA and President of the Associa­ gungs-rechte (hereinafter referred to as tion and that therefore the applicant al­ 'GEMA') whose office is at 37, Bay­ ready had the opportunity of obtaining reuther Straße, Berlin 30, the Commis­ information and of influencing the ob­ sion of the European Communities, the servations of GEMA on the complaints defendant, initiated proceedings under raised by the Commission. Nevertheless, Articles 85 and 86 of the EEC Treaty in the same letter the Commission per­ (Proceedings IV/26.760-GEMA) against mitted the applicant to submit its writ­ that undertaking. These proceedings ten observations within the period of ended in the decision of the Commission one month. of 2 June 1971. By a letter ot 2 December 1970 the By a telex message or 13 November applicant insisted on being heard orally. 1970 the Deutscher Komponistenver­ The Commission replied that the appli­ band e.V. (the German Composers' As­ cant had no legal interest in obtaining sociation, hereinafter referred to as 'the a decision on its admission to the oral Association'), the applicant, through its procedure because it had already been President and authorized representative, granted on opportunity of making known Werner Egk, requested that its govern­ its attitude in writing. ing body should be heard in the various By an application lodged at the Court proceedings initiated by the Commission Registry on 12 March 1971 the Associ­ against GEMA, as a 'legal person' show­ ation commenced the present proceed­ ing a 'sufficient interest' within the ings. meaning of Article 19(2) of Regulation By a statement or 23 April 1971 the No 17/62 and Article 5 of Regulation defendant raised an objection of in­ No 99/63. admissibility under Article 175 of the

EEC Treaty and requested the applica­ III — Submissions and argu­ tion of Article 91 of the Rules of Pro­ ments of the parties cedure of the Court of Justice of the European Communities. The submissions and arguments of the On 1 June 1971 the applicant lodged parties on admissibility may be sum­ its observations on this objection. marized as follows: Having heard tne report or tne Judge- (a) The applicant asserts in its applica­ Rapporteur and the views of the Ad­ tion: vocate-General, the Court decided to (1) That the telex message from the open the oral procedure with regard to President of the Association of 13 the objection of inadmissibility. November 1970 constitutes a request The parties presented oral argument at to act in the manner indicated, as the hearing on 17 June 1971. laid down in the second paragraph The Advocate-General delivered his of Article 175 of the EEC Treaty. opinion at the hearing on 1 July 1971. Since it may be supposed that this telex message reached the defendant on the same day the period referred II — Conclusions of the to in the second sentence of the parties second paragraph of Article 175 be­ gan to run on that day. The applica­ The applicant claims that the Court tion for failure to act could thus should: have been introduced at any time until 13 March 1971 (this period '(1) Rule that the defendant is bound could also be supplemented by the to hear the applicant Association extension laid down by Article 81(2) within the framework of proceed­ of the Rules of Procedure); ings IV/26.760 (GEMA) in accord­ ance with the second sentence of (2) That the two statements made by the Commission do not constitute an Article 19(2) of Regulation No 17/62 (First Regulation implement­ express rejection of the formal appli­ ing Articles 85 and 86 of the cation for a hearing since the Com­ Treaty—Official Journal, English mission refused to express any opin­ Special Edition, 1959-1962, p. 87); ion on this point. Since those state­ ments do not constitute decisions (2) Order the defendant to bear the against which proceedings for an­ costs.' nulment may be instituted within the The defendant contends that the Court meaning of the second paragraph should: of Article 173 of the Treaty the application for failure to act is the '(1) Give a prior ruling on the admissi­ appropriate form of action. bility of the application; (b) In its statement lodged in accord­ (2) Dismiss the application as inadmis­ ance with Article 91 of the Rules of sible; Procedure the defendant states as fol­ (3) Order the applicant to bear the lows: costs'. (1) Since the applicant is asking the The applicant, the defendant with re­ Court to order the Commission 'to gard to the objection, contends that the give it the formal right to be heard Court should: under the second sentence of Article 'Dismiss the objection of inadmis­ 19(2) of Regulation No 17/62' the sibility raised by the defendant, the application is not for a ruling regard­ applicant with regard to the objec­ ing a failure to act within the mean­ tion.' ing of the first and third paragraphs

of Article 175 but to obtain per­ 175 of the EEC Treaty from the formance by the defendant. For this point of view in question in the reason alone the application is in­ present proceedings), the Court ap­ admissible. proved the same argument with re­ (2) The applicant's argument that the gard to the procedure in an appli­ request of 13 November 1970 to be cation for failure to act. heard in accordance with Article Furthermore, it is clear from the fact 19(2) of Regulation No 17 and of that the defendant merely relies on Article 5 of Regulation No 99/63 its telex message of 13 November constitutes a request to act within with regard to the request to act, the meaning of the second para­ which is an essential requirement in graph of Article 175 would produce these proceedings, that its letter of unacceptable results because, if this 2 December does not constitute a argument were conceded, any person request within the meaning of Article making a request could immediately 175 either. initiate an application for failure to For all these reasons these proceed­ act if the Council or the Commis­ ings for failure to act are inadmis­ sion did not define its position within sible. the period of two months laid down (3) Even if it were possible to regard in the second paragraph of Article the telex message of 13 November 175, and any person submitting a and the applicants' subsequent letter request would be bound to initiate of 2 December 1970 as calling upon proceedings for failure to act within the defendant to act, the application two months of submitting the said would be inadmissible since the de­ request in order to avoid losing the fendant defined its position and com­ right to lodge an application con­ municated its point of view to the ferred upon him by Article 175 as a applicant by its letters of 17 Novem­ result of his failure to observe the ber 1970 (in reply to the applicant's time-limit prescribed for lodging telex message of 13 November) and such an application. 17 December 1970 (in reply to the It is clear from tne provisions of letter of 2 December 1970) within Article 175 that any person sub­ the period prescribed in the second mitting a request may, under the sentence of the second paragraph of conditions laid down in the second Article 175. In support of its argu­ and third paragraphs of Article 175, ment the defendant refers to the initiate proceedings by expressly cal­ judgment of the Court of Justice of ling upon the institution concerned 1 March 1966 (Case 48/65, Alfons to act. Lütticke GmbH and Others v Com­ The first condition laid down by mission, [19661 ECR 19). Article 175 with regard to the ad­ (c) In its observations on me objection missibility of an application for fail­ of inadmissibility raised by the defend­ ure to act is therefore that the person ant, the applicant, the defendant with concerned should, within a reason­ regard to the objection, rejects the Com­ able period after making the request, mission's arguments and claims that the have unambiguously called upon the application is admissible on the follow­ institution concerned to act. ing grounds:

Article 175 leaves open the ques the second paragraph of Article 175, tion whether such an application will not stand up to examination. may only be used to obtain a ruling Since the defendant refused to define regarding failure to act or whether its position as regards the subject- the defendant's obligations may be matter of the request, that is to defined to a greater or lesser degree. say, to take notice of the existence Furthermore, the question is irrele of the conditions laid down in the vant in the present case since, in the second sentence of Article 19(2) of form in which it has been drawn Regulation No 17, its argument that up, the application satisfies the re the replies of 2 December 1970 and quirements arising from both inter 17 December 1970 defined its posi pretations. tion within the meaning of the (2) Where Community law expressly second sentence of the second para confers on natural or legal persons graph of Article 175 cannot be ac the right to require a Community cepted, especially in view of the fact institution to perform a certain act that in its statement regarding the ('Antragsrecht'), the request of it- objection of inadmissibility it refrains self implies that the institution has from specifying what position was been called upon to act, within the defined in the two letters in question. meaning of the first sentence of the It must be deduced from this that second paragraph of Article 175. This the defendant itself does not claim interpretation is imperative in par that those letters could constitute a ticular where, as in the present case, legal measure against which proceed the institution concerned must be ings may be instituted under Article aware that failure to perform the 173. act which has been requested will (4) In case tne Court should not regard give rise to legal proceedings. its requests of 13 November 1970 In support ot tnese arguments tne an 2 December 1970 as formally applicant refers to the case-law of calling upon the defendant to act the Court regarding Article 35 of within the meaning of the first sent the ECSC Treaty (Joined Cases 7 ence of the second paragraph of and 9/54, Groupement des Industries Article 175, the applicant points to Siderurgiques Luxembourgeoises v its letter of 30 January 1971, which High Authority, Rec. 1959, p. 83; it appends to its observations.

The letter of 30 other cases. January 1971 may be invoked even (3) The alternative argument or tne de after the expiry of the time-limit for fendant, namely, that it had already bringing proceedings (second sent defined its position regarding the ence of the second paragraph of applicant's request within the period Article 19 of the Protocol on the prescribed in the second sentence of. Statute of the Court of Justice). . If

Grounds of judgment

1 On 11 March 1971 the applicant initiated proceedings under Article 175 of the Treaty with the object of obtaining a declaration that the Commission had failed in its obligation to hear it in its capacity as a legal person showing a sufficient interest in the procedure commenced under Articles 85 and 86 of the Treaty against the Gesellschaft für musikalische Aufführungs- und mechanische Vervielfaltigungsrechte (GEMA).

By a statement of 23 April 1971 the defendant, under Article 91 of the Rules of Procedure, raised an objection of inadmissibility on the basis of Article 175.

2 The third paragraph of Article 175 provides that any natural or legal person may, under the conditions laid down in the preceding paragraphs of the same article, complain to the Court of Justice that an institution of the Community has failed to address to that person any act other than a recommendation or an opinion.

It is clear from the context, especially from the first paragraph, that by its use of the phrase 'has failed to address to that person any act', the article refers to failure to act in the sense of failure to take a decision or to define a position, and not the adoption of a measure different from that desired or considered necessary by the persons concerned.

KOMPONISTENVERBAND v COMMISSION

Costs

5 Under Article 69/(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. The application has been declared to be in­ admissible and the applicant must therefore be ordered to pay the costs of the proceedings.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties on the objection; Upon hearing the opinion of the Advocate-General on the objection; Having regard to the Treaty establishing the European Economic Community, especially Article 175; Having regard to Regulation No 17 of the Council of 6 February 1962, especially Article 19; Having regard to Regulation No 99/63 of the Council of 25 July 1963, especially Article 5; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 91,

OPINION OF MR ROEMER — CASE .8/71

THE COURT

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 1 JULY 1971 1

Mr President, Directorate-General for Competition in Members of the Court, the Commission from its President, who alone is entitled to represent the Associ­ On 13 November 1970, in connexion ation, a request pursuant to the com­ with proceedings initiated on 5 June bined provisions of Article 19(2) of 1970 on the ground of an infringement Regulation No 17/62 (OJ, English of Articles 85 and 86 of the EEC Treaty Special Edition, 1959-1962, p. 87) and against the Gesellschaft für musikalische Article 5 of Regulation No 99/63 (OJ, Aufführungs- und mechanische Verviel­ English Special Edition, 1963-1964, p. fältigungsrechte (hereinafter referred to 47) to be heard in the various proceed­ as 'GEMA'), a registered association ings initiated by the Commission against having its office in Berlin, following re­ GEMA. It was stated in the telex mes­ ceipt of a notice of objections in ac­ sage that the composers participated in cordance with Article 19(1) of Regula­ the founding of GEMA and consequently tion No 17/62 on restrictive practices, had an interest in knowing what finan­ the Deutscher Komponistenverband cial advantages they might expect from (hereinafter referred to as 'the Associa­ the proceedings initiated by the Com­ tion'), a registered association having mission. In particular, information was legal personality, of which most Ger­ requested as to the effect of the pro­ man composers are members and whose ceedings on the social security arrange­ object is the protection and promotion ments of GEMA, on the cultural and of their common professional interests, artistic encouragement of contemporary sent by Telex to the Director for Agree­ composers of serious music and the role ments and Dominant Positions in the of bodies exploiting such compositions