C-45/71
ECLI:EU:C:1971:90
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ORDER OF THE PRESIDENT OF THE COURT
18 AUGUST 1971 1
GEMA (Gesellschaft fur musikalische Aufführtings-und mechanische Vervielfaltigungsrechte) v Commission of the European Communities
Case 45/71 R
In Case 45/71 R
GEMA ( Gessellschaft FÜR musikalische AUFFÜHRUNGS-und mecha nische Vervielfaltigungsrechte ), having its registered office at 37/38 Bayreuther Straße, 1 Berlin 30, represented by its General Manager, Erich Schulze, assisted by Professor Philipp Mohring, Advocate at the Bundes- gerichtshof, with an address for service in Luxembourg at the Chambers of Ernest Arendt, avocat-avoue, rue Philippe-II,
applicant,
v
Commission of the European Communities , represented by J. Thiesing, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the Chambers of its Legal Adviser, Émile Reuter, 4 boulevard Royal,
defendant,
Application for the adoption of an interim measure by way of an order suspending the operation of a Decision of the Commission of 2 June 1971 (Ref. IV/26.760—GEMA) applying Article 86 of the EEC Treaty to GEMA.
Facts
Following proceedings initiated on its of certain practices of which GEMA own initative against the Gesellschaft fur was accused. musikalische Aufführungs- und mecha Under Article 3 ot tnat decision GEMA
nische Vervielfaltigungsrechte (GEMA) was required to put an immediate end under Article 86 of the EEC Treaty, the to the infringements which had been Commission took a decision on 2 June established and to take the necessary 1971, Article 1 whereof stated that measures to amend the provisions in its Article 86 had been infringed as a result Articles of Association and the other of various provisions in GEMA's Articles provisions referred to in Article 1 within of Association and Article 2 stated that six months of notification of the Article 86 had been infringed as a result decision.
1 — Language of the Case: German.
ORDER OF 18. 8. 1971 — CASE 45/71 R
complained of to be avoided That decision was published in the Official Journal of the European Com The Commission opposes the request for munities of 20 June 1971. an order suspending operation and first By application lodged at the Registry on points out the contradiction between 26 July 1971 and entered on the register the request for an order suspending the under No 45/11, GEMA requested operation of the decision and the de the Court to annul the decision in claration of the applicant that it has put question. an end to the infringements noted in By a separate document registered on Article 1 (1) to (6) and Article 2 (3) of the same day it also made an applica the contested decision. It cites an ex tion for the adoption of an interim change of letters on the consequences of measure by way of an order suspending that decision which took place between the operation of the Decision of 2 June the parties. 1971 on the basis of Article 185 of The Commission nowever otters to sus
the EEC Treaty and Article 36 of the pend the operation of the decision until Protocol on the Statute of the Court of judgment is given in the main action, in Justice and in accordance with Article part unconditionally (Article 1 (7), in 83 of the Rules of Procedure of the respect of agreements concluded up to Court of Justice. 8 June 1971, and Article 1 (12)) and in In support of this application, GEMA part upon certain conditions (Article 1 claims that it would be impossible to (7), in respect of agreements concluded put an end to the situation complained after 8 June 1971, and Article 1 (9)). of without its work being thereby ir The Commission endeavours to prove retrievably paralysed. that it is impossible to grant a suspension It states that because of the legal situa of operation with regard to the other tion of GEMA and of its present and parts of the decision (Articles 1 (8), (10), future members, it would be impossible (11) and (13) and Article 2 (1) and (2)), for GEMA to ensure the continuity of its since the need or urgency for this has notbeen justified work, to divide up authors' royalties and tn give assitance to those entitled The parties were summoned to appear also claims it is impossible to at the oral proceedings on 18 August differentiate between the 'infringements' 1971 relating to the adoption of interim which must come to an end immediately measures. They put forward their argu and the 'provisions of the Articles of ments and replied to the questions put Association' which must be amended to them
within six months. The judge hearing the proceedings tor Finally, it is impossible for GEMA to the adoption of interim measures made negotiate in the immediate future agree them specify the points on which they ments which would enable the breaches were capable of reconciling their views.
Law
As regards the immediate operation of Article 1
1 Article 1 of the decision at issue states that there have been infringements of Article 86 of the Treaty arising from 'the existence' and 'the application' of various provisions of the Articles of Association of GEMA, of the contract of assignment of rights, of the internal regulations and of the rules of its social security fund.
GEMA v COMMISSION
Article 3 provides that the infringements arising from those documents must be brought to an end immediately and the necessary measures to amend them must be taken within six months of the notification.
In its application for the adoption of an interim measure GEMA states that it has brought to an end the infringements set out in Article 1 (1) to (6), so that there is only need to issue an order for a suspension of operation of the other provisions of that Article (paragraphs 7 to 13).
2 By granting a period of six months for the amendment of the documents from which the infringements arise and at the same time providing that they be brought to an end immediately, Article 3 might give rise to difficulties of interpretation which cannot be settled within the framework of the present proceedings.
Although this double period may correspond to the distinction made in Article 1 between 'the existence' and 'the application' of the documents in question, it is possible that, subject to the judgment in due course on the substance of the case, since the wording of Article 3 is not more explicit, immediate operation applies solely to the contracts of assignment of rights made after notification of the decision, whilst contracts made beforehand may benefit from the six months' period.
The Commission seemed to accept the latter distinction during the oral pro ceedings when it declared that it would refrain from the operation of Article 1 (7) in so far as it refers to contracts of assignment made before notification of the decision.
With regard to new contracts of assignment made subsequent to that notifica tion, they seem unlikely to benefit from an order suspending operation since they can contain any appropriate reservation clauses relating to any con sequences of the judgment to come.
Whilst GEMA cites the material difficulties which it might encounter in that respect, these do not seem to be insuperable since the Commission has accepted during the oral proceedings that the division by categories provided for in Article 1 (7) could be provisionally suspended.
Therefore any such difficulties cannot come into conflict with the provisions of Article 185 of the Treaty whereby actions 'shall not have suspensory effect'.
3 It seems that the operation of Article 1 (8) to (13) cannot be affected by the distinction between old and new contracts of assignment: consequently in
ORDER OF 18. 8. 1971 — CASE 45/71 R
these circumstances the interpretation whereby the six months' period laid down in Article 3 may be applicable to them cannot be completely ruled out.
In any case, it might be feared that because the number and nature of the documents concerned—GEMA's Articles of Association and internal regula tions and the rules of the social security fund—and because of the variety and the complexity of the measures ordered and their repercussions on the relationship between GEMA and its members, the immediate operation of those measures might seriously disturb GEMA's work and the interests which it administers, before the expiry of the normal period which should enable the Court to deliver judgment.
Excluding any delays, that period corresponds approximately to that laid down in Article 3 of the decision.
By itself refraining, conditionally or unconditionally, from putting into immediate operation Article 1 (9) and (12) the Commission in any case admits the difficulties thereof.
Without prejudice to the judgment to be delivered in due course and its consequences, it therefore appears that exceptional circumstances justify prima facie the grant, under Article 83 (2) of the Rules of Procedure, of an order suspending the operation of Article 1 (8) to (11) and (13) for a period of six months as from the notification of the decision of the Commission.
As regards the immediate operation of Article 2
4 Article 2 of the decision states that there have been infringements of Article 86 resulting first, from practices relating to the extension by contract of the copyright in certain musical works, secondly, from the imposition of a licence fee on sound recordings which are imported or reimported into Germany, and lastly from the imposition of a higher royalty on tape recorders and video tape recorders imported into that State.
Article 3 obliges GEMA to put an immediate end to those practices. »
The latter do not arise from the Articles of Association of GEMA or from any of the documents which it is under a duty to amend in accordance with Article 1, but result merely from GEMA's actions.
It does not appear from the written observations or from the oral proceedings that the interruption of those practices is likely to compromise the essential bases of GEMA's work as it appears from its Articles of Association.
GEMA v COMMISSION
Although interrupting those practices may constitute an inconvenience to GEMA, which the judge giving the interim ruling must take into account in the light solely of the requirements of Article 185 of the Treaty, that in convenience does not seem to be capable of paralysing the work of GEMA irretrievably.
Moreover, the applicant has stated that it put an end to one of the forms of conduct referred to (Article 2 (3)) of its own accord.
There is therefore no need to order a suspension of the operation of Article 2 (1) and (2) of the contested decision.
Costs
5 The costs should, in the circumstances, be reserved.
On these grounds,
Upon reading the pleadings; Upon hearing the parties; Having regard to the Treaty establishing the European Economic Com munity, especially Articles 86 and 185; Having regard to the Protocol of the Statute of the Court of Justice of the European Economic Community, especially Article 36; Having regard to the Rules of Procedure of the Court of Justice of the Euro pean Communities, especially Article 83 et seq.,
The President of the Court of Justice of the European Communities
hereby finds:
1. that GEMA has declared that it has 'already put an end' to the infringe ments referred to in Article 1 (1) to (6) and Article 2 (3) of the Decision of the Commission of 2 June 1971.
2. that the Commission has declared that it unconditionally refrains from putting into immediate operation Article 1 (7) — as regards contracts made up to 8 June 1971 —and paragraph 12 of the said Article;
and by way of interim ruling
ORDER OF 18. 8. 1971 — CASE 45/71 R
hereby orders:
1. The operation of Article 1 (8), (9), (10), (11) and (13) of the Deci sion of the Commission of 2 June 1971 (ref. IV/26760-GEMA) applying to GEMA Article 86 of the EEC Treaty shall be suspended for six months from notification of that decision.
2. Subject to the application of the declarations of the Commission relating to Article 1 (7) and (12), the application for an order sus pending the operation of that decision is dismissed in all further respects.
3. The costs are reserved.
So done and ordered at Luxembourg on 18 August 1971.
A. Van Houtte R. Lecourt
Registrar President